Datasets:

jonathanli

/

echr

like 0

[ "Details of the applicants’ names and places of residence are set out in the LOC .", "According to documents available on the website of ORG of ORG , the GPE originated from the regions situated between north - west GPE and LOC . The first written traces of their arrival in LOC date back to DATE . DATE there are CARDINAL GPE living in LOC . They are to be found in almost all ORG member GPE and indeed , in some central and east NORP countries , they represent PERCENT of the population . The majority of them speak Romany , an NORP language that is understood by a very large number of GPE in LOC , despite its many variants . In general , GPE also speak the dominant language of the region in which they live , or even several languages .", "Although they have been in LOC since DATE , often they are not recognised by the majority of society as a fully fledged NORP people and they have suffered throughout their history from rejection and persecution . This culminated in their attempted extermination by the NORP , who considered them an inferior race . As a result of DATE of rejection , many GPE communities DATE live in very difficult conditions , often on the fringe of society in the countries where they have settled , and their participation in public life is extremely limited .", "In GPE the Roma have national - minority status and , accordingly , enjoy the special rights associated therewith . ORG of the Government of GPE , a governmental consultative body without executive power , has responsibility for defending the interests of the national minorities , including the GPE .", "As to the number of GPE currently living in GPE , there is a discrepancy between the official , census - based , statistics and the estimated number . According to the latter , which is available on the website of ORG of GPE , the GPE community now numbers CARDINAL people .", "According to information supplied by ORG , the special schools ( zvláštní školy ) were established after the First World War for children with special needs , including those suffering from a mental or social handicap . The number of children placed in these schools continued to rise ( from CARDINAL pupils in DATE to CARDINAL in DATE ) . Owing to the entrance requirements of the primary schools ( základní školy ) and the resulting selection process , prior to DATE most GPE children attended special schools .", "Under the terms of LAW ( Law no . CARDINAL/CARDINAL ) , the legislation applicable in the present case , special schools were a category of specialised school ( speciální školy ) and were intended for children with mental deficiencies who were unable to attend “ ordinary ” or specialised primary schools . Under LAW , the decision to place a child in a special school was taken by the head teacher on the basis of the results of tests to measure the child ’s intellectual capacity carried out in an educational psychology centre and was subject to the consent of the child ’s legal guardian .", "Following the switch to the market economy in DATE , a number of changes were made to the system of special schools in GPE . These changes also affected the education of GPE pupils . In DATE ORG issued a directive concerning the provision of additional lessons for pupils who had completed their compulsory education in a special school . Since the DATE , preparatory classes for children from disadvantaged social backgrounds have been opened in nursery , primary and special schools . In DATE ORG approved an alternative educational curriculum for children of GPE origin who had been placed in special schools . GPE teaching assistants were also assigned to primary and special schools to assist the teachers and facilitate communication with the families . By virtue of amendment no . CARDINAL to GPE , which came into force on DATE , pupils who had completed their compulsory education in a special school were also eligible for admission to secondary schools , provided they satisfied the entrance requirements for their chosen course .", "According to data supplied by the applicants , which was obtained through questionnaires sent in DATE to the head teachers of the CARDINAL special schools and CARDINAL primary schools in the town of GPE , the total number of pupils placed in special schools in PERSON came to CARDINAL , of whom CARDINAL ( PERCENT ) were GPE . Conversely , GPE represented PERCENT of the total of CARDINAL primary - school pupils in PERSON . Further , although PERCENT of non - GPE pupils were placed in special schools , in PERSON the proportion of GPE pupils assigned to such schools was PERCENT . Accordingly , a GPE child in PERSON was CARDINAL times more likely to be placed in a special school than a non - GPE child .", "According to data from ORG on Racism and Xenophobia ( now ORG for Fundamental Rights ) , CARDINAL of GPE children in GPE attend special schools .", "ORG on LAW observed in its report of DATE that , according to unofficial estimates , the GPE represent PERCENT of pupils enrolled in special schools .", "Lastly , according to a comparison of data on CARDINAL countries , including countries from LOC , LOC and LOC , gathered by ORG in DATE and cited in the observations of the International Step by Step Association , ORG and ORG , GPE ranked second highest in terms of placing children with physiological impairments in special schools and in third place in the table of countries placing children with learning difficulties in such schools . Further , of the CARDINAL countries who had provided data on the schooling of children whose difficulties arose from social factors , GPE was the only one to use special schools ; the other countries concerned almost exclusively used ordinary schools for the education of such children .", "DATE the applicants were placed in special schools in PERSON , either directly or after a spell in an ordinary primary school .", "The material before the ORG shows that the applicants’ parents had consented to and in some instances expressly requested their children ’s placement in a special school . ORG was indicated by signing a pre - completed form . In the case of applicants nos . CARDINAL and DATE , the dates on the forms are later than the dates of the decisions to place the children in special schools . In both instances , the date has been corrected by hand , and CARDINAL of them is accompanied by a note from the teacher citing a typing error .", "The decisions on placement were then taken by the head teachers of the special schools concerned after referring to the recommendations of the educational psychology centres where the applicants had undergone psychological tests . The applicants’ school files contained the report on their examination , including the results of the tests with the ORG comments , drawings by the children and , in a number of cases , a questionnaire for the parents .", "The written decision concerning the placement was sent to the children ’s parents . It contained instructions on the right to appeal , a right which none of them exercised .", "On DATE the applicants received a letter from the school authorities informing them of the possibilities available for transferring from a special school to a primary school . It would appear that CARDINAL of the applicants ( nos . CARDINAL , DATE , DATE and DATE in the FAC ) were successful in aptitude tests and thereafter attended ordinary schools .", "In the review and appeals procedures referred to below , the applicants were represented by a lawyer acting on the basis of signed written authorities from their parents .", "On DATE all the applicants apart from those numbered CARDINAL , CARDINAL , DATE and CARDINAL in the ORG asked ORG ( Školský úřad ) to reconsider , outside the formal appeal procedure ( přezkoumání mimo odvolací řízení ) , the administrative decisions to place them in special schools . They argued that their intellectual capacity had not been reliably tested and that their representatives had not been adequately informed of the consequences of consenting to their placement in special schools . They therefore asked ORG to revoke the impugned decisions , which they maintained did not comply with the statutory requirements and infringed their right to education without discrimination .", "On DATE ORG informed the applicants that , as the impugned decisions complied with the legislation , the conditions for bringing proceedings outside the appeal procedure were not satisfied in their case .", "On DATE applicants nos . CARDINAL to CARDINAL in the ORG lodged a constitutional appeal in which they complained , inter alia , of de facto discrimination in the general functioning of the special - education system . In that connection , they relied on , inter alia , Articles CARDINAL and CARDINAL of the Convention and LAW No . CARDINAL . While acknowledging that they had not appealed against the decisions to place them in special schools , they alleged that they had not been sufficiently informed of the consequences of placement and argued ( on the question of the exhaustion of remedies ) that their case concerned continuing violations and issues that went far beyond their personal interests .", "In their grounds of appeal , the applicants explained that they had been placed in special schools under a practice that had been established in order to implement the relevant statutory rules . In their submission , that practice had resulted in de facto racial segregation and discrimination that were reflected in the existence of CARDINAL separately organised educational systems for members of different racial groups , namely special schools for the GPE and “ ordinary ” primary schools for the majority of the population . That difference in treatment was not based on any objective and reasonable justification , amounted to degrading treatment , and had deprived them of the right to education ( as the curriculum followed in special schools was inferior and pupils in special schools were unable to return to primary school or to obtain a secondary education other than in a vocational training centre ) . Arguing that they had received an inadequate education and an affront to their dignity , the applicants asked ORG ( GPE soud ) to find a violation of their rights , to quash the decisions to place them in special schools , to order the respondents ( the special schools concerned , ORG and ORG ) to refrain from any further violation of their rights and to restore the status quo ante by offering them compensatory lessons .", "In their written submissions to ORG , the special schools concerned pointed out that all the applicants had been enrolled on the basis of a recommendation from an educational psychology centre and with the consent of their representatives . Furthermore , despite having been notified of the relevant decisions , none of the representatives had decided to appeal . According to the schools , the ORG representatives had been informed of the differences between the special - school curriculum and the primary - school curriculum . Regular meetings of teaching staff were held to assess pupils ( with a view to their possible transfer to primary school ) . They added that some of the applicants ( nos . CARDINAL to CARDINAL in the Annex ) had been advised that there was a possibility of their being placed in primary school .", "ORG pointed out in its written submissions that the special schools had their own legal personality , that the impugned decisions contained advice on the right of appeal and that the applicants had at no stage contacted ORG .", "ORG denied any discrimination and noted a tendency on the part of the parents of GPE children to have a rather negative attitude to school work . It asserted that each placement in a special school was preceded by an assessment of the child ’s intellectual capacity and that parental consent was a decisive factor . It further noted that there were CARDINAL educational assistants of GPE origin in schools in PERSON .", "In their final written submissions , the applicants pointed out ( i ) that there was nothing in their school files to show that their progress was being regularly monitored with a view to a possible transfer to primary school , ( ii ) that the reports from the educational psychology centres contained no information on the tests that were used , and ( iii ) that their recommendations for placement in a special school were based on grounds such as an insufficient command of the NORP language , an over - tolerant attitude on the part of the parents or an ill - adapted social environment , etc . They also argued that the gaps in their education made a transfer to primary school impossible in practice and that social or cultural differences could not justify the alleged difference in treatment .", "On DATE ORG dismissed the ORG appeal , partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it . It nevertheless invited the competent authorities to give careful and constructive consideration to the ORG proposals .", "( a ) With regard to the complaint of a violation of the applicants’ rights as a result of their placement in special schools , ORG held that , CARDINAL decisions had actually been referred to in the notice of appeal , it had no jurisdiction to decide the cases of those applicants who had not appealed against the decisions concerned .", "As to the CARDINAL applicants who had lodged constitutional appeals against the decisions to place them in special schools ( nos . CARDINAL , CARDINAL , DATE , DATE and DATE in the FAC ) , ORG decided to disregard the fact that they had not lodged ordinary appeals against those decisions , as it agreed that the scope of their constitutional appeals went beyond their personal interests . However , it found that there was nothing in the material before it to show that the relevant statutory provisions had been interpreted or applied unconstitutionally , since the decisions had been taken by head teachers vested with the necessary authority on the basis of recommendations by educational psychology centres and with the consent of the ORG representatives .", "( b ) With regard to the complaints of insufficient monitoring of the applicants’ progress at school and of racial discrimination , ORG noted that it was not its role to assess the overall social context and found that the applicants had not furnished concrete evidence in support of their allegations . It further noted that the applicants had had a right of appeal against the decisions to place them in special schools , but had not exercised it . As to the objection that insufficient information had been given about the consequences of placement in a special school , ORG considered that the ORG representatives could have obtained this information by liaising with the schools and that there was nothing in the file to indicate that they had shown any interest in transferring to a primary school . ORG therefore ruled that this part of the appeal was manifestly ill - founded .", "Prior to DATE , section CARDINAL ) of the Schools Act provided that to be eligible for secondary - school education pupils had to have successfully completed their primary - school education .", "Following amendment no . CARDINAL/CARDINAL , which came into force on DATE , the amended section CARDINAL(CARDINAL ) provided that to be eligible for secondary - school education pupils had to have completed their compulsory education and demonstrated during the admission procedure that they satisfied the conditions of eligibility for their chosen course .", "Section CARDINAL(CARDINAL ) provided that special schools were intended for children with “ mental deficiencies ” ( rozumové nedostatky ) that prevented them from following the curricula in ordinary primary schools or in specialised primary schools ( speciální základní škola ) intended for children suffering from sensory impairment , illness or disability .", "This new LAW on school education no longer provides for special schools in the form that had existed prior to its entry into force . Primary education is now provided by primary schools and specialised primary schools , the latter being intended for pupils with severe mental disability or multiple disabilities and for autistic children .", "Section CARDINAL contains provisions governing the education of children and pupils with special educational needs . These are defined in subsection CARDINAL as children suffering from a disability , health problems or a social disadvantage . LAW ) provides that for the purposes of the LAW a child is socially disadvantaged , inter alia , if it comes from a family environment with low socio - cultural status or at risk of socio - pathological phenomena . Subsection CARDINAL provides that the existence of special educational needs is to be assessed by an educational guidance centre .", "The Act also makes provision , inter alia , for educational assistants , individualised education projects , preparatory classes for socially disadvantaged children prior to the period of compulsory school education and additional lessons for pupils who have not received a basic education .", "LAW laid down that the following schools were available for pupils suffering from mental disability : specialised nursery schools ( speciální mateřské školy ) , special schools , auxiliary schools ( pomocné školy ) , vocational training centres ( odborná učiliště ) and practical training schools ( praktické školy ) .", "Article CARDINAL § CARDINAL stipulated that if during the pupil ’s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability , the head teacher of the school attended by the pupil was required , after an interview with the pupil ’s representative , to recommend the pupil ’s placement in another specialised school or an ordinary school .", "Article CARDINAL § CARDINAL stipulated that the decision to place a pupil in or transfer a pupil to , inter alia , a special school was to be taken by the head teacher , provided that the pupil ’s legal guardians consented . Article QUANTITY provided that a proposal for a pupil to be placed , inter alia , in a special school could be made to the head teacher by the pupil ’s legal guardian , the pupil ’s current school , an educational psychology centre , a hospital or clinic , an authority with responsibility for family and child welfare , a health centre , etc . In the event of the pupil not receiving a place in a special school , the head teacher was required by LAW to notify the pupil ’s legal guardian and the competent school authority or the municipality in which the pupil was permanently resident of the decision . The education authority was then required , after consulting the municipality , to make a proposal regarding the school in which the pupil would receive his or her compulsory education . LAW required the educational psychology centre to assemble all the documents relevant to the decision and to make a recommendation to the head teacher regarding the type of school .", "DATE LAW provides that pupils and students with special educational needs are to be educated with the help of support measures that go beyond or are different from the individualised educational and organisational measures available in ordinary schools .", "Article CARDINAL provides that children whose special educational needs have been established with the aid of an educational or psychological examination performed by an educational guidance centre will receive special schooling if they have clear and compelling needs that warrant their placement in a special education system .", "The testing of intellectual capacity in an educational psychology centre with the consent of the child ’s legal guardians was neither compulsory nor automatic . The recommendation for the child to sit the tests was generally made by teachers DATE either when the child first enrolled at the school or if difficulties were noted in its ordinary primary - school education DATE or by paediatricians .", "According to the applicants , who cited experts in this field , the most commonly used tests appeared to be variants of ORG ( ORG and ORG ) and the ORG intelligence test . Citing various opinions , including those of teachers and psychologists and the Head of ORG at ORG in DATE , the applicants submitted that the tests used were neither objective nor reliable , as they had been devised solely for NORP children , and had not recently been standardised or approved for use with NORP children . Moreover , no measures had been taken to enable GPE children to overcome their cultural and linguistic disadvantages in the tests . Nor had any instructions been given to restrict the latitude that was given in the administration of the tests and the interpretation of the results . The applicants also drew attention to a DATE report in which ORG noted that children without any significant mental deficiencies were still being placed in special schools .", "In the report submitted by GPE on DATE pursuant to LAW , it was noted that the psychological tests “ are conceived for the majority population and do not take Romany specifics into consideration ” .", "ORG on LAW noted in its first report on GPE , which was published on DATE , that while these schools were designed for mentally handicapped children it appeared that many NORP children who were not mentally handicapped were placed in them owing to real or perceived language and cultural differences between GPE and the majority . ORG stressed that “ placing children in such special schools should take place only when it is absolutely necessary and always on the basis of consistent , objective and comprehensive tests ” .", "In its second report on GPE published on DATE ORG observed : “ Tests and methods used to assess children ’s intellectual abilities upon school enrolment have already been revised with a view to ensuring that they are not misused to the detriment of NORP children . ” However , it noted with concern that “ revision of the psychological tests used in this context has not had a marked impact . According to unofficial estimates , GPE account for PERCENT of pupils in [ special ] schools , and DATE having regard to the percentage of GPE in the population – raises doubts concerning the ORG validity and the relevant methodology followed in practice ” .", "In its report on GPE published on DATE , ORG against Racism and Intolerance ( ECRI ) noted that channelling of GPE children to special schools was reported to be often quasi - automatic . According to ORG , the poor results obtained by these children in the pre - school aptitude tests could be explained by the fact that in GPE most GPE children did not attend kindergarten education . ECRI therefore considered that the practice of channelling ORG children into special schools for those with mental retardation should be fully examined , to ensure that any testing used was fair and that the true abilities of each child were properly evaluated .", "In its next report on GPE , which was published in DATE , ORG noted that the test developed by ORG for assessing a child ’s mental level was not mandatory , and was CARDINAL of a battery of tools and methods recommended to the educational guidance centres .", "In his final report on the human rights situation of the GPE , PERSON and Travellers in LOC of DATE , the Commissioner for Human Rights observed : “ NORP children are frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment , the real criteria clearly being their ethnic origin . ”", "According to the observations submitted by the International Step by Step Association , ORG and ORG , countries in east - central and south - eastern LOC typically lacked national definitions of “ disability ” ( related to the placement of students in special schools ) and used definitions in which some form of disability was connected to the socio - cultural background of the child , thus leaving the door to discriminatory practices open . Data on children with disabilities were drawn largely from administrative sources rather than being derived from a thorough assessment of the actual characteristics of the child . Thus , divisive practices and the use of a single test were common in DATE .", "It is alleged in the observations that the assessment used to place GPE children in special schools in the PERSON region ran contrary to effective assessment indicators that were well known by DATE , for example , those published in DATE by ORG ) . These indicators were now associated with ORG for ORG , which included member organisations in LOC and , more particularly , GPE . Relevant indicators included : ethical principles to guide assessment practices ; the use of assessment instruments for their intended purposes and in such a way as to meet professional quality criteria ; assessments appropriate to the ages and other characteristics of the children being assessed ; recognition of the developmental and educational significance of the subject matter of the assessment ; the use of assessment evidence to understand and improve learning ; the gathering of assessment evidence from realistic settings and in situations that reflected children ’s actual performance ; the use of multiple sources of evidence gathered over time for assessments ; the existence of a link between screening and follow - up ; limitations on the use of individually administered , norm - referenced tests ; and adequate information for staff and families involved in the assessment process .", "Thus , the assessment of GPE children in the PERSON region did not take into account the language and culture of the children , or their prior learning experiences , or their unfamiliarity with the demands of the testing situation . Single rather than multiple sources of evidence were used . Testing was done in CARDINAL sitting , not over time . Evidence was not obtained in realistic or authentic settings where children could demonstrate their skills . Undue emphasis was placed on individually administered , standardised tests normed on other populations .", "According to studies cited in these observations ( ORG ( DATE ) ; ORG ( DATE ) , Denied a future ? The right to education of ORG and NORP children ; PERSON and PERSON ( DATE ) , Introduction : Racial inequity in special education , GPE , ORG : ORG ) , disproportionately placing certain groups of students in special education resulted from an array of factors , including “ unconscious racial bias on the part of school authorities , large resource inequalities , an unjustifiable reliance on IQ and other evaluation tools , educators’ inappropriate responses to the pressures of high - stakes testing , and power differentials between minority parents and school officials ” . Thus , school placement through psychological testing often reflected racial biases in the society concerned .", "The Government observed that the unification of NORP norms used by psychologists was currently under way and that the ORG authorities had taken all reasonable steps to ensure that the psychological tests were administered by appropriately qualified experts with university degrees applying the latest professional and ethical standards in their specialised field . In addition , research conducted in DATE by NORP experts at the request of ORG showed that GPE children had attained in a standard test of intelligence ( WISC - III ) only insignificantly lower results than comparable non - ORG children ( CARDINAL point on the IQ scale ) .", "DATE no . CARDINAL/CARDINAL on specialised schools made the consent of the legal guardians a condition sine qua non for the child ’s placement in a special school . The applicants noted that the NORP legislation did not require the consent to be in writing . Nor did information on the education provided by special schools or the consequences of the child ’s placement in a special school have to be provided beforehand .", "In its report on GPE published in DATE , ORG observed that GPE parents often favoured the channelling of GPE children to special schools , partly to avoid abuse from non - NORP children in ordinary schools and isolation of the child from other neighbourhood GPE children , and partly owing to a relatively low level of interest in education .", "In its report on GPE published in DATE , ORG noted that when deciding whether or not to give their consent parents of NORP children continued “ to lack information concerning the long - term negative consequences of sending their children to such schools ” , which were “ often presented to parents as an opportunity for their children to receive specialised attention and be with other GPE children ” .", "According to information obtained by ORG from its NORP affiliate , many schools in GPE are reluctant to accept GPE children . That reluctance is explained by the reaction of the parents of non - NORP children , which , in numerous cases , has been to remove their children from integrated schools because the parents fear that the level of the school will fall following the arrival of NORP children or , quite simply , because of prejudice against the GPE . It is in that context that GPE children undergo tests designed to ascertain their capacity to follow the ordinary curriculum , following which parents of NORP children are encouraged to place their children in special schools . The GPE choice to place their children in special schools , where that is what they choose to do , is consistent with the school authorities’ desire not to admit so many GPE children that their arrival might induce the parents of non - GPE children to remove their own children from the school .", "Pupils in special schools follow a special curriculum supposedly adapted to their intellectual capacity . After completing their course of compulsory education in this type of school , they may elect to continue their studies in vocational training centres or , since DATE , in other forms of secondary school ( provided they are able to establish during the admissions procedure that they satisfy the entrance requirements for their chosen course ) .", "Further , LAW no . CARDINAL stipulated that , if during the pupil ’s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability , the head teacher of the school attended by the child or pupil was required , after an interview with the pupil ’s guardian , to recommend the pupil ’s placement in another specialised school or in an ordinary school .", "In his final report on the human rights situation of the GPE , PERSON and Travellers in LOC of DATE , the Commissioner for Human Rights noted : “ Being subjected to special schools or classes often means that these children follow a curriculum inferior to those of mainstream classes , which diminishes their opportunities for further education and for finding employment in the future . The automatic placement of NORP children in classes for children with special needs is likely to increase the stigma by labelling the NORP children as less intelligent and less capable . At the same time , segregated education denies both the GPE and non - GPE children the chance to know each other and to learn to live as equal citizens . It excludes GPE children from mainstream society at the very beginning of their lives , increasing the risk of their being caught in the vicious circle of marginalisation . ”", "ORG on LAW noted in its second report on GPE , which was published on DATE , that placement in a special school “ makes it more difficult for GPE children to gain access to other levels of education , thus reducing their chances of integrating in the society . Although legislation no longer prevents children from advancing from ‘ special’ to ordinary secondary schools , the level of education offered by ‘ NORP schools generally does not make it possible to cope with the requirements of secondary schools , with the result that most drop out of the system ” .", "According to the observations submitted by the International Step by Step Association , ORG and ORG , the placement of children in segregated special schools was an example of a very early “ tracking ” of students , in this case by assigning children perceived to be of “ low ability ” or “ low potential ” to special schools from DATE . Such practices increased educational inequity as they had especially negative effects on the achievement levels of disadvantaged children ( see , inter alia , the FAC from the Commission of ORG to the ORG and to ORG on efficiency and equity in NORP education and training systems ( ORG , DATE ) ) . The longer - term consequences of “ tracking ” included pupils being channelled towards less prestigious forms of education and training and pupils dropping out of school early . ORG could thus help create a social construction of failure .", "In their observations to the ORG , the organisations ORG , ORG Racism and ORG noted that children in special schools followed a simplified curriculum that was considered appropriate for their lower level of development . Thus , in GPE , children in special schools were not expected to know the alphabet or numbers up to CARDINAL until DATE of school , while their counterparts in ordinary schools acquired that knowledge in DATE .", "The ORG provides as follows :", "“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,", "Considering that the aim of ORG is to achieve greater unity between its members and that this aim may be pursued , in particular , through common action in the field of education ;", "Recognising that there is an urgent need to build new foundations for future educational strategies toward the Roma / Gypsy people in LOC , particularly in view of the high rates of illiteracy or semi - literacy among them , their high drop - out rate , the low percentage of students completing primary education and the persistence of features such as low school attendance ;", "Noting that the problems faced by ORG in the field of schooling are largely the result of long - standing educational policies of the past , which led either to assimilation or to segregation of ORG children at school on the grounds that they were ‘ socially and culturally FAC ;", "Considering that the disadvantaged position of ORG in NORP societies can not be overcome unless equality of opportunity in the field of education is guaranteed for ORG children ;", "Considering that the education of ORG children should be a priority in national policies in favour of ORG ;", "Bearing in mind that policies aimed at addressing the problems faced by ORG in the field of education should be comprehensive , based on an acknowledgement that the issue of schooling for ORG children is linked with a wide range of other factors and pre - conditions , namely the economic , social and cultural aspects , and the fight against racism and discrimination ;", "Bearing in mind that educational policies in favour of ORG children should be backed up by an active adult education and vocational education policy ;", "...", "Recommends that in implementing their education policies the governments of the member States :", "– be guided by the principles set out in the appendix to this Recommendation ;", "– bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels . ”", "The relevant sections of the Appendix to Recommendation No . R ( DATE ) CARDINAL read as follows :", "“ Guiding principles of an education policy for ORG children in LOC", "I. Structures", "Educational policies for ORG children should be accompanied by adequate resources and the flexible structures necessary to meet the diversity of the ORG population in LOC and which take into account the existence of ORG groups which lead an itinerant or semi - itinerant lifestyle . In this respect , it might be envisaged having recourse to distance education , based on new communication technologies .", "Emphasis should be put on the need to better coordinate the international , national , regional and local levels in order to avoid dispersion of efforts and to promote synergies .", "To this end member GPE should make the ORG sensitive to the question of education of ORG children .", "NORP In order to secure access to school for ORG children , pre - school education schemes should be widely developed and made accessible to them .", "Particular attention should also be paid to the need to ensure better communication with parents , where necessary using mediators from the ORG community which could then lead to specific career possibilities . Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families . There has to be mutual understanding between parents and schools . The GPE exclusion and lack of knowledge and education ( even illiteracy ) also prevent children from benefiting from the education system .", "Appropriate support structures should be set up in order to enable ORG children to benefit , in particular through positive action , from equal opportunities at school .", "NORP The member States are invited to provide the necessary means to implement the above - mentioned policies and arrangements in order to close the gap between ORG pupils and majority pupils .", "II . Curriculum and teaching material", "Educational policies in favour of ORG children should be implemented in the framework of broader intercultural policies , taking into account the particular features of the NORP culture and the disadvantaged position of many Roma / Gypsies in the member GPE .", "The curriculum , on the whole , and the teaching material should therefore be designed so as to take into account the cultural identity of ORG children . PERSON history and culture should be introduced in the teaching material in order to reflect the cultural identity of ORG children . The participation of representatives of ORG community should be encouraged in the development of teaching material on the history , culture or language of the Roma / Gypsies .", "NORP However , the member GPE should ensure that this does not lead to the establishment of separate curricula , which might lead to the setting up of separate classes .", "NORP The member GPE should also encourage the development of teaching material based on good practices in order to assist teachers in their DATE work with ORG pupils .", "NORP In the countries where the NORP language is spoken , opportunities to learn in the mother tongue should be offered at school to ORG children .", "III . Recruitment and training of teachers", "It is important that future teachers should be provided with specific knowledge and training to help them understand better their ORG pupils . The education of ORG pupils should however remain an integral part of the general educational system .", "The Roma / Gypsy community should be involved in the designing of such curricula and should be directly involved in the delivery of information to future teachers .", "Support should also be given to the training and recruitment of teachers from within the Roma / Gypsy community .", "... ”", "ORG made , inter alia , the following general observations :", "“ CARDINAL . CARDINAL of the aims of ORG is to promote the emergence of a genuine NORP cultural identity . LOC harbours many different cultures , all of them , including the many minority cultures , enriching and contributing to the cultural diversity of LOC .", "A special place among the minorities is reserved for NORP . Living scattered all over LOC , not having a country to call their own , they are a true NORP minority , but one that does not fit into the definitions of national or linguistic minorities .", "As a non - territorial minority , NORP greatly contribute to the cultural diversity of LOC . In different parts of LOC they contribute in different ways , be it by language and music or by their trades and crafts .", "NORP With central and east NORP countries now member GPE , the number of NORP living in the area of ORG has increased drastically .", "Intolerance of Gypsies by others has existed throughout the ages . Outbursts of racial or social hatred , however , occur more and more regularly , and the strained relations between communities have contributed to the deplorable situation in which the majority of NORP lives today .", "Respect for the rights of NORP , individual , fundamental and human rights and their rights as a minority is essential to improve their situation .", "Guarantees for equal rights , equal chances , equal treatment , and measures to improve their situation will make a revival of PERSON language and culture possible , thus enriching the NORP cultural diversity .", "The guarantee of the enjoyment of the rights and freedoms set forth in LAW is important for NORP as it enables them to maintain their individual rights .", "... ”", "As far as education is concerned , the ORG states :", "“ ...", "vi . the existing NORP programmes for training teachers of NORP should be extended ;", "vii . special attention should be paid to the education of women in general and mothers together with their younger children ;", "viii . talented young NORP should be encouraged to study and to act as intermediaries for NORP ;", "... ”", "This Recommendation states , inter alia :", "“ ...", "DATE Roma are still subjected to discrimination , marginalisation and segregation . Discrimination is widespread in every field of public and personal life , including access to public places , education , employment , health services and housing , as well as crossing borders and access to asylum procedures . Marginalisation and the economic and social segregation of GPE are turning into ethnic discrimination , which usually affects the weakest social groups .", "Roma form a special minority group , in so far as they have a double minority status . They are an ethnic community and most of them belong to the socially disadvantaged groups of society .", "...", "ORG can and must play an important role in improving the legal status , the level of equality and the living conditions of GPE . The ORG calls upon the member ORG to complete the CARDINAL general conditions , which are necessary for the improvement of the situation of GPE in LOC :", "...", "c. to guarantee equal treatment for the NORP minority as an ethnic or national minority group in the field of education , employment , housing , health and public services . Member GPE should give special attention to :", "i. promoting equal opportunities for GPE on the labour market ;", "ii . providing the possibility for Romany students to participate in all levels of education from kindergarten to university ;", "iii . developing positive measures to recruit GPE in public services of direct relevance to GPE communities , such as primary and secondary schools , social welfare centres , local primary health care centres and local administration ;", "iv . eradicating all practices of segregated schooling for Romany children , particularly that of routing NORP children to schools or classes for the mentally disabled ;", "d. to develop and implement positive action and preferential treatment for the socially deprived strata , including GPE as a socially disadvantaged community , in the field of education , employment and housing :", "...", "e. to take specific measures and create special institutions for the protection of the Romany language , culture , traditions and identity :", "...", "ii . to encourage Romany parents to send their children to primary school , secondary school and higher education , including college or university , and give them adequate information about the necessity of education ;", "...", "v. to recruit GPE teaching staff , particularly in areas with a large NORP population ;", "PERSON to combat racism , xenophobia and intolerance and to ensure non - discriminatory treatment of GPE at local , regional , national and international levels :", "...", "vi . to pay particular attention to the phenomenon of the discrimination against GPE , especially in the fields of education and employment ;", "... ”", "The relevant sections of this Recommendation state :", "“ ORG against Racism and Intolerance :", "...", "Recalling that combating racism , xenophobia , antisemitism and intolerance forms an integral part of the protection and promotion of human rights , that these rights are universal and indivisible , and that all human beings , without any distinction whatsoever , are entitled to these rights ;", "Stressing that combating racism , xenophobia , antisemitism and intolerance is above all a matter of protecting the rights of vulnerable members of society ;", "Convinced that in any action to combat racism and discrimination , emphasis should be placed on the victim and the improvement of his or her situation ;", "Noting that ORG suffer throughout LOC from persisting prejudices , are victims of a racism which is deeply - rooted in society , are the target of sometimes violent demonstrations of racism and intolerance and that their fundamental rights are regularly violated or threatened ;", "Noting also that the persisting prejudices against ORG lead to discrimination against them in many fields of social and economic life , and that such discrimination is a major factor in the process of social exclusion affecting many Roma / Gypsies ;", "Convinced that the promotion of the principle of tolerance is a guarantee of the preservation of open and pluralistic societies allowing for a peaceful coexistence ;", "recommends the following to ORG of member PERSON :", "...", "– to ensure that discrimination as such , as well as discriminatory practices , are combated through adequate legislation and to introduce into civil law specific provisions to this end , particularly in the fields of employment , housing and education ;", "...", "– to vigorously combat all forms of school segregation towards ORG children and to ensure the effective enjoyment of equal access to education ;", "... ”", "The following definitions are used for the purposes of this Recommendation :", "“ CARDINAL ) ’racism’ shall mean the belief that a ground such as race , colour , language , religion , nationality or national or ethnic origin justifies contempt for a person or a group of persons , or the notion of superiority of a person or a group of persons .", "( b ) NORP racial discrimination’ shall mean any differential treatment based on a ground such as race , colour , language , religion , nationality or national or ethnic origin , which has no objective and reasonable justification . Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised .", "( c ) ORG racial discrimination’ shall mean cases where an apparently neutral factor such as a provision , criterion or practice can not be as easily complied with by , or disadvantages ... persons belonging to a group designated by a ground such as race , colour , language , religion , nationality or national or ethnic origin , unless this factor has an objective and reasonable justification . This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised . ”", "In the explanatory memorandum to this Recommendation , it is noted ( point CARDINAL) that the definitions of direct and indirect racial discrimination contained in paragraph CARDINAL ( b ) and ( c ) of the Recommendation draw inspiration from those contained in ORG CARDINAL/CARDINAL/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in ORG CARDINAL establishing a general framework for equal treatment in employment and occupation , and on the case - law of ORG .", "In the section of the report dealing with the policy aspects of education and training , ORG stated that public opinion appeared sometimes to be rather negative towards certain groups , especially the ORG community , and suggested that further measures should be taken to raise public awareness of the issues of racism and intolerance and to improve tolerance towards all groups in society . It added that special measures should be taken as regards the education and training of the members of minority groups , particularly members of ORG community .", "In this report , ORG stated that the disadvantages and effective discrimination faced by members of the ORG community in the field of education were of particularly serious concern . It was noted that ORG children were vastly over - represented in special schools and that their channelling to special schools was reported to be often quasi - automatic . ORG parents often favoured this solution , partly to avoid abuse from non - ORG children in ordinary schools and isolation of the child from other neighbourhood Roma / Gypsy children , and partly owing to a relatively low level of interest in education . Most ORG children were consequently relegated to educational facilities designed for other purposes , offering little opportunity for skills training or educational preparation and therefore very limited opportunity for further study or employment . Participation of members of ORG community in education beyond the primary school level was extremely rare .", "DATE ECRI therefore considered that the practice of channelling Roma / Gypsy children into special schools for those with mental retardation should be fully examined to ensure that any testing used was fair and that the true abilities of each child were properly evaluated . ORG also considered that it was fundamental that ORG parents should be made aware of the need for their children to receive a normal education . In general , ORG considered that there was a need for closer involvement of members of the ORG community in matters concerning education . As a start , the authorities needed to ensure that ORG parents were kept fully informed of measures taken and were encouraged to participate in educational decisions affecting their children .", "With regard to the access of GPE children to education , ORG said in this report that it was concerned that GPE children continued to be sent to special schools which , besides perpetuating their segregation from mainstream society , severely disadvantaged them for the rest of their lives . The standardised test developed by ORG for assessing a child ’s mental level was not mandatory and was CARDINAL of a battery of tools and methods recommended to the psychological counselling centres . As to the other element required in order to send a child to a special school – the consent of the child ’s legal guardian DATE ECRI observed that parents making such decisions continued to lack information concerning the long - term negative consequences of sending their children to such schools , which were often presented to parents as an opportunity for their children to receive specialised help and be with other GPE children . ORG also said that it had received reports of GPE parents being turned away from ordinary schools .", "ORG also noted that LAW had come into force in DATE and provided the opportunity for pupils from special schools to apply for admission to secondary schools . According to various sources , that remained largely a theoretical possibility as special schools did not provide children with the knowledge required to follow the secondary - school curriculum . There were no measures in place to provide additional education to pupils who had gone through the special - school system to bring them to a level where they would be adequately prepared for ordinary secondary schools .", "ORG had received very positive feedback concerning the success of ‘ CARDINAL - grade courses’ ( preparatory classes ) at pre - school level in increasing the number of GPE children who attended ordinary schools . It expressed its concern , however , over a new trend to maintain the system of segregated education in a new form – this involved special classes in mainstream schools . In that connection , a number of concerned actors were worried that the proposed new GPE created the possibility for even further separation of GPE through the introduction of a new category of special programmes for the “ socially disadvantaged ” .", "Lastly , ORG noted that , despite initiatives taken by ORG ( classroom assistants , training programmes for teachers , revision of the primary - school curriculum ) , the problem of low levels of GPE participation in secondary and higher education that had been described by ORG in its second report persisted .", "NORP The report stated that the government had adopted measures in the education sphere that were focused on providing suitable conditions especially for children from socially and culturally disadvantaged environments , in particular the GPE community , by opening preparatory classes in elementary and special schools . It was noted that “ Romany children with average or above - average intellect are often placed in such schools on the basis of results of psychological tests ( this happens always with the consent of the parents ) . These tests are conceived for the majority population and do not take Romany specifics into consideration . Work is being done on restructuring these tests ” . In some special schools GPE pupils made up PERCENT of the total number of pupils .", "GPE accepted that the GPE were particularly exposed to discrimination and social exclusion and said that it was preparing to introduce comprehensive anti - discrimination tools associated with the implementation of ORG implementing the principle of equal treatment . New legislation was due to be enacted in DATE ( the LAW no . DATE , was passed on DATE and came into force on DATE ) .", "In the field of GPE education , the report said that the ORG had taken various measures of affirmative action in order to radically change the present situation of GPE children . The government regarded the practice of referring large numbers of GPE children to special schools as untenable . The need for affirmative action was due not only to the socio - cultural handicap of GPE children , but also to the nature of the whole education system and its inability to sufficiently reflect cultural differences . The proposed new GPE would bring changes to the special - education system by transforming “ special schools ” into “ special primary schools ” , thus providing the children targeted assistance in overcoming their socio - cultural handicap . These included preparatory classes , individual study programmes for children in special schools , measures concerning pre - school education , an expanded role for assistants from the GPE community and specialised teacher - training programmes . As CARDINAL of the main problems encountered by GPE pupils was their poor command of the NORP language , ORG considered that the best solution ( and the only realistic one ) would be to provide preparatory classes at the pre - school stage for children from disadvantaged socio - cultural backgrounds .", "The report also cited a number of projects and programmes that had been implemented nationally in this sphere ( Support for GPE integration , ORG education reform , and PERSON special - school pupils in primary schools ) .", "DATE . ORG noted that , while the special schools were designed for mentally handicapped children , it appeared that many NORP children who were not mentally handicapped were placed in these schools due to real or perceived language and cultural differences between GPE and the majority . It considered that this practice was not compatible with LAW and stressed that placing children in such schools should take place only when absolutely necessary and always on the basis of consistent , objective and comprehensive tests .", "The special schools had led to a high level of separation of GPE pupils from others and to a low level of educational skills in the GPE community . This was recognised by the NORP authorities . Both governmental and civil society actors agreed on the need for a major reform . There was however disagreement about the precise nature of the reform to be carried out , the amount of resources to be made available and the speed with which reforms were to be implemented . ORG was of the opinion that the NORP authorities ought to develop the reform , in consultation with the persons concerned , so as to ensure equal opportunities for access to schools for GPE children and equal rights to an ordinary education , in accordance with the principles set out in ORG . R ( DATE ) CARDINAL on the education of ORG children in LOC .", "ORG noted with approval the initiatives that had been taken to establish so - called CARDINAL classes , allowing the preparation of GPE children for basic school education , inter alia , by improving their NORP language skills , and encouraged the authorities to make these facilities more broadly available . It also considered the creation of posts of GPE pedagogical advisers in schools , a civil society initiative , to be a most positive step . ORG encouraged the ORG authorities in their efforts to ensure the increase and development of such posts . A further crucial objective was to ensure a much higher number of GPE children had access to and successfully completed secondary education .", "In this opinion , ORG noted that the authorities were genuinely committed to improving the educational situation of GPE children , and were trying , in various ways , to realise this aim in practice . In that connection , it noted that it was too early to determine whether the revised educational system introduced by the new GPE ( Law no . DATE ) would substantially change the existing situation of over - representation of NORP children in special schools or special classes .", "ORG noted that the authorities were paying special attention to the unjustified placement of GPE children in special schools . Tests and methods used to assess children ’s intellectual abilities upon school enrolment had already been revised with a view to ensuring that they were not misused to the detriment of NORP children . Special educational programmes had been launched to help GPE children overcome their problems . These included waiving fees for DATE , relaxing the rules on minimum class sizes , more individualised education , appointing educational assistants ( mostly GPE ) , as well as producing methodological handbooks and guidelines for teachers working with NORP children . Preparatory pre - school classes had also been organised for NORP children , and had worked well , although on a fairly limited scale . To accommodate all the children concerned , these measures needed to be applied more widely . ORG also took note of the special support programme for GPE access to secondary and higher education , and of the efforts that had been made to build up a network of qualified GPE teachers and educational assistants .", "ORG noted , however , that although constant monitoring and evaluation of the school situation of GPE children was one of the government ’s priorities the relevant report submitted by GPE said little about the extent to which they were currently integrated in schools , or the effectiveness and impact of the many measures that had been taken for them . It noted with concern that the measures had produced few improvements and that local authorities did not systematically implement the government ’s school support scheme and did not always have the determination needed to act effectively in this field .", "ORG noted with concern that , according to non - governmental sources , a considerable number of GPE children were still being placed in special schools at DATE , and that revision of the psychological tests used in this context had not had a marked impact . According to unofficial estimates , GPE accounted for PERCENT of pupils in these schools , and DATE having regard to the percentage of GPE in the population – raised doubts concerning the ORG validity and the methodology followed . This situation was made all the more disturbing by the fact that it also made it more difficult for GPE children to gain access to other levels of education , thus reducing their chances of integrating in society . Although legislation no longer prevented children from advancing from special to ordinary secondary schools , the level of education offered by special schools generally did not make it possible to cope with the requirements of secondary schools , with the result that most dropped out of the system . Although estimates of the number of NORP children who remained outside the school system varied , those who did attend school rarely advanced beyond primary school .", "In addition , ORG noted that , in spite of the awareness - raising initiatives taken by ORG , many of the NORP children who attended ordinary schools were isolated by other children and by teaching staff , or even placed in separate classes . At the same time , it was recognised that in some schools NORP children were the largest pupil group simply because the schools concerned were located near the places where GPE resided compactly . According to other sources , material conditions in some of the schools they attended were precarious and the teaching they received was still , in most cases , insufficiently adapted to their situation . It was important to ensure that these schools , too , provided quality education .", "DATE . According to ORG priority had to go to placing GPE children in ordinary schools , supporting and promoting preparatory classes and also to educational assistants . ORG teaching staff and making all education staff aware of the specific situation of NORP children also needed to receive increased attention . An active involvement on the part of the parents , in particular with regard to the implementation of the new GPE , also needed to be promoted as a condition sine qua non for the overall improvement of the educational situation of the GPE . Lastly , more determined action was needed to combat isolation of GPE children in both ordinary and special schools . A clearer approach , coupled with instructions and immediate action on all levels , was needed to put an end to unjustified placement of these children in special schools designed for children with mental disabilities . Effective monitoring measures , particularly designed to eliminate undue placement of children in such schools , had to be one of the authorities’ constant priorities .", "In the third section of the report , which concerns discrimination in education , the Commissioner for Human Rights noted that the fact that a significant number of GPE children did not have access to education of a similar standard enjoyed by other children was in part a result of discriminatory practices and prejudices . In that connection , he noted that segregation in education was a common feature in many ORG member GPE . In some countries there were segregated schools in segregated settlements , in others special classes for GPE children in ordinary schools or a clear over - representation of NORP children in classes for children with special needs . NORP children were frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment , the real criteria clearly being their ethnic origin . Being subjected to special schools or classes often meant that these children followed a curriculum inferior to those of mainstream classes , which diminished their opportunities for further education and for finding employment in the future . The automatic placement of NORP children in classes for children with special needs was likely to increase the stigma by labelling the NORP children as less intelligent and less capable . At the same time , segregated education denied both the GPE and non - GPE children the chance to know each other and to learn to live as equal citizens . It excluded NORP children from mainstream society at the very beginning of their lives , increasing the risk of their being caught in the vicious circle of marginalisation .", "The Commissioner was told that in GPE the young members of the Roma / Gypsy community were drastically over - represented in “ special ” schools and classes for children with a slight mental disability . At the same time he noted that the authorities had introduced GPE assistant teachers in ordinary classes and set up preliminary classes and that these initiatives had had promising results , though only on a small scale due to the lack of adequate resources . In particular , preparatory classes for socially disadvantaged children had been central in efforts to overcome excessive attendance of GPE children in special schools . The NORP authorities deemed that preparatory schools attached to nursery schools had been particularly successful in easing the integration of NORP children in ordinary schools . In DATE GPE also had CARDINAL teaching assistants who attended to the special needs of GPE pupils .", "It was also noted that special classes or special curricula for the ORG had been introduced with good intentions , for the purposes of overcoming language barriers or remedying the lack of pre - school attendance of GPE children . Evidently , it was necessary to respond to such challenges , but segregation or systematic placement of NORP children in classes which followed a simplified or a special LANGUAGE curriculum while isolating them from other pupils was clearly a distorted response . Instead of segregation , significant emphasis had to be placed on measures such as pre - school and in - school educational and linguistic support as well as the provision of school assistants to work alongside teachers . In certain communities , it was crucial to raise the awareness of GPE parents , who themselves might not have had the possibility to attend school , of the necessity and benefits of adequate education for their children .", "In conclusion , the Commissioner made a number of recommendations related to education . Where segregated education still existed in CARDINAL form or another , it had to be replaced by ordinary integrated education and , where appropriate , banned through legislation . Adequate resources had to be made available for the provision of pre - school education , language training and school - assistant training in order to ensure the success of desegregation efforts . Adequate assessment had to be made before children were placed in special classes , in order to ensure that the sole criterion in the placement was the objective needs of the child , not his or her ethnicity .", "The principle prohibiting discrimination or requiring equality of treatment is well established in a large body of Community law instruments based on LAW establishing ORG . This provision enables the ORG , through a unanimous decision following a proposal / recommendation by the ORG and consultation of ORG , to take the measures necessary to combat discrimination based on sex , race or ethnic origin , religion or belief , disability , age or sexual orientation .", "Thus , LAW DATE on the burden of proof in cases of discrimination based on sex provides that “ indirect discrimination shall exist where an apparently neutral provision , criterion or practice disadvantages a substantially higher proportion of the members of CARDINAL sex unless that provision , criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex ” . LAW , which concerns the burden of proof , reads : “ Member GPE shall take such measures as are necessary , in accordance with their national judicial systems , to ensure that , when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish , before a court or other competent authority , facts from which it may be presumed that there has been direct or indirect discrimination , it shall be for the respondent to prove that there has been no breach of the principle of equal treatment . ”", "Similarly , the aim of Council Directives CARDINAL/CARDINAL/EC of DATE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and CARDINAL of DATE establishing a general framework for equal treatment in employment and occupation is to prohibit in their respective spheres all direct or indirect discrimination based on race , ethnic origin , religion or belief , disability , age or sexual orientation . The preambles to these ORG state as follows : “ The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies , in accordance with rules of national law or practice . Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence ” and “ The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and , for the principle of equal treatment to be applied effectively , the burden of proof must shift back to the respondent when evidence of such discrimination is brought . ”", "NORP In particular , Directive CARDINAL/CARDINAL/EC provides as follows :", "“ CARDINAL . For the purposes of this Directive , the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin .", "For the purposes of paragraph CARDINAL :", "( a ) NORP direct discrimination shall be taken to occur where CARDINAL person is treated less favourably than another is , has been or would be treated in a comparable situation on grounds of racial or ethnic origin ;", "( b ) NORP indirect discrimination shall be taken to occur where an apparently neutral provision , criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons , unless that provision , criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary .", "... ”", "“ CARDINAL . Member GPE shall take such measures as are necessary , in accordance with their national judicial systems , to ensure that , when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish , before a court or other competent authority , facts from which it may be presumed that there has been direct or indirect discrimination , it shall be for the respondent to prove that there has been no breach of the principle of equal treatment .", "Paragraph CARDINAL shall not prevent Member GPE from introducing rules of evidence which are more favourable to plaintiffs .", "Paragraph CARDINAL shall not apply to criminal procedures .", "...", "Member GPE need not apply paragraph CARDINAL to proceedings in which it is for the court or competent body to investigate the facts of the case . ”", "Under the case - law of ORG of ORG ) , discrimination , which entails the application of different rules to comparable situations or the application of the same rule to different situations , may be overt or covert and direct or indirect .", "In its PERSON v. PERSON judgment of CARDINAL DATE ( Case DATE , point CARDINAL ) , the ORG stated :", "“ The rules regarding equality of treatment ... forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which , by the application of other criteria of differentiation , lead in fact to the same result .", "... ”", "In its ORG - PERSON v. PERSON judgment of CARDINAL DATE ( Case DATE ) , it stated :", "“ ... LAW is infringed by a department store company which excludes part - time employees from its occupational pension scheme , where that exclusion affects a far greater number of women than men , unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex . ”", "In GPE v. Secretary of ORG , ex parte PERSON and PERSON ( judgment of DATE , Case ORG , points CARDINAL , DATE , DATE , DATE and DATE ) , the ORG observed :", "“ ... the national court seeks to ascertain the legal test for establishing whether a measure adopted by a Member ORG has disparate effect as between men and women to such a degree as to amount to indirect discrimination . ...", "...", "... the ORG proposes a ‘ statistically significant’ test , whereby statistics must form an adequate basis of comparison and the national court must ensure that they are not distorted by factors specific to the case . The existence of statistically significant evidence is enough to establish disproportionate impact and pass the onus to the author of the allegedly discriminatory measure .", "...", "It is also for the national court to assess whether the statistics concerning the situation ... are valid and can be taken into account , that is to say , whether they cover enough individuals , whether they illustrate purely fortuitous or short - term phenomena , and whether , in general , they appear to be significant ( see Case C-CARDINAL/CARDINAL Enderby [ DATE ] ORG , paragraph CARDINAL ) . ...", "...", "Accordingly , ... in order to establish whether a measure adopted by a Member ORG has disparate effect as between men and women to such a degree as to amount to indirect discrimination for the purposes of LAW , the national court must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement imposed by that measure . If that is the case , there is indirect sex discrimination , unless that measure is justified by objective factors unrelated to any discrimination based on sex .", "...", "... if a considerably smaller percentage of women than men is capable of fulfilling the requirement ... imposed by the disputed rule , it is for the Member ORG , as the author of the allegedly discriminatory rule , to show that the said rule reflects a legitimate aim of its social policy , that that aim is unrelated to any discrimination based on sex , and that it could reasonably consider that the means chosen were suitable for attaining that aim . ”", "In its judgment of DATE in PERSON v. PERSON am ORG ) and PERSON v. ORG ) , the ORG noted at points DATE and CARDINAL :", "“ ... it must be borne in mind that LAW and Article CARDINAL(CARDINAL ) and ( CARDINAL ) ORG set out the principle that men and women should receive equal pay for equal work . That principle precludes not only the application of provisions leading to direct sex discrimination , but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination ...", "It is common ground that the provisions of the BeamtVG at issue do not entail discrimination directly based on sex . It is therefore necessary to ascertain whether they can amount to indirect discrimination ...", "To establish whether there is indirect discrimination , it is necessary to ascertain whether the provisions at issue have a more unfavourable impact on women than on men ...", "...", "Therefore it is necessary to determine whether the statistics available indicate that a considerably higher percentage of women than men is affected by the provisions of the BeamtVG entailing a reduction in the pensions of civil servants who have worked part - time for at least a part of their career . Such a situation would be evidence of apparent discrimination on grounds of sex unless the provisions at issue were justified by objective factors unrelated to any discrimination based on sex . ”", "In PERSON v. ORG , ORG ... and Secretary of ORG for ORG and ORG ( judgment of CARDINAL DATE , ORG ) , it stated ( point CARDINAL ) :", "“ ... it must be held that a woman may rely on statistics to show that a clause in ORG legislation is contrary to Article CARDINAL ) ORG because it discriminates against female workers . ... ”", "Lastly , in Commission of the European Communities v. Republic of GPE ( judgment of DATE , Case C-CARDINAL/CARDINAL ) , the LOC observed ( points CARDINAL and CARDINAL ) :", "“ According to settled case - law , the principle of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which , by applying other distinguishing criteria , lead in fact to the same result ( see , in particular , Case CARDINAL/CARDINAL NORP [ DATE ] ECR CARDINAL , paragraph CARDINAL ; ORG v. GPE , cited above , paragraph CARDINAL ; and Case C-CARDINAL/CARDINAL Bidar [ DATE ] ECR [ I-CARDINAL ] , paragraph CARDINAL ) .", "...", "... the legislation in question places holders of secondary education diplomas awarded in a Member ORG other than GPE at a disadvantage , since they can not gain access to NORP higher education under the same conditions as holders of the equivalent NORP diploma .", "Thus , although paragraph ... applies without distinction to all students , it is liable to have a greater effect on nationals of other Member GPE than on NORP nationals , and therefore the difference in treatment introduced by that provision results in indirect discrimination .", "Consequently , the differential treatment in question could be justified only if it were based on objective considerations independent of the nationality of the persons concerned and were proportionate to the legitimate aim of the national provisions ( Case C-CARDINAL/CARDINAL PERSON and PERSON [ DATE ] LOC , paragraph CARDINAL , and ORG , cited above , paragraph CARDINAL ) . ”", "Article CARDINAL of the LAW provides :", "“ All persons are equal before the law and are entitled without any discrimination to the equal protection of the law . In this respect , the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status . ”", "In points CARDINAL and CARDINAL of its General Comment No . CARDINAL of DATE on non - discrimination , the ORG expressed the following opinion :", "“ ... ORG believes that the term ‘ discrimination’ as used in the LAW should be understood to imply any distinction , exclusion , restriction or preference which is based on any ground such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status , and which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise by all persons , on an equal footing , of all rights and freedoms .", "...", "... when legislation is adopted by a State party , it must comply with the requirement of LAW that its content should not be discriminatory ... ”", "In point CARDINAL of its Views dated DATE on Communication no . CARDINAL concerning GPE , the ORG noted :", "“ ... ORG is of the view , however , that the intent of the legislature is not alone dispositive in determining a breach of LAW . A politically motivated differentiation is unlikely to be compatible with LAW . But an act which is not politically motivated may still contravene LAW if its effects are discriminatory . ”", "DATE LAW provides :", "“ ... the term ‘ racial discrimination’ shall mean any distinction , exclusion , restriction or preference based on race , colour , descent , or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise , on an equal footing , of human rights and fundamental freedoms in the political , economic , social , cultural or any other field of public life .", "... ”", "In its ORG . DATE on the definition of discrimination , the ORG noted , inter alia :", "“ CARDINAL . ... A distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights and freedoms . This is confirmed by the obligation placed upon GPE Parties by LAW , paragraph CARDINAL ( c ) , to nullify any law or practice which has the effect of creating or perpetuating racial discrimination .", "NORP ... In seeking to determine whether an action has an effect contrary to the Convention , [ the ORG ] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race , colour , descent , or national or ethnic origin .", "... ”", "In its ORG . CARDINAL of DATE on racial segregation and apartheid , the ORG observed :", "“ CARDINAL . ... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies , a condition of partial segregation may also arise as an unintended by - product of the actions of private persons . In many cities residential patterns are influenced by group differences in income , which are sometimes combined with differences of race , colour , descent and national or ethnic origin , so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds .", "The ORG therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities . ... ”", "In its ORG . CARDINAL of DATE on discrimination against ORG made , inter alia , the following recommendation in the education sphere :", "“ CARDINAL . To support the inclusion in the school system of all children of GPE origin and to act to reduce drop - out rates , in particular among GPE girls , and , for these purposes , to cooperate actively with GPE parents , associations and local communities .", "To prevent and avoid as much as possible the segregation of GPE students , while keeping open the possibility for bilingual or mother - tongue tuition ; to this end , to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community , to recruit school personnel from among members of ORG and to promote intercultural education .", "To consider adopting measures in favour of GPE children , in cooperation with their parents , in the field of education . ”", "In its concluding observations of CARDINAL DATE following its examination of the report submitted by GPE , the ORG noted , inter alia :", "“ CARDINAL . The marginalization of the GPE community in the field of education is noted with concern . Evidence that a disproportionately large number of GPE children are placed in special schools , leading to de facto racial segregation , and that they also have a considerably lower level of participation in secondary and higher education , raises doubts about whether LAW is being fully implemented . ”", "Articles DATE and CARDINAL of this Convention provide :", "“ CARDINAL . DATE States Parties recognize the right of the child to education , and with a view to achieving this right progressively and on the basis of equal opportunity , they shall , in particular :", "( a ) Make primary education compulsory and available free to all ;", "( b ) Encourage the development of different forms of secondary education , including general and vocational education , make them available and accessible to every child , and take appropriate measures such as the introduction of free education and offering financial assistance in case of need ;", "( c ) Make higher education accessible to all on the basis of capacity by every appropriate means ;", "( d ) Make educational and vocational information and guidance available and accessible to all children ;", "( e ) Take measures to encourage regular attendance at schools and the reduction of drop - out rates .", "DATE States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child ’s human dignity and in conformity with the present Convention .", "DATE States Parties shall promote and encourage international cooperation in matters relating to education , in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods . In this regard , particular account shall be taken of the needs of developing countries . ”", "“ In those GPE in which ethnic , religious or linguistic minorities or persons of indigenous origin exist , a child belonging to such a minority or who is indigenous shall not be denied the right , in community with other members of his or her group , to enjoy his or her own culture , to profess and practise his or her own religion , or to use his or her own language . ”", "Articles CARDINAL to CARDINAL of ORG in Education of DATE provide :", "“ CARDINAL . For the purposes of this Convention , the term ‘ discrimination’ includes any distinction , exclusion , limitation or preference which , being based on race , colour , sex , language , religion , political or other opinion , national or social origin , economic condition or birth , has the purpose or effect of nullifying or impairing equality of treatment in education and in particular :", "( a ) Of depriving any person or group of persons of access to education of any type or at any level ;", "( b ) Of limiting any person or group of persons to education of an inferior standard ;", "( c ) ORG to the provisions of LAW , of establishing or maintaining separate educational systems or institutions for persons or groups of persons ; or", "( d ) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man .", "... ”", "“ When permitted in a ORG , the following situations shall not be deemed to constitute discrimination , within the meaning of LAW :", "( a ) The establishment or maintenance of separate educational systems or institutions for pupils of the CARDINAL sexes , if these systems or institutions offer equivalent access to education , provide a teaching staff with qualifications of the same standard as well as school LOC and equipment of the same quality , and afford the opportunity to take the same or equivalent courses of study ;", "( b ) The establishment or maintenance , for religious or linguistic reasons , of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil ’s parents or legal guardians , if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities , in particular for education of the same level ;", "( c ) The establishment or maintenance of private educational institutions , if the object of the institutions is not to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities , if the institutions are conducted in accordance with that object , and if the education provided conforms with such standards as may be laid down or approved by the competent authorities , in particular for education of the same level . ”", "“ In order to eliminate and prevent discrimination within the meaning of this Convention , the GPE Parties thereto undertake :", "( a ) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education ;", "( b ) To ensure , by legislation where necessary , that there is no discrimination in the admission of pupils to educational institutions ;", "... ”", "The Declaration on Race and Racial Prejudice adopted by ORG on DATE proclaims as follows :", "“ CARDINAL . All human beings belong to a single species and are descended from a common stock . They are born equal in dignity and rights and all form an integral part of humanity .", "All individuals and groups have the right to be different , to consider themselves as different and to be regarded as such . However , the diversity of life styles and the right to be different may not , in any circumstances , serve as a pretext for racial prejudice ; they may not justify either in law or in fact any discriminatory practice whatsoever , nor provide a ground for the policy of apartheid , which is the extreme form of racism .", "... ”", "“ ...", "NORP Racism includes racist ideologies , prejudiced attitudes , discriminatory behaviour , structural arrangements and institutionalized practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable ; it is reflected in discriminatory provisions in legislation or regulations and discriminatory practices as well as in anti - social beliefs and acts ; it hinders the development of its victims , perverts those who practise it , divides nations internally , impedes international cooperation and gives rise to political tensions between peoples ; it is contrary to the fundamental principles of international law and , consequently , seriously disturbs international peace and security .", "Racial prejudice , historically linked with inequalities in power , reinforced by economic and social differences between individuals and groups , and still seeking DATE to justify such inequalities , is totally without justification . ”", "“ Any distinction , exclusion , restriction or preference based on race , colour , ethnic or national origin or religious intolerance motivated by racist considerations , which destroys or compromises the sovereign equality of GPE and the right of peoples to self - determination , or which limits in an arbitrary or discriminatory manner the right of every human being and group to full development is incompatible with the requirements of an international order which is just and guarantees respect for human rights ; the right to full development implies equal access to the means of personal and collective advancement and fulfilment in a climate of respect for the values of civilizations and cultures , both national and world - wide . ”", "“ CARDINAL . Culture , as a product of all human beings and a common heritage of mankind , and education in its broadest sense , offer men and women increasingly effective means of adaptation , enabling them not only to affirm that they are born equal in dignity and rights , but also to recognize that they should respect the right of all groups to their own cultural identity and the development of their distinctive cultural life within the national and international contexts , it being understood that it rests with each group to decide in complete freedom on the maintenance , and , if appropriate , the adaptation or enrichment of the values which it regards as essential to its identity .", "States , in accordance with their constitutional principles and procedures , as well as all other competent authorities and the entire teaching profession , have a responsibility to see that the educational resources of all countries are used to combat racism , more especially by ensuring that curricula and textbooks include scientific and ethical considerations concerning human unity and diversity and that no invidious distinctions are made with regard to any people ; by training teachers to achieve these ends ; by making the resources of the educational system available to all groups of the population without racial restriction or discrimination ; and by taking appropriate steps to remedy the handicaps from which certain racial or ethnic groups suffer with regard to their level of education and standard of living and in particular to prevent such handicaps from being passed on to children .", "... ”", "“ CARDINAL . The ORG has prime responsibility for ensuring human rights and fundamental freedoms on an entirely equal footing in dignity and rights for all individuals and all groups .", "NORP So far as its competence extends and in accordance with its constitutional principles and procedures , the ORG should take all appropriate steps , inter alia by legislation , particularly in the spheres of education , culture and communication , to prevent , prohibit and eradicate racism racist propaganda , racial segregation and apartheid and to encourage the dissemination of knowledge and the findings of appropriate research in natural and social sciences on the causes and prevention of racial prejudice and racist attitudes with due regard to the principles embodied in LAW and in LAW .", "NORP Since laws proscribing racial discrimination are not in themselves sufficient , it is also incumbent on GPE to supplement them by administrative machinery for the systematic investigation of instances of racial discrimination , by a comprehensive framework of legal remedies against acts of racial discrimination , by broadly based education and research programmes designed to combat racial prejudice and racial discrimination and by programmes of positive political , social , educational and cultural measures calculated to promote genuine mutual respect among groups . Where circumstances warrant , special programmes should be undertaken to promote the advancement of disadvantaged groups and , in the case of nationals , to ensure their effective participation in the decision - making processes of the community . ”", "“ CARDINAL . The principle of the equality in dignity and rights of all human beings and all peoples , irrespective of race , colour and origin , is a generally accepted and recognized principle of international law . Consequently any form of racial discrimination practised by a ORG constitutes a violation of international law giving rise to its international responsibility .", "Special measures must be taken to ensure equality in dignity and rights for individuals and groups wherever necessary , while ensuring that they are not such as to appear racially discriminatory . In this respect , particular attention should be paid to racial or ethnic groups which are socially or economically disadvantaged , so as to afford them , on a completely equal footing and without discrimination or restriction , the protection of the laws and regulations and the advantages of the social measures in force , in particular in regard to housing , employment and health ; to respect the authenticity of their culture and values ; and to facilitate their social and occupational advancement , especially through education .", "... ”", "The information on education in GPE available on the website of ORG includes the following .", "“ In GPE , there are no official or non - official data on racism and discrimination in education available .", "The most serious problem of the NORP education system is still the segregatory placement of children from socially disadvantaged backgrounds ( very often GPE ) in special schools . CARDINAL of NORP children study there . Such tendencies of the NORP education system especially at elementary schools were proved by extensive research carried out by ORG of the Czech Republic . Only a very small percentage of GPE youth enter secondary schools . ”", "The Monitoring Centre ’s report entitled “ ORG ” , which was published in DATE and concerned what at the time were CARDINAL member GPE of ORG , noted , inter alia , that although systematic segregation of GPE children no longer existed as educational policy segregation was practised by schools and educational authorities in a number of different , mostly indirect , ways , sometimes as the unintended effect of policies and practices and sometimes as a result of residential segregation . Schools and educational authorities may , for example , segregate pupils on the basis of a perception of “ their different needs ” and/or as a response to behavioural issues and learning difficulties . The latter could also lead to the frequent placement of GPE pupils in special schools for mentally handicapped children , which was still a worrying phenomenon in member GPE of ORG like GPE , GPE and GPE . However , steps were being taken to review testing and placement procedures taking into account the norms and behavioural patterns of the GPE children ’s social and cultural background .", "In its decision of DATE in the case of GPE v. Immigration Officer at FAC and another ex parte ORG and others , ORG unanimously held that NORP immigration officers working at FAC had discriminated against GPE wishing to travel from the airport to GPE as they had on racial grounds treated them less favourably than other people travelling to the same destination .", "Baroness PERSON of GPE said , inter alia :", "“ CARDINAL . ... The underlying concept in both race and sex discrimination laws is that individuals of each sex and all races are entitled to be treated equally . Thus it is just as discriminatory to treat men less favourably than women as it is to treat women less favourably than men ; and it is just as discriminatory to treat whites less favourably than blacks as it is to treat blacks less favourably than whites . The ingredients of unlawful discrimination are ( i ) a difference in treatment CARDINAL person and another person ( real or hypothetical ) from a different sex or racial group ; ( ii ) that the treatment is less favourable to one ; ( iii ) that their relevant circumstances are the same or not materially different ; and ( iv ) that the difference in treatment is on sex or racial grounds . However , because people rarely advertise their prejudices and may not even be aware of them , discrimination has normally to be proved by inference rather than direct evidence . Once treatment less favourable than that of a comparable person ( ingredients ( i ) , ( ii ) and ( iii ) ) is shown , the court will look to the alleged discriminator for an explanation . The explanation must , of course , be unrelated to the race or sex of the complainant . If there is no , or no satisfactory explanation , it is legitimate to infer that the less favourable treatment was on racial grounds ...", "NORP If direct discrimination of this sort is shown , that is that . Save for some very limited exceptions , there is no defence of objective justification . The whole point of the law is to require suppliers to treat each person as an individual , not as a member of a group . The individual should not be assumed to hold the characteristics which the supplier associates with the group , whether or not most members of the group do indeed have such characteristics , a process sometimes referred to as stereotyping . ...", "The complaint in this case is of direct discrimination against the GPE . Indirect discrimination arises where an employer or supplier treats everyone in the same way , but he applies to them all a requirement or condition which members of CARDINAL sex or racial group are much less likely to be able to meet than members of another : for example , a test of heavy lifting which men would be much more likely to pass than women . This is only unlawful if the requirement is CARDINAL which can not be justified independently of the sex or race of those involved ... But it is the requirement or condition that may be justified , not the discrimination . This sort of justification should not be confused with the possibility that there may be an objective justification for discriminatory treatment which would otherwise fall foul of LAW .", "...", "It is worth remembering that good equal opportunities practice may not come naturally . Many will think it contrary to common sense to approach all applicants with an equally open mind , irrespective of the very good reasons there may be to suspect some of them more than others . But that is what is required by a law which tries to ensure that individuals are not disadvantaged by the general characteristics of the group to which they belong . In DATE , when the operation with which we are concerned began , the race relations legislation had only just been extended to cover the activities of the immigration service . It would scarcely be surprising if officers acting under considerable pressure of time found it difficult to conform in all respects to procedures and expectations which employers have been struggling to get right for CARDINAL of a century .", "It is against this background that such evidence as there is of what happened on the ground at FAC needs to be assessed . The officers did not make any record of the ethnic origin of the people they interviewed . The respondents can not therefore provide us with figures of how many from each group were interviewed , for how long , and with what result . This , they suggest , makes it clear that the officers were not relying on the Authorisation : if they had been , they would only have had to record their view of the passenger ’s ethnicity . If correct , that would have been enough to justify refusal of leave . But what it also shows is that no formal steps were being taken to gather the information which might have helped ensure that this high - risk operation was not being conducted in a discriminatory manner . It also means that the only information available is that supplied by the claimants , and in particular the ORG which was attempting to monitor the operation . The respondents can cast doubt on the reliability of this , but they can not contradict it or provide more reliable information themselves . ... ”", "ORG issued its decision in the case of PERSON v. ORG , CARDINAL US CARDINAL ( DATE ) , in which it established the disparate impact test , after black employees at an electricity generating plant had brought proceedings on the grounds that their ORG practice of requiring them to hold a high school diploma or to pass an aptitude test , even for the least well - paid jobs , was discriminatory . Fewer blacks had managed to obtain the diploma or pass the standardised tests . ORG stated :", "“ The [ Civil Rights ] Act [ of DATE ] requires the elimination of artificial , arbitrary , and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race , and , if , as here , an employment practice that operates to exclude ORG can not be shown to be related to job performance , it is prohibited , notwithstanding the employer ’s lack of discriminatory intent . ...", "The LAW does not preclude the use of testing or measuring procedures , but it does proscribe giving them controlling force unless ... they are demonstrably a reasonable measure of job performance ...", "The LAW proscribes not only overt discrimination but also practices that are fair in form , but discriminatory in operation . The touchstone is business necessity . If an employment practice which operates to exclude ORG can not be shown to be related to job performance , the practice is prohibited .", "... ORG has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question . ”" ]

[ "14", "P1" ]

[ "P1-2" ]

[]

[]

[]

[]

[ "The NORP Engine Drivers ' Union ( ORG ) is a trade union founded in DATE with its head office in GPE . It is open to the five to CARDINAL employees of ORG who are either crewmen or personnel from among whom crewmen are recruited . Its membership rose from CARDINAL in DATE to CARDINAL in DATE , then dropped to CARDINAL in DATE . Thus the applicant union comprises PERCENT of the eligible railway personnel , by far the majority of PERCENT - belong to the ORG 's Section of ORG ( ORG ) , CARDINAL of the CARDINAL principal federations of ORG employees .", "The applicant union is an independent trade union . It complains that ORG ( PERSON , hereinafter referred to as \" the Office \" ) concluded collective agreements on terms of employment and conditions of work only with the said federations . It maintains that this policy has led to stagnation and a drop in its own membership ; the Government challenges these statements .", "General background", "For DATE , workers and employers in the private sector in GPE have traditionally enjoyed the right to form and join trade unions and to take action in defence of their occupational interests without interference by the ORG .", "Certain principles of labour law which had evolved in practice were codified in DATE and DATE by the following legislation :", "LAW deals with collective labour agreements between employers or employers ' associations and trade unions . It specifies in particular the legal effects of such agreements . For example , the parties may not take strike or lock - out action in regard to an issue regulated by a collective agreement in force between them .", "The DATE LAW contained rules governing the composition , jurisdiction and procedure of ORG .", "ORG was competent to hear cases of alleged violation of LAW on the Right to Organise and Negotiate . It also had jurisdiction in disputes relating to the interpretation and application of collective agreements , but proceedings could only be brought by a party to the agreement in issue . Unions or non - union employees to whom such an agreement had been made applicable ( paragraph CARDINAL below ) were obliged to bring their disputes before the ordinary courts or administrative courts , as the case might be .", "The above - mentioned DATE Act guarantees CARDINAL distinct rights to the parties on the labour market , namely the right to organise and the right to negotiate .", "The right to organise is defined in LAW as the right of employers and employees to belong to an employers ' organisation or a trade union , to exercise their rights as members of that organisation or union , and to work for an organisation or a union or for the formation of an organisation or a union , without interference or pressure by the other party . LAW specifies that the right to organise shall be considered as being violated \" if measures are taken either by employers or by employees to constrain any employee or employer , as the case may be , to refrain from becoming a member of , or to resign from , an association , to refrain from exercising his rights as a member of an association , or to refrain from working for an association or for the formation of an association , and likewise if measures are taken either by employers or by employees calculated to cause prejudice to an employee or employer , as the case may be , on the ground that such employee or employer is a member of an association , exercises his rights as a member of an association or works for an association or for the formation of an association \" .", "The only way in which such associations enjoy the protection of the LAW is that they may be awarded damages if the other party violates the right to organise of an individual member in such a way that the violation is to be regarded as interference in the affairs of the association .", "The right to negotiate is defined in LAW as \" the right to institute negotiations regarding conditions of employment or relations between employers and employees in general \" . It imposes on the other party an obligation to enter into negotiations , to attend meetings for negotiations and , where necessary , to make proposals for the settlement of the issues involved . This provision is applicable to all trade unions including the applicant union . As ORG ruled in DATE ( see paragraph CARDINAL below ) , this does not mean that the negotiation must lead to the conclusion of an agreement even where the substantive terms are not in dispute .", "DATE , the ORG determined the wages and conditions of employment of its employees in the event of a breakdown of the negotiations between the ORG and the employees .", "As from DATE , the DATE LAW ( statstjänstemanalag ) has virtually assimilated ORG employees to employees in the private sector as regards trade union rights , strikes , lock - outs , etc . The LAW made LAW , the DATE LAW and LAW on the Right to Organise and Negotiate applicable in the public sector . Furthermore , the LAW provided for collective agreements to be concluded , subject to certain exceptions , between the ORG , representing the ORG as employer , and the organisations of ORG employees . ORG has a nominee on the governing board of the ORG .", "The DATE legislative reform was facilitated by the centralised structure of the NORP trade union movement ; CARDINAL factor that contributed much to its adoption was the conclusion in DATE of LAW ( slottsbacksavtalet ) between the ORG and the CARDINAL main organisations of ORG employees , namely :", "According to the information at the disposal of the ORG , these federations , of which numbers ( ii ) and ( iii ) recently merged , represent the large majority of NORP ORG employees : CARDINAL out of the CARDINAL whose terms of employment are negotiated by the ORG . CARDINAL trade unions are affiliated to these organisations . The few independent trade unions , including the applicant , represent CARDINAL ORG employees in all .", "Clause CARDINAL of the above - mentioned LAW provides that negotiations with a view to concluding a collective agreement shall be conducted on the employees behalf by the \" main organisation \" concerned , unless the ORG and the \" main organisation \" agree otherwise . A note is appended stating that it is not thereby intended to depart from the earlier practice observed in regard to negotiations with a particular association as to any question which exclusively concerns that association .", "CARDINAL exception was made to this rule in the case of ORG ( Sveriges Läkarförbund ) ; some other exceptions have been or are made from time to time . For instance , in DATE , the ORG concluded a separate collective agreement with an independent union of forestry workers . The ORG and the applicant union disagree about the circumstances surrounding the making of such exceptions .", "ORG of DATE relating to LAW ( ORG om vissa statliga kollektivavtal m.m . ) includes the following provisions :", "\" Collective agreements as to such conditions of employment or service as are determined by the King - in - Council or by ORG shall be concluded conditionally on the agreement being sanctioned by the King - in - Council . \"", "\" An ORG which is bound by a collective agreement shall apply the provisions of the agreement to any employee within the occupational group and region to which the agreement refers , notwithstanding that the employee is not covered by the agreement or by any other applicable collective agreement . \"", "Certain forms of employees ' representation are confined to parties to a collective agreement . Thus , the applicant union complains , inter alia , of being disqualified from representation on ORG of the NORP ORG established by ORG of DATE , on ORG established by FAC , and on ORG . The applicant further complains that it can not appoint official trade union representatives under LAW of DATE on ORG at ORG ( lagen om facklig förtroendemans ställning på arbetsplatsen ) , or safety inspectors under LAW , as amended on DATE ( lagen om ändring i arbetarskyddslagen ) .", "The law described above at paragraphs CARDINAL has in DATE undergone various changes . Thus , trade union rights in both the public and private sectors have been embodied in the new NORP LAW which came into force on DATE . In addition , the Act of CARDINAL DATE on the Procedure for ORG ( lag om rättegången i arbetsvister ) has replaced the DATE LAW . Since DATE , the new Act has enabled any trade union , whether a party to a collective agreement or not , to bring before ORG any dispute relating to the interpretation or application of such an agreement .", "Facts of the particular case", "DATE and DATE , the terms of employment and conditions of work of ORG employees were governed by a collective agreement concluded by the ORG and the CARDINAL federations . The applicant was not affiliated to any of these federations , but the collective agreement was made directly applicable to it by an accessory agreement which the ORG concluded with the applicant on DATE .", "On DATE , the applicant indicated that it wished to terminate the accessory agreement as from DATE and it asked for negotiations regarding a new agreement , indicating certain general guidelines for the negotiations .", "On DATE , the applicant union submitted more detailed demands regarding the terms of employment of its members and again asked for negotiations which were to start at the same time as the negotiations with other comparable unions . This request was repeated in DATE and DATE .", "In DATE and DATE , the ORG held exploratory meetings with the CARDINAL federations and provided them with certain proposals regarding the terms of employment which were to apply to ORG employees in DATE and DATE . Following these meetings , the ORG also held a meeting with the applicant on DATE . On this occasion , the ORG and the applicant union examined the demands formulated by the union in its letter of CARDINAL DATE . ORG also handed over the proposals which it had previously presented to the CARDINAL federations . These proposals concerned all ORG employees , including engine drivers . Finally , the ORG declared that it did not intend to conclude a collective agreement with the applicant for DATE , nor even an accessory agreement such as that concluded in DATE . It stated , however , that it was prepared to continue discussing engine drivers ' terms of employment with the applicant union .", "On DATE , the applicant union asked the ORG to reconsider its refusal to conclude a separate agreement with the union , but the ORG replied on DATE that it maintained its previous position .", "According to the Government , the new attitude of the ORG which , even after the DATE reform , had concluded accessory agreements with the applicant and other independent trade unions , could be explained by the fact that in GPE , at DATE and in DATE , the trade union structures in the public sector were tending to disintegrate .", "On DATE , the applicant union proclaimed a strike and a blacklisting of jobs as from DATE After certain legal and other questions regarding the strike and the blacklisting of jobs had been discussed in writing and orally between the ORG and the applicant , the ORG decided on CARDINAL DATE to proclaim a lock - out of members of the applicant union as from CARDINAL DATE .", "The strike and the blacklisting became effective on CARDINAL DATE but were cancelled as from DATE Consequently , the lock - out did not become effective . However , in retaliation against the strike action , the ORG refused to apply retroactively to the members of the applicant union a new agreement concluded with the federations on DATE . This caused each member of the applicant union a loss of CARDINAL to CARDINAL NORP Crowns . Proceedings brought in the name of CARDINAL of the applicant 's members concerning this dispute ended on DATE by a judgment of ORG dismissing the applicant 's claim .", "On DATE , the ORG transmitted to the applicant a copy of the final proposal made in the course of its negotiations with the CARDINAL federations . At a meeting on DATE , the applicant requested the ORG to conclude with it an agreement which DATE apart from certain clauses - would be identical with the agreement to be concluded with the CARDINAL federations . The ORG rejected this proposal .", "On DATE the ORG concluded with the CARDINAL federations a general collective agreement for DATE . In principle , the agreement applied to all ORG employees , including engine drivers . In accordance with LAW relating to LAW , the application of this agreement was extended to the members of the applicant union .", "At a meeting on DATE , the latter submitted to the ORG its demands for DATE . The applicant union also raised the question of a separate agreement . A further meeting was held on DATE at which the demands presented by the applicant on DATE were examined in detail .", "By letters of DATE and CARDINAL DATE , the applicant union reverted to the question of a separate agreement , but ORG decided on DATE to maintain its refusal to conclude such an agreement with the union .", "Negotiations between the ORG and the applicant union took place at CARDINAL further meetings on DATE , DATE and DATE . At these meetings the ORG and the applicant discussed the terms of employment of engine drivers , and the ORG informed the union about proposals which had been presented during the negotiations between the ORG and the CARDINAL federations .", "On DATE , the ORG concluded a general collective agreement with CARDINAL of the CARDINAL federations , namely GPE and ORG This agreement regulated the terms of employment of ORG employees , including engine drivers , for the period DATE . Under LAW of DATE , this general agreement became applicable to the members of the applicant union as well as to the members of the other CARDINAL federations .", "On DATE , the applicant union introduced proceedings against the ORG before ORG , seeking a declaration that the ORG was obliged to enter into negotiations with a view to concluding a collective agreement with the applicant union , and also to conclude such an agreement with the applicant union if the parties were in accord on the substantive issues .", "The applicant union referred to Sections CARDINAL and CARDINAL of the DATE Act on the Right to Organise and Negotiate . The union also invoked LAW then in force , some general principles of NORP law and a number of international instruments including LAW .", "ORG dismissed the applicant 's claim in a lengthily reasoned judgment delivered on DATE . ORG held that LAW neither debarred a party from declaring at the outset of negotiations that it would not conclude an agreement , nor implied an obligation to conclude an agreement following negotiations . The ORG added that LAW did not afford trade union organisations any protection in their own right .", "ORG noted that the international instruments relied on could serve to clarify NORP law : while they had not been incorporated into NORP law , it must be assumed that NORP law intended to respect them . Nevertheless , the ORG found that the submissions on this point in the instant case did not cause it to alter its judgment on the questions in dispute .", "On several subsequent occasions , the applicant union attempted unsuccessfully to secure the conclusion of a collective agreement ; its latest attempt was in DATE .", "In its application lodged with ORG on DATE , the applicant union alleged violation of ORG CARDINAL , CARDINAL and DATE ( article CARDINAL , LAW , article DATE ) of the Convention .", "The Commission declared the application admissible on DATE .", "In its report on CARDINAL DATE the Commission expressed the unanimous opinion :", "- that the conduct of the ORG might in principle raise an issue under LAW ) of the LAW , even if the ORG were fulfilling typical employer functions ,", "- that the refusal by the respondent Government to enter into collective agreements with the applicant did not violate LAW para . CARDINAL ( LAW ) as such ;", "- that the different treatment of the applicant and the federations with regard to the enjoyment of the freedom of association was reasonably and objectively justified and did not therefore contravene LAW read in conjunction with LAW article DATE ) ;", "- that LAW ) had not been violated in the present case .", "The report contains a separate concurring opinion shared by CARDINAL other members of the Commission ." ]

[]

[]

[]

[ "11", "13", "14" ]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant lodged a civil claim for payment with ORG ( Sąd Rejonowy ) . The applicant requested the court to make an order for payment against his business partner . The value of the claim was MONEY ( ORG ) ( CARDINAL euros ( ORG ) ) .", "DATE and DATE the court held CARDINAL hearings , CARDINAL of which were postponed for various reasons .", "At the hearing on DATE the parties concluded a friendly settlement . On DATE ORG ( Sąd Rejonowy ) discontinued the proceedings .", "On DATE the applicant lodged a complaint with ORG under LAW 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 ” ) . He sought a ruling that the length of the proceedings before ORG had been excessive and an award of just satisfaction .", "On DATE ORG gave a decision in which it acknowledged the excessive length of the proceedings ( DATE and DATE of inactivity on the part of ORG ) but refused to grant the applicant any just satisfaction , holding that the applicant had failed to reason his request for just satisfaction and that the proceedings for payment of ORG CARDINAL “ were not particularly important for the applicant who is an entrepreneur , because the consequences are not attributable to the excessive length of the proceedings ” .", "On DATE the applicant lodged another application concerning the length of a different set of civil proceedings for payment . These proceedings lasted DATE and DATE at CARDINAL court instances . The applicant made use of the complaint provided for by LAW and the domestic court acknowledged the excessive length of proceedings ( DATE of inactivity on the part of ORG ) but refused to grant the applicant any just satisfaction .", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII , and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V." ]

[ "6" ]

[]

[]

[]

[]

[]

[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr Răzvan - Horaţiu Radu .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant worked as senior economist in the company C. ( “ the company ” ) , a former ORG - owned company , which has operated since DATE as a joint stock corporation with mainly private capital .", "On DATE the applicant was dismissed from his job . He challenged that decision and on DATE ORG ( “ the ORG ” ) ordered his reinstatement and payment of a sum of money for overdue salary . That judgment became final on DATE .", "On DATE the company decided to reinstate the applicant , but indicated that it was impossible to reinstate him in his previous job , since that post was no longer available following the company ’s privatisation , and therefore terminated his employment contract . However , on DATE the company issued an employment contract for the applicant , stating that he was reinstated in his previous position . The applicant was informed of that contract on DATE , but it was only in DATE that he sought its annulment . In a final decision of CARDINAL DATE ORG ( “ the Court of Appeal ” ) allowed the action , noting the absence of the applicant ’s consent and also the non - existence of the relevant post at that time .", "On DATE the company altered the period of notice established in its decision of CARDINAL DATE , and on DATE it paid the amount ordered by the court .", "On DATE ORG annulled the CARDINAL decisions of CARDINAL DATE and DATE and ordered the company to reinstate the applicant in his previous job or in an equivalent post , to pay him CARDINAL NORP lei ( ROL ) in overdue salary for the period DATE to DATE , and also to pay him the corresponding salary until effective reinstatement . In its reasoning , the court accepted the assessment of damages proposed by the applicant based on a DATE wage of MONEY ( USD ) . That judgment became final on DATE .", "On DATE and on DATE ORG ordered the attachment of the company ’s financial assets up to ROL CARDINAL,CARDINAL,CARDINAL . On DATE the company paid that amount .", "On DATE the company informed the corresponding ORG agency of the impossibility to reinstate the applicant , but on DATE invited him to its headquarters to discuss the reinstatement . The applicant went on DATE , but no agreement was reached .", "On DATE the applicant requested the bailiff P.A. to enforce the judgment by seizure of the company ’s assets . Having the court ’s approval , the bailiff instructed the ORG bank to attach the company ’s financial assets . On DATE the bank refused to perform that seizure in the absence of a writ of execution for that amount of USD CARDINAL CARDINAL , which represented , according to the applicant , the updated sum of the overdue salary , granted by the final judgment of CARDINAL DATE .", "On DATE the applicant requested the court to validate that seizure . On DATE ORG declared the action inadmissible , since the company ’s accounts had been blocked under the provisions of Government Ordinance no . CARDINAL of DATE ( “ Ordinance no . CARDINAL/CARDINAL ” ) regarding enforcement of budgetary financial claims , and therefore the enforcement had to be carried out under those provisions by the financial administration , not by the courts .", "On DATE , following the decease of the bailiff GPE , the execution file was transferred to the bailiff ORG", "NORP On DATE ORG dismissed an objection to execution by the company . That judgment became final and a further objection was dismissed on the basis of the res judicata principle .", "On DATE the bailiff ORG sought the attachment of company ’s accounts at the ORG bank and on DATE he updated the amount . On DATE the bank informed the bailiff that it could not proceed with that seizure since the amount claimed was not clearly based on an enforceable title .", "On DATE and DATE , at the applicant ’s request , the bailiff carried out new seizures , informing both the company and the enforcing court .", "Furthermore , on DATE the applicant requested ORG and ORG ( the “ ORG ” ) to continue enforcement under Ordinance no . CARDINAL/CARDINAL . On DATE he lodged an administrative action against that agency , alleging refusal to bring the execution to a conclusion . ORG ( “ the ORG ” ) dismissed that action on DATE , finding no refusal by the ORG , which on DATE had seized the company ’s accounts under a warrant of execution from DATE . In the absence of any appeal , that judgment became final .", "On DATE ORG , in private , approved the continuation of enforcement by the ORG .", "On DATE the applicant brought summary proceedings against the company , the ORG bank and the ORG , seeking to remove impediments to recovery of the debt . On DATE ORG declared the action inadmissible , considering firstly that his request would amount to a decision on the merits , not to a provisional measure , and secondly that there was no urgency . A further appeal by the applicant was annulled for lack of payment of the stamp duty , by a final decision of CARDINAL DATE .", "On DATE the ORG requested the ORG bank to attach the company ’s assets up to USD CARDINAL,CARDINAL.CARDINAL , and on DATE referred the case back to the bailiff PERSON , to continue with the execution .", "On DATE , upon a request by the applicant , the bailiff updated the debt and carried out a seizure for NORP in respect of overdue salary up to DATE .", "NORP The bailiff requested the court ’s endorsement . On DATE ORG upheld the seizure , and on DATE ORG authorized the attachment of the company ’s assets in the ORG bank up to FAC . That judgment became final . The company ’s subsequent objection to execution was dismissed on CARDINAL DATE by ORG .", "On DATE and DATE the applicant received USD CARDINAL.CARDINAL and ORG CARDINAL,CARDINAL.CARDINAL respectively . On DATE ORG attached the accounts of the ORG bank in ORG ( “ BNR ” ) up to USD CARDINAL,CARDINAL.CARDINAL .", "On DATE the bailiff certified that the applicant had recovered the whole debt under the judgment of CARDINAL DATE , corresponding to salary arrears for DATE inclusive , until his employee status had ceased because of retirement ( see below ) .", "The applicant also acknowledged in a letter of DATE addressed to a domestic court that he had received the above - mentioned amount of NORP .", "On DATE the applicant complained that the bailiff had declined to record the company ’s refusal to enforce the DATE judgment . On DATE ORG considered that request as exceeding the bailiff ’s competence .", "On DATE the bailiff declined to continue with the enforcement on grounds , inter alia , of non - payment by the applicant of the execution fees . The applicant contested that refusal before the court , but on DATE ORG dismissed his request , since he had not paid those fees . That judgment became final , since a further appeal by the applicant had lapsed .", "On DATE the applicant filed a complaint against the bailiff before ORG and demanded his replacement . On DATE the ORG rejected his allegations and refused replacement since , at that moment , the enforcement was being carried out by the ORG ( see paragraph CARDINAL above ) .", "On DATE the applicant requested the bailiff to seize the company ’s assets up to USD CARDINAL,CARDINAL.CARDINAL , representing the difference for DATE between salary and pension . On DATE ORG allowed a seizure up to the amount stipulated in the judgment of DATE .", "However , by an official record of DATE the bailiff declined to update that difference , since the DATE judgment had not granted such a right , nor had the above - mentioned court decision of DATE .", "The applicant lodged an action against the bailiff . Eventually on DATE ORG dismissed that action , considering that the bailiff ’s task was to enforce an instrument of title , whereas the impugned difference between salary and pension was not provided for either in the DATE judgment or in the court decision of DATE . That judgment became final , since an appeal by the applicant had lapsed .", "On DATE the applicant requested the bailiff to certify in an official record that the company had disregarded the obligation to reinstate him . By a statement of CARDINAL DATE the bailiff considered that request as amounting to establishment of a factual situation , which could have been legally made only on the basis of a court judgment .", "The applicant complained before the court , but on DATE ORG dismissed the action , since the bailiff had acted lawfully . That judgment became final .", "On DATE the applicant sought payment by the company to the ORG of his social security , unemployment and pension insurance contributions , and income taxes . By final decisions of DATE and CARDINAL DATE ORG quashed the judgments of the lower courts and sent the case back for fresh examination . The proceedings are still pending .", "On DATE ORG referred to the prosecutor a criminal complaint by the applicant against the head of the company for , inter alia , non - enforcement of the DATE judgment in respect of reinstatement . According to the applicant , the prosecutor had not informed him of any solution .", "On DATE ORG , in an unappealable interlocutory decision , declared inadmissible an action against the company for a daily pecuniary penalty for failure to comply with the judgment of CARDINAL DATE . The court held that the applicant had not complied with the provisions of LAW , which provided that a claim for a daily pecuniary penalty could be lodged only at the enforcement stage and following a summons addressed to the debtor .", "On DATE ORG and Other ORG ( the “ LOC ” ) certified the applicant ’s unfitness for work .", "On DATE the applicant made a request to retire on grounds of disablement and on DATE he informed the ORG that the company owed him salaries for the period DATE to DATE .", "On DATE ORG ( the “ CPMB ” ) allowed the applicant ’s request to retire and granted him a disablement pension starting from DATE .", "On DATE the applicant requested the bailiff to carry out a seizure in respect of the difference between salary and pension , for DATE . The bailiff carried out that seizure , but the company contested it . By a final decision of CARDINAL DATE ORG annulled the seizure in part . It held that the company had paid the pecuniary damage under the DATE judgment and that the company ’s obligation to pay salaries had lasted only until the applicant lost his work capacity , since LAW ) of ORG made provision for de jure termination of a work contract on the date of communication of the retirement decision .", "On DATE ORG consented , in private , to a request by the bailiff to attach the company ’s assets in the ORG bank , for salaries corresponding to DATE . On DATE the bailiff carried out that seizure .", "However , on DATE ORG allowed an objection by the company and annulled that seizure . It considered that the company ’s obligation to pay salaries had lasted until reinstatement , which was no longer possible since the applicant had chosen to retire . The court also held that the DATE judgment had not given the applicant a right to the difference between salary and pension . That judgment became final .", "On DATE ORG dismissed by a final decision an action by the company against the applicant , seeking to establish the latter ’s refusal to be reinstated and also the lapse of his right to enforce the DATE judgment in respect of reinstatement .", "The court held that the obligation of reinstatement was an obligation of performance intuitu personae , depending exclusively on the debtor ’s willingness and which could not be carried out by forced execution . It further considered that the DATE judgment ordered the company to reinstate the applicant , but also established an equivalent method of enforcement of that obligation by payment of salaries until effective reinstatement . That judgment had not established CARDINAL different obligations , but CARDINAL obligation to act , which was to be enforced either in kind by the company , or by equivalent , the latter being the only possibility for the applicant to coerce the debtor .", "The court also noted the company ’s refusal to reinstate the applicant and its unrealistic intentions in that respect ( see paragraph CARDINAL above ) .", "On CARDINAL DATE the bailiff ORG , upon a request by the applicant , carried out a seizure on the company ’s assets for outstanding salaries for DATE .", "On DATE ORG allowed an objection by the company to that seizure . The court held that the company could no longer reinstate the applicant since he had chosen to retire , and that the company ’s obligation to pay salaries had lasted until retirement . By the time of retirement , the company ’s obligation to pay salaries under the DATE judgment had been enforced . Therefore the company ’s obligation to pay salaries had ceased and the applicant could not claim salary and pension payments concurrently . In the absence of any appeal , that judgment became final .", "The relevant domestic law is described in GPE and PERSON v. GPE ( ( dec . ) , no . CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the competent authorities opened a criminal investigation against the applicant on suspicion of abuse of power ( “ zloupotreba službenog položaja ” ) and forging of official documents ( “ falsifikovanje službenih isprava ” ) . On DATE , the applicant was examined by the investigating judge , at which time he submitted a temporary address .", "On DATE the police searched the flat owned by the applicant situated at the address of his permanent residence ( prebivalište ) . The applicant 's mother , who was present at the search , stated that the applicant had not lived in that flat for DATE . According to the official police report , the police then contacted the applicant by telephone and he informed them that he was looking for a new flat .", "Subsequently , following a request by ORG ( PERSON javno tužilaštvo ORG ) , on DATE ORG ( ORG u ORG ) ordered that the applicant be detained on remand under section CARDINAL(CARDINAL)(CARDINAL ) of LAW ( risk of flight ) and that an arrest warrant be issued against him . The applicant appealed against that decision . On DATE his lawyer submitted the applicant 's new address to ORG , alleging that he had already done so on DATE . However , on DATE ORG dismissed the appeal against the detention order .", "On DATE ORG indicted the applicant and shortly thereafter , on DATE , ORG quashed the detention order against the applicant and set bail at ORG CARDINAL,CARDINAL . The applicant appeared at the court hearing in person . However , ORG quashed the bail decision and remitted the case . Thereafter , ORG again ordered that the applicant be remanded in custody because his behaviour thus far had indicated a high risk of flight ; ORG upheld that decision .", "Meanwhile , on DATE the applicant was brought before ORG ( investigating ) judge ( “ istražni sudija ” ) , and was remanded in custody . The applicant claimed that he had gone to the police station of his own accord , but the Government disagreed . There appears to have been no official police report on the applicant 's arrest . The only document relating to the event of DATE a note made by the investigating judge of ORG – states as follows :", "“ It is established that the [ police ] officers ... at TIME brought [ the applicant ] before the ... investigating judge of this court ... The accused states that at TIME he voluntarily reported to the Novi Sad police department , because he heard that they were looking for him ... ”", "The applicant requested to be released on bail and offered LAW . His request was dismissed as insufficient , since “ the amount [ he had ] obtained by unlawful actions was several times higher than the amount offered ” and thus provided no guarantee that he would not abscond . His detention was thereafter regularly extended because of such a risk .", "NORP On DATE the Novi Sad District Court sentenced the applicant to DATE imprisonment . On DATE ORG quashed that judgment and remitted the case , extending at the same time the applicant 's pre - trial detention to prevent his absconding .", "The applicant filed several applications for release on bail , but his requests were dismissed .", "In the resumed proceedings , on DATE ORG again found the applicant guilty and sentenced him to DATE imprisonment . However , that judgment was .quashed by ORG on DATE and the applicant 's detention was extended .", "NORP In DATE the applicant requested release from detention on account of inadequate medical care , but his request was dismissed in DATE .", "In the remitted proceedings , on CARDINAL DATE the applicant 's counsel objected to an expert opinion submitted to the court . She explained the applicant 's health condition in detail , complained about the inadequacy of his medical treatment in detention and stressed that his health had deteriorated to a large extent owing to the duration of his detention .", "In a fresh judgment in the applicant 's case delivered on DATE , the court sentenced the applicant to DATE imprisonment , but decided to release him . However , the applicant was ordered not to leave his habitual place of residence and to report to ORG DATE , failing which he might be returned to custody .", "The applicant was examined for the first time on DATE , shortly after being taken into custody . The medical report concluded that he had been in good health .", "During DATE he was diagnosed with psychiatric problems and was hospitalised on several occasions . In DATE he suffered from severe back pain and was hospitalised as a result of a hunger strike . In DATE he was diagnosed with benign breast augmentation . In addition to the public medical care provided , since DATE the domestic court had allowed the applicant to have regular consultations with his private doctor .", "At DATE the applicant was diagnosed with Hepatitis C. The testing was organised within the framework of voluntary confidential counselling and testing for HIV and Hepatitis ( “ Dobrovoljno povjerljivo savjetovalište i testiranje ” ) , which at the material time appears to have been available in prison .", "NORP The applicant claimed that he had been diagnosed already in DATE , whereas the Government submitted that his diagnosis had been made on DATE . In his examination of DATE the applicant 's private doctor made no mention of a Hepatitis C infection .", "On DATE the applicant went on a hunger strike .", "On DATE the applicant was examined by his private doctor , who recommended that he be examined by an infectious diseases specialist . That consultation took place on CARDINAL DATE , when the applicant underwent further blood tests .", "As a result of his hunger strike , on DATE the applicant was transferred to ORG because of a rise in his liver enzymes . However , he refused to be examined by the hospital staff , claiming that he had contracted Hepatitis during his last stay there . On DATE the applicant 's lawyer requested the court that he be returned to ORG , and on DATE the authorities acted accordingly . On his release from ORG , the doctors concluded that there were no traces of starvation and that the applicant suffered from drug abuse .", "On his return , he was again examined by the infectious diseases specialist , who on the basis of further blood tests concluded that his liver enzymes had improved and that he should undergo a liver biopsy , which was performed on DATE . The biopsy established that the applicant suffered from chronic Hepatitis C with minimal activity and minimal fibrosis . In DATE samples were sent for additional tests to determine his genotype in order to start anti - viral treatment .", "The applicant was released from detention on DATE , before the genotyping tests were concluded and before he had started receiving treatment for his condition .", "Pursuant to a medical report dated DATE , after the applicant had undergone the appropriate anti - viral treatment , his infection was in remission .", "The relevant provisions of LAW ( PERSON o krivičnom postupku ; published in OG FRY nos . CARDINAL , CARDINAL , CARDINAL , ORG and CARDINAL ) in force at the material time read as follows :", "“ If there are circumstances indicating that the defendant might abscond , hide , go to an unknown place or abroad , the court may , by a reasoned decision , prohibit him from leaving his place of residence . ...", "The parties may appeal against a ruling ordering , extending or setting aside [ the said ] measures ... and ORG may also appeal against a ruling rejecting his request for their application . ORG ... shall decide on the appeal ... [ within DATE ] ... The appeal does not stay the execution of the ruling . ... ”", "“ A defendant who is to be or has already been detained based only on circumstances indicating that he will abscond ... [ or if duly summoned , that he is clearly evading appearance at the main hearing ] ... , may remain at large or may be released providing that he personally , or another person on his behalf , gives bail guaranteeing that he will not abscond until the conclusion of the criminal proceedings , and the defendant himself promises that he will not hide or change his place of residence without permission . ”", "“ A decision concerning bail before and in the course of a [ judicial ] investigation shall be rendered by the investigating judge . After the indictment is preferred , the decision on bail shall be rendered by the President of the ORG and [ subsequently ] at the main hearing by the ORG itself . ”", "“ For the purposes of the unhindered conduct of the criminal proceedings ... detention may be ordered against a person who is under reasonable suspicion of having committed a criminal offence if :", "( CARDINAL ) he is in hiding or his identity can not be established , or if there are other circumstances clearly indicating a risk of flight ; ... ”", "“ Detention shall be ordered by a decision of the competent court . ...", "A decision on detention shall be served on the person to whom it relates at the time he is deprived of his liberty , but no later than within TIME ...", "A detained person may file an appeal against the decision on detention with the ORG within TIME from the time of its receipt . The appeal , the decision on detention and other files shall immediately be forwarded to ORG . The appeal shall not stay the execution of the [ impugned ] decision . ...", "In the situation referred to ... [ above ] ... [ , ] the Judicial Panel shall rule on the appeal within TIME . ”", "“ If the defendant is in detention on remand , the second - instance court shall examine the continuation of the reasons for the measure and decide whether or not to extend it . No appeal shall lie against that decision . ”", "The relevant provision of ORG ( Zakon o izvršenju krivičnih sankcija ; published in ORG no . CARDINAL/CARDINAL ) reads as follows :", "“ Prisoners are entitled to free medical care .", "Prisoners who can not receive adequate medical treatment within the institution shall be transferred to ORG or other health institution , and pregnant women to a maternity ward for childbirth .", "ORG spent on medical treatment shall be calculated as part of the time of imprisonment . ”", "“ ( CARDINAL ) Medical treatment of a prisoner is conducted with his consent .", "( CARDINAL ) Force - feeding of a prisoner is not allowed ... ”", "“ The enforcement of a detention measure is subject to supervision by the president of ORG that has jurisdiction for the territory where the main premises of the detention facility are located . ”" ]

[ "5" ]

[ "5-3" ]

[]

[ "3" ]

[]

[]

[ "The applicant , ORG , ORG . , is a private limited company which has its registered office in GPE . The application on its behalf was filed by PERSON , the company 's managing partner .", "company , may be summarised as follows .", "Company NORP telekomunikácie , š.p . was established by ORG on DATE . It was a ORG - owned company . Its director , or deputy director in his or her absence , was authorised to act and sign documents on behalf of the company .", "According to the register of companies available on the Internet , Mr PERSON had been the company 's director between PERSON and CARDINAL DATE . He had been the company 's managing director from ORG CARDINAL DATE to DATE . Mr PERSON had been deputy managing director between CARDINAL DATE and DATE .", "A different section of the register of companies concerning NORP telekomunikácie , š.p . was entitled “ Further legal issues ” . It comprised an entry covering the period from DATE , which indicated :", "“ For the period of the settlement negotiations , the council of creditors suspended , within the meaning of section CARDINALe(CARDINAL)(a ) of the DATE LAW , the exercise of functions of the persons authorised to act on behalf of the company under its articles listed in the register , and appointed Mr PERSON as manager . During the period of the settlement proceedings the director thus appointed shall represent the company and sign documents on its behalf . [ The proceedings ] were discontinued by a decision of ORG of DATE ... in accordance with Act no . CARDINAL . ORG upheld ORG decision by its decision no . CARDINAL Obo CARDINAL of DATE . ”", "On DATE the Minister of Transport and Telecommunications decided to dissolve PERSON telekomunikácie , š.p . The company was transformed into a joint stock company , PERSON telekomunikácie , a.s . , which succeeded to all the rights and obligations of its predecessor . On those grounds company NORP telekomunikácie , š.p . was deleted from the companies register on DATE .", "Under a contract of DATE ORG , with the agreement of ORG , Post and Telecommunications , sold PERCENT of the shares of PERSON telekomunikácie , a.s . to ORG , a company which had its registered office in GPE , GPE . Point CARDINAL subjected the transaction to several conditions with suspensive effect . They included the absence of any binding decision , delivered by a court or other public authority , prohibiting the transaction agreed upon in the contract .", "Subsequently , the company NORP telekomunikácie , a.s . was twice renamed . Its current business name is ORG , a.s .", "On DATE a meeting of the council of creditors of PERSON telekomunikácie , š.p . was held in the presence of a notary public . That council had been established in the context of the proceedings under LAW , which were held before ORG under file no . CARDINAL K CARDINAL/CARDINAL ( for further details see also PERSON telekomunikácie , š.p . and ORG , ORG . v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) . CARDINAL members of the council of creditors attended the meeting as well as PERSON , whom that council had earlier appointed as director of PERSON telekomunikácie , š.p . in the context of the above proceedings .", "At the meeting the council of creditors , with reference to section CARDINALe ( CARDINAL ) and ( CARDINAL ) of the DATE LAW , authorised PERSON to conclude a contract on the sale of PERSON telekomunikácie , š.p . to the applicant company .", "On DATE Mr Eke concluded a contract with the applicant company under which the latter purchased the entire company NORP telekomunikácie , š.p . The contract provided , inter alia , that the purchase price would be determined in a separate agreement at DATE .", "PERSON authorised PERSON , a lawyer practising in GPE , to petition for the above sale of company PERSON telekomunikácie , š.p . to be entered in the register of companies . PERSON lodged such a petition on behalf of PERSON telekomunikácie , a.s . with the Bratislava I ORG on DATE . In it reference was made to instructions which PERSON had given to PERSON on DATE . With the approval of the petitioner , the applicant company asked for leave to act CARDINAL party in the proceedings .", "On DATE the Bratislava I ORG rejected the petition . The decision indicated Mr Eke as plaintiff . With reference to Articles CARDINAL , DATE and CARDINAL of LAW and the data entered in the register of companies , the court did not consider it established that PERSON had been a member of the managing board of PERSON telekomunikácie , a.s . Accordingly , neither the company 's articles nor LAW entitled him to act on that company 's behalf . The decision further stated that PERSON had acted on the basis of written instructions which PERSON had signed on DATE , that is at a time when PERSON telekomunikácie , š.p . , had been dissolved without liquidation .", "ORG dismissed the applicant company 's request for leave to join the proceedings as a third party . It held that a third party could not be admitted to proceedings initiated by a person who lacked standing to do so . Furthermore , a third party could be admitted only in the context of contentious proceedings . However , proceedings concerning an entry in the register of companies did not fall within that category .", "On CARDINAL and CARDINAL DATE PERSON , acting on behalf of PERSON telekomunikácie , a.s . , the applicant company and PERSON appealed . They argued that ORG had incorrectly considered PERSON as plaintiff , had refused to admit the applicant as a third party in the proceedings , had failed to hear the parties and had not allowed them to consult the file with a view to checking the date of the authority of PERSON They requested that the court of appeal hear them and that the sale be entered in the register of companies ex officio , pursuant to LAW .", "On DATE Mr PERSON complained to the President of ORG that he had been erroneously indicated in the decision as plaintiff .", "On DATE Mr PERSON complained to the President of ORG that the court file did not contain an authority of DATE to which the GPE I ORG had referred in its decision of CARDINAL DATE .", "On DATE PERSON filed a similar complaint with ORG . PERSON further complained that the court file was not complete .", "On DATE ORG decided that the GPE I ORG judges were not excluded from dealing with the above case . ORG further upheld the Bratislava I ORG decision of CARDINAL DATE . The decision indicated PERSON as plaintiff and mentioned PERSON as his representative .", "ORG held that a judge 's failure to act in accordance with the wish of a party was not a relevant reason for that judge 's exclusion . There was nothing to indicate that the judges of the Bratislava I ORG were biased .", "ORG further held that , at the time when the petition had been lodged , Mr PERSON had not been entered in the register of companies as a person entitled to act on behalf of the company at issue . No document authorising PERSON to take such action had been submitted in the context of the proceedings . Moreover , PERSON telekomunikácie , a.s . , in an opinion of DATE , had denied that its representatives had initiated an entry in the register of companies concerning that company 's sale . The first - instance court had therefore correctly concluded that PERSON had filed the petition on behalf of PERSON as a natural person . The latter lacked standing to petition for the entry at issue to be made in the register of companies .", "ORG held that a person could be admitted as a third party exclusively in contentious proceedings . Article CARDINALb § CARDINAL of the Code of Civil Procedure entitled the first - instance court to decide on the petition of DATE without a prior hearing . ORG , with reference to LAW , did not hold a hearing in the appeal proceedings .", "On DATE PERSON and the applicant company lodged an appeal on points of law . On DATE PERSON informed ORG that company PERSON telekomunikácie , a.s . was also a plaintiff in the cassation proceedings . They argued that they had not been heard by the courts and had been prevented by them from verifying the documents in the file and from submitting comments on those documents . The conclusion that PERSON had lacked standing to file the petition on behalf of PERSON telekomunikácie , š.p . and in respect of that company 's legal successor was arbitrary . The applicant company was also a party to the proceedings .", "On DATE ORG rejected the appeal on points of law lodged by PERSON It held that the lower courts had correctly concluded that PERSON had lacked standing to file a petition on behalf of PERSON telekomunikácie , a.s . and considered it as having been filed in his own capacity . The relevant provisions of LAW allowed for petitions concerning an entry in the register of companies to be decided upon without a hearing . The petitioner was under an obligation to substantiate the request by all relevant documents . There was therefore no need to hear him or her .", "The applicant company maintained that a series of steps had been taken with a view to preventing the requested entry to be made in the companies register .", "Its representative argued , with reference to the safeguard provisions included in the contract on the transfer of shares of NORP telekomunikácie , a.s . to ORG , ORG , that representatives of those companies and the Ambassador of GPE to GPE had intervened with the Prime Minister , ORG , ORG , ORG and ORG .", "The applicant further referred to a document which ORG , Post and Telecommunications had presented in DATE . Entitled “ Information on judicial disputes of NORP telekomunikácie , a.s . in the case ' ORG ” , the document indicates that the claims were based on CARDINAL contracts concluded in DATE and DATE on the publishing of telephone directories . PERSON telekomunikácie , a.s . or its predecessor contested such claims . The document states that the NORP authorities had undertaken to do as much as possible , to the extent that the law allowed , to contest the claims related to the “ ORG ” . Immediate measures were therefore required , within the framework of the law in force , with a view to a final resolution of the issue . In particular , it was necessary to accelerate the judicial proceedings pending as well as the investigation into the criminal complaint . An annex to the document lists CARDINAL sets of pending judicial proceedings .", "Article CARDINALa § CARDINAL provides that proceedings relating to the register of companies are brought upon the request of the natural or legal person whom the entry in the register concerns or by other persons entitled to do so under the relevant law . LAW ORG entitles courts to start such proceedings of their own initiative for the purpose of harmonising information entered in the register of companies with the actual situation .", "Pursuant to Article CARDINALb § CARDINAL , in proceedings concerning an entry in the register of companies courts are obliged to examine whether the statutory requirements for making such an entry are met . Paragraph CARDINAL of Article CARDINALb authorises courts to deliver decisions on the content of an entry in the register of companies without holding an oral hearing .", "Under Article CARDINAL § CARDINAL(c ) , a court of appeal may dispense with a hearing where an appeal concerns a decision ( not a judgment ) of the first - instance court .", "Article CARDINALa § CARDINAL provides that the court of cassation always decides on appeals on points of law lodged against a decision ( not a judgment ) without a prior hearing .", "Pursuant to LAW , legal persons act through the intermediary of bodies established under their articles or through their representative .", "Under LAW ) , information about a company entered in the register of companies shall comprise the name and address of the persons who are the representatives of the company under its articles and also specify the manner in which such persons are authorised to act on behalf of the company .", "LAW provides that a request for an entry to be made in the register of companies is to be submitted either by authorised persons whom such an entry concerns or by persons entitled to do so in accordance with the law or by persons whom the above mentioned persons authorise to do so . A petition for an entry in the register of companies must be accompanied by documents proving the facts which are to be specified in the register ( paragraph CARDINAL of Article CARDINAL ) .", "Pursuant to Article CARDINAL , courts or other authorities have to notify the court which holds the register of companies of any inconsistencies between the actual situation and the information in the register of companies as soon as they become aware of them in the context of their activity .", "Article CARDINAL § CARDINAL provides that managing board directs the activities and acts on behalf of a joint stock company . It decides on all issues concerning the company , unless they fall within the power of its general assembly . Members of the managing board who are authorised to represent the company and the manner in which they can do so are to be entered in the register of companies .", "Pursuant to Article CARDINAL § CARDINAL , where a company is sold by a person entered in the register of companies , such a person files a petition for a corresponding entry to be made in the register of companies .", "Section CARDINAL of ORG ( PERSON o štátnom podniku ) of DATE provides that the bodies of a ORG - owned company comprise its director and supervisory board .", "ORG ) and ( CARDINAL ) provide that the director is appointed and revoked by the central governmental authority which established the company .", "Pursuant to section ORG ) , the director acts on behalf of a ORG - owned company .", "Law no . CARDINAL/CARDINAL sets out the conditions for the transfer of ORG - owned property to other persons .", "Section CARDINAL(CARDINAL ) , as in force at the relevant time , prohibited ORG - owned companies from concluding contracts on the transfer of property which served their business activities .", "In accordance with ORG practice , proceedings concerning an entry in the register of companies are non - contentious . A petition for an entry in the register of companies is to be supported by documents proving the relevant facts . Where a legal person initiates proceedings concerning an entry relating to it in the companies ' register , the court involved decides exclusively on the rights and obligations of the petitioner as a party to such proceedings . Third parties are excluded from proceedings concerning entries in the register of companies ( Collection of judicial decisions and opinions of ORG , nos . CARDINAL , CARDINAL and DATE ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants are all NORP nationals . They were living in GPE village at the time of the alleged events giving rise to the present application . The facts of the case are in dispute between the parties and may be summarised as follows .", "Until DATE the applicants all lived in GPE , a village of GPE district in GPE , in the then state - of - emergency region of GPE . In DATE , terrorist activity was a major concern in this area . Since DATE a violent conflict had been going on in the region between the security forces and sections of the NORP population in favour of NORP autonomy , in particular members of the ORG ( ORG of GPE ) . The inhabitants of the LOC village were suspected of “ aiding and abetting terrorists ” ; and accordingly they were strictly and frequently controlled by the gendarmes stationed near the village .", "On DATE security forces surrounded ORG and assembled the inhabitants in the village square . Using curse words , they told the villagers that the village would be evacuated at once with no possibility of return . The applicants took what they were able to carry with them and left the village . Immediately after the evacuation , the soldiers set the houses and the crops on fire .", "The applicants moved temporarily into a prefabricated ORG disaster housing complex close to GPE .", "Following the incident , the applicants filed individual petitions with ORG office complaining about the burning down of their village by gendarmes . The applicants noted their temporary addresses as the reply address for their petitions .", "As the case concerned an investigation into alleged acts of the security forces , ORG issued a decision of nonjurisdiction and referred the petitions to the office of LOC in GPE in accordance with the PERSON on the Prosecution of Civil Servants ( Memurin Muhakematı GPE ) .", "The District Governor sent a letter to ORG and requested information about the applicants’ allegations .", "In a letter of CARDINAL DATE the ORG Commander informed the FAC Governor that the security forces had not burned any house during their operations in the area . Accordingly , ORG issued a decision to discontinue the criminal proceedings against the gendarmes .", "On DATE the GPE LOC Governor sent a letter to the applicants . Relying on the NORP ORG Commander ’s letter of DATE , he explained that he was unconvinced by their allegations . He further explained that pursuant to the established case - law of ORG ( NORP ) , no inquiry was possible unless the identity of the accused civil servant were specified . He therefore stated that the authorities would not initiate an investigation into the alleged events .", "The applicants did not receive this letter . They learned about ORG decision of non - jurisdiction and ORG decision from their fellow villagers and acquaintances at a much later stage .", "In DATE members of the ORG started a propaganda campaign for the organisation in the villages of GPE district . They kidnapped young men from these villages and forced them to join the organisation . The ORG militants issued threats against the villagers and harassed them . The inhabitants of the villages left their homes as a result of the pressure exerted by the ORG .", "The investigation carried out by the authorities revealed that the applicants’ houses had not been burned by the security forces but by terrorists wearing military uniforms . In their statements to the investigating authorities , the applicants failed to indicate the identity of the perpetrators of the alleged crime .", "The parties submitted various documents with a view to substantiating their claims . These documents , in so far as they are relevant , can be summarised as follows .", "ORG is a non - governmental organisation with its head office in GPE , GPE . Its DATE Report stated that , from DATE , CARDINAL villages and hamlets had been evacuated . ORG maintained that village evacuations had accelerated in DATE , mostly targeting the villages whose inhabitants refused to serve as village guards .", "The DATE Report of the TIHV argued that the ORG ’s policy was to claim that the evacuations and eventual destructions were caused by ORG terror , poverty and the forces of nature . According to the same report , CARDINAL villages were burned down in each of the provinces subject to the emergency rule .", "The DATE Report maintained that CARDINAL villages had been evacuated in DATE . According to ORG , the State - of - Emergency Regional Governor once mentioned that a total of CARDINAL villages and CARDINAL hamlets had been evacuated for various reasons , although never admitting that evacuations had been carried out by security forces .", "The DATE and CARDINAL Reports described the ORG ’s policy of evacuating villages as a systematic “ internal security operation ” applied throughout DATE .", "The excerpts gave a comprehensive list of burned - down and/or evacuated villages from DATE . The list did not make any reference to ORG as having been evacuated and destroyed .", "The excerpts contained several articles reproduced from a DATE newspaper ORG , relating to the evacuation of villages and its detrimental effects on the displaced persons . The articles stressed that numerous villagers had filed petitions with the ORG authorities , complaining that their villages had been burned down by security forces .", "The articles also emphasized that the ORG ’s public declarations , which appeared to allow displaced villagers to return to their villages , were unreliable . Whenever villagers had attempted to do so , they were physically denied access to their villages .", "NORP This report was prepared by ORG composed of CARDINAL members of parliament . According to the report , in DATE and DATE the inhabitants of CARDINAL villages and CARDINAL hamlets were evicted and forced to move to other regions of the country ( p.CARDINAL ) .", "The report included a statement by Mr PERSON , a former governor of ORG . Mr GPE explained that , during his office , occasional village evacuations by military authorities were brought to his attention . He stated that DATE although very rarely – he had received complaints about village burnings . According to PERSON , it was inconceivable to assert that all the villages were vacated due to ORG coercion . He alleged that the Government had failed to take the necessary measures for a healthy resettlement of displaced persons ( p.CARDINAL ) .", "NORP The report also referred to the “ Human Rights Report – GPE ” , prepared and submitted to ORG in DATE by PERSON Yavuz PERSON , the chairman of ORG . This latter report dedicated a chapter to immigrants and evacuated villages . It argued that , in DATE , the practice of evacuation of villages and hamlets was widespread . Many houses in villages were either destroyed or made uninhabitable . People were forced to emigrate from the region and pressure was exerted on the inhabitants until they left their villages . In DATE there was practically no village or hamlet inhabited except those whose inhabitants agreed to become village guards ( p.CARDINAL ) .", "The report of ORG also referred to the speech delivered at ORG by Mr PERSON , a deputy from Şırnak , on DATE on the question of evacuated villages . PERSON stated , inter alia , that the villages were evacuated either by the ORG , in order to intimidate those who opposed it , by the authorities since they were unable to protect the villages , or because the inhabitants of those villages refused to become village guards or were suspected of having aided the ORG ( p. CARDINAL ) .", "In conclusion , it was recommended in the report that the inhabitants of the settlement units should be re - housed in the provinces , districts or central villages – rather than hamlets DATE close to the area where they used to live and that necessary economic measures should be taken with a view to providing employment to the inhabitants of the region , priority being given to the immigrants .", "NORP This report aims at establishing the property owned by each of the applicants . Having regard to the registers of the land registry office and municipality registry office , it appears that PERSON did not own any property . He was not subscribed to ORG , meaning that he did not have electricity at home . However , he receives pension from the ORG . It further appeared that PERSON owned a “ green card ” given to very poor people for medical care and that he received TRL CARDINAL in aid from the GPE District Governor ’s office .", "PERSON owned QUANTITY of land according to the land registry records . It was estimated that he could derive TRL CARDINAL ’s DATE income at the relevant time . PERSON owned a “ green card ” given to very poor people for medical care . The GPE District Governor ’s office gave him CARDINAL sheep , ORG and food in aid for his living . DATE PERSON lived in a house in the disaster houses complex provided by the Government . In DATE he moved into a house which was built within the context of “ return to village and rehabilitation project ” .", "PERSON did not own any property according to the land registry records . But he owned QUANTITY , a house and a stable as well as land measuring QUANTITY according to his declaration of DATE to the municipality registration office . It was estimated that he could derive ORG DATE income at the relevant time . Since DATE he is the holder of a “ green card ” given to very poor people for medical care . PERSON received food and GPE CARDINAL,CARDINAL,CARDINAL ’s in aid from the GPE District Governor ’s office . Furthermore , he lived in a house in the disaster houses complex provided by the Government . In DATE he moved into a house which was built within the context of “ return to village and rehabilitation project ” .", "The witness is a former resident of ORG village . He is currently the mayor of Kandolar neighbourhood in GPE . His statements were taken in order to determine the situation of the applicants who had lodged an application with the ORG . The witness stated that DATE the applicants had lived in prefabricated houses in GPE neighbourhood of GPE . In DATE they had moved into new houses built by the Government . At the relevant time nobody lived in ORG . There was no electricity , school or telephone in the village .", "Gendarme Major Yüksel Sönmez informed ORG that the houses belonging to PERSON , PERSON , PERSON and PERSON in ORG village and in Toprak hamlet had been burned down by terrorists wearing military uniforms . In his opinion , the terrorists aimed at pacifying the security forces and creating hostility between the latter and the people in the region .", "Following an investigation conducted into the allegations that ORG security forces had burned down houses in GPE village , the inspector established that the houses had not been burned down by the security forces but by terrorists wearing military uniforms . The terrorists had further forced the villagers to complain to the authorities that their houses had been burned down by the security forces . The inspector also noted that the security forces had been conducting operations in the region with a view to maintaining the security of the people and that therefore they would not burn villages or give damage to property .", "A full description of the relevant domestic law may be found in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . GPE , § § DATE , DATE ) ." ]

[ "13" ]

[]

[]

[ "14", "18", "3", "5" ]

[ "5-1" ]

[]

[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . She is represented before the ORG by Mr PERSON , who lives in ORG . The respondent Government are represented by their Agent PERSON , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant worked full - time as a cleaning assistant from DATE until DATE when she had to stop due to pain in her neck , shoulders , right arm , knee joints , wrists and finger joints . In DATE she was granted a disability pension . Alleging that her disability was the result of harmful effects in her work the applicant claimed compensation ( livränta ) . In this respect she and her counsel attended a meeting with ORG ( Försäkringskassan ) of GPE . Apparently , the applicant ’s request that her husband be heard as a witness was refused . An opinion of CARDINAL DATE from CARDINAL doctor , and an opinion of DATE from another doctor , attached to ORG in order to assist with medical matters ( förtroendeläkare ; “ insurance doctor ” ) , were submitted . They both found that the permanent reduction of the applicant ’s working capacity was not as such a result of a “ harmful effect ” , rather her suffering emanated from DATE of hard work and her developed age .", "On DATE ORG refused the applicant ’s claim for compensation .", "On appeal to ORG in GPE ( GPE i GPE ) , the applicant requested that an oral hearing be held since , alleging that it was impossible for her to obtain a detailed opinion from a doctor in GPE , her counsel wanted to submit oral arguments on her case .", "By decision of CARDINAL DATE the court stated as follows :", "” The proceedings before the court are written . According to LAW ( förvaltningsprocesslagen ) the proceedings before the administrative courts may include an oral hearing with regard to a particular issue when there is reason to assume that holding a hearing would be to the advantage of the proceedings or further the speedy determination of the case . An oral hearing shall take place at the request of an individual party to the case if such a hearing is necessary and there are no particular reasons against holding a hearing .", "Having regard to the nature of the case and the evidence submitted , the court finds an oral hearing unnecessary", "The court invites [ the applicant ] to submit no later that DATE her final observations in the case . If no documents are submitted , the case will be determined on the basis of the available material ” .", "The applicant made further submissions in the case . Also , she reiterated her request for an oral hearing , stating that she questioned the professional competence of the insurance doctor , and asserted that , without an oral hearing , her case would be adjudicated in an incompetent , unlawful and partial manner . She did not invoke any witnesses or other oral evidence .", "On DATE ORG refused an oral hearing and delivered its judgment confirming ORG decision in the light of the material submitted , including the statements from the said CARDINAL doctors . As regards the question of an oral hearing , the court held as far as relevant :", "“ Both [ the applicant ] and her representative were present at the meeting , after which ORG made their decision in the case . Moreover , she has described thoroughly in writing her place of work and the tasks assigned to her . In these circumstances , the court finds that the case has been clarified to the extent required . Therefore , an oral hearing is unnecessary . ”", "The applicant requested leave to appeal and an oral hearing in the leaveto - appeal proceedings . In support of the latter she stated that she wanted to hear the insurance doctor as a witness , in order that he confirm his written opinion under oath , so that he would bear some responsibility for his statements , which in the applicant ’s view lacked relevance .", "By decision of CARDINAL DATE ORG ( ORG i GPE ) refused an oral hearing , and gave at the same time the applicant an opportunity to submit within DATE further observations she might wish to invoke regarding the leave - to - appeal issue . The applicant , reiterating her request for an oral hearing , stated that neither ORG , nor the insurance doctor was adequately qualified .", "By decision of DATE ORG refused to grant the applicant leave to appeal against ORG judgment of DATE . In her appeal to ORG the applicant stated that she considered the facts of the case to be clear due to her written observations and the fact that she had been present at the meeting with ORG . Nevertheless , her counsel wished to make oral submission on the appeal before ORG .", "On DATE ORG ( Regeringsrätten ) refused leave to appeal against the decision of DATE .", "All gainfully employed persons working in GPE are insured against industrial injuries in accordance with LAW ( lagen om arbetsskadeförsäkring , CARDINAL:CARDINAL ; hereinafter “ the LAW ” ) . The term industrial injury refers mainly to injuries that result from accidents or other harmful effects at a person ’s place of work .", "Pursuant to chapter CARDINAL , LAW , an industrial injury shall immediately be reported to the employer , who shall report it to ORG . The office shall obtain a medical opinion concerning the injury . A physician shall be attached to the office in order to assist it in medical matters ( the insurance doctor ) . The assessment of whether an injury qualifies as an industrial injury , as well as the degree of reduction of a person ’s ability to engage in gainful employment , shall be made on the basis of the available medical opinions , the insurance doctor ’s assessment of those opinions and any other information pertaining to the matter .", "For an injury to be qualified as an industrial injury a causal link must be established between the accident or the harmful effect in the workplace and the insured ORG health problems . What is meant by “ harmful effect “ is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person . At the relevant time , the question whether a particular injury or illness incurred by the insured person was to be regarded as an industrial injury was subject to the following special rule of evidence . If the insured person had suffered an accident or had been subjected to some other harmful effect at work , his or her medical problems were presumed to have been caused by the accident or the harmful effect if there were substantial grounds in support of such a conclusion ( chapter CARDINAL , LAW in its wording from DATE until DATE ) .", "The procedure in the administrative courts is governed by the provisions of ORG ( förvaltningsprocesslagen , lag CARDINAL:CARDINAL - hereinafter “ the DATE LAW ) . Section CARDINAL provides :", "“ The proceedings are in writing .", "An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .", "In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , and if it is not unnecessary and there are no particular reasons against holding a hearing . ”", "The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .", "According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .", "It was further stated , in respect of the third paragraph of LAW , that a party ’s request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party ’s understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in FAC .", "On DATE the applicant lodged an application for division of an inheritance and dissolution of co - ownership with ORG ( Sąd Rejonowy ) . The inheritance consisted of an apartment , money deposited on bank accounts and golden jewellery .", "During the proceedings the hearings were scheduled DATE . The hearings were often adjourned due to the judge ’s illness or the parties’ lawyers’ failure to appear .", "On DATE the applicant lodged an application with ORG for the case to be dealt with speedily as , on account of unpaid rent for the apartment , being a part of the inheritance , the estate had fallen into debt .", "On DATE ORG ruled on the inheritance rights and awarded the applicant money and furniture . The applicant appealed .", "On DATE ORG ( PERSON ) partially amended ORG judgment and increased the sum awarded to the applicant . On CARDINAL DATE ORG issued a writ of execution in respect of the judgment .", "The enforcement proceedings are pending .", "On DATE the applicant filed a complaint with ORG under LAW June CARDINAL 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 ” ) .", "The applicant sought a ruling declaring that the length of the proceedings before ORG had been excessive and an award of just satisfaction in the amount of MONEY ( PLN ) ( MONEY ( ORG ) ) .", "On DATE the ORG gave a decision in which it acknowledged the excessive length of the proceedings before ORG . It awarded the applicant LAW ( approximately EUR CARDINAL ) in just satisfaction . The court referred to the overall length of the proceedings and to the complexity of the case .", "The applicant appealed . On DATE ORG rejected the appeal as inadmissible in law ." ]

[ "6" ]

[]

[]

[]

[]

[]

[ "The applicant was born in GPE in DATE . She currently lives in GPE .", "The applicant entered GPE on DATE under an assumed name . She was seriously ill and was admitted to hospital , where she was diagnosed as HIV - positive with “ considerable immunosuppression and ... disseminated mycobacterium TB ” .", "On DATE solicitors lodged an asylum application on her behalf , claiming that she had been ill - treated and raped by ORG in GPE because of her association with the Lord ’s Resistance Army , and asserting that she was in fear of her life and safety if she were returned .", "In DATE the applicant developed a second Aids - defining illness , PERSON ’s sarcoma . Her CDCARDINAL count was down to CARDINAL ( that of a healthy person is over CARDINAL ) . After treatment with antiretroviral drugs and frequent monitoring , her condition began to stabilise so that by DATE , when ORG examined the case , her CDCARDINAL count had risen to CARDINAL .", "NORP In DATE a consultant physician prepared an expert report , at the request of the applicant ’s solicitor , which expressed the view that without continuing regular antiretroviral treatment to improve and maintain her CDCARDINAL count , and monitoring to ensure that the correct combination of drugs was used , the applicant ’s life expectancy would be DATE , due to the disseminated PERSON ’s sarcoma and the risk of infections . The medication she needed would be available in GPE , but only at considerable expense and in limited supply in the applicant ’s home town of GPE . Moreover , the author of the report pointed out that in GPE there was no provision for publicly funded blood monitoring , basic nursing care , social security , food or housing .", "NORP The Secretary of ORG refused the asylum claim on DATE on grounds of credibility , and also because it was not accepted that the NORP authorities were interested in the applicant . The applicant ’s LAW claim was also rejected , the Secretary of ORG noting that treatment of Aids in GPE was comparable to that in any other NORP country , and that all the major antiretroviral drugs were available in GPE at highly subsidised prices .", "An adjudicator determined the applicant ’s appeal on DATE . He dismissed the appeal against the asylum refusal , but allowed the appeal on LAW grounds by reference to the case of NORP v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) . He found that the applicant ’s case fell within the scope of ORG which provide that exceptional leave to remain in or enter GPE must be given :", "“ ... where there is credible medical evidence that return , due to the medical facilities in the country concerned , would reduce the applicant ’s life expectancy and subject him to acute physical and mental suffering , in circumstances where the GPE [ GPE ] can be regarded as having assumed responsibility for his care . ... ”", "NORP The Secretary of ORG appealed against LAW CARDINAL finding , contending that all the Aids drugs available under ORG in GPE could also be obtained locally , and most were also available at a reduced price through the ORG Nations’ funded projects and from bilateral Aids donor - funded programmes . The applicant ’s return would not , therefore , be to a “ complete absence of medical treatment ” , and so would not subject her to “ acute physical and mental suffering ” . ORG allowed the appeal on DATE . It found as follows :", "“ Medical treatment is available in GPE for the [ applicant ’s ] condition even though the ORG accept that the level of medical provision in GPE falls below that in GPE and will continue to lag behind the advance of continuing drug advances which inevitably first become available in highly developed countries . Nonetheless , extensive efforts are being made in GPE to tackle the Aids situation – Aids - treating drugs are available , refined forms of drug are being supplied ( albeit with time lags ) and it would not be until the [ applicant ’s ] specific and varying needs became known that her needs could be assessed and the then availability of appropriate treatment decided . ”", "Leave to appeal to ORG was granted on DATE , and on DATE the applicant ’s appeal to ORG was dismissed by a majority of CARDINAL ( [ DATE ] EWCA Civ CARDINAL ) . With reference to the case of NORP v. GPE ( cited above ) , Lord Justice Laws ( with whom Lord Justice PERSON concurred ) stated :", "“ The contrast between the relative well - being accorded in a signatory ORG to a very sick person who , for a while , even a long while , is accommodated there , and the scarcities and hardships which ( without any violation of international law ) he would face if he were returned home , is to my mind DATE even if the contrast is very great DATE an extremely fragile basis upon which to erect a legal duty upon the ORG to confer or extend a right to remain in its territory , a duty unsupported by any decision or policy adopted by the democratic arm , executive or legislature , of the ORG ’s government . The elaboration of immigration policy ... is a paradigm of the responsibility of elected government . CARDINAL readily understands that such a responsibility may be qualified by a supervening legal obligation arising under the ORG [ the Convention ] where the person in question claims to be protected from torture or other mistreatment in his home country in violation of the LAW , especially if it would be meted out to him at the hands of the ORG . But a claim to be protected from the harsh effects of a want of resources , albeit made harsher by its contrast with the facilities available in the host country , is to my mind something else altogether .", "... I would hold that the application of LAW where the complaint in essence is of want of resources in the applicant ’s home country ( in contrast to what has been available in the country from which he is to be removed ) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised ORG . That does not , I acknowledge , amount to a sharp legal test ... an LAW case of this kind must be based on facts which are not only exceptional , but extreme ; extreme , that is , judged in the context of cases all or many of which ( like this one ) demand one ’s sympathy on pressing grounds ... ”", "Lord Justice Carnwath , dissenting , was unable to say that the facts of the case were so clear that the only reasonable conclusion was that LAW did not apply . Given the stark contrast between the applicant ’s position in GPE and the practical certainty of a dramatically reduced life expectancy if returned to GPE with no effective family support , he would have remitted the case to the fact - finding body in the case , ORG .", "Leave to appeal to ORG was granted , and on CARDINAL DATE ORG unanimously dismissed the applicant ’s appeal ( [ DATE ] ORG CARDINAL ) .", "Lord PERSON of GPE summarised the applicant ’s prognosis as follows :", "“ ... In DATE [ the applicant ] developed a second Aids - defining illness , PERSON ’s sarcoma . The CDCARDINAL cell count of a normal healthy person is over CARDINAL . Hers was down to CARDINAL .", "As a result of modern drugs and skilled medical treatment over a lengthy period , including a prolonged course of systematic chemotherapy , the [ applicant ] is now much better . Her CDCARDINAL count has risen [ from CARDINAL ] to CARDINAL . Her condition is stable . Her doctors say that if she continues to have access to the drugs and medical facilities available in GPE she should remain well for ‘ decades’ . But without these drugs and facilities the prognosis is ‘ appalling’ : she will suffer ill health , discomfort , pain and death within DATE or CARDINAL . This is because the highly active antiretroviral medication she is currently receiving does not cure her disease . It does not restore her to her pre - disease state . The medication replicates the functions of her compromised immune system and protects her from the consequences of her immune deficiency while , and only while , she continues to receive it .", "The cruel reality is that if the [ applicant ] returns to GPE her ability to obtain the necessary medication is problematic . So if she returns to GPE and can not obtain the medical assistance she needs to keep her illness under control , her position will be similar to having a life - support machine turned off . ”", "Lord Hope of PERSON , with whom Lord PERSON , Lord PERSON of ORG - under - Heywood and Lord ORG agreed , referred in detail to the ORG ’s case - law ( see paragraphs CARDINAL - CARDINAL below ) , and held as follows :", "“ ... that GPE has adhered throughout to CARDINAL basic principles . On the one hand , the fundamental nature of the LAW guarantees applies irrespective of the reprehensible conduct of the applicant . ... On the other hand , aliens who are subject to expulsion can not claim any entitlement to remain in the territory of a ORG in order to continue to benefit from medical , social or other forms of assistance provided by the expelling ORG . For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional ... The question on which the ORG has to concentrate is whether the present state of the applicant ’s health is such that , on humanitarian grounds , he ought not to be expelled unless it can [ be ] shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving ORG . The only cases where this test has been found to be satisfied are NORP v. GPE ... and PERSON v. GPE ... [ T]he ORG has been at pains in its decisions to avoid any further extension of the exceptional category of case which NORP v. GPE represents .", "It may be that the ORG has not really faced up to the consequences of developments in medical techniques since the cases of NORP v. the GPE and GPE v. GPE were decided . The position DATE is that HIV infections can be controlled effectively and indefinitely by the administration of retroviral drugs . In almost all cases where this treatment is being delivered successfully it will be found that at present the patient is in good health . But in almost all these cases stopping the treatment will lead in a very short time to a revival of all the symptoms from which the patient was originally suffering and to an early death . The antiretroviral treatment can be likened to a lifesupport machine . Although the effects of terminating the treatment are not so immediate , in the longer term they are just as fatal . It appears to be somewhat disingenuous for the ORG to concentrate on the applicant ’s state of health which , on a true analysis , is due entirely to the treatment whose continuation is so much at risk .", "But it can not be said that the ORG is unaware of the advances of medical science in this field . All the recent cases since GPE v. GPE have demonstrated this feature . The fact that the ORG appears to have been unmoved by them is due , I think , to its adherence to the principle that aliens who are subject to expulsion can not claim any entitlement to remain in the territory of a ORG in order to continue to benefit from medical , social or other forms of assistance provided by the expelling ORG . The way this principle was referred to and then applied in GPE the GPE ... is , in my opinion , highly significant . What the ORG is in effect saying it that the fact that the treatment may be beyond the reach of the applicant in the receiving ORG is not to be treated as an exceptional circumstance . It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence . But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in ORG , especially those in sub - Saharan LOC . For the circumstances to be , as it was put in LOC v. the GPE , ‘ very exceptional’ it would need to be shown that the applicant ’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying .", "... So long as [ the applicant ] continues to take the treatment she will remain healthy and she will have DATE of good health to look forward to . Her present condition can not be said to be critical . She is fit to travel , and will remain fit if and so long as she can obtain the treatment that she needs when she returns to GPE . The evidence is that the treatment that she needs is available there , albeit at considerable cost . She also still has relatives there , although her position is that none of them would be willing and able to accommodate and take care of her . In my opinion her case falls into the same category as GPE v. GPE , PERSON v. the GPE , GPE v. GPE and GPE the GPE , where the ORG has consistently held that the test of exceptional circumstances has not been satisfied . In my opinion the ORG ’s jurisprudence leads inevitably to the conclusion that her removal to GPE would not violate the guarantees of LAW . ... ”", "Lord Hope concluded by observing :", "“ [ Any extension of the principles in NORP v. GPE ] would have the effect of affording all those in the [ applicant ’s ] condition a right of asylum in this country until such time as the standard of medical facilities available in their home countries for the treatment of HIV / Aids had reached that which is available in LOC . It would risk drawing into the GPE large numbers of people already suffering from HIV in the hope that they too could remain here indefinitely so that they could take the benefit of the medical resources that are available in this country . This would result in a very great and no doubt unquantifiable commitment of resources which it is , to say the least , highly questionable GPE Parties to the Convention would ever have agreed to . The better course , one might have thought , would be for GPE to continue to concentrate their efforts on the steps which are currently being taken , with the assistance of the drugs companies , to make the necessary medical care universally and freely available in the countries of the third world which are still suffering so much from the relentless scourge of HIV / Aids . ”", "ORG of GPE , agreeing that the appeal should be dismissed , reviewed the domestic and Convention authorities and phrased the test to be applied as follows :", "“ ... whether the applicant ’s illness has reached such a critical stage ( i.e. he is dying ) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity . ... [ The test ] is not met on the facts of this case . ”", "According to information obtained by ORG of its own motion , HIV is normally treated by antiretroviral drugs . In GPE , in common with most developed countries , these drugs are provided in combination , a practice known as “ highly active antiretroviral therapy ” ( ORG ) . The proper administration of antiretroviral drugs depends on regular monitoring of the patient , including blood tests , and the availability of medical personnel to adjust at frequent intervals the level and type of drugs taken . Such treatment is generally available free of charge on ORG .", "In GPE , attempts have been made to reduce the country ’s dependency on imported medication , including producing generic drugs locally . However , in common with most sub - NORP countries , the availability of antiretroviral drugs is hampered by limited financial resources and by shortcomings in the health - care infrastructure required to administer them effectively . As a result , according to research carried out by ORG ) , CARDINAL of those needing antiretroviral therapy in GPE receive it ( WHO , “ Progress on Global Access to HIV Antiretroviral Therapy ” , DATE , pp . CARDINAL , DATE and DATE ) . ORG Programme on HIV / Aids ( UNAIDS ) and WHO in their DATE country situation analysis on GPE also cited major barriers to HIV prevention , treatment , care and support as including limited public investment , limited service coverage and lack of a policy framework . There are also significant disparities in the provision of drugs between urban and rural areas ( WHO , “ ORG for HIV / Aids Treatment Scale - Up : GPE ” , DATE ) . In addition , progress in providing medical care has been offset by the ever - increasing number of people requiring treatment ( ORG , “ Aids Epidemic Update ” , DATE , p. CARDINAL ) and given the rapid population growth in GPE , its stable HIV incidence rate means that an increasing number of people acquire HIV DATE ( ORG , “ Aids Epidemic Update ” , DATE , p. CARDINAL ) ." ]

[]

[]

[]

[ "3" ]

[]

[]

[ "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 was convicted by ORG and sentenced to CARDINAL years’ imprisonment for participation in an organised armed gang . On DATE the conviction was upheld on appeal by ORG of GPE . The applicant serves his sentence in a correctional colony ( the prison ) .", "On DATE and DATE the applicant submitted letters addressed to ORG , in which he complained under LAW that he had not had a fair trial in the above domestic proceedings , to the prison ’s ORG , the office exercising censorship and general supervision over all ORG correspondence . On DATE and DATE the prison administration refused to dispatch the letters . The competent officials , the head of the ORG major PERSON and the deputy warden of the prison major O. , pointed out that the application to the ORG would not be accepted for dispatch unless and until the applicant applied to the Chairman of ORG and to ORG with requests for a supervisory review of his conviction , or filed an application with ORG of GPE . The applicant complied , as he had no other means to have his mail sent outside prison . However , his applications were unsuccessful .", "On DATE the applicant sent an application to the ORG , in which he complained of an unfair trial . He also explained that he had exceeded DATE time - limit set out in LAW , as he had been prevented by the prison administration from dispatching his application earlier .", "After the questions were put by the Rapporteur to the respondent Government under Rule CARDINAL § CARDINAL ( a ) of ORG , on DATE the Chief Penitentiary Directorate of ORG of GPE ( ORG управление исполнения наказаний PERSON юстиции Российской PERSON ) issued a circular letter to its subordinate departments and bodies prohibiting hindering the dispatch of applications addressed to the ORG .", "On DATE the Chief Penitentiary Directorate of ORG of GPE designated officials authorised to monitor the unhindered dispatch of applications to the ORG from penitentiary institutions .", "On DATE the Deputy Prosecutor General issued a circular letter calling upon the regional prosecutors to take measures to secure unhindered exercise of the right of individual petition by detainees . It mentioned in particular that any pressure , including intimidation , discouragement or dissuasion , was unacceptable .", "On DATE a commission of ORG office visited the prison to conduct an inquiry into the refusal of the prison administration to post the applicant ’s letters to ORG . The result of this inquiry , if any , remains unknown to the ORG .", "On DATE the prison director classified the applicant as a persistent contravener of prison discipline , and on DATE transferred him to a stricter security level .", "On DATE the applicant was transferred to another penitentiary institution , following his request based on allegations of a conflict with the prison administration .", "At present the applicant continues to serve his sentence ." ]

[ "34" ]

[]

[]

[]

[]

[]

[ "NORP 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 T. Benhür , a lawyer practising in GPE .", "NORP The applicant is a professor at ORG . During a meeting in preparation for a national congress he had a verbal disagreement with another professor ( “ Mr A.T. ” ) , who was PERSON in which the applicant worked . The applicant called PERSON ORG a “ thief ” for having allegedly distributed to students , without his permission , several pages of a book written by the applicant ( as well as an article ) under PERSON ORG ’s own name .", "Following the disagreement , the applicant initiated civil proceedings against Mr PERSON for plagiarism and PERSON , in turn , lodged a complaint against the applicant with the public prosecutor , alleging defamation and threatening behaviour .", "On DATE ORG found against Mr PERSON in respect of plagiarism .", "During the criminal proceedings conducted against him at ORG , the applicant , in his defence statements dated DATE and CARDINAL DATE , requested the court to suspend the pronouncement of the judgment if he could not be acquitted .", "On DATE , after having heard the testimonies of CARDINAL witnesses , ORG acquitted the applicant of threatening behaviour , but convicted him of defamation . However , having recourse to the provisions of LAW , the court suspended the pronouncement of the judgment on account of the applicant ’s previous good record and the unlikelihood of his committing a further offence . On DATE ORG dismissed an objection lodged by the applicant and upheld the decision .", "The relevant parts of LAW no . CARDINAL ) provide as follows :", "“ ( CARDINAL ) If the accused , who had been tried on the charges brought against him , has been sentenced to a judicial fine or to a term of imprisonment of DATE , the court may decide to suspend the pronouncement of the judgment .... The suspension of the pronouncement of the judgment means that the judgment would not have any legal consequences for the offender .", "( CARDINAL ) A decision to suspend the pronouncement of the judgment may be given provided that :", "( a ) the offender has never been found guilty of a deliberate offence ;", "( b ) the court is convinced , taking into account the offender ’s character and his behaviour during the proceedings , that there is little risk of any further offence being committed ;", "( c ) the damage caused to the victim or to society is repaired by way of restitution or compensation . ( Additional Sentence : LAW no . DATE entered into force on DATE ) If the accused does not agree to this , the pronouncement of the judgment shall not be suspended . ( ... )", "( CARDINAL) If the pronouncement of the judgment is suspended , the offender shall be bound by a supervision order for DATE . ( ... )", "( CARDINAL ) If the offender does not commit another deliberate offence and abides by the obligations of the supervision order , the suspended judgment shall be cancelled and the case discontinued .", "( CARDINAL ) If the offender commits another deliberate offence or breaches the obligations of the supervision order , the court shall then impose a sentence of imprisonment . Nevertheless , after evaluating the offender ’s situation , the court may decide to reduce CARDINAL of the term imposed . If conditions so permit , the court may also choose to suspend the sentence or commute it to other optional penalties .", "( CARDINAL ) An objection may be lodged against the decision to suspend the pronouncement of the judgment . ”", "Provisional LAW no . CARDINAL , which entered into force on DATE , provides as follows :", "“ If persons in respect of whom pronouncement of the judgment has been suspended apply to the courts within DATE after the entry into force of this section , the decision shall be retracted by the court and a judgment will be rendered . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicants are :", "CARDINAL ) PERSON , who was born in DATE ,", "CARDINAL ) Mr GPE , who was born in DATE ,", "CARDINAL ) PERSON , who was born in DATE , and", "CARDINAL ) PERSON Akhmatova , who was born in DATE .", "The applicants live in LOC , GPE . The first and the second applicants are the parents of PERSON ( also spelled PERSON ) , who was born in DATE . The third applicant is his sister and the fourth applicant is his wife .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "At the material time PERSON was a DATE student at ORG ; he received positive character references from his neighbours , the head of the LOC department of the interior ( the ROVD ) and the imam of the LOC district .", "At TIME on DATE the first applicant went with PERSON to the LOC town centre to run errands . In the centre the first applicant realised that she had left a document at home . She returned to the family house , situated at CARDINAL FAC in LOC , whereas her son remained in the town centre as he was going to talk to his cousin Mr PERSON , who worked in the ROVD .", "TIME after the applicant returned home she heard shooting coming from the former medical storehouse located about CARDINAL metres from her house . The first applicant thought the NORP military were conducting a special operation to catch one of their neighbours , Mr R.Ch . , who was an active member of illegal armed groups .", "Having fetched the document , the applicant walked back to the town centre . On her way there she approached the storehouse and saw that the area was cordoned off by NORP military servicemen , who were not letting people in or out of the cordon . TIME the applicant saw the military leaving in CARDINAL APCs ( armoured personnel carriers ) . CARDINAL masked soldiers in new camouflage uniforms with white stripes on their sleeves were on each vehicle . CARDINAL of the APCs was painted in camouflage colours .", "As soon as the military left , the applicant and other locals went to the site . There the applicant found a white bandage with traces of blood on it and blood spattered around it on the ground .", "After that the first applicant went to the town centre where she was supposed to meet her son . She did not find him there and decided to ask their relative Mr PERSON whether PERSON had called in at his office . She went to the ROVD , where she was told that her son had stopped off , looking for Mr PERSON , but the latter had not been in the office and the applicant 's son had left .", "Meanwhile , the second applicant informed the ROVD that his son 's yellow cap had been found at the site of the shooting . When the first applicant returned home , she was told that her son 's cap had been found on the site of the medical storehouse .", "After that CARDINAL of the applicants ' neighbours , Mr GPE . , told the applicants that at TIME he had been walking through the yard of the medical storehouse when he had met PERSON and had a brief conversation with him . According to Mr GPE . , after that he had continued walking to the town centre when , TIME , he had heard shooting coming from the direction in which PERSON had gone .", "According to the applicant 's neighbour , PERSON . , at TIME on DATE she was walking home when she saw a group of masked armed men in camouflage uniforms surrounding the medical storehouse . These men were in CARDINAL APCs ; they were shooting and not letting anybody on to the site . From a distance she saw that the armed men were dragging a young man in black clothing with a sack over his head . They forced the man into one of the APCs and drove away .", "According to another resident of PERSON , Ms R.Kh . , at TIME she was walking down the applicants ' street when she saw military servicemen in CARDINAL APCs . The servicemen were surrounding the former medical storehouse and were shooting . Then the witness had seen the servicemen putting a young man with a plastic bag over his head into CARDINAL of the APCs ; after that they had driven away in the direction of the town centre .", "According to the applicants ' neighbours , the family PERSON , on DATE of PERSON abduction they were driving home in a tractor when they saw the military servicemen who had surrounded the former medical storehouse . The servicemen were taking CARDINAL young man to an ORG and dragging another one . They put both men into the ORG and drove away .", "In support of their statements the applicants submitted the following documents : a statement by the first applicant dated DATE ; a statement by PERSON . dated DATE ; a statement by PERSON . dated DATE ; a statement by PERSON . dated DATE ; a statement by PERSON dated DATE , and a statement by Mr D.A. dated DATE .", "The Government did not dispute the matter as presented by the applicants .", "At TIME on DATE , DATE , representatives of the ROVD and the NORP district prosecutor 's office ( the district prosecutor 's office ) visited the applicants ' house . In the documents submitted the date was also referred to as DATE .", "After that the investigators went to the former medical storehouse with the applicants and other local residents . There they collected cartridge cases left by the servicemen after the shooting and found CARDINAL spots of blood , CARDINAL of them containing just a few drops of blood and the other looking like a puddle of blood . The investigators from the district prosecutor 's office collected the blood for forensic examination . A child from PERSON also found a service identification document which he handed over to the investigators .", "On DATE , DATE , CARDINAL investigators from the district prosecutor 's office , PERSON . and PERSON . , returned to the medical storehouse and examined it again together with the applicants and other local residents . According to the first and second applicants investigator PERSON . told them that the cartridge cases collected by the investigators from the scene of the shooting would assist the authorities in identifying the weapon and the officer to whom it belonged .", "On DATE the district prosecutor 's office initiated an investigation into the disappearance of PERSON under LAW ( aggravated kidnapping ) . The case file was given the number DATE ( in the submitted documents it was referred to as DATE ) .", "On DATE the second applicant was granted victim status in the criminal case .", "On CARDINAL DATE ORG of the Interior ( ORG ) forwarded the applicants ' complaint about the abduction of PERSON to the ROVD for examination . In response , on DATE the ROVD informed the applicants that they were “ taking measures to establish his whereabouts ” .", "On DATE and CARDINAL DATE the GPE prosecutor 's office forwarded the applicants ' requests for assistance in the search for PERSON to the district prosecutor 's office for examination . In response , on DATE and DATE the investigators informed the applicants that the operational - search measures aimed at establishing PERSON whereabouts were under way .", "On DATE the military prosecutor 's office of ORG ( the ORG ) forwarded the applicants ' complaint about the abduction to the military prosecutor 's office of military unit no . ORG . In response , on DATE the latter informed the applicants that military unit no . ORG had not participated in a special operation on DATE and had not detained PERSON . On DATE the military prosecutor 's office of the ORG confirmed this information .", "On DATE the GPE prosecutor 's office informed the applicants that the operational - search measures aimed at establishing PERSON whereabouts and identifying the culprits were under way .", "On DATE ORG of ORG in GPE informed the applicants that PERSON was not being held in their detention centres .", "On DATE the GPE prosecutor 's office forwarded the applicants ' request for assistance in the search for PERSON to the district prosecutor 's office for examination . In response , on DATE the district prosecutor 's office informed the applicants that on DATE they had suspended the investigation in the criminal case .", "On DATE the LOC military commander 's office ( the district military commander 's office ) informed the applicants that they , with the ROVD and the district prosecutor 's office , were searching for PERSON .", "On DATE the GPE prosecutor 's office again forwarded the applicants ' request for assistance in the search for PERSON to the district prosecutor 's office for examination . In response , on DATE the district prosecutor 's office informed the applicants that on DATE they had suspended the investigation in the criminal case .", "On DATE the district prosecutor 's office informed the applicants that their complaint had been examined and included in the investigation file .", "On DATE the GPE prosecutor 's office again forwarded the applicants ' request for assistance to the district prosecutor 's office for examination .", "On DATE ORG of the Execution of Punishment informed the applicants that PERSON was not being held in their detention centres .", "In DATE the first applicant visited the district prosecutor 's office to request information about the progress of the investigation . The investigator , who was in charge of the case at the time , Mr R.Ya . , told her that the investigation file did not contain any information about the collection of the blood samples and the cartridge cases from the crime scene .", "On DATE the second applicant wrote to the district prosecutor . He described in detail the circumstances of his son 's abduction and stated that during the crime scene examination the investigators had collected cartridge cases and blood samples ; that the investigator , PERSON . , had told him that this collected evidence had been forwarded to the expert evaluation centre in PERSON - on - Don and that the results were supposed to be received in DATE ; that the investigator had explained to him that the cartridge cases would allow the experts to identify the weapons used during the shooting , as the latter were supposed to be individually registered . The applicant requested the district prosecutor to provide him with a copy of the crime scene examination report of DATE and a copy of the decisions ordering the expert evaluation of the evidence collected at the crime scene .", "On DATE the GPE prosecutor 's office informed the applicants that on the same date they had resumed the investigation in the criminal case .", "On DATE the ROVD informed the applicants that on DATE ( it appears that the date is incorrect ) they had opened search file no . DATE to establish the whereabouts of PERSON and that a search for the applicants ' relative was under way .", "On DATE the second applicant again wrote to the district prosecutor . He stated that in spite of the numerous pieces of evidence , such as the cartridge cases left by the perpetrators , the APCs and the fact that on DATE the Shali law enforcement agencies had conducted a special operation to find a leader of illegal armed groups , Mr R.Ch . , the investigators had failed to identify the servicemen who had conducted this operation and abducted PERSON . He further stated that his son 's whereabouts had not been established for DATE and that the investigation file in the criminal case did not contain the evidence collected from the crime scene on DATE . The applicant requested the prosecutor to provide him with access to the investigation file , to allow him to make a copy of its contents and to resume the investigation in the criminal case . No reply was received from the authorities .", "On DATE the second applicant complained to the district prosecutor 's office that his son had been abducted “ by military servicemen in CARDINAL APCs ” . He wrote that the servicemen had been masked , armed and that they had had white strips on the sleeves of their uniforms . He further stated that his son 's cap , with bloodstains next to it , had been found at the scene after the abductors had driven away .", "On DATE the district prosecutor 's office initiated an investigation into the disappearance of PERSON under LAW ( aggravated kidnapping ) .", "On DATE the second applicant was granted victim status in the criminal case and questioned . He stated that his son had been abducted by servicemen who had been masked , armed with automatic weapons , had white strips on the sleeves of their uniforms and had been driving around in APCs .", "On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators . The applicants were not informed about this decision .", "On DATE the investigation in the criminal case was resumed and the decision concerning the suspension of the criminal proceedings was overruled by the supervising prosecutor as unlawful for the following reasons :", "“ ... The examination of the investigation file demonstrated that the investigation in the criminal case had not been actually conducted at all as the investigator had taken CARDINAL investigating steps : he granted the father of the disappeared man victim status in the criminal case and questioned him .", "No witnesses had been identified and questioned , the crime scene had not been examined , no replies had been received to the requests forwarded to various law - enforcement bodies and a number of other investigating steps had not been taken ... ”", "On DATE the supervising prosecutor issued orders for the investigators of the criminal case who were to take , inter alia , the following steps :", "“ CARDINAL . Make a plan of investigating steps to be taken ...", "Examine the crime scene ...", "From the witness statement of PERSON [ the second applicant ] it follows that he learnt from his acquaintance named PERSON that his son [ PERSON ] had been detained by military servicemen who had arrived in CARDINAL APCs . In connection with this , it is necessary to identify the man named PERSON and question him about the circumstances of the abduction .", "Identify other witnesses of the crime , including the woman ( the father of the abducted man knows her ) who had also seen the military servicemen detaining and taking away PERSON and another man ... it is necessary to question her about the events .", "Take measures to identify where the APCs were from ...", "If the involvement of military servicemen in the abduction is established , it is necessary to forward the criminal case to the military prosecutor 's office for further investigation ... ”", "On DATE ( in the submitted documents the date was also referred to as DATE ) the investigation in the criminal case was suspended for failure to identify the perpetrators .", "On DATE the investigators conducted the crime scene examination . Nothing was collected from the scene .", "On DATE the investigators questioned Mr A.M. , who stated that in the morning of DATE he had seen a group of armed men in camouflage uniforms and masks in CARDINAL APCs . The men had dragged PERSON into one of the vehicles and had then driven away .", "DATE . On DATE the investigators questioned PERSON , who stated that in TIME of DATE several military APCs had arrived in her street with men who were armed , masked and in camouflage uniforms . They had put PERSON and another man into one of the APCs and taken them away .", "On DATE the supervising prosecutor overruled the decision to suspend the investigation of DATE as premature and unsubstantiated . The investigation was resumed owing to the need to take additional investigative measures . The prosecutor criticised the investigation and ordered the following measures to be taken :", "“ ... the examination of the investigation file demonstrates that the investigation is being conducted passively and that investigating and operational - search measures are of a formal nature . There is no control over the execution of the investigators ' requests and orders . The decision to suspend the investigation was taken prematurely , without the necessary steps having been taken ...", "It is necessary that the investigation take the following steps :", "- ... request information concerning the vehicles which left the premises of the PERSON military commander 's office on DATE ;", "- identify witnesses to the abduction from among the residents living near the place of the events ;", "...", "- establish the identity of the second man who had been abducted with PERSON ... ”", "On DATE the Shali department of ORG ( the ORG ) informed the investigators that they did not have any information concerning PERSON involvement in illegal armed groups and that they had not conducted any special operations in the town on DATE .", "On DATE the investigators again questioned the second applicant , who stated that his acquaintance Mr PERSON had told him that he had clearly seen military servicemen placing PERSON in an ORG and that PERSON had already provided this information to the investigators . Then the applicant provided the investigators with detailed information about PERSON , who had witnessed the abduction of his son by military servicemen in APCs .", "On DATE the investigators also questioned the first applicant , who stated that her son had been abducted on DATE by armed men in camouflage uniforms ; that she had learnt from the witnesses that he had been taken away in an ORG . The applicant described the events of DATE of the abduction ; her description was the same as the one provided to ORG ( see paragraphs CARDINAL above ) .", "On DATE the investigators also questioned PERSON . I. who stated that late in the morning of DATE he had been at home when his wife had told him that military servicemen had been conducting a special operation in their street . He had gone out on the street where in QUANTITY on the LOC of the former medical storehouse he had seen a military ORG with groups of armed servicemen in camouflage uniforms . A number of local residents had gone outside of their houses and witnessed the events . After that he had gone back in the house . Later , after the military had left , he had learnt that the servicemen had taken away PERSON and that his cap had been found afterwards in the storehouse area .", "On DATE the investigators also questioned Mr S.A. , who stated that at TIME on DATE he had been outside his house when he had seen a group of CARDINAL masked men in military camouflage uniforms surrounding the site of the former medical storehouse . The men had been armed with automatic weapons ; they had had white stripes on the left sleeves of their uniforms . The men had arrived in CARDINAL or CARDINAL APCs and QUANTITY other armoured military vehicle of a khaki colour . None of the vehicles had had registration or hull numbers . Then the men had opened fire on the storehouse . The witness had heard the men speaking among themselves in unaccented NORP . From their conversations he had understood that they were servicemen working in the police and that they were taking part in a special operation . The operation lasted for TIME ; local residents had not been allowed to access the cordoned - off area . The servicemen had detained PERSON on the site of the storehouse and taken him away .", "On DATE the investigators questioned the applicant 's neighbour Mr PERSON , who stated that on TIME DATE he had been at work in the ROVD when PERSON had dropped by , looking for his relative Mr PERSON The latter had not been in the office and PERSON had left . In TIME the witness had learnt that military servicemen had abducted PERSON .", "On DATE the investigators questioned PERSON , who stated that at TIME on DATE she had seen a group of armed men in camouflage uniforms ; the men had been of NORP appearance and had been in APCs . They cordoned off her street along the perimeter of the former medical storehouse . Then she had seen the men beating and forcing her neighbour PERSON into one of the APCs . It appeared that PERSON had been wounded in the leg .", "On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .", "On DATE the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated . He pointed out that the investigators had failed to take a number of investigative steps and ordered that the investigation be resumed .", "On DATE the investigators again suspended the investigation in the criminal case for failure to identify the perpetrators .", "On DATE the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated . He pointed out that the investigators had failed to take a number of investigating steps , such as :", "“ ... The investigation file contains information concerning the use of automatic weapons by the abductors . However , the investigation did not take measures to establish whether any of the cartridge cases had been found [ at the scene ] by the relatives and the neighbours of the disappeared man ;", "The investigators failed to request and include in the file information concerning the possible conduct of a special operation in LOC on DATE by military units stationed in GPE .", "The investigators did not take steps to establish the identity of the man who had been abducted with PERSON ... ”", "On DATE the second applicant complained to the PERSON prosecutor and requested to be granted access to the investigation file ( see paragraph CARDINAL above ) .", "On DATE the investigators rejected his request , stating that the applicant was entitled to have access to the file only on completion of the investigation .", "On DATE the investigators granted the first applicant victim status in the criminal case and questioned her . She stated that on DATE her son PERSON had been abducted from the former medical storehouse by armed men in APCs ; that she and her relatives had complained about it to the prosecutor 's office and that the investigators had arrived at the scene on DATE . She further stated that in her presence and that of a number of her neighbours the investigators had collected from the scene a number of cartridge cases and that at some point later the investigator PERSON . had told her that the collected evidence would enable the authorities to identify the firearms used by the abductors and would assist in establishing their identities . The applicant stated that her son had most probably been abducted as a result of a special operation conducted against Mr R.Ch . , a leader of illegal armed groups , who lived near the storehouse .", "On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .", "On DATE the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated . He pointed out that the investigators had failed to verify whether the evidence had been collected from the crime scene and that they had not complied with the orders of the supervisory prosecutor of CARDINAL DATE ( see paragraph CARDINAL above ) .", "On DATE the investigators collected from the first applicant PERSON cap , found at the crime scene by his relatives , for inclusion in the investigation file as evidence .", "DATE . On DATE the investigators questioned Mr PERSON , who stated that on TIME DATE military servicemen had conducted a special operation in a nearby street ; that they had cordoned off the area and that local residents had not been allowed to move within its perimeter . Later on the same date he had learnt that his neighbour PERSON had been taken away by armed men in military uniforms in APCs . He further stated that a group of investigators had arrived at the scene and that they had collected cartridge cases and pieces of bloody bandage for the expert evaluation .", "On DATE the second applicant again complained to the PERSON prosecutor and requested to be allowed access to the investigation file ( see paragraph CARDINAL above ) .", "On DATE the investigators refused the request , stating that the applicant was entitled to have access to the file only on completion of the investigation . The applicant was not informed about the refusal .", "On DATE the supervisory prosecutor overruled the decision of CARDINAL DATE and partially allowed the applicant 's complaint , stating that the applicant was entitled to familiarise himself with the transcripts of the investigative actions taken with his participation .", "On DATE the investigators questioned the applicant 's neighbour Mr A.Ch . , who stated that on DATE he had learnt that armed men in military uniforms who had arrived in APCs had abducted his neighbour PERSON . He further stated that on the same date the investigators had arrived at the scene , found a pool of blood there and collected a number of cartridge cases left by the abductors .", "On DATE and DATE the investigators questioned the applicant 's neighbours PERSON and PERSON . , whose statements about the events were similar to the one given by PERSON .", "On DATE the investigators questioned the applicant 's relative PERSON . , whose statement concerning the events was similar to the one given by PERSON . In addition , the witness stated that he had seen the cartridge cases which had been collected from the scene by the investigators . According to the witness , the cartridge cases were black , of PERSON . calibre and numbered . He thought that they probably belonged to a special type of weapon . The investigators had also collected a white sleeve stripe from the scene . The crime scene examination had been conducted in the presence of a number of local residents and that the investigators had been taken there by Mr NORP , who worked in the ROVD .", "On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .", "DATE . On DATE the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated . He pointed out that the investigators had failed to comply with the orders of the supervisory prosecutor of CARDINAL DATE ( see paragraph CARDINAL above ) , as well as to question former investigator PERSON . about the circumstances of the collection of the evidence from the crime scene on DATE .", "On DATE the investigators questioned Mr PERSON , an expert from ORG . He stated that on DATE he had arrived at the crime scene in PERSON with the investigators from the district prosecutor 's office and the ROVD and that cartridge cases had been left by the abductors , as well as a cap with traces of blood next to it . The witness did not remember whether the investigators had collected the evidence from the scene , but he had personally taken photographs . He did not know whether the expert evaluation of the collected evidence had been carried out at all , but stated that no such evaluation had been carried out by the PERSON expert evaluation centre , where he worked at the time .", "On DATE the investigators questioned the applicants ' relatives , PERSON and PERSON , whose statements concerning the events were similar to the ones given by PERSON . and PERSON . ( see paragraphs DATE and CARDINAL above ) .", "On DATE the investigators collected from the first applicant a photograph of PERSON for inclusion in the investigation file .", "On DATE the FAC of GPE informed the investigators that no special operations had been conducted by their branches in PERSON on DATE .", "On DATE the investigators questioned the applicants ' relative PERSON . whose statement concerning the events was similar to the one given by PERSON .", "On DATE and CARDINAL DATE the investigators questioned police officers Mr DATE . and Mr GPE , who stated that in DATE they had worked in LOC , but they did not remember whether they had participated in the crime scene examination on DATE .", "On DATE the investigators questioned the former investigator of the district prosecutor 's office PERSON . , who stated that due to the passage of time he did not remember the details of the crime scene examination of the place where PERSON was abducted , and that he did not remember the conversation with the applicants concerning the collected evidence .", "On CARDINAL DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .", "On DATE the supervisory prosecutor issued a decision “ On remedial actions to be taken in connection with violations of the federal criminal procedure regulations during the investigation of the criminal case ” . He criticised the investigation of the abduction and ordered the investigators to take the following measures :", "“ ... the investigation of the criminal case has been conducted superficially , without taking all necessary steps ... in violation of LAW .", "... it has not been established for what reasons the investigator ORG . , who had visited the crime scene on DATE , had subsequently conducted a crime scene examination only on DATE ...", "... the investigators still have not questioned the officers of the ROVD who had gone to the crime scene [ on DATE ] , that is Mr R.Kh . , PERSON", ".... from the witnesses ' statements it is clear that there had been gunfire during the special operation of the military servicemen and the abduction of PERSON ... a large number of local residents had witnessed the military servicemen cordoning off the area around the former medical storehouse . However , the investigators did not take any steps to identify additional witnesses and obtain information about special operations conducted by the military units ...", ".... no instructions were issued for Mr D.Sh . , the member of the investigators ' team from the military prosecutor 's office of military unit no . DATE , in order to check the theory of the involvement of military servicemen [ in the abduction ] ... ”", "On CARDINAL DATE the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated . He pointed out that the investigators had failed to take a number of investigative actions and ordered the steps be taken ( see the above paragraph ) and that the investigators found and included in the investigation file the cartridge cases collected from the crime scene .", "On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .", "On DATE the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated . He pointed out that the investigators had failed to take a number of investigative actions and ordered that those actions be taken ( see paragraph CARDINAL above ) .", "On DATE and DATE the investigators questioned Mr R.Kh . and PERSON , officers of the ROVD , who stated that due to the passage of time they did not remember the details of the crime scene examination of the place where PERSON was abducted .", "On DATE the investigators again questioned the second applicant , who provided them with the names of PERSON closest friends .", "On DATE the investigators questioned the applicants ' neighbours Mr A.T. and PERSON . Both of them stated that they had learnt from their neighbours about PERSON abduction by military servicemen .", "On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .", "On DATE the supervisory prosecutor again issued a decision “ On remedial actions to be taken in connection with violations of the federal criminal procedure regulations during the investigation of the criminal case ” . He criticised the investigation of the abduction and ordered the investigators to take a number of investigative actions .", "On DATE the investigators resumed the investigation in the criminal case .", "On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .", "The investigating authorities sent numerous requests for information to the relevant ORG agencies and took other steps to have the crime resolved . The investigation found no evidence to support the involvement of NORP servicemen in the crime . The law - enforcement authorities had never arrested or detained PERSON on criminal or administrative charges ; no criminal proceedings had been initiated against him . No special operations had been carried out in respect of the applicants ' relative .", "The Government further stated that even though the investigation had failed to establish the whereabouts of PERSON , it was still in progress .", "Despite specific requests by ORG did not disclose the full contents of criminal case no . DATE , providing only “ the main documents ” from the investigation file , running to up to CARDINAL pages . They stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained personal data concerning witnesses or other participants in the criminal proceedings .", "For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) ." ]

[ "13", "2", "3", "5" ]

[]

[]

[]

[]

[]

[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .", "The applicant is the mother of a child born out of wedlock in DATE . The child ’s father is married to another woman and lives with her and their CARDINAL children in GPE near GPE .", "On DATE ORG ( sąd rejonowy ) ordered the child ’s father to pay maintenance in an amount of CARDINAL old NORP zlotys ( PLZ ) corresponding to MONEY ( ORG ) at the exchange rate prevailing at the material time . Thereafter the applicant applied to ORG ( ORG ) for an increase in the child maintenance . On DATE the applicant and the child ’s father concluded a settlement before the ORG according to which the father agreed to pay a further DATE maintenance sum of DEM CARDINAL in addition to the sum fixed by the NORP court . Apparently the father initially paid the total maintenance sum of DEM CARDINAL on a regular basis .", "On DATE ORG ( PERSON ) , designated in GPE as ORG pursuant to ORG on the Recovery Abroad of Maintenance , received a letter from the applicant dated DATE containing a request for an increase in the DATE maintenance payments . On DATE she reduced her initial claim to DEM CARDINAL .", "Pursuant to the Convention on the Recovery Abroad of Maintenance , ORG , as the competent ORG on the NORP side , was informed by ORG of this request . On DATE , after having investigated the father ’s last known place of residence , ORG contacted the child ’s father and requested him to disclose his financial situation .", "On DATE the child ’s father , represented by a lawyer , drew the attention of ORG to the settlement reached on DATE . On DATE he submitted information concerning his ability to pay . On DATE ORG informed ORG of the state of the proceedings .", "On DATE the applicant informed ORG that she was currently receiving DATE maintenance payments for her son from a relative of the child ’s father in an amount of MONEY ( PLN ) corresponding at the material time to DEM CARDINAL .", "At DATE the competent employment office informed ORG that the child ’s father had been unemployed for a certain time and DATE that he was unemployed since DATE .", "Having received no further information on his financial situation from the child ’s father despite several reminders , namely of DATE , DATE and DATE , ORG brought an action against him on behalf of the child before ORG ( ORG ) .", "On DATE ORG received the child ’s maintenance claim together with a request for legal aid . After an extension of the time - limit , observations of the child ’s father on the child ’s maintenance claim were received by ORG in DATE . In reply to a request of ORG of DATE , ORG set the child support , as requested by the applicant , at the amount of DEM DATE . On DATE ORG granted the applicant ’s son legal aid . ORG was informed about the proceedings .", "On DATE a hearing was held before ORG . The child and ORG were represented by ORG . ORG had regard to the fact that the child ’s father had been again unemployed since DATE and , with the consent of both parties , ordered the stay of the proceedings . Following the hearing , ORG informed ORG of this decision .", "On DATE and DATE the competent employment office informed ORG that the child ’s father was still unemployed .", "In a letter to ORG of DATE the applicant stated that the child ’s father was the owner of a house and several cars in GPE . ORG forwarded this letter to ORG and recommended an investigation into this matter by the NORP authorities , since for the time being there was no possibility under NORP law to obtain an increase in maintenance payments .", "By a default judgment of CARDINAL DATE ORG ordered the child ’s father to pay DATE maintenance in an amount of PLN MONEY ( MONEY ) . On DATE ORG communicated to ORG a letter of the applicant dated DATE in which she had confirmed that the amount of the child allowance had been increased and paid on a regular basis and that there were no arrears .", "The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on DATE by ORG on Maintenance Obligations . The LAW came into force on CARDINAL DATE and was ratified by GPE and GPE . As an agreement on legal assistance which concerns merely the receipt and the transmission of maintenance claims , it complements the existing legal remedies existing under domestic or international law . Pursuant to the LAW , the Receiving Agencies of maintenance claims designated by the Contracting Parties shall take on behalf of the claimant all appropriate steps fort he recovery of maintenance .", "The relevant provisions of the Convention read as follows :", "“ CARDINAL . The purpose of this Convention is to facilitate the recovery of maintenance to which a person , hereinafter referred to as claimant , who is in the territory of CARDINAL of the Contracting Parties , claims to be entitled from another person , hereinafter referred to as the respondent , who is subject to the jurisdiction of ORG . This purpose shall be effected through the offices of agencies , which will hereinafter be referred to as ORG .", "The remedies provided for in this Convention are in addition to , and not in substitution for , any remedies available under municipal or international law . ”", "“ CARDINAL . ORG shall , at the time when the instrument of ratification or accession is deposited , designate CARDINAL or more judicial or administrative authorities , which shall act in its territory as ORG .", "ORG shall , at the time when the instrument of ratification or accession is deposited , designate a public or private body , which shall act in its territory as ORG . ”", "“ Where a claimant is on the territory of CARDINAL ORG , hereinafter referred to as the ORG of the claimant , and the respondent is subject to the jurisdiction of ORG , hereinafter referred to as the ORG of the respondent , the claimant may make application to a ORG in GPE the claimant for the recovery of maintenance from the respondent . ”", "“ The Transmitting Agency shall transmit the documents to ORG of ORG respondent , unless satisfied that the application is not made in good faith . ”", "“ The Transmitting Agency shall , at the request of the claimant , transmit , under the provision of LAW , any order , final or provisional , and any other judicial act , obtained by the claimant for the payment of maintenance in the competent tribunal of ORG , and , where necessary and possible , the record of the proceedings in which such order was made . ”", "“ CARDINAL . ORG shall , subject always to the authority given by the claimant , take on behalf of the claimant , all appropriate steps for the recovery of maintenance , including the settlement of the claim and , where necessary , the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance .", "The Receiving Agency shall keep ORG currently informed . If it is unable to act , it shall inform ORG of its reason and return the documents .", "Notwithstanding anything in this Convention , the law applicable in the determination of the questions arising in such action or proceedings shall be the law of the ORG of the respondent , including its private international law . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicants were born in DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in southern GPE .", "The applicants alleged that their homes , as well as other immovable properties , had been in the districts of GPE and PERSON ( northern GPE ) . In DATE , as the NORP troops were advancing , they had been forced to leave their houses and belongings .", "NORP The properties claimed by the applicants were described as follows in the ORG 's final decision on the admissibility of the application .", "Properties of applicant no . CARDINAL , Mr PERSON :", "( CARDINAL ) GPE , Livera , ORG , ORG . CARDINAL , ORG : CARDINAL , Area : CARDINAL m² Use : Land , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , PERSON , Plot No . CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL m² , Use : Land , Share : CARDINAL ;", "( CARDINAL ) ORG , PERSON , ORG , ORG . CARDINAL , CARDINAL , DATE , ORG : CARDINAL , Area : CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL , Use : Land , Share : CARDINAL , CARDINAL , CARDINAL respectively ;", "( CARDINAL ) PERSON , PERSON , PERSON Trikomou / PERSON , Plot No . CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL , Use : Land , Share : CARDINAL ;", "( CARDINAL ) PERSON , PERSON , NORP , ORG . CARDINAL , CARDINAL , CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL m² , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Use : Land , Share : CARDINAL in total ;", "( CARDINAL ) PERSON , PERSON , NORP , ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Use : Land , Share : CARDINAL in total ;", "( CARDINAL ) GPE , PERSON , Mantres PERSON , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Land , Share : CARDINAL ;", "( CARDINAL) GPE , PERSON , Mantres PERSON , ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL , DATE , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Use : Land , Share : CARDINAL ;", "( CARDINAL ) ORG , PERSON , GPE , Plot No . DATE , ORG : CARDINAL , Area : CARDINAL , Use : Land , Share : CARDINAL ;", "( CARDINAL ) ORG , PERSON , ORG DATE , ORG : CARDINAL , Use : Shop A ORG , Share : No . DATE , ORG : CARDINAL , Use : Shop D - Lordos Cyprian Court , Share : PERCENT ;", "( CARDINAL ) ORG , ORG , ORG . CARDINAL , ORG : CARDINAL , Block A , Area : CARDINAL , Use : Land and buildings , Share : CARDINAL ;", "( CARDINAL ) ORG , PERSON , Plot No . DATE , ORG : CARDINAL , Block D , Area CARDINAL:CARDINAL:CARDINAL , Use : Land and building CARDINAL shops , QUANTITY flats , CARDINAL underground stores , Share : CARDINAL ;", "( CARDINAL ) ORG , ORG , ORG . CARDINAL , CARDINAL , ORG : CARDINAL , Block E , Area : CARDINAL , Use : Land , Share : CARDINAL ;", "( CARDINAL ) GPE , ORG , Plot No . CARDINAL , ORG : CARDINAL , Block J , Area : CARDINAL , Use : Building site , Share : CARDINAL ;", "( CARDINAL ) NORP , PERSON , ORG . CARDINAL , DATE , ORG : CARDINAL , Block C , Area : Unknown , Use : Land under development , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . DATE , ORG : CARDINAL , ORG , Area : CARDINAL , Use : Land in industrial area , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , ORG . DATE , LOC , DATE , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Use : FAC site , Share : CARDINAL , CARDINAL , CARDINAL , CARDINAL respectively ;", "( CARDINAL ) GPE , GPE , Plot No . DATE , ORG : . CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , Use : Land , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL , Use : Land under development , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , ORG . CARDINAL , CARDINAL , DATE , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Use : Building sites , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , ORG . CARDINAL , CARDINAL , CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Use : Building sites , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . DATE , ORG : CARDINAL , ORG , Area : CARDINAL , Use : Land , Share : CARDINAL/CARDINAL ;", "( CARDINAL ) ORG , PERSON , ORG . DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , ORG : CARDINAL , ORG , Area : Unknown , Use : Land , Share : CARDINAL ;", "( CARDINAL ) ORG , PERSON , Plot No . DATE , ORG : CARDINAL , Block C , Area : Unknown , Use : Building site , Share : CARDINAL ;", "( CARDINAL ) ORG , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , Use : Land and buildings , CARDINAL shops , CARDINAL bedroom ( offices ) , CARDINAL underground stores , Share CARDINAL ;", "( CARDINAL ) ORG , ORG , ORG . CARDINAL , ORG : CARDINAL . Block A , Area : CARDINAL , Use : ORG ( CARDINAL star ) ( CARDINAL rooms , reception room , bar , cafeteria , restaurant ) , Share : CARDINAL ;", "( CARDINAL ) ORG , ORG , Plot No . CARDINAL , ORG : PERCENT , Block A , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site , Share : CARDINAL ;", "( CARDINAL ) NORP , PERSON , Plot No . DATE , ORG : CARDINAL , Area : Unknown , Use : PERSON ( CARDINAL double rooms , billiard room , sitting room ) , Share CARDINAL ;", "( CARDINAL ) ORG , ORG , ORG . CARDINAL , ORG : CARDINAL , Block A , Area : Unknown , Use : Studio No . CARDINAL ORG , Share : PERCENT ;", "( CARDINAL ) ORG , ORG , ORG . CARDINAL , ORG : CARDINAL , Block A , Area : Unknown , Use : Flat No . CARDINAL ORG , Share : PERCENT ;", "( CARDINAL ) ORG , PERSON , Plot No . CARDINAL , ORG : MONEY , Area : CARDINAL:CARDINAL:CARDINAL , Use : Shop No . CARDINAL- PERSON , Share : PERCENT ;", "( CARDINAL ) ORG , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No.CARDINAL DATE Floor FAC , Share : PERCENT ;", "( CARDINAL ) ORG , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALth Floor FAC , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block C , Area : Unknown , Use : Flat No CARDINAL CARDINALth Floor , PERSON , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block C , Area : Unknown , Use : ORG , Share : PERCENT ;", "( DATE ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedroom ground floor - ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block C , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALth ORG ;", "( DATE ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALst ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALnd ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - Ground Floor Lordos ORG , Share : PERCENT ;", "( DATE ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALth ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - Ground Floor Lordos ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALrd ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALrd ORG , Share : CARDINAL ;", "( DATE ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block C , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALth ORG , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site , Share : CARDINAL ;", "( CARDINAL ) GPE , FAC , Plot No . CARDINAL , ORG : MONEY , Area : Unknown , Use : ORG , GPE facing sea furnished and rented as hotel apartments , Share : PERCENT ;", "( DATE ) GPE , FAC , Plot No . CARDINAL , ORG : CARDINAL , Area : Unknown , Use : Shops , Share : CARDINAL ;", "( CARDINAL ) GPE , FAC , Plot No . CARDINAL , ORG : CARDINAL , Area : Unknown , Use : CARDINAL Flats facing the sea in ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL/CARDINAL.CARDINAL.IV , Area : CARDINAL:CARDINAL:CARDINAL , Use : PERSON Court- ORG facing sea , Share : PERCENT ;", "( CARDINAL ) ORG , ORG . CARDINAL , CARDINAL , CARDINAL , ORG : CARDINAL/CARDINAL.CARDINAL.IV , Area : Unknown , Use : CARDINAL bedroom flat , Share : PERCENT ;", "( CARDINAL ) GPE , GPE , ORG Number - Unknown , Area : Unknown , Use : ORG - CARDINAL CARDINAL bedroom flats - CARDINAL bedroom flat - CARDINAL bedroom flats , Share : PERCENT ;", "( DATE ) ORG , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Seaside land near GPE , Share : CARDINAL ;", "( CARDINAL ) ORG , PERSON , Plot No . DATE , ORG : CARDINAL , Area : CARDINAL , Use : Seaside land , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , ORG . CARDINAL , CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Use : Seaside land , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL/CARDINAL , ORG : CARDINAL , Area : Unknown , Use : CARDINAL Building sites , Share : CARDINAL ;", "( DATE ) GPE , GPE , Plot and ORG . Unknown , Area : CARDINAL PERSON , Use : Land abutting main NORP GPE new road ;", "( CARDINAL ) GPE , PERSON , ORG . Unknown , Area : CARDINAL PERSON , Use : FAC at PERSON , PERSON ;", "( CARDINAL ) GPE , PERSON , FAC , ORG . CARDINAL , DATE , DATE , DATE , DATE , ORG : CARDINAL , Area : Unknown , Use : CARDINAL Building sites in ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . DATE , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building land , Share : CARDINAL/CARDINAL ;", "( CARDINAL ) GPE , GPE Street , ORG . CARDINAL , CARDINAL , CARDINAL DATE , ORG : CARDINAL , Area : unknown , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Share : PERCENT with exception of Plot No . CARDINAL where share CARDINAL ;", "( CARDINAL ) GPE , PERSON , FAC , Plot No . Unknown , ORG : CARDINAL , Area : Unknown , Use : Building site , ORG plantation , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . Unknown , ORG : CARDINAL + CARDINAL , Area : Unknown , Use : Building site No . CARDINAL , ORG , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , ORG . CARDINAL , CARDINAL , CARDINAL , ORG : CARDINAL , Area : CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL , Use : Building land : CARDINAL PERSON abutting main FAC , ORG , Share : CARDINAL ;", "( CARDINAL ) NORP : PERSON , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL , Use : Building land , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , CARDINAL , ORG : CARDINAL + CARDINAL/CARDINAL.W.CARDINAL , Area : CARDINAL PERSON , Use : CARDINAL Building sites , Share : CARDINAL ;", "( DATE ) PERSON , ORG . CARDINAL and CARDINAL ORG : CARDINAL , Area : CARDINAL , Use : CARDINAL PERSON , Building sites in the vicinity of LOC , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Area : Unknown , Share : ¼.", "On DATE the representative of applicant no . CARDINAL declared that his client wished to add further properties to those indicated above . The Government considered that the ORG should not take into consideration additional claims submitted after the adoption of the decision on admissibility .", "Properties of applicant no . CARDINAL , Mr PERSON :", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL m² , Use : Residence on CARDINALst floor and rented shops and offices on ground Floor , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . DATE , ORG : CARDINAL , Area : Unknown , Use : ORG with a garden , Share : PERCENT ;", "( CARDINAL ) GPE , ORG CARDINAL , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Buildings & buildings sites all for rent , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block E , Area : CARDINAL:CARDINAL:CARDINAL , Use : multi - storey building complex of hotel apartments all for rent , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL ORG : CARDINAL Block D , Area : CARDINAL m² , Use : Building & offices , CARDINAL of which was the applicant 's office , Share : CARDINAL ;", "( CARDINAL ) GPE , FAC , Registration No . DATE , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL , Use : Building site for development or sale , Share : CARDINAL ;", "( CARDINAL ) GPE , FAC , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Building site for development or sale , Share : PERCENT ;", "( CARDINAL) GPE , FAC , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Building site for development or sale , Share : PERCENT ;", "( CARDINAL ) GPE , FAC , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Building site for development or sale , Share : PERCENT ;", "( CARDINAL ) GPE , FAC , Plot No . CARDINAL , ORG : CARDINAL , Block D , Area : Unknown , Use : Building site for development or sale , Share : PERCENT ;", "( CARDINAL ) GPE , FAC , Plot No . CARDINAL , ORG : CARDINAL , Block D , Area : Unknown , Use : Building site for development or sale , Share : PERCENT ;", "( CARDINAL ) GPE , FAC , Plot No . CARDINAL , ORG : CARDINAL , Block D , Area : Unknown , Use : Building site for development or sale , Share : PERCENT ;", "( CARDINAL ) GPE , FAC , Plot No . CARDINAL , ORG : CARDINAL , Block D , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for development or sale , Share : PERCENT ;", "( CARDINAL ) GPE , FAC , Plot No . CARDINAL , ORG : CARDINAL , Block D , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for development or sale , Share : PERCENT ;", "( CARDINAL ) GPE , FAC , Registration No . DATE , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , Use : Plot of land for development or sale , Share : CARDINAL ;", "( CARDINAL ) GPE , FAC , Registration No . CARDINAL , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , Use : Plot of land for development or sale , Share : CARDINAL ;", "( CARDINAL ) GPE , FAC , Registration No . DATE , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL , Use : Plot of land for development or sale , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block B , Area : Unknown , Use : Plot of land with a well , Share : PERCENT .", "Applicant no . CARDINAL also referred to CARDINAL properties which were registered in the name of his wife , PERSON . PERSON , and CARDINAL property which was registered in the name of his mother , PERSON .", "Properties of applicant no . CARDINAL , Mr PERSON :", "- GPE , ORG , PERSON , Registration No . CARDINAL , Plot No . CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL , Use : Residence along with other buildings and land , Share : PERCENT .", "Applicant no . CARDINAL , Mr PERSON , claimed that his father , Mr PERSON , was the owner of the following property :", "- GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL m² , Use : Residence , Share : PERCENT .", "Properties of applicant no . CARDINAL , Mr PERSON :", "( CARDINAL ) GPE , PERSON , ORG DATE , ORG : CARDINAL/CARDINAL.CARDINAL.IV Block E , Area : Unknown , Use : Shop G - ground floor , ORG , Share : PERCENT ;", "( CARDINAL ) GPE , ORG , ORG . CARDINAL , ORG : CARDINAL – Block A , Area : CARDINAL:CARDINAL:CARDINAL , Use : Land and buildings , Share : CARDINAL ;", "( CARDINAL ) ORG , PERSON , Plot No . DATE , ORG : CARDINAL , Block D , Area : CARDINAL:CARDINAL:CARDINAL , Use : CARDINAL shops , CARDINAL flats , CARDINAL underground stores , Share : CARDINAL ;", "( CARDINAL ) GPE , ORG , ORG . CARDINAL , ORG : CARDINAL , Block E , Area : CARDINAL : CARDINAL , Use : Land , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , ORG . DATE , DATE , ORG : CARDINAL , ORG , Area : Unknown , Use : Land under development , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . DATE , ORG : CARDINAL , ORG , Area : CARDINAL , Use : Land in industrial area , Share : CARDINAL ;", "( CARDINAL) GPE , GPE , ORG . FAC , DATE , DATE , ORG : CARDINAL . W.CARDINAL , ORG , Area : CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Use : Building site , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . DATE , ORG : CARDINAL , Block D , Area : CARDINAL , Use : Land , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . CARDINAL , ORG : CARDINAL , Block C , Area : CARDINAL , Use : Land under development , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , ORG . CARDINAL , CARDINAL , DATE , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Use : Building sites , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , ORG . CARDINAL , CARDINAL , CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , CARDINAL:CARDINAL:CARDINAL , Use : Building sites , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . CARDINAL , ORG : CARDINAL , Block D , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . DATE , ORG : CARDINAL , Block D , Area : CARDINAL:CARDINAL:CARDINAL , Use : Land , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , ORG . DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , ORG : CARDINAL , ORG , Area : Unknown , Use : Building sites , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block D , Area : CARDINAL , Use : CARDINAL shops , CARDINAL bedrooms - offices , CARDINAL underground stores , Share : CARDINAL ;", "( CARDINAL ) GPE , ORG , ORG . CARDINAL , ORG : CARDINAL , Block A , Area : CARDINAL , Use : ORG ( CARDINAL star hotel , CARDINAL rooms , reception room , bar , cafeteria , restaurant , upper ground floor ) , Share : CARDINAL ;", "( CARDINAL ) GPE , ORG , Plot No . CARDINAL , ORG : CARDINAL , Block A , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , ORG . DATE , CARDINAL , ORG : DATE , Area : Unknown , Use : PERSON ( CARDINAL double rooms , billiard room , sitting room ) , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block C , Area : CARDINAL:CARDINAL:CARDINAL , Use : Shop No . CARDINAL - FAC , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , Use : Flat No . CARDINAL bedrooms - CARDINALth ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL:CARDINAL:CARDINAL , Use : Flat No . CARDINAL bedrooms - CARDINALth ORG , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block C , Area : Unknown , Use : Flat No . CARDINAL bedroom - CARDINALnd Floor , ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block C , Area : Unknown , Use : Studio No . DATE ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block C , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALth ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - ground floor , ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALnd floor , ORG , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALrd floor , ORG , Share : CARDINAL ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : Unknown , Use : Flat No . CARDINAL bedrooms - CARDINALth Floor , ORG , Share : CARDINAL ;", "( CARDINAL ) GPE , GPE , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site , Share : ¼.", "On DATE the representative of applicant no . CARDINAL declared that his client wished to add further properties to those indicated above . The Government considered that the ORG should not take into consideration additional claims submitted after the adoption of the decision on admissibility .", "Property of applicant no . CARDINAL , Mr ORG Evangelides :", "- GPE , ORG , ORG . CARDINAL , ORG : CARDINAL , Area : Unknown , Use : Home , Share : PERCENT according to the documents submitted at the admissibility stage , CARDINAL according to the expert report submitted with the just satisfaction claims .", "Applicant no . CARDINAL , Mr PERSON , claimed that his wife , PERSON Hadjimanoli , was the owner of the following property :", "- GPE , PERSON , Registration No . DATE , Plot No . CARDINAL , ORG : CARDINAL . IV , Area : CARDINAL:CARDINAL:CARDINAL , Use : Residence , Share : PERCENT .", "Properties of applicant no . CARDINAL , Mr GPE :", "( CARDINAL ) GPE , PERSON , PERSON , Plot No . , Area , Sheet / Plan and Registration Number could not be obtained . Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , ORG Registration No . DATE , Plot No . ORG : CARDINAL , Area : CARDINAL:CARDINAL : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , ORG . CARDINAL , CARDINAL/CARDINAL , GPE , ORG : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . CARDINAL , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . CARDINAL/CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . CARDINAL/CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , ORG . CARDINAL/CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL) GPE , PERSON , PERSON , ORG Registration No . DATE , ORG . CARDINAL , CARDINAL/CARDINAL Sheet / Plan : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . ORG , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . CARDINAL/CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . CARDINAL/CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , ORG . CARDINAL , CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , ORG . CARDINAL , CARDINAL , ORG , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , ORG . CARDINAL , DATE , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) PERSON , PERSON , PERSON , ORG Registration No . DATE , Plot No . CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . CARDINAL/CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , ORG . DATE ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , ORG . CARDINAL , DATE , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , ORG . CARDINAL/CARDINAL , DATE , ORG : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . ORG , ORG : CARDINAL , Area : CARDINAL , Use : Building site for sale or development , Share : PERCENT ;", "( CARDINAL ) GPE , PERSON , PERSON , ORG Registration No . DATE , Plot No . CARDINAL , ORG : CARDINAL , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building site for sale or development , Share : PERCENT .", "Applicant no . CARDINAL , Mr PERSON , claimed that his wife , PERSON PERSON , was the owner of the following property :", "- Famagusta , PERSON , Plot No . CARDINAL , ORG : CARDINAL/CARDINAL.CARDINAL.IV , Block B , Area : Unknown , Use : the CARDINALnd floor was a residence and the ground floor were shops for rent , Share : PERCENT .", "Property of applicant no . CARDINAL , PERSON ( alias Lenia ) PERSON :", "- Famagusta , PERSON , Plot No . CARDINAL , ORG : CARDINAL , ORG , Area : CARDINAL m² , Use : Residence , Share : ½.", "Property of applicant no . CARDINAL , Mr PERSON :", "- GPE , ORG , Plot No . DATE , ORG : CARDINAL , ORG , Area : Unknown , Use : Apartment , residence ( CARDINAL flats ) , Share : PERCENT ;", "Applicant no . CARDINAL also claimed that ORG and ORG , CARDINAL companies of which he and his sister Athina were the sole shareholders , were the owners of the following properties :", "( CARDINAL ) GPE , PERSON , Registration No . CARDINAL , Plot No . CARDINAL , ORG : CARDINAL , Block E , Area : CARDINAL:CARDINAL:CARDINAL , Use : Hotel apartments for rent ( DATE flats ) and cafeteria on ground floor ;", "( CARDINAL ) ORG , PERSON , Registration No . CARDINAL , Plot No . CARDINAL , ORG : CARDINAL , Block E , Area : CARDINAL:CARDINAL:CARDINAL , Use : Hotel apartments for rent ( DATE flats ) and cafeteria on ground floor ;", "( CARDINAL ) GPE , PERSON , Plot No . CARDINAL , ORG : CARDINAL , Block C , Area : Unknown , Use : Beach hotel ( CARDINAL star with CARDINAL rooms ) ;", "( CARDINAL ) ORG , PERSON , Plot No . DATE , ORG : CARDINAL , Block D , Area : CARDINAL:CARDINAL:CARDINAL , Use : Building consisting of ground floor shops , offices and apartments , investment income property ;", "( CARDINAL ) ORG , ORG , Plot No . CARDINAL , ORG : CARDINAL , Block E , Area : CARDINAL , Use : Plot of land on the GPE destined for a hotel .", "Applicant no . CARDINAL owned PERCENT of the shares in the CARDINAL limited companies , while PERCENT belonged to PERSON .", "In support of their claim to ownership , the applicants submitted either copies of the relevant original title deeds or copies of certificates of affirmation of ownership of NORP - occupied immovable property issued by GPE after DATE . Applicant no . CARDINAL failed to produce evidence supporting his claim that he was the owner of the building site in GPE described in paragraph CARDINAL ( CARDINAL ) above .", "In its final decision on the admissibility of the application the ORG noted that the respondent Government did not challenge any of the titles regarding the immovable properties described above .", "The applicants alleged that since DATE they had not been able to return to their homes and had been continuously prevented from using and enjoying their properties ." ]

[ "8" ]

[]

[]

[ "8" ]

[]

[]

[ "The applicant [ PERSON ] , a NORP national born in DATE , is a primary - school teacher and lives in GPE ( GPE ) . She was represented before the ORG by Mr PERSON and PERSON , both of LOC .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was appointed as a primary - school teacher by the GPE cantonal government ( ORG d’Etat ) on DATE , having taught at ORG in GPE since the DATE .", "After a period of spiritual soul - searching , the applicant abandoned the NORP faith and converted to ORG in DATE . On DATE she married an NORP national , PERSON . The marriage has produced CARDINAL children , born in DATE , DATE and DATE .", "The applicant began wearing an NORP headscarf in class towards the end of the DATE - CARDINAL school year , her intention being to observe a precept laid down in the Koran whereby women were enjoined to draw their veils over themselves in the presence of men and male adolescents .", "The applicant went on maternity leave from DATE to DATE and from CARDINAL DATE to DATE .", "In DATE the schools inspector for the ORG district informed LOC that the applicant regularly wore an NORP headscarf at school ; the inspector added that she had never had any comments from parents on the subject .", "On DATE a meeting was held between the applicant , the Director General of Primary Education ( “ the Director General ” ) and the head of the teaching - personnel department concerning the fact that the applicant wore a headscarf . In a letter of CARDINAL DATE the Director General confirmed the position she had adopted at the meeting , requesting the applicant to stop wearing the headscarf while carrying out her professional duties , as such conduct was incompatible with section CARDINAL of LAW .", "In a letter of CARDINAL DATE the applicant requested the Director General to issue a formal ruling on the matter .", "On DATE the Directorate General for ORG confirmed its previous decision . It prohibited the applicant from wearing a headscarf in the performance of her professional duties on the grounds that such a practice contravened section CARDINAL of LAW and constituted “ an obvious means of identification imposed by a teacher on her pupils , especially in a public , secular education system ” .", "On DATE the applicant appealed against that decision to the GPE cantonal government .", "The cantonal government dismissed the appeal in an order of DATE , on the following grounds :", "“ Teachers must ... endorse both the objectives of the ORG school system and the obligations incumbent on the education authorities , including the strict obligation of denominational neutrality ...", "The clothing in issue ... represents ... , regardless even of the appellant ’s intention , a means of conveying a religious message in a manner which in her case is sufficiently strong ... to extend beyond her purely personal sphere and to have repercussions for the institution she represents , namely the ORG school system . ”", "On a public - law appeal lodged by the applicant on DATE , in which she had alleged a violation of LAW and submitted that the prohibition on wearing a headscarf interfered with the “ inviolable core of her freedom of religion ” , ORG upheld the GPE cantonal government ’s decision in a judgment of DATE , which was served on DATE .", "It held , in particular :", "“ Firstly , it should be observed that the appellant ’s main argument is that her clothing , consisting of items that may be purchased at the hypermarket , should be treated not as a religious symbol but in the same way as any other perfectly inoffensive garments that a teacher may decide to wear for his or her own reasons , notably for aesthetic reasons or in order to emphasise or conceal part of his or her anatomy ( a scarf around the neck , a cardigan , a hat , etc . ) . She accordingly submits that the impugned decision is tantamount to prohibiting teachers , without sufficient justification , from dressing as they please .", "However , there is no doubt that the appellant wears the headscarf and loose - fitting clothes not for aesthetic reasons but in order to obey a religious precept which she derives from the following passages of the Koran .", "...", "The wearing of a headscarf and loose - fitting clothes consequently indicates allegiance to a particular faith and a desire to behave in accordance with the precepts laid down by that faith . Such garments may even be said to constitute a ‘ powerful’ religious symbol – that is to say , a sign that is immediately visible to others and provides a clear indication that the person concerned belongs to a particular religion .", "What is in issue , therefore , is the wearing of a powerful religious symbol by a teacher at a ORG school in the performance of her professional duties . No restrictions have been imposed on the appellant as regards her clothing when she is not teaching . Nor does the case concern the wearing of a religious attribute by a pupil or the wearing of outlandish or unusual clothing with no religious connotations by a teacher at school .", "...", "Similarly , by LAW , freedom to manifest one ’s religion or beliefs may be subject to restrictions ( see ORG Rights’ judgment of CARDINAL DATE in the case of ORG v. GPE , Series A no . CARDINAL , § DATE , and GPE and PERSON , PERSON , CARDINALnd ed . , DATE , note CARDINAL on Article CARDINAL , p. CARDINAL ) . Conversely , freedom of thought is absolute ; since it can not by nature give rise to any interference with public order , it is not subject to any restrictions ( see PERSON and GPE , ORG européenne des droits de l’homme , GPE , DATE , note CARDINAL , p. CARDINAL ) .", "In the instant case , even if it is particularly important to the appellant and does not merely represent an expression of a particular religious belief but complies with an imperative requirement of that belief , the wearing of a headscarf and loose - fitting clothes remains an outward manifestation which , as such , is not part of the inviolable core of freedom of religion .", "...", "The appellant maintains that the impugned order does not have a sufficient basis in law .", "...", "Serious interferences with constitutional freedoms must be clearly and unequivocally provided for , as to their substance , by a law in the strict sense ( ORG [ ORG fédéral GPE ] , vol . CARDINAL I , p. CARDINAL , ground CARDINAL ) , at p. CARDINAL , and vol . CARDINAL GPE , p. CARDINAL , ground FAC ) , at pp . CARDINAL ) . However , where interference with freedom of conscience and belief results from a rule of conduct that is very specific or would be regarded by the average citizen as being of minor importance ( in this case , prohibiting a teacher from wearing a headscarf at school ) , the requisite basis in law can not be too precise . In such circumstances it is sufficient for the rule of conduct to derive from a more general obligation laid down by the law in the strict sense .", "Furthermore , the decision appealed against concerns the appellant in her capacity as a civil servant of the GPE of GPE . Civil servants are bound by a special relationship of subordination to the public authorities , a relationship which they have freely accepted and from which they benefit ; it is therefore justifiable that they should enjoy public freedoms to a limited extent only . In particular , the legal basis for restrictions on such freedoms does not have to be especially precise . The manifold , varying nature of DATE relations between a civil servant and the authority to which he or she is answerable means that it is impossible to lay down an exhaustive list of types of conduct to be restricted or prohibited . It is therefore sufficient for the law to give a general indication , by means of indeterminate legal concepts , of the values which must be adhered to and which may subsequently be made explicit in an order or in an individual decision . However , as to their substance , any restrictions on public freedoms must be justified by the aim pursued and by the proper functioning of the institution . Lastly , observance of the principles of public interest and proportionality is to be monitored all the more rigorously where the interference with the civil servant ’s interests is serious and the basis in law imprecise ( ORG , vol . CARDINAL GPE , p. CARDINAL , ground CARDINAL(a ) , at p. CARDINAL ; vol . CARDINAL GPE , p. CARDINAL , ground CARDINAL ) , at p. CARDINAL ; vol . CARDINAL I a , p. CARDINAL , ground CARDINAL , at p. CARDINAL ; SJ [ La Semaine Judiciaire ] , DATE , p. CARDINAL , ground CARDINAL ; ZBl [ PERSON Staats- und PERSON ] CARDINAL/CARDINAL , p. CARDINAL , ground CARDINAL(b ) ; PERSON , ORG administratif , GPE , vol . III , DATE , note DATE . , pp . CARDINAL - CARDINAL , and note PERSON . , pp . CARDINAL - CARDINAL ; vol . I , DATE , note PERSON . , pp . CARDINAL et seq . ; PERSON , Die dienstrechtliche ORG i m GPE , thesis , GPE , DATE , pp . CARDINAL et seq . ; PERSON , ‘ PERSON der PERSON , in PJA [ PERSON juridique actuelle ] DATE , pp . CARDINAL et seq . , in particular p. CARDINAL ) .", "In GPE , section CARDINAL of the cantonal LAW of DATE provides : ‘ The public education system shall ensure that the political and religious beliefs of pupils and parents are ORG . It also follows from ORG CARDINAL et seq . of the cantonal LAW that there is a clear separation between ORG and ORG in the GPE , the ORG being secular ( PERSON , PERSON i m pluralistischen ORG , thesis , GPE , DATE , p. CARDINAL , and PERSON , op . cit . [ PERSON fédérale ] , notes CARDINAL - CARDINAL on DATE ) . In the education system , this separation is given practical effect by section ORG ) of LAW , which provides : ‘ Civil servants must be lay persons ; derogations from this provision shall be permitted only in respect of university teaching LANGUAGE .", "In the instant case the measure prohibiting the appellant from wearing a headscarf that clearly identified her as a member of a particular faith reflects an increasing desire on the part of the GPE legislature , as expressed in the provisions cited above , to ensure that the education system observes the principles of denominational neutrality ( cf . LAW ) and of separation between ORG and ORG . Accordingly , even if the impugned order entailed serious interference with the appellant ’s freedom of religion , it had a sufficient basis in law .", "...", "( a ) The appellant further submits that there were no public - interest grounds for the impugned decision .", "In displaying a powerful religious attribute on the school premises – indeed , in the classroom – the appellant may have interfered with the religious beliefs of her pupils , other pupils at the school and the pupils’ parents . Admittedly , there have been no complaints from parents or pupils to date . But that does not mean that none of them has been affected . Some may well have decided not to take any direct action so as not to aggravate the situation , in the hope that the education authorities will react of their own motion . Moreover , the matter has caused a stir among the public , the appellant has given numerous interviews and ORG [ cantonal parliament ] has passed a resolution along the same lines as the decision taken by the cantonal government . In addition , while it is true that the education authorities did not intervene by taking a decision immediately after the inspector had informed them of the appellant ’s clothing , that attitude should not be construed as implicit approval . It is understandable that the authorities should first have attempted to settle the matter without resorting to confrontation .", "The impugned decision is fully in accordance with the principle of denominational neutrality in schools , a principle that seeks both to protect the religious beliefs of pupils and parents and to ensure religious harmony , which in some respects is still fragile . In this connection , it should be noted that schools would be in danger of becoming places of religious conflict if teachers were allowed to manifest their religious beliefs through their conduct and , in particular , their clothing .", "There are therefore significant public - interest grounds for prohibiting the appellant from wearing an NORP headscarf .", "( b ) It remains to be determined whether the impugned order observes the principle of proportionality ; the interests at stake must be weighed up with the utmost care ( NORP , op . cit . , note CARDINAL on DATE ) .", "Here , the appellant ’s freedom of conscience and belief should be weighed against the public interest in ensuring the denominational neutrality of the school system ; in other words , the appellant ’s interest in obeying a precept laid down by her faith should be set against the interest of pupils and their parents in not being influenced or offended in their own beliefs , and the concern to maintain religious harmony in schools . Lastly , regard must also be had to the need for tolerance DATE a further element of the principle of denominational neutrality – between members of different religious faiths ...", "It should , however , be emphasised at the outset that religious freedom can not automatically absolve a person of his or her civic duties DATE or , as in this case , of the duties attaching to his or her post ( ORG , vol . CARDINAL GPE , p. CARDINAL , ground CARDINAL ) , at p. CARDINAL ) . Teachers must tolerate proportionate restrictions on their freedom of religion ( PERSON , GPE chiede la tolleranza per i simboli religiosi , FAC CARDINAL/CARDINAL , note III / DCARDINAL , p. CARDINAL ; PERSON , op . cit . , p. CARDINAL ) .", "( aa ) Before the points in issue are examined in greater detail , it may be helpful to consider the solutions adopted by other countries in identical cases or by ORG in similar cases .", "...", "Freedom of conscience and belief requires the ORG to observe denominational and religious neutrality ; citizens may assert individual rights in this domain ( ORG , vol . CARDINAL GPE , p. CARDINAL , ground CARDINAL ) at p. CARDINAL , and ground CARDINAL(e)(aa ) at p. CARDINAL ; vol . CARDINAL GPE , p. CARDINAL , ground CARDINAL at p. CARDINAL ) . There may be an infringement of freedom of religion where the ORG unlawfully takes sides in religious or metaphysical disputes , in particular by offering financial support to CARDINAL of the protagonists ( ORG , vol . CARDINAL GPE , p. CARDINAL , ground CARDINAL(e)(aa ) at p. CARDINAL ) . However , the neutrality requirement is not absolute , as is illustrated by the fact that national churches recognised by public law are allowed to exist ( ORG , vol . CARDINAL GPE , p. CARDINAL , ground CARDINAL(e)(aa ) at p. CARDINAL ; vol . QUANTITY , p. CARDINAL , ground CARDINAL ) at pp . CARDINAL - CARDINAL ) . Neutrality does not mean that all religious or metaphysical aspects are to be excluded from the ORG ’s activities ; however , an attitude that is anti - religious , such as militant secularism , or irreligious does not qualify as neutral . The principle of neutrality seeks to ensure that consideration is given , without any bias , to all conceptions existing in a pluralistic society . The principle that the ORG may not discriminate in favour of or against anybody on religious grounds is general in scope and results directly from ORG DATE and CARDINAL of the LAW ( ORG , vol . CARDINAL GPE , p. CARDINAL , ground CARDINAL(e)(aa ) at p. CARDINAL ; PERSON , ‘ LOC Religionsfreiheit’ , op . cit . [ in Revue du droit GPE ( ‘ RDS’ ) DATE I , p. CARDINAL ] at pp . CARDINAL ; idem , PERSON [ der Religionsfreiheit in der GPE ] , op . cit . [ GPE , DATE ] , p. CARDINAL ) . Lastly , the secular nature of the ORG entails an obligation to remain neutral , which means that in all official dealings it must refrain from any denominational or religious considerations that might jeopardise the freedom of citizens in a pluralistic society ( ORG , vol . CARDINAL GPE , p. CARDINAL , ground CARDINAL(e ) at p. CARDINAL , and the references cited ) . In that respect , the principle of secularism seeks both to preserve individual freedom of religion and to maintain religious harmony in a spirit of tolerance ( see PERSON , op . cit . [ ‘ PERSON in öffentlichen Räumen i m säkularen Staat’ , in RDS DATE I , p. CARDINAL ] , note CARDINAL at p. CARDINAL ; and PERSON , op . cit . [ ‘ Glaubens- und ORG , in ZBl CARDINAL/CARDINAL , p. CARDINAL ] , at pp . DATE ) .", "This neutrality assumes particular importance in State schools , because education is compulsory for all , without any distinction being made between different faiths . In this respect , LAW of LAW , according to which GPE shall be possible for members of all faiths to attend State schools without being affected in any way in their freedom of conscience or LAW , is the corollary of freedom of conscience and belief .", "...", "Accordingly , the attitude of teachers plays an important role . Their mere conduct may have a considerable influence on their pupils ; they set an example to which pupils are particularly receptive on account of their tender age , their DATE contact with them – which , in principle , is inescapable – and the hierarchical nature of this relationship . Teachers are both participants in the exercise of educational authority and representatives of the ORG , which assumes responsibility for their conduct . It is therefore especially important that they should discharge their duties – that is to say , imparting knowledge and developing skills DATE while remaining denominationally neutral . ”", "After a lengthy discussion of the scope of the neutrality requirement , ORG concluded as follows :", "“ ( cc ) In the instant case , on the one hand , as was outlined above , prohibiting the appellant from wearing a headscarf forces her to make a difficult choice between disregarding what she considers to be an important precept laid down by her religion and running the risk of no longer being able to teach in State schools .", "On the other hand , however , the headscarf is a manifest religious attribute in this case . Furthermore , the appellant teaches in a primary school ; her pupils are therefore young children who are particularly impressionable . Admittedly , she is not accused of proselytising or even of talking to her pupils about her beliefs . However , the appellant can scarcely avoid the questions which her pupils have not missed the opportunity to ask . It would seem somewhat awkward for her to reply by citing aesthetic considerations or sensitivity to the cold DATE the approach she claims to have adopted to date , according to the file – because the children will realise that she is evading the issue . It is therefore difficult for her to reply without stating her beliefs . However , the appellant participates in the exercise of educational authority and personifies school in the eyes of her pupils ; as a result , even if other teachers from the same school display different religious views , the manifestation of such an image of oneself appears hard to reconcile with the principle of non - identification with a particular faith in so far as her status as a civil servant means that the ORG must assume responsibility for her conduct . Lastly , it should be emphasised that the GPE of GPE has opted for a clear separation between ORG and ORG , reflected in particular by the distinctly secular nature of the ORG education system .", "It must also be acknowledged that it is difficult to reconcile the wearing of a headscarf with the principle of gender equality ( see PERSON , ‘ NORP en terre européenne’ , in FAC , pp . CARDINAL et seq . , in particular section ( d ) at p. CARDINAL ) , which is a fundamental value of our society enshrined in a specific provision of LAW ( LAW ) and must be taken into account by schools .", "Furthermore , religious harmony ultimately remains fragile in spite of everything , and the appellant ’s attitude is likely to provoke reactions , or even conflict , which are to be avoided . When the various interests at stake are weighed up , regard must also be had to the fact that allowing headscarves to be worn would result in the acceptance of garments that are powerful symbols of other faiths , such as soutanes or kippas ( in this connection , the principle of proportionality has led the cantonal government to allow teachers to wear discreet religious symbols at school , such as small pieces of jewellery – an issue that does not require further discussion here ) . Such a consequence might undermine the principle of denominational neutrality in schools . Lastly , it may be observed that it is scarcely conceivable to prohibit crucifixes from being displayed in State schools and yet to allow the teachers themselves to wear powerful religious symbols of whatever denomination . ”", "Section CARDINAL of the Canton of LAW of DATE provides :", "“ The public education system shall ensure that the political and religious beliefs of pupils and parents are respected . ”", "Section CARDINAL(CARDINAL ) of LAW provides :", "“ Civil servants must be lay persons ; derogations from this provision shall be permitted only in respect of university teaching staff . ”", "Article CARDINAL § CARDINAL of LAW of CARDINAL DATE reads :", "“ It shall be possible for members of all faiths to attend State schools without being affected in any way in their freedom of conscience or belief . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and is currently detained in LOC prison .", "On DATE the applicant was arrested and taken into police custody on suspicion of membership of a criminal profit - making organisation and carrying out illegal activities on its behalf .", "On DATE the investigating judge at ORG ordered the applicant ’s pre - trial detention .", "On DATE a bill of indictment was filed against the applicant and CARDINAL other persons with ORG , accusing them of forming a criminal profit - making organisation and of being involved in incidents of murder , extortion and fraud .", "On DATE the first - instance court acquitted the applicant and the other accused of the former charge on the ground that the mental elements of the crime had not been established on their parts . It followed that it lacked jurisdiction to examine the other charges brought against them and transferred the proceedings to ORG .", "On DATE ORG quashed the judgment of the first - instance court , noting that the latter had erroneously acquitted the applicant and his co - accused of the charge concerned . In its decision , the court held that all components of forming a criminal profit - making organisation had been sufficiently established against the accused .", "Subsequently , the case was remitted to the first - instance court .", "Following the abolition of ORG by Law no . CARDINAL , ORG resumed the criminal proceedings .", "During the proceedings , ORG reviewed the lawfulness of the applicant ’s continued detention regularly at the end of each hearing or , at the latest , DATE , of its own motion , without holding any oral hearing .", "At the hearing on DATE ORG decided , once more , to extend the applicant ’s continued detention on account of the reasonable grounds of suspicion that he had committed the offences with which he was charged , and the state of the evidence in the case file .", "On DATE having regard to the period he had spent in detention , ORG released the applicant .", "On the basis of the range of evidence in the case file , on DATE ORG convicted the applicant of a number of crimes ; including forming a criminal profit - making organisation , murder , abduction and extortion . Subsequently , the court sentenced the applicant to life imprisonment .", "According to the information in the case file , the applicant lodged an appeal with ORG , before which the proceedings are currently pending .", "The relevant sections of LAW ) can be found in the judgment of LAW v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) ." ]

[ "5", "6" ]

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

[]

[]

[]

[]

[ "The applicant , born in DATE , is an NORP national residing in GPE . In the proceedings before the ORG he is represented by Mr. PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is the father of CARDINAL children , who were born out of wedlock in DATE and DATE , respectively .", "On DATE the Office for Youth and Family ( ORG für ORG , acting on behalf of the applicant ’s children , filed a request with ORG ( Bezirksgericht ) that the DATE amount of maintenance to be paid by the applicant be raised from NORP schillings ( ORG ) CARDINAL to ORG CARDINAL per child as of DATE . The applicant made a number of submissions opposing this request .", "On DATE the applicant requested that the DATE amount of maintenance be reduced to ORG CARDINAL per child as of DATE . He also requested legal aid . Subsequently , he requested that the amount be reduced to ORG CARDINAL per child . On DATE the applicant requested that he be released from his maintenance obligations for DATE .", "According to the Government the applicant was heard in an informal manner on DATE . According to the applicant no such informal questioning took place . He submits that on that date he only handed in documents relating to his legal aid request .", "On DATE the ORG decided that the applicant had to pay ORG CARDINAL in DATE maintenance per child for DATE . It reserved its decision as regards DATE , noting that further examination was necessary .", "On DATE the applicant filed an appeal . He submitted that ORG had disregarded his submissions and had failed to hear him . In particular , it had failed to take into account that , following his separation from the mother of his children , he had moved to an apartment which he had to renovate . The costs for this renovation had to be deducted from his income when calculating his maintenance obligations . Further , transport costs for reaching his work place , a newspaper publisher , which could during TIME shifts only be reached by taxi , also had to be deducted .", "On DATE ORG ( PERSON für Zivil - rechtssachen ) quashed ORG decision and referred the case back to it .", "ORG noted that , according to constant case - law , necessary costs for acquiring and furnishing an apartment had to be taken into account in calculating maintenance obligations , if CARDINAL parent , upon separation , had left the common apartment and its furniture to the other parent and the children . It appeared from the file that the applicant and the mother of his children had lived together until DATE . The applicant ’s submissions that , subsequently , he had moved to another apartment which he had to renovate , thus , needed to be examined . In this respect ORG ordered ORG to hear the applicant in person and to request him to submit documentary evidence in support of his submissions . Further , it ordered ORG to establish whether the applicant was unable to reach his workplace by public transport and , if so , what extra costs he incurred .", "On DATE ORG ordered the applicant to submit the said evidence .", "On DATE the applicant handed in documents including , inter alia , the tenancy agreement relating to the apartment at issue . According to the Government he was informally questioned by a court clerk ( GPE ) on that occasion . The applicant submits that no such questioning took place .", "On DATE ORG heard the mother of the children and the applicant ’s father as witnesses . According to the Government the latter was heard at the applicant ’s request . The applicant submits that his father was heard at the request of the children ’s mother .", "On DATE ORG appointed Mr. PERSON as expert and ordered him to file an opinion as regards the DATE income the applicant could have achieved as of DATE .", "On DATE the expert submitted his opinion , whereupon ORG on DATE requested to applicant to make comments , which he submitted on DATE .", "On DATE and again on DATE ORG dismissed the applicant ’s applications for a time - limit to be set for ORG decision ( PERSON ) . It noted that , according to the file , ORG had not yet heard the applicant on the question whether he had to acquire and to furnish an apartment following his separation from the mother of the children concerned and as to the costs incurred . ORG also noted the applicant ’s submissions that he had on DATE handed in the required documents and had been heard by a court clerk . However , there were TIME in the file . In any case , such an informal hearing could not serve as a basis for establishing the relevant facts and could , therefore , not substitute a formal hearing . The applicant should in fact have applied for a time - limit to be set for his being summoned to a hearing . As this hearing was necessary for the examination of the case , the matter was not yet ready for decision . Thus , his requests for a time - limit to be set for the taking of a decision could not be granted . In any case , ORG noted that , in view of the duration of the proceedings , ORG was called upon to summon the applicant speedily to a hearing and to give a decision without further delay .", "On DATE ORG issued a new decision . It upheld its decision of DATE as regards the applicant ’s maintenance obligations for DATE and further ordered him to pay varying amounts of maintenance for DATE and the first trimester of DATE as well as from DATE . All these amounts exceeded the DATE amount of ORG CARDINAL per child which the applicant had had to pay previously .", "ORG noted that it based its findings relating to the applicant ’s actual or potential income on the file , the submissions of the parties and the expert opinion . The children ’s maintenance claims had to be calculated as a certain percentage of the applicant ’s income . It dismissed the applicant ’s submissions that the costs for renovating his apartment had to be deducted from his income . In this respect the ORG relied on the statements of the witnesses heard , namely the children ’s mother and the applicant ’s father , whom it considered to be credible . It noted that , according to them , the apartment in which the applicant was now living , had been transferred to the applicant ’s mother upon her divorce from his father . It had been fully equipped and had not necessitated renovation . Moreover , the applicant had already used this apartment since DATE . As regards his income for DATE , when he had worked at a newspaper publisher , ORG accepted that an amount of ORG DATE had to be deducted as extraordinary transport costs for reaching his workplace .", "", "Finally , ORG , referring to ORG decision of DATE , which had ordered it to hear the applicant and to request further documentary evidence , noted that the applicant had presented himself in court and had , after discussion of the factual and legal issues of the case , handed in the required documents .", "On DATE the applicant filed an appeal . He complained in particular that ORG had failed to summon or hear him . Further , he contested , in general terms , the credibility of the witnesses heard by the ORG . He claimed he had lived with the mother of his children until DATE . Following their separation he had moved to his present apartment , which had been in an extremely bad state , not even having the necessary sanitary equipment , and he was thus bound to carry out considerable renovation works .", "On DATE ORG , sitting in camera in the absence of the applicant , partly upheld his appeal . It confirmed the applicant ’s maintenance obligations for DATE , but reduced his maintenance obligations for DATE and the first trimester of DATE on the ground that he had been either on sick leave or unemployed during this period and had taken up new employment within a reasonable time . His maintenance obligations , thus , could not be based on the potential income established by the expert , but had to be based on the amount of the social security benefits he actually received . Further , the ORG confirmed the applicant ’s maintenance obligations for DATE , but quashed the decision as regards maintenance from DATE and referred the case back to ORG as the applicant had again become unemployed in DATE .", "ORG dismissed the remainder of the applicant ’s appeal . It recalled that costs for acquiring and furnishing an apartment had to be taken into account in calculating maintenance obligations , if CARDINAL parent , upon separation , had left the common apartment and its furniture to the other parent and the children . ORG found in particular that , according to the results of the second set of proceedings , the applicant had not acquired his present apartment following his separation from the mother of his children . His father had rented the apartment in DATE , had transferred it to the applicant ’s mother in DATE in the course of divorce proceedings and the latter had assigned her rights to the applicant who had the apartment at his disposal at least as of DATE . Costs for the renovation of an apartment which became periodically necessary were , according to the case - law , not deductible from income for the purpose of calculating maintenance obligations . In the present case , the costs for the renovation of the apartment had not been caused exclusively by the applicant ’s separation from the mother of his children and by his leaving the common household . As the applicant no longer claimed that he had only acquired the apartment subsequently to this separation , it was not necessary to hear him as regards the costs of renovating the apartment at issue . Moreover , he had presented himself at ORG and had submitted documentary evidence . In connection with the other results of the proceedings , this evidence formed a sufficient basis for the decision .", "On DATE the applicant filed an appeal on points of law . He complained in particular that ORG had , despite explicit orders of ORG , failed to summon or hear him and that ORG had arbitrarily ignored its earlier decisions when dismissing his appeal .", "On DATE ORG ( Oberster Gerichtshof ) rejected the applicant ’s appeal on points of law , finding that it did not raise any important legal issue within the meaning of S. CARDINAL § CARDINAL of the Non LAW ( Ausserstreitgesetz ) .", "In further proceedings , the applicant requested on DATE that his maintenance obligations be reduced retroactively as of DATE to ORG CARDINAL DATE per child . Later , he requested further reductions . He invoked again the costs of renovating his apartment , as well as a change in his financial situation . In a first decision of DATE the ORG fixed the applicant ’s maintenance obligations as of DATE . On DATE the ORG changed its decision and reduced the applicant ’s maintenance obligations as fixed by the decisions of DATE and DATE for DATE . The amounts fixed for the different periods varied according to the applicant ’s financial situation . Further , without giving any specific reasons , the court found that an amount of ORG DATE for renovating the applicant ’s apartment had to be deducted from his income when calculating his maintenance obligations . It does not appear from the file whether these proceedings are still pending ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born on DATE and lives in GPE .", "On DATE a certain Mr PERSON was arrested on suspicion of membership of the ORG . The following day the applicant was arrested in GPE upon information allegedly given to the police by PERSON PERSON . According to that information , the applicant was a member of the ORG . Following his arrest the applicant was placed in police custody .", "The applicant was questioned by police officers on DATE . In a written statement prepared by the police and signed by him , the applicant was quoted as having stated that he was a member of the ORG and that he had had a number of meetings with several of its members , including NORP PERSON . CARDINAL day PERSON had told the applicant that he had asked a certain PERSON to provide financial assistance to the ORG but that PERSON PERSON had refused . PERSON had then asked the applicant to help him set fire to a vehicle owned by PERSON . This they had done TIME with the help of CARDINAL other persons . The applicant also added that had he not been arrested , he would have taken part in further activities on behalf of the ORG .", "On DATE PERSON identified PERSON and another person as the persons who had asked him to give money to the ORG . He did not know whether it had been the same QUANTITY persons who had subsequently set fire to his vehicle and shop .", "On DATE police officers took the applicant and CARDINAL other persons , including PERSON , to the street where PERSON vehicle had been set on fire .", "On DATE the applicant and CARDINAL other persons who had been arrested as part of the same police operation were taken to the GPE branch of ORG , where they were examined by a doctor . According to the medical report drawn up DATE , the applicant ’s body did not bear any signs of ill - treatment .", "DATE the applicant was taken to ORG , where he was questioned by a prosecutor and then by a judge who ordered his detention in prison pending the introduction of criminal proceedings against him . In the statement drawn up by the prosecutor the applicant was quoted as having stated that he was a sympathiser but not a member of the ORG . He had set fire to the vehicle together with CARDINAL other persons . In the statement drawn up by the judge , however , the applicant was quoted as having stated that he had set fire to the vehicle on his own .", "When questioned by the police , and subsequently by the prosecutor and the judge , the applicant was not represented by a lawyer .", "On DATE the prosecutor at ORG filed an indictment with that court , charging the applicant and QUANTITY other persons with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory . According to LAW in force at the time , the punishment stipulated for this offence was the death penalty ( see Relevant Domestic Law and Practice below ) .", "A preparatory hearing was held on DATE by ORG ( hereinafter “ the trial court ” ) . CARDINAL of the CARDINAL judges on the bench was an army officer .", "At the first hearing , held on DATE , the applicant was present but not represented by a lawyer .", "During the second hearing , held on DATE , the applicant was still not represented by a lawyer but was questioned by the trial court . The applicant told the trial court that his childhood friend PERSON had told him DATE that he had been selling newspapers and that CARDINAL of his customers had refused to pay . PERSON had then suggested “ teaching that customer a lesson ” . TIME the applicant and PERSON had arrived outside a big building . Mr PERSON had poured some petrol on the street outside the building from a jerry can and set fire to it . The applicant himself had not set fire to any vehicle and he did not know PERSON .", "The applicant also told the trial court that , while detained in police custody , he had been given electric shocks , sprayed with pressurised water and beaten with a truncheon ; the soles of his feet had also been beaten . He had then signed the statements implicating him in the offences with which he was subsequently charged . As regards the statements taken from him by the prosecutor and the judge on DATE , the applicant stated that the prosecutor and the judge had only asked him his date of birth ; he had not made any statements before them . The applicant also denied that the police had taken him to the place where he had allegedly set fire to a vehicle ( see paragraph CARDINAL above ) . The applicant ’s request for release was rejected by the trial court DATE .", "During the third hearing held on DATE , a lawyer representing some of the applicant ’s co - accused informed the trial court that she would also be representing the applicant . During the same hearing PERSON also gave evidence as a witness and stated that PERSON had never asked him to give money to the ORG . A vehicle owned by him had been set on fire but he did not think PERSON had done it .", "The applicant was subjected to a limited visiting regime in the prison and did not have the opportunity to have open visits with his family .", "The applicant did not attend CARDINAL of the subsequent CARDINAL hearings held at DATE intervals . Requests for his release made by his lawyer were all rejected by the trial court . The lawyer argued that there was no evidence against the applicant other than that obtained under ill - treatment .", "In the course of the CARDINALth hearing , which was held on DATE in the applicant ’s absence but with the attendance of his lawyer , the prosecutor asked the trial court to try the applicant for the offences of membership of an illegal organisation and causing damage to property , and not for the offence with which he was charged in the indictment ( see paragraph CARDINAL above ) . The trial court rejected the request for the applicant ’s release .", "The applicant ’s lawyer did not attend the CARDINALth hearing held on DATE . During the CARDINALth hearing , on DATE , the lawyer argued that , on account of the testimony given to the trial court by Mr PERSON on DATE ( see paragraph CARDINAL above ) , there was no evidence showing that the applicant had committed the offences with which he was charged .", "The lawyer did not attend the CARDINALth hearing , held on DATE , because she had other business before ORG . The applicant made his own defence submissions and repeated his allegations of ill - treatment in police custody . He also asked to be released . This request was rejected by the trial court .", "On DATE the trial court found the applicant guilty of membership of an illegal organisation and of setting fire to a motor vehicle , and sentenced him to DATE , DATE and CARDINAL days’ imprisonment . The trial court considered that the statements given by the applicant in police custody and the statements given by his co - accused showed that the applicant was a member of the illegal organisation and that he had set fire to the vehicle .", "The applicant appealed . On DATE ORG quashed the applicant ’s conviction . The case was remitted to the trial court for a retrial .", "On DATE the trial court held a preparatory hearing in the retrial . CARDINAL of the CARDINAL judges on the bench was a military officer .", "CARDINAL hearings were held DATE and DATE . The applicant ’s lawyer attended CARDINAL of these hearings , that on DATE , whereas the applicant attended CARDINAL hearings . During the CARDINALth hearing , held on DATE , the military judge was replaced by a civilian judge in accordance with the legislation which had entered into force in the meantime ( cf . Öcalan v. GPE [ ORG ] , no . MONEY , § § DATE , ECHR CARDINAL ) .", "On DATE a police chief informed the trial court that , contrary to the allegations , no vehicle belonging to PERSON had been set on fire .", "A CARDINALth hearing was held on DATE . The applicant was present but his lawyer was not . During the hearing PERSON gave evidence before the trial court and stated that his vehicle had not been burned . No one had asked him to give money to the ORG . When asked by the trial court to explain the inconsistencies between the statement he had made to the police on DATE ( see paragraph CARDINAL above ) and his testimony , PERSON stated that he had not told any such things to the police ; he had had to sign whatever was written in the statement drafted by the police officers .", "During the same hearing the applicant reiterated that he did not know Mr PERSON and had not set fire to any vehicle . He pointed out that he had been arrested at DATE with no evidence against him , and asked to be released . This request was rejected by the trial court .", "The applicant but not his lawyer attended the CARDINALth hearing , held on DATE .", "In the course of the CARDINALth hearing , held on DATE in the absence of the applicant ’s lawyer , the trial court was presented with a letter drafted by the applicant ’s cell - mates . The letter states that “ [ the applicant ] has serious psychiatric problems . His treatment is being overseen by a psychiatric hospital in GPE . He is unable to live without the assistance of others and his health is deteriorating . As such , he is unable to attend the hearings and he refused to attend DATE ’s hearing . We felt the need to send you this letter because we have found out that his lawyer has not been attending the hearings ” .", "According to a medical report prepared by the prison doctor on DATE which was appended to the cell - mates’ letter , the applicant had been taken to a psychiatric hospital on DATE and returned to the prison on DATE .", "The applicant ’s mother also attended this hearing and informed the trial court of the applicant ’s serious psychiatric problems . She asked for the applicant to be released from the prison . During the same hearing the prosecutor asked the trial court to acquit the applicant of the charge of arson ( LAW ) but to convict him of the offence of membership of an illegal organisation ( LAW ) .", "Nevertheless , the trial court ordered the applicant ’s continued detention in prison and referred him to a psychiatric hospital with a view to establishing whether he had the necessary criminal capacity ( doli capax ) at the time of the alleged commission of the offence .", "On DATE the prison doctor reported on the problems which the applicant had been suffering in prison . According to this report , the applicant had attempted suicide in DATE by taking an overdose . In DATE he had set himself on fire and suffered extensive and serious burns . He had spent DATE in hospital where he was treated for his injuries . During that time in hospital he had also received medication for depression . Following his return to the prison his treatment for the burns had continued for DATE . His body still bore burn marks .", "On DATE the applicant ’s psychological health had deteriorated and he was taken to hospital , where he stayed for DATE . His health had deteriorated even further following his return from the hospital and he was now refusing to speak to anyone .", "The prison doctor concluded in his report that the situation in the prison was not compatible with the applicant ’s treatment . The applicant needed to spend a considerable time in a specialised hospital .", "During DATE hearing , held on DATE , PERSON , CARDINAL of the applicant ’s legal representatives named above ( see paragraph CARDINAL ) , submitted a power of attorney to the trial court and informed that court that she was taking over the applicant ’s representation . Ms ORG argued in her written observations submitted to the trial court DATE that the applicant had only been DATE at the time of his arrest . GPE was a ORG to ORG on the Rights of the Child . Article CARDINAL CARDINAL of that Convention recommended that the GPE Parties establish procedures and institutions specifically for children charged with criminal offences . Indeed , juvenile courts existed in GPE . However , the applicant had been charged with an offence falling within the jurisdiction of ORG and , as such , the domestic law prevented him from being tried by a juvenile court . Had the applicant been tried before a juvenile court , he would not have been kept in police custody for DATE , a lawyer would have been appointed to represent him and his case would have been concluded within a short time .", "NORP The lawyer added that the ill - treatment to which the applicant had been subjected in police custody , coupled with his long detention in prison , had been too much to bear for a child of his age . He had attempted to take his own life on CARDINAL occasions . He was still suffering from serious psychiatric problems and he found it difficult to attend the hearings . The lawyer asked for the applicant to be released so that he could receive medical treatment .", "The lawyer also informed the trial court that the applicant had not been taken to the hospital despite the court order of DATE ( see paragraph CARDINAL above ) . The same day the trial court ordered the applicant ’s release from prison on bail .", "The applicant attended the CARDINALth hearing , held on DATE and informed the trial court that , although he had gone to the hospital for a medical examination , the hospital authorities had refused to examine him as he had no official letter of referral . The trial court issued a new order of referral .", "The applicant was examined at a psychiatric hospital on DATE . According to the report pertaining to that examination , other than the CARDINAL instances referred to above ( see paragraph CARDINAL ) , the applicant had made another attempt to kill himself , by slashing his wrists , in DATE . The extensive burn marks on his arms and body were still visible . His psychological complaints had started during his detention in prison and had worsened in the course of the time he spent there . DATE and DATE he had been treated in hospital for “ major depression ” . His psychological problems were now in remission . It was concluded in the report that the applicant had not been suffering psychological problems at the time of the commission of the offence and that his current mental state did not affect his criminal responsibility .", "In its CARDINALth hearing , held on DATE , the trial court acquitted the applicant of the arson charge but found him guilty of membership of an illegal organisation and sentenced him to DATE and CARDINAL months’ imprisonment . The trial court stated that the statements made by the applicant in police custody , and then before the prosecutor and the judge at the end of his police custody , had been decisive in reaching the conclusion that he was a member of the illegal organisation . In those statements the applicant had described the “ various activities ” in which he had been involved . The trial court also concluded that the applicant had been involved in the printing and distribution of illegal leaflets .", "The applicant appealed . On DATE the prosecutor at ORG submitted his written observations to that court and asked for the applicant ’s conviction to be upheld . These observations were not communicated to the applicant or to his lawyer .", "In her detailed appeal submissions the applicant ’s lawyer pointed out that the only evidence put forward by the prosecution in support of the allegation that her client was a member of the illegal organisation had been the allegation concerning the burning of a vehicle . As established by the trial court , however , no such incident had occurred and the owner of the vehicle had made no such complaint . There was no place in the NORP legal system for abstract concepts such as “ various activities ” ( see paragraph CARDINAL above ) . For any activity to be relied on in evidence , it should have been set out clearly and supported with adequate evidence . Furthermore , the trial court ’s judgment was silent as to why and how it was concluded that the applicant had been involved in the printing and distribution of the illegal organisation ’s leaflets . The lawyer also reiterated her arguments concerning the applicant ’s age and her references to LAW on the Rights of the Child ( see paragraph CARDINAL above ) .", "On DATE ORG upheld the applicant ’s conviction .", "According to the information provided to the ORG by the applicant ’s lawyer , in DATE the applicant left GPE for GPE , where he was subsequently granted refugee status .", "Article CARDINAL of LAW as it stood at the material time provided that :", "“ Anyone committing an act designed to subject the ORG or a part of the ORG to the domination of a foreign ORG , to diminish its independence or to impair its unity , or which is designed to remove from the administration of the ORG a part of the territory under its control shall be liable to the death penalty . ”", "“ Any person who , with the intention of committing the offences defined in sections CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL or CARDINAL , forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than DATE years’ imprisonment .", "The other members of the gang or organisation shall be sentenced to not CARDINAL and not more than fifteen years’ imprisonment . ”", "Article CARDINAL of the Criminal Code provided :", "“ Any person who destroys , demolishes , spoils or damages property owned by another person shall , upon the complaint of the aggrieved person , be sentenced to not less than one and not more than three years’ imprisonment ... ”", "According to paragraph DATE , if the offence in question was carried out using inflammable or explosive material and if the property in question was a motor vehicle , the sentence to be imposed varied DATE .", "At the material time LAW no . CARDINAL of DATE , amending the legislation on criminal procedure , provided that , with regard to offences within the jurisdiction of ORG , any arrested person had to be brought before a judge within TIME at the latest , or , in the case of offences committed by CARDINAL person , within DATE .", "Article CARDINAL of the Code of Criminal Procedure as it stood at the material time stipulated that , from the time of their arrest , persons under the age of CARDINAL should be given the assistance of an officially assigned legal representative without having to ask for it . According to LAW no . PERSON , however , LAW was not applicable to persons accused of offences within the jurisdiction of ORG .", "According to LAW ( Law No . CARDINAL of DATE ; repealed and replaced by Law No . DATE of DATE on ORG ) , only juvenile courts had the power to try persons under DATE . According to the last paragraph of that LAW , however , even children under the age of CARDINAL charged with offences falling within the jurisdiction of ORG were to be tried before those courts rather than before juvenile courts .", "DATE of Law No . CARDINAL also stipulated that minors could only be detained on remand in prisons specially designed for them . In places where no such prisons existed , minors were to be kept in a part of a normal prison separate from where adults were detained . For the purposes of this PERSON the term “ minor ” means persons who were DATE at the time when the offence was committed .", "Article CARDINAL ( b ) of ORG ( dated DATE ) stipulated that detainees under the age of CARDINAL were to be kept separately from other detainees . Under LAW , detainees had the possibility to “ inform prison governors , prosecutors and ORG of their complaints and requests ” .", "Pursuant to the PERSON on the Protection of the Child , which on DATE replaced the above - mentioned PERSON on the Establishment , Duties and Procedures of ORG , persons DATE can only be tried before juvenile courts . However , if the prosecuting authorities allege that the offence with which the juvenile is charged was committed jointly with adults , the juvenile may be tried before the ordinary criminal courts together with those adults .", "The United Nations Convention on the Rights of the Child DATE ( hereafter , “ the FAC ” ) , adopted by ORG of ORG on DATE , has binding force under international law on GPE , including all of the member ORG .", "LAW states :", "“ For the purposes of the present Convention , a child means every human being below DATE unless , under the law applicable to the child , majority is attained earlier . ”", "Article PERSON ) states :", "“ In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration . ”", "Article CARDINAL(a ) and ( b ) provides :", "“ GPE Parties shall ensure that :", "( a ) No child shall be subjected to torture or other cruel , inhuman or degrading treatment or punishment . Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons DATE .", "( b ) No child shall be deprived of his or her liberty unlawfully or arbitrarily . The arrest , detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time", "( c ) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person , and in a manner which takes into account the needs of persons of his or her age . In particular , every child deprived of liberty shall be separated from adults unless it is considered in the child ’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits , save in exceptional circumstances ;", "( 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 . ”", "Article CARDINAL provides as relevant :", "“ CARDINAL . DATE States Parties recognise the right of every child alleged as , accused of , or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child ’s sense of dignity and worth , which reinforces the child ’s respect for the human rights and fundamental freedoms of others and which takes into account the child ’s age and the desirability of promoting the reintegration and the child ’s assuming a constructive role in society .", "To this end ... the GPE Parties shall , in particular , ensure that :", "...", "( b ) Every child alleged as or accused of having infringed the penal law has at least the following guarantees :", "...", "( ii ) To be informed promptly and directly of the charges against him or her , and , if appropriate , through his or her parents or legal guardians , and to have legal or other appropriate assistance in the preparation and presentation of his or her defence ;", "( iii ) To have the matter determined without delay by a competent , independent and impartial authority or judicial body in a fair hearing according to law , in the presence of legal or other appropriate assistance and , unless it is considered not to be in the best interest of the child , in particular , taking into account his or her age or situation , his or her parents or legal guardians ;", "( iv ) Not to be compelled to give testimony or to confess guilt ; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality ;", "...", "( vii . ) To have his or her privacy fully respected at all stages of the proceedings .", "... ”", "The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child : GPE ( CARDINAL/CARDINAL/CARDINAL(CRC / C/CARDINAL/Add.CARDINAL . ) ) provides as follows :", "“ CARDINAL . ... The fact that detention is not used as a measure of last resort and that cases have been reported of children being held incommunicado for long periods is noted with deep concern . The ORG is also concerned that there are only a small number of juvenile courts and none of them are based in the eastern part of the country . Concern is also expressed at the long periods of pre - trial detention and the poor conditions of imprisonment and at the fact that insufficient education , rehabilitation and reintegration programmes are provided during the detention period .", "The ORG recommends that the ORG party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the LAW , in particular articles CARDINAL , DATE and 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 . ”", "The recommendation of ORG on social reactions to juvenile delinquency ( no . R ( CARDINAL ) , adopted on CARDINAL DATE at the CARDINALth meeting of ORG , insofar as relevant , reads as follows :", "“ Recommends the governments of member states to review , if necessary , their legislation and practice with a view : ...", "NORP to exclude the remand in custody of minors , apart from exceptional cases of very serious offences committed by older minors ; in these cases , restricting the length of remand in custody and keeping minors apart from adults ; arranging for decisions of this type to be , in principle , ordered after consultation with a welfare department on alternative proposals ... ”", "DATE of the European Social Charter DATE regulates the right of mothers and children to social and economic protection . In that context , ORG noted in its Conclusions XVII-CARDINAL ( DATE , GPE ) that the length of pre - trial detention of young offenders was long and the conditions of imprisonment poor .", "In the report pertaining to its visits carried out in GPE DATE , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) expressed its serious misgivings “ as regards the policy of having juveniles ( i.e. DATE ) who are remanded in custody placed in adult prisons ” ( ORG ) CARDINAL EN , publication date : CARDINAL DATE ) .", "In its report prepared in respect of its visits conducted in GPE DATE ( ORG ( DATE ) CARDINAL ) , the ORG stated the following :", "“ [ ORG the reports on its visits in DATE and DATE , the ORG has made clear its serious misgivings concerning the policy of having juveniles who are remanded in custody placed in prisons for adults . A combination of mediocre material conditions and an impoverished regime has all too often created an overall environment which is totally unsuitable for this category of inmate . The facts found in the course of the DATE visit have only strengthened those misgivings . Here again , the laudable provisions of ORG circular of DATE ( “ the physical conditions of the prison sections allocated to juvenile offenders shall be revised and improved to conform with child psychology and enable practising educative programmes , aptitude intensive games and sports activities ” ) have apparently had little practical impact . ”", "According to ORG , the juvenile justice system is still in its infancy in GPE in DATE . Judges were learning about child - sensitive detention centres , alternative dispute resolution and due process for children in conflict with the law ." ]

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

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

[ "6-3-c" ]

[]

[]

[]

[ "The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He is represented before the ORG by PERSON , a lawyer practising in ORG . The respondent Government are represented by PERSON , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "Under the terms of a tenancy commencing from DATE , the applicant lived in a house owned by his son . The latter lived in GPE , and the property was managed by his mother , the applicant 's estranged wife , under a power of attorney granted to her by the son .", "In DATE the applicant submitted a claim for housing benefit to the local authority , which was refused as follows :", "“ I regret to inform you that I can not award Housing Benefit because , in my opinion , you do not have a true liability to pay rent . Regulation CARDINAL [ see below ] ... covers this matter . The basis on which I have made this decision is as follows :", "i. You have been unable to provide a rent book or written statement of your current rent arrears .", "ii . There is no indication that your landlord has taken any formal action to recover the property due to non - payment of rent . It is unusual for a landlord to allow rent arrears to accrue for this length of time without taking action .", "iii . You appear to have lived ' rent free ' in the property DATE , when your tenancy commenced .", "Moreover , even if a liability to pay rent did exist it could be argued that your situation as a tenant has been created primarily in order to obtain ORG Regulation CARDINAL ( CARDINAL ) ... covers this matter . ”", "The applicant appealed to an adjudicator who refused the appeal , holding , in accordance with LAW of ORG , LAW DATE ( “ section CARDINAL ” : see below ) , that the applicant was not legally required to pay rent . The applicant appealed to ORG ( “ HBRB ” ) . The ORG heard evidence from the applicant and his estranged wife and dismissed the appeal on DATE , holding under LAW that the applicant 's liability to pay rent had been created to take advantage of the housing benefit scheme .", "The applicant , acting as a litigant in person , applied for leave to seek judicial review of this decision , and was initially refused . He appealed to ORG , which held that it was arguable that the ORG had failed properly to apply the burden of proof in favour of the applicant . ORG therefore granted leave to apply for judicial review .", "On DATE Mr Justice PERSON in the High Court quashed the ORG 's decision and remitted it to the ORG for re - determination . He held that , although the ORG had purported to be acting under LAW , the reasons given in support of the decision suggested that the ORG believed that the applicant was not under a liability to pay rent . Moreover , the reasoning of its decision appeared , wrongly , to place the burden of proof on the applicant . He also commented that the ORG had not adequately considered certain evidence which supported “ ... a reasonably cogent case in favour of the existence of a genuine tenancy , ie a true or genuine liability to pay rent ” .", "On DATE , after a hearing on DATE at which the applicant had refused to present his case , the ORG again rejected the applicant 's claim for housing benefit , finding under LAW that “ there was ample evidence that the purported rental agreement did not establish a genuine liability to pay rent ” .", "The applicant sought judicial review . He contended that the ORG was under an obligation to follow the comment in PERSON Justice PERSON 's judgment that he had a “ reasonably cogent case ” , and thus grant his claim for housing benefit . He was granted leave on DATE , on the ground that the ORG 's decision did not set out the evidence on which it had based its finding that the applicant was under no legal obligation to pay rent .", "On DATE HBRBs ceased to exist and were replaced by new statutory Appeal Tribunals , which had no councillor members ( see statement of domestic law below ) .", "On DATE the local authority applied to ORG for a stay of the judicial review proceedings . The ORG had withdrawn its decision of CARDINAL DATE and had offered to pay the applicant 's reasonable costs and rehear and re - determine his claim for housing benefit . The applicant opposed the stay because he believed that the ORG should undertake to grant his application for housing benefit .", "On DATE Mr Justice PERSON ordered the stay because there was no purpose in continuing the proceedings : the local authority had already offered everything the applicant could have hoped to achieve through judicial review . He explained that , under LANGUAGE law , a court on an application for judicial review of a decision by a body such as the ORG could only quash the ORG 's decision , if wrong in law , but could not substitute its own decision as to whether housing benefit should be granted . Even if Mr Justice PERSON 's judgment could be interpreted as finding that the applicant was under a genuine obligation to pay rent , ORG had no power to make such a finding , but could only remit the case to the ORG for a fresh determination .", "The applicant appealed to ORG . His appeal was refused on DATE , on the ground , inter alia , that :", "“ ... [ the applicant ] misreads Mr Justice PERSON 's judgment and indeed , as I think , partly misunderstands the nature of judicial review proceedings . Judicial review proceedings - at least these judicial review proceedings - are concerned with the decision - making process and not with the actual decision made . In the circumstances of housing benefit , ORG has set up a structure for determining whether it should be paid and to whom , and that structure does not involve decisions by the court . The court is concerned to review the process and the reasoning , but not to make the decision ... . ”", "On DATE ORG refused the applicant leave to appeal to ORG .", "The local authority then referred the applicant 's claim to the new statutory Appeal Tribunal ( see paragraphs CARDINAL and CARDINAL of the statement of Domestic Law , below ) , without , however , first informing the applicant or seeking his consent . The case was listed for hearing on DATE , but in a letter dated DATE the applicant withdrew the appeal .", "Housing benefit is payable to people on low incomes by the local authority . By CARDINAL of ORG , LAW DATE ,", "“ ( CARDINAL ) A person is entitled to housing benefit if :", "( a ) he is liable to make payments in respect of a dwelling in ORG which he occupies as his home ... ”", "Regulation CARDINAL of ORG ( General ) Regulations DATE provides :", "“ ( CARDINAL ) The following persons shall be treated as if they were not liable to make payments in respect of a dwelling :", "( a ) a person who resides with the person to whom he is liable to make payments in respect of the dwelling ... ;", "( b ) a person whose liability to make payments in respect of the dwelling appears to the appropriate authority to have been created to take advantage of the housing benefit scheme except someone who was , for any period within DATE prior to the creation of the agreement ORG giving rise to the liability to make such payments , otherwise liable to make payments of rent in respect of the same dwelling . ”", "At the relevant time , a claim to housing benefit was first considered by officials employed by the local authority and working in the housing department . If the benefit was refused the claimant was entitled to a review of the decision , first by the local authority itself , then by a ORG , which comprised CARDINAL elected councillors from the local authority .", "After the coming into force of LAW CARDINAL , the compatibility of HBRBs with LAW became open to challenge in the domestic courts . In PERSON ( NORP on the application of ) v. ORG [ DATE ] EWHC Admin CARDINAL , the Secretary of ORG conceded that the ORG lacked the appearance of an independent and impartial tribunal . The determination of the central issues of fact in the case depended on an assessment by ORG as to whether the claimant was telling the truth . ORG found that judicial review proceedings were insufficient to remedy the problem , since ORG could not “ cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it [ had ] no jurisdiction to reach its own conclusion on the primary facts ; still less any power to weigh the evidence ” .", "On DATE HBRBs ceased to exist . They were replaced by a new system in which determinations of the kind previously made by HBRBs are now made by a new statutory Appeal ORG . Members of such Appeal Tribunals do not include councillors .", "Under the transitional provisions contained in Regulation CARDINAL(CARDINAL ) of ORG ) ( Transitional and Savings ) Regulations DATE , any decision which would fall to be made by a ORG but for the coming into force of the new system should be made by ORG . In the PERSON case , which involved a decision by the ORG before the new system became operative , the relief granted was the quashing of the ORG 's decision and an order remitting the case to an ORG under the transitional regulations ." ]

[]

[]

[]

[]

[]

[]

[ "The first applicant , Mr Turko PERSON , is a NORP national who was born in DATE . His application was brought on his own behalf and on behalf of his close relatives : his father Mr Saidalvi Saidsalimovich Luliuyev , born in DATE ( the second applicant ) ; the first applicant 's brothers , PERSON , born in DATE , and Mr ORG , born in DATE , and his sister PERSON , born in DATE ( the third to fifth applicants ) ; PERSON parents , PERSON and Mr PERSON ( the sixth and the seventh applicants ) ; and her brothers , PERSON , PERSON . PERSON and Mr S.S.G. ( the eighth to tenth applicants ) , who requested that their names should not be disclosed . The applicants live in GPE , GPE .", "PERSON , born in DATE , lived together with the second applicant and their children ( the first , the third , the fourth and the fifth applicants ) in PERSON . She worked as a nurse and a kindergarten teacher ; at the time of her abduction she also traded fruit at the local market . The second applicant worked in the law - enforcement bodies and subsequently as a judge ; in DATE he became the chairman of a district court in GPE . He has since ceased to work in the judiciary .", "The facts surrounding the abduction and killing of the applicants ' relative , PERSON , as submitted by the parties , are set out in LAW and CARDINAL below . A description of the materials submitted to ORG is contained in Part B.", "On DATE PERSON , along with her CARDINAL cousins , PERSON and PERSON , went to the market place at FAC in the northern part of ORG .", "DATE TIME an armoured personnel carrier ( ORG ) appeared at the market . It was accompanied by CARDINAL other vehicles , an LOC truck and an ORG all - terrain vehicle . A group of servicemen , wearing camouflage uniforms and masks and armed with machine guns , disembarked from the vehicles . The servicemen detained several persons , mostly women , put sacks over their heads and loaded them into the ORG . PERSON and her CARDINAL cousins were among those detained .", "Someone apparently called the police from LOC of the Interior ( PERSON ) , which was situated QUANTITY from the scene . When the police appeared and tried to interfere , the military started shooting in the air with a machine gun , and then drove away . The deputy chief of the district administration was also present at the scene and he attempted to question the servicemen about their official affiliation and their mission at the market , but he was told only that they were “ lawfully carrying out a special operation ” . Having received this explanation the officials left the site .", "Later in the afternoon the second applicant learned from neighbours about PERSON arrest . At TIME he went to the market place and then to PERSON , which had already been notified of the incident . It was also known that , in addition to PERSON and her cousins , CARDINAL other person , Mr PERSON , was detained on DATE .", "From DATE the applicants , primarily the second applicant , searched for PERSON and her cousins until their bodies were found in DATE ( see LAW below ) . On numerous occasions the second applicant applied to various authorities , requesting information about their whereabouts . In particular , he contacted the prosecutors at various levels , ORG ( ORG ) , various departments of ORG , ORG and the NORP President 's ORG in GPE . The family members also petitioned the authorities , the media and public figures ; they personally visited detention centres and prisons in GPE and further afield in the northern GPE .", "These attempts yielded little result . The official bodies could not clarify the circumstances of PERSON disappearance . Occasionally they would forward the applicants ' requests to ORG or to ORG .", "On DATE the second applicant was called for an interview at ORG . He was asked to elaborate on the circumstances of his wife 's disappearance , with regard to which he had requested an investigation .", "On DATE ORG forwarded the applicant 's complaint and the transcript of his interview to ORG , with a request to make official enquiries and verify whether any ORG authority had taken PERSON and her relatives into custody .", "On DATE the ORG instituted criminal proceedings under LAW part QUANTITY of LAW kidnapping . Investigation case file no . DATE was opened . The applicants ' family was informed accordingly on DATE . DATE the case was adjourned , but the applicants were not informed of this and only found out about the adjournment later . None of the family members was questioned during DATE .", "On DATE the Chief of the Leninskiy VOVD informed the acting head of ORG for GPE that PERSON , PERSON and PERSON were not listed among the detained persons in LOC . On DATE the military commander of LOC of PERSON informed ORG for GPE that the said persons had not been detained by the district military commander 's office .", "On DATE the applicants were informed by ORG of the ORG that PERSON and her relatives PERSON and PERSON had not been detained on DATE by law - enforcement bodies , including the ORG and forces from ORG . No information was available about them .", "On DATE the second applicant applied to ORG . He complained about the decision to adjourn the investigation and raised , inter alia , the following points : he had not been granted victim status and had not been formally questioned , no attempts had been made to establish the whereabouts of the missing persons and no other investigative actions had taken place . He referred to certain witness statements identifying the hull number of the ORG in which the women had been taken away ( allegedly CARDINAL ) and requested that the location of the vehicle in question be established . He made a number of other requests , in particular to give testimony as a witness and to have the husbands of the CARDINAL other missing women questioned , and to ask the ORG and ORG about “ special operations ” carried out in PERSON on DATE . In reply , ORG informed the applicants that the decision to adjourn the investigation had been quashed and the case had been forwarded to ORG for further investigation .", "On DATE ORG stated in reply to the second applicant 's complaint that the criminal investigation into the kidnapping of PERSON and her cousins had been taken under the special control of the ORG . The letter further stated that “ specific measures had been undertaken to intensify the investigation and to solve the circumstances of the crime . ”", "On DATE the second applicant was granted victim status in the criminal proceedings concerning the kidnapping of PERSON ( case no . DATE ) .", "On DATE ORG sent a progress report in several cases to the NORP President 's ORG in GPE . Case no . DATE concerning the “ kidnapping in PERSON at FAC of N. Luluyeva , PERSON , PERSON and PERSON ” was mentioned as being investigated by ORG under the “ special control ” of ORG .", "On an unspecified date in DATE the Deputy Head of ORG sent a letter to ORG of GPE . He related the disappearance of PERSON and other women , stating that they had been detained by unidentified servicemen from the federal forces . He further alleged that the investigation by the local prosecutors had proved ineffective and therefore requested that the case be transferred to ORG for investigation .", "On DATE ORG informed the second applicant that additional questions had been put to the witnesses and enquiries about the missing persons had been sent to all departments of the ORG in GPE , to the ORG , to the military prosecutor of military unit no . DATE , and to the military commander of ORG . It was also mentioned that the possible involvement of “ certain detachments of the power structures ” ( “ силовых структур ” ) in the kidnapping of the women was being investigated .", "On DATE the ORG office informed the second applicant that the investigation into the kidnapping of PERSON had been adjourned under LAW of LAW ( ORG ) for failure to identify the culprits .", "On DATE news came through that a mass grave had been uncovered in “ PERSON , an abandoned holiday village on the outskirts of PERSON , less then QUANTITY from GPE , the headquarters of the NORP military forces in GPE . CARDINAL bodies , dumped in the village , had been collected and transferred to a temporary location in ORG belonging to ORG ( Emercom ) .", "On DATE a forensic examination was performed on the bodies .", "On DATE PERSON brother and CARDINAL other relatives went to the Emercom premises and identified the QUANTITY bodies as those of PERSON , PERSON and PERSON . As the bodies were in an advanced stage of decomposition they could only be identified by their earrings and clothes . A relative who saw the QUANTITY women on DATE confirmed that the clothes and the earrings were the same as those worn by the deceased on DATE . The relatives who took part in the identification also noted that the individuals had been blindfolded .", "On DATE , adhering to the religious custom that bodies be buried as soon as possible , the relatives sought permission to transfer the bodies for burial to the village of GPE , situated QUANTITY from ORG . On DATE the ORG issued a note permitting the transportation of the bodies of PERSON , born in DATE , PERSON , born in DATE and PERSON , born in DATE , from ORG to the villages of PERSON and ORG , LOC , for burial .", "The burial took place on DATE in DATE . The applicants and other members of the family came to PERSON and took part in the funeral , but none of them saw the bodies .", "The discovery of the mass grave was reported in the media and became a subject of CARDINAL special reports by the human rights NGOs PERSON ( DATE ) and ORG ( DATE ) . Both NGO reports stated that , of the identified bodies in the mass grave , CARDINAL or DATE belonged to persons previously detained by the NORP forces , and specifically mentioned the case of PERSON . The latter report also stated that the remaining bodies DATE over DATE had been buried on DATE without any further announcements , thus preventing their further identification and examination .", "On DATE ORG informed the applicants that further investigation of case no . DATE would be conducted by that ORG . It informed the applicants that the investigation was seeking to identify the culprits and that any further information would be communicated to them in due course .", "On DATE the civil registration office of ORG issued death certificate no . CARDINAL for PERSON , born in DATE . The date and place of death were recorded DATE , GPE .", "On DATE ORG of ORG issued a medical death certificate in respect of PERSON , born in DATE . It recorded the date and place of death DATE , PERSON , PERSON . With reference to a forensic examination , it indicated that the death had resulted from homicide and was caused by a gunshot wound to the head . The circumstances of the death were described as the “ period of hostilities ” .", "On DATE a forensic report was drawn up following an examination on DATE . It established that PERSON death had been caused by a multiple comminuted skull fracture , the exact origin of which could not be identified , but which was inflicted by a blunt solid object applied with strong impact . It stated that the death had occurred DATE before the discovery of the corpse .", "On DATE the head of the village administration of PERSON issued a certificate confirming that on DATE PERSON body was buried in the village cemetery , with all costs borne by the applicants ' family .", "On DATE ORG interviewed ORG , PERSON , about progress in the investigation of crimes committed in GPE by the federal troops . The Prosecutor stated that the circumstances of the deaths of QUANTITY persons whose bodies had been discovered in DATE on the outskirts of ORG were still being investigated , and that CARDINAL bodies had been identified by their relatives and buried . He further pointed out that “ there were no eyewitness reports that federal troops were responsible for the murders ” and therefore the main probability being explored by the investigation was that the mass burial had been organised by rebel fighters .", "On DATE ORG , in reply to a request by the applicants ' legal counsel , PERSON , for an update on file no . DATE , wrote that “ a number of actions were being undertaken by the investigative authorities to identify [ the murderers ] ” .", "In DATE the first applicant complained to ORG . He indicated that the ongoing investigation would not be effective so long as it sought to prove that the abduction and murder had not been committed by military servicemen . He recalled that the persons who had abducted PERSON and other women had been driving an ORG – a vehicle which only the military could have possessed – and that the hull number of the ORG had been noted . He further stated that the body had been discovered within the security zone of the LOC military base , which was under the strict control of the military authorities . Finally , he complained that the families had not received any substantive information about the investigation .", "On DATE the PERSON requested ORG to grant victim status in the proceedings to the first applicant and to provide an update on the investigation .", "On DATE ORG informed the first applicant that proceedings in criminal investigation no . DATE had been resumed and that he would be informed of further developments .", "On DATE investigation of the criminal case was again adjourned due to a failure to identify the culprits .", "On DATE the Deputy Prosecutor of the Chechen Republic quashed this decision and forwarded the case for further investigation .", "In DATE the investigation into PERSON death was adjourned and resumed CARDINAL times . Every time it was resumed the supervising prosecutors gave detailed orders to the investigators as to what measures were to be taken . In particular , the instructions of DATE required that a special commission be set up to investigate the case and ascertain whether any military officials had been involved in the crime ; that officers earlier involved in the investigation be questioned and that several other witnesses , including women street cleaners , be questioned . The instructions of CARDINAL DATE contain further orders , such as to find out to which military detachment the ORG hull number CARDINAL belonged , but it also ordered that the instructions of DATE be carried out .", "During that period several witnesses were questioned , including the applicants and the investigator PERSON who was originally in charge of investigating case no . DATE . It was established that on DATE of PERSON detention the Sofrino interior security troops of ORG had been carrying out a special operation at FAC , PERSON . It was also established that the hull number of the ORG in which PERSON and her relatives had been taken away was CARDINAL . However , in reply to the official request , the PERSON interior security troops denied that there was an ORG with this hull number at their disposal . The enquiry to the military prosecutor 's office as to which military detachment had operated ORG no . CARDINAL did not yield any result . Likewise , the ORG driver and the ORG officer originally involved in the investigation could not be identified .", "At present the investigation continues . It has not yet identified the persons or the military detachment responsible for the abduction and murder of PERSON and others , and no one has been charged with the crimes .", "In order to be able to assess the merits of the applicants ' complaints and in view of the nature of the allegations , the ORG requested the ORG to submit a copy of the complete criminal investigation file in the present case . Before the case was declared admissible the ORG submitted CARDINAL documents out of CARDINAL , having refused to provide the rest on the grounds of confidentiality .", "After the case was declared admissible the ORG did not repeat the request for the entire investigation file but demanded specifically the documents concerning the adjournment and resumption of the investigation , the supervising prosecutors ' orders and the examination of PERSON body . The Government were also asked about the progress of the investigation and were invited to submit any relevant documents . They were also asked to identify the military unit which was present in FAC , PERSON , on TIME CARDINAL June CARDINAL , to give the names and ranks of its crew members and to identify the ORG which was present . In reply , the Government submitted the specified documents and provided the investigation progress report prepared by ORG , which contained a summary of the investigative steps taken in DATE .", "The documents submitted by the ORG can be summarised as follows :", "On DATE a prosecutor from ORG opened criminal investigation file no . DATE into the abduction on DATE at TIME of PERSON and other persons by unidentified armed men , dressed in camouflage and driving an ORG without hull numbers . His report further stated that , according to eye - witnesses , officers from the nearby Leninskiy VOVD arrived at the scene and attempted to interfere , but were shot at by the armed men . Requests for information , forwarded to the local bodies of the interior , the ORG and the military commanders ' offices , had proved ineffective .", "On DATE an investigator from the Leninskiy VOVD examined the site at FAC where PERSON and other women had been detained . The investigators did not find anything noteworthy .", "In DATE an investigator from ORG questioned PERSON husband , the second applicant , as a victim in the criminal case . The second applicant stated that early on TIME CARDINAL DATE PERSON , together with her CARDINAL cousins , PERSON and PERSON , went to the GPE market in PERSON to sell cherries . At TIME on DATE another relative , ORG , who had travelled with PERSON , came to his house and told him that in the TIME , while selling cherries , she saw an ORG in the market and noted that PERSON and other women were forced inside by armed men dressed in camouflage and wearing masks . According to ORG , other people tried to intervene , but the armed men shouted in NORP that they were conducting a special operation and shot above their heads with submachine - guns . Servicemen from NORP then arrived , but they were also shot at with a machine gun . Someone from the PERSON asked them who they were and one of the masked men showed him an identity card . ORG further told him that servicemen from the ORG also arrived , but they were not allowed to approach . Another person in civilian clothes arrived and showed his identity card to one of the armed persons . They exchanged a few words and the man walked away . The ORG with the detainees left . ORG had immediately returned to ORG to tell the second applicant about his wife 's detention .", "The second applicant further explained that he had immediately gone to PERSON to establish his wife 's whereabouts . He had personally visited all the district departments of the interior in PERSON , the ORG office and the military commander 's office , but no authority acknowledged his wife 's detention . Some servicemen who were at that time serving in LOC on mission from the PERSON region were his acquaintances since he had previously worked in the police force in that region , and in DATE the head of the criminal police informed him that the hull number of the ORG which had driven away his wife was CARDINAL . The policemen from the PERSON assured him that they were doing everything possible to find his wife .", "In the period from DATE investigators from ORG questioned several eye - witnesses to the events of DATE and relatives of other persons who had been detained and “ disappeared ” on DATE . The total number of persons detained is not apparent from the documents submitted , but it must be CARDINAL .", "Witness B. , an employee of the district administration , stated in DATE that at DATE TIME on DATE he was walking past the NORP VOVD building and heard shooting nearby . Then he saw policemen running from the NORP building towards the noise . QUANTITY away he noted a group of men wearing camouflage uniforms and balaclava masks , armed with sub - machine guns and portable grenade - launchers . The policemen from the VOVD , also armed with machine - guns , were standing across from them . The witness approached the armed men and produced his identity card ; one of the masked men , the senior member of the group , told him that they were conducting a special operation and would call later at the LOC district military commander 's office to explain . They did not have any signs or markings on their camouflage and did not introduce or identify themselves . The witness noted an ORG standing nearby , but could not identify it .", "The family of PERSON , who had been detained with PERSON , was questioned in DATE and again in DATE about the circumstances of his detention . His daughter testified that at TIME on DATE a friend 's wife came in and asked her father to help her find her husband . Her father left with that woman and had not been seen since . At TIME she went outside to get water and saw a group of servicemen wearing masks and a group of people who were shouting something about them driving away women . Then a group of policemen arrived and the servicemen shot in the air . The military left in an ORG ; the witness did not notice any men in civilian clothes on the hull or any numbers . She recalled that someone told her that the servicemen had been waiting in the courtyard of a nearby house since TIME on TIME . PERSON wife testified on CARDINAL occasions in DATE that she had been contacted by persons who did not tell her their names out of fear for their lives , and who told her that her husband had been detained in a ground pit at the GPE military base . CARDINAL man told her that he had been detained alongside her husband and saw him badly beaten . It was allegedly her husband who had asked the man to contact his family .", "PERSON , questioned in DATE , testified that on DATE she witnessed how PERSON and CARDINAL women were arrested in an ambush operation in her friends ' flat in FAC . The leader of the operation group questioned the witness but she was then released . He also told her that he was from the ORG and that they were looking for the owner of the flat because “ some of their guys had been killed there ” . She described the leader of the operation group as a NORP male , and said that the men in the group were armed with sub - machine guns and wore unmarked camouflage .", "PERSON . stated in DATE that she had learnt from her sister 's husband that in DATE her sister , PERSON . , had been detained by servicemen at the market in ORG , along with other women who were trading there , and that there had been no news of them since . The family continued to search for ORG everywhere , but without any results . On DATE . was granted victim status in the proceedings concerning her sisters ' disappearance .", "On DATE a forensic expert prepared a report based on the description of the crime - scene in “ GPE where , from DATE , CARDINAL bodies bearing signs of violent death were discovered ( the description of the site was not submitted to ORG ) . CARDINAL body was identified as that of PERSON . The crime - scene report was quoted as follows : “ the following clothes were discovered on the corpse : a blue cardigan and a printed dress . The bones of the extremities , chest and pelvis are intact . The right frontal part of the head has an extensive defect to the bone , the bone lamella is totally missing . Skin is mummified , yellowish - brown in colour , solid to the touch ” .", "The expert was asked to answer questions concerning the possible reasons for and time of PERSON death . The expert concluded that it appeared that the death had occurred DATE prior to the discovery of the body , and had resulted from an extensive wound to the front of the head , which had caused massive deformation to the frontal part of the skull .", "In DATE investigators questioned several officers who , at the material time , were serving in the PERSON , PERSON , on mission from other regions of GPE . They recalled having opened a search file in respect of PERSON and other women , but the search had not produced any results . They could not recall if the hull number of the ORG which had taken away the women was known to the investigation authorities .", "Officer PERSON was questioned in DATE and gave submissions reflected in the progress report prepared by ORG , cited below .", "At the ORG 's request , the Government provided the following update on the investigation , covering the period from DATE to DATE :", "“ On DATE the [ acting Deputy of ORG ] by his decree quashed the decree to suspend the preliminary investigation in the criminal case no . DATE of DATE and the preliminary investigation was reopened . After reopening proceedings in the case [ CARDINAL persons including the former military commandant of the Town of Grozny ] , were interviewed as witnesses . Moreover , a number of [ actions were commissioned ] to establish witnesses of the committed crime .", "On DATE the victim , PERSON , was again interviewed and he stated that in the course of the search for his relatives he had been assisted by [ the ] officers of the [ Department ] of ORG , [ Mr PERSON ] , [ Mr PERSON . ] and the operating officer by name of “ PERSON ” . Moreover , the search was conducted [ by ] an officer of the [ ORG ] by surname of “ Balandin ” . Mr PERSON has learned from the above persons that the driver of the [ APC ] with the hull number CARDINAL was a serviceman by name of “ Fedyakin ” . Mr PERSON did not give his consent to have the corpse of his wife exhumed . The corpse was examined earlier . The forensic medical examination established the violent nature of PERSON death .", "On DATE the [ ORG ] of GPE [ was commissioned ] to interview [ Mr PERSON ] as a witness . He stated that in DATE he had been detached to the Town of Grozny to serve as an operating officer of [ the ] criminal investigations department . Pursuant to the fact of abduction of PERSON , sisters PERSON and Mr PERSON measures had been taken with a view to establish persons who had committed the abduction . In particular , the hull number of the [ APC ] , in which the abducted had been taken away , had been established . It turned out impossible to establish the surname of the driver of that armoured personnel vehicle . According to [ the ] received information special measures on FAC during the indicated period of time were conducted by the PERSON brigade of internal troops of the [ ... ] Ministry of the ORG . During his second duty trip to GPE in DATE he learned that the corpses of the abducted persons had been found and identified .", "On DATE the Military [ ORG ] of FAC [ was commissioned ] to carry out several investigative actions to check the information that the crime had been committed by [ the ] servicemen of the regiment no . CARDINAL of the ORG brigade of internal troops of the [ ... ] ORG . According to the reply received from the commanding officer of the military unit no . CARDINAL ( the PERSON brigade of internal troops of the [ ... ] ORG ) a serviceman by surname of Fedyakin is not listed among the personnel of the unit and an [ ORG ] with the hull number CARDINAL is not listed among the vehicles of the unit . The military unit no . CARDINAL did not include regiment no . CARDINAL . The military unit comprises CARDINAL operational battalions and not regiments .", "On DATE an inquiry concerning [ the ] officer of the [ ORG ] PERSON was sent to the Head of ORG of the [ ORG ] . The criminal case - file was added with the reply of the Deputy Head of ORG of the [ ORG ] , according to which an officer PERSON is not listed among the personnel of the ORG .", "The preliminary investigation in the case was repeatedly suspended . On DATE the [ Deputy of ORG ] by his decree quashed the decree to suspend the preliminary investigation . Pursuant to LAW of LAW of GPE , the directives were issued to eliminate inconsistencies in the testimony of the witness [ PERSON ] , to establish women who were cleaning the territory near the commandant 's office of LOC of the Town of Grozny and who allegedly heard shouts coming from [ APCs ] , to interview Mr. PERSON . PERSON again .", "On DATE the preliminary investigation in the case was suspended pursuant to LAW ) of LAW of GPE ( in view of non - establishment of the person to be prosecuted as the accused [ of the abduction ] ) .", "On DATE the Deputy [ Prosecutor ] of LOC of the Town of Grozny by his decree quashed the decree to suspend the preliminary investigation in the criminal case and the preliminary investigation was reopened . On DATE a fresh inquiry requesting the information on whereabouts of PERSON was sent to the Head of ORG of the [ ORG ] . On DATE an inquiry requesting the information on whereabouts of [ the ] officer of the [ Department ] of the ORG , [ Mr PERSON ] , and [ an ] operating officer by name “ PERSON ” was sent to the Head of ORG of the Interior of the Town of Grozny . On DATE a fresh [ commission request ] was sent to the [ ORG ] of ORG of GPE to interview [ Mr PERSON ] . On DATE the military [ ORG ] of the military unit no . CARDINAL [ was commissioned ] to establish a military unit equipped with an [ APC ] with the hull number CARDINAL . At present , the investigation in the case is in progress . ”", "Until DATE criminal - law matters were governed by LAW the NORP Federalist Socialist Republic . From DATE the old Code was replaced by LAW ( CCP ) .", "The DATE ORG required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed . That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction . The decision whether or not to institute criminal proceedings had to be taken within DATE of the first report on the relevant facts ( Articles CARDINAL , CARDINAL - CARDINAL ) . Where an investigating body refused to open or terminated a criminal investigation , a reasoned decision was to be provided . Such decisions could be appealed to a higher - ranking prosecutor or to a court ( Articles CARDINAL and CARDINAL ) .", "Criminal investigation is now carried out under the supervision of a prosecutor whose powers include giving detailed instructions to the investigating authorities as to what measures should be taken to investigate the case ( LAW ) of the new ORG ) .", "DATE . Under the old ORG , during criminal proceedings persons who had been granted victim status could submit evidence and file applications , have full access to the case file once the investigation was complete , challenge appointments and appeal decisions or judgments in the case . At an inquest , the close relatives of the deceased were to be granted victim status ( LAW . Similar provisions are contained in the new ORG .", "Article CARDINAL of the new ORG establishes the rule of the impermissibility of disclosure of data from the preliminary investigation . Under part CARDINAL of that Article , information from the investigation file may be divulged with the permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . Divulging information about the private life of participants in criminal proceedings without their permission is prohibited .", "Article CARDINAL of the old ORG provided for a criminal investigation to be adjourned if no suspect in a crime could be identified . Similar provisions are set out in LAW CARDINAL(CARDINAL ) of the new ORG .", "Article CARDINAL part CARDINAL of the Code of Civil Procedure ( Гражданский процессуальный PERSON РСФСР ) , which was in force until DATE , provided that courts had to suspend consideration of a case if it could not be considered until another set of civil , criminal or administrative proceedings had been completed ." ]

[ "13", "2", "3", "5" ]

[ "2-1", "5-1" ]

[]

[ "3" ]

[]

[]

[ "The applicant was born in DATE and lives in NORP , GPE .", "The ORG authority lodged a criminal complaint against the applicant with the GPE State Attorney ’s ORG on DATE , alleging that he had committed CARDINAL murders . The applicant was arrested on DATE and placed in pre - trial detention .", "By a judgment of CARDINAL DATE ORG acquitted the applicant and he was released . On DATE , however , ORG quashed the first - instance judgment and ordered a retrial .", "On DATE the GPE State Attorney ’s ORG indicted the applicant in ORG on CARDINAL counts of murder . The applicant was tried in his absence because his whereabouts were unknown to the authorities . On DATE he was found guilty of all CARDINAL counts of murder and sentenced to DATE imprisonment . This judgment was upheld by ORG on DATE , likewise in the absence of the applicant .", "An international arrest warrant was issued in respect of the applicant . He was arrested in GPE on DATE , extradited to GPE on DATE and was placed in pre - trial detention in GPE on that date .", "On DATE the criminal proceedings against the applicant were reopened .", "On DATE ORG ordered the applicant ’s pre - trial detention under LAW § CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW . The applicant ’s pre - trial detention was regularly extended on the same grounds .", "The ORG confirmed its previous verdict on DATE , sentencing the applicant to CARDINAL years’ imprisonment . On DATE it extended the applicant ’s detention until DATE or until the judgment entered into force .", "The applicant lodged an appeal against the decision extending his detention . It was dismissed by ORG on DATE .", "The first - instance judgment was upheld by ORG on DATE in its capacity as an appeal court . On DATE the applicant lodged a further appeal with ORG , in its capacity as a court of third instance .", "On DATE the applicant lodged with ORG an application for the detention order against him to be lifted . He argued that the maximum statutory detention period where an appellate judgment had been adopted and against which an appeal was allowed was DATE . That period had expired on DATE . He therefore asked for his release . On DATE the ORG dismissed the complaint without addressing the issue raised by the applicant .", "The applicant ’s subsequent constitutional complaint of CARDINAL DATE was declared inadmissible on CARDINAL DATE on the grounds that the impugned decision was not an act within the meaning of section CARDINAL of LAW . This decision was served on the applicant on DATE .", "In the meantime , on DATE the ORG extended the applicant ’s detention under LAW of LAW for DATE , i.e. until DATE . On DATE the applicant lodged an appeal , arguing that the maximum period for which he could be detained had expired . This appeal was dismissed by ORG on DATE . The relevant part of that decision reads :", "“ ORG , as the court of second instance , considers that the first - instance court correctly established that in the present case the conditions for the extension of the overall detention of the accused , PERSON , under LAW had been satisfied , and thus extended his overall detention for a further DATE .", "In a non - final judgment of ORG of DATE ... the accused PERSON was found guilty ... and sentenced to DATE imprisonment . That judgment ... was upheld by a judgment of ORG on DATE ... against which the accused lodged an appeal . In view of the sentence given , the detention of the accused is obligatory under LAW of LAW .", "The accused was in detention DATE and DATE ( DATE ) and also since DATE , so that the maximum period of detention [ applicable to him ] , being DATE under LAW ) of LAW , was set to expire on DATE . Since the accused was , inter alia , convicted of the criminal offence of aggravated murder ... [ which is ] punishable by DATE imprisonment , a court may , under LAW , extend his overall detention for DATE [ of the term referred to in DATE and CARDINAL of paragraph CARDINAL of Article CARDINAL of LAW ] , that is to say for DATE .", "Therefore , ORG finds that the extension of the accused ’s detention for DATE by the first - instance court was well founded and lawful ...", "...", "The accused ’s submissions based on LAW in which he argued that his detention had to be lifted because DATE had passed since the second - instance judgment was adopted are also unfounded . ORG considers that where , as in the present case , a first - instance judgment and a second - instance judgment against which an appeal is allowed have been adopted within the time - limit for detention under LAW , the overall duration of detention may be extended LAW CARDINAL § CARDINAL of the Code of Criminal Procedure , and after that time - limit expires , it may still be extended under LAW . ”", "The applicant then lodged a constitutional complaint , whereby he reiterated the arguments from his appeal as regards the issue of the lawfulness of his detention . On DATE ORG dismissed the complaint , endorsing the reasoning of ORG .", "On DATE ORG in its capacity as a court of third instance upheld the applicant ’s conviction . Thus it became final and enforceable .", "The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provide as follows :", "“ ( CARDINAL ) Until the adoption of a first - instance judgment , pre - trial detention may last for a maximum of :", "DATE for offences carrying a statutory maximum sentence of CARDINAL PERSON imprisonment ;", "DATE for offences carrying a statutory maximum sentence of CARDINAL years’ imprisonment ;", "DATE for offences carrying a statutory maximum sentence of CARDINAL years’ imprisonment ;", "DATE for offences carrying a sentence of DATE imprisonment ;", "DATE for offences carrying a sentence of long - term imprisonment .", "( CARDINAL ) In cases where a judgment has been adopted but has not yet entered into force , the maximum term of pre - trial detention may be extended for CARDINAL of the term referred to in CARDINAL of paragraph CARDINAL of this provision until the judgment becomes final , and for CARDINAL of the term referred to in DATE and CARDINAL of paragraph CARDINAL of this provision .", "( CARDINAL ) Where a first - instance judgment has been quashed on appeal , following an application by the ORG Attorney and where important reasons exist , ORG may extend the term of detention referred to in DATE of paragraph CARDINAL of this provision for DATE and the term referred to in DATE and CARDINAL of paragraph CARDINAL of this provision for DATE .", "( CARDINAL ) Following the adoption of an appellate judgment against which an appeal is allowed , detention may last until the judgment becomes final , for a maximum period of DATE .", "( CARDINAL ) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison , but for no longer than the duration of his prison term . ”", "NORP The relevant part of the guidelines adopted at a meeting of ORG on DATE and published by ORG , reads :", "“ ...", "Where a first - instance judgment and a second - instance decision quashing the first - instance judgment were adopted within the time prescribed for detention under LAW of the CPP , the overall duration of detention may be extended LAW CARDINAL § CARDINAL of the CPP and after the expiry of that period also under LAW of the CPP .", "The overall duration of detention under LAW of the CPP is to be extended only after the time - limit prescribed in LAW has expired , irrespective of whether the first - instance court has adopted a fresh judgment in the retrial proceedings .", "The maximum period of detention where a judgment has been adopted but has not yet become enforceable is to be fixed according to the criminal offence the accused was found guilty of , even where the ORG Attorney has filed an appeal on any grounds .", "Where a first - instance judgment or a second - instance judgment against which an appeal is allowed have been adopted within the time - limits set by LAW , the overall duration of detention may be extended under LAW of the CPP . After the time - limit set by that LAW , detention may be extended under LAW of the CPP .", "Where a first - instance judgment or a second - instance judgment against which an appeal is allowed have been adopted within the time - limits set by LAW , the overall duration of detention may be extended LAW CARDINAL § CARDINAL of the CPP . After the time - limit set by that Article expires , detention may be extended under LAW of the CPP , after the expiration of the time - limit under LAW of the CPP .", "Where a second - instance decision against which an appeal is allowed has been adopted within the time - limit set by LAW , the overall duration of detention may be extended under LAW of the CPP , after the expiration of the time - limit set by LAW .", "Where a second - instance decision against which an appeal is allowed has been quashed within the time - limit set by LAW , the overall duration of detention may be extended under LAW of the CPP , after the expiration of the time - limit set by LAW .", "Where a second - instance decision against which an appeal is allowed has been quashed within the time - limit set by LAW , the overall duration of detention may be extended under LAW of the CPP .", "... ”", "ORG practice as regards the interpretation of Article CARDINAL of the Code of Criminal Procedure may be found in its case - law .", "It ’s decision no . II CARDINAL Kr CARDINAL/CARDINAL - CARDINAL of DATE reads in its relevant part as follows :", "“ ... ORG has established that the accused , PERSON , has been detained since DATE on the basis of LAW ) of LAW procedure ( “ CPP ” ) and that the maximum period of detention under LAW ) of the ORG expired on DATE . Since the appeal decision quashing [ the first - instance judgment ] was adopted on DATE , the detention during the appeal proceedings from the adoption of the first - instance judgment on DATE was based on the time - limits set by LAW .", "Therefore , the statutory requirements for extending the accused ’s detention for DATE under LAW of the ORG have been satisfied ... ”", "The relevant part of decision no . II CARDINAL Kr CARDINAL/CARDINAL - CARDINAL of DATE reads :", "“ The accused , ORG , has been detained since DATE and the maximum period of detention under LAW ) and LAW ( “ CPP ” ) expires on DATE .", "The criminal proceedings are currently pending at third instance . The first - instance judgment of ORG was quashed by this court . After that , a fresh first - instance judgment was adopted , which was upheld by a judgment of ORG of DATE ... by which the accused was sentenced to long - term imprisonment for DATE on account of CARDINAL criminal offences of aggravated murder ... Under LAW ) and § CARDINAL of the ORG , the maximum period of detention is DATE and DATE , as the criminal offence in issue is punishable with long - term imprisonment . That period expires on DATE . Since the proceedings in which the first - instance judgment has been quashed are still pending , the accused ’s detention may be extended for DATE . ”" ]

[]

[]

[]

[ "5" ]

[ "5-1" ]

[]

[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE he was arrested on suspicion of having attempted to steal a car and on DATE was remanded in custody .", "The trial took place on DATE , DATE and DATE before ORG ( Sąd Rejonowy ) . ORG heard as witnesses the owner of the car and his neighbour as well as the police expert , who confirmed that the door lock had been tampered with in an attempt to open it . The court also considered as evidence a bag containing instruments , which could have been used to open the car lock . The bag had been found in the close vicinity of the applicant at the time of his arrest . The applicant was present during the trial . According to the Government the applicant had chosen not to be represented by a lawyer .", "On DATE ORG convicted the applicant of attempted theft and sentenced him to CARDINAL GPE imprisonment . It found the evidence of the witnesses to be exhaustive and logical and their statements consistent .", "The applicant filed an appeal against this judgment with ORG ( Sąd Wojewódzki ) . He maintained in particular that the first - instance court had disregarded his explanations and had only attached weight to the prosecution evidence . He also requested that his accomplice and the CARDINAL policemen who had arrested him be heard as witnesses and that he be brought from prison to the hearing before ORG .", "On DATE ORG refused the applicant ’s request to be brought before it , considering that his presence was unnecessary , since he had already given a detailed account of the events at his trial before ORG . Moreover , in his written statement of appeal he had set out at length his complaints in respect of the contested conviction . Furthermore , in its view he had sufficient time to submit further observations in writing , if he wished to do so .", "On DATE , after a hearing at which the public prosecutor , but not the applicant , was present ( see paragraph CARDINAL below ) , ORG dismissed the applicant ’s appeal .", "ORG had heard the prosecutor ’s submissions to the effect that the judgment of the lower court should be upheld , and it considered that ORG had thoroughly assessed the evidence and had carefully considered the applicant ’s guilt , as shown by the fact that the applicant had been acquitted on CARDINAL of CARDINAL charges . ORG found that the evidence given by the applicant was inconsistent and motivated by his wish to avoid conviction . Moreover , the applicant had failed to request ORG to hear further evidence . It noted that the applicant had only submitted a request to have the policemen who had arrested him heard when lodging his appeal . However , ORG considered it unnecessary to hear the witnesses as the other evidence presented to ORG was sufficient to prove the applicant ’s guilt .", "The relevant provisions of LAW in force at the material time read as follows :", "“ An accused , who does not have a lawyer of his own choice , may request the assistance of an officially appointed lawyer if he proves that he is not able to incur the costs of defence without detriment to himself and his family . ”", "“ A court of appeal shall conduct a hearing when examining a case … ”", "“ A hearing shall be held irrespective of whether the parties are present . However , a hearing shall not be held if the public prosecutor is absent … ”", "“ If a case is to be examined at a hearing , the court may order an accused , who is detained , to be brought to the hearing . ”", "“ CARDINAL . An appellate court can not take evidence .", "However , the court can exceptionally take evidence at a hearing … if it would expedite proceedings … ”", "The Code of Criminal Procedure provided at the material time for CARDINAL - instance proceedings . Regional courts considered , inter alia , appeals against judgments of district courts . Only remedies of an extraordinary character were available against a judgment given by a regional court in appeal . Since then LAW has been amended and now provides for cassation proceedings in respect of judgments of appellate courts .", "Article CARDINAL of the Code of Criminal Procedure prohibits an appellate court from increasing a sentence imposed by a trial court if the appeal was lodged by a defendant .", "LAW DATE provides that the prosecution service is composed of ORG and subordinate public prosecutors . Public prosecutors are independent in carrying out their duties . However , they are under an obligation to follow the instructions of higher ranking prosecutors .", "In a declaration of DATE , deposited with the Secretary General of ORG by the NORP Minister for ORG , GPE recognised the jurisdiction of the ORG in the following terms :", "“ The Government of GPE , pursuant to LAW , opened for signature in GPE on DATE , declares that it recognises , for a period of DATE with effect from DATE , as compulsory ipso facto and without special agreement , on condition of reciprocity on the part of the other Contracting Parties , the jurisdiction of ORG in all matters concerning the interpretation and application of the aforementioned Convention .", "The validity of this Declaration may be renewed by tacit agreement for periods of DATE , if ORG , by notification to the Secretary General of ORG , does not denounce this LAW by giving at least six months’ notice before the expiry of the first period or of the subsequent periods . ”" ]

[ "6" ]

[]

[]

[]

[]

[]

[ "The applicants , Mr PERSON and PERSON , are NORP nationals , born in DATE and DATE respectively and living in GPE ( GPE ) . They were represented before the ORG by Mr GPE , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants are journalists . At the material time they were working for the newspaper PERSON .", "On DATE the GPE police commenced a judicial investigation concerning a number of articles the applicants had published in PERSON . According to the police , certain statements made about the then NORP President , PERSON , amounted to an insult to authority , an offence punishable under LAW .", "At their trial in ORG , the applicants pleaded that LAW was unconstitutional . ORG dismissed their objection in a decision of DATE , noting that the purpose of LAW of LAW was to uphold the authority of the ORG and that it was necessary to punish such an offence as the authority of the ORG was a prerequisite for the exercise of ORG power . The offence therefore involved an insult aimed at authority , not an individual . Furthermore , whether the offence had taken place or not depended on the status of the victim , who had to be someone holding high office within the ORG . Article CARDINAL was necessary to create an ideal climate of order and perfect security for people entrusted with important duties under the ORG ’s programme . The crucial requirement for the charge of insult to authority to be made out was that the offence committed should have been such as to undermine authority , for if that condition was not satisfied , the offence did not constitute an insult to authority but an offence against an individual , even if it had been committed against a person holding high office within the ORG .", "The applicants appealed against ORG decision .", "On DATE ORG Instance found the applicants guilty of the offence of insult to authority provided for in LAW on the ground that in articles published from CARDINAL DATE in PERSON they had denigrated or even insulted the NORP President , PERSON , through tendentious or false statements . The court noted , in particular , that in an article published on CARDINAL DATE , the first applicant had called the NORP President , Mr GPE , a murderer , accusing him of having ordered the distribution of arms on CARDINAL DATE and hence of having deliberately triggered off the ensuing “ genocide ” . ORG also noted that the applicants had stated in an article published on CARDINAL DATE that Mr PERSON had been recruited by the ORG while he was studying in GPE .", "The court sentenced the first applicant to DATE imprisonment and the second to CARDINAL years’ imprisonment .", "The applicants appealed against that decision .", "On DATE ORG dismissed the ORG appeal against its decision of DATE , holding that LAW of LAW was compatible with LAW and LAW .", "The appeal against the judgment of DATE was allowed by ORG in a decision of DATE against which no further appeal lay . ORG acquitted the applicants , holding that the provisions of LAW were not applicable to the press , as the statements in question related to political matters , for which the freedom of expression as safeguarded by LAW was broader . Lastly , ORG considered that the applicants could not be punished otherwise than by the application of rules of professional conduct .", "The relevant provisions of LAW are the following :", "OFFENCES AGAINST DIGNITY", "“ Anyone who disparages the reputation or honour of another through words , gestures or any other means , or by exposing him to mockery , shall be liable to imprisonment for DATE or to a fine . ...", "The prosecuting authorities are seised of the case on a complaint by the victim . ... ”", "“ Anyone who makes any statement or allegation in public concerning a particular person which , if true , would render that person liable to a criminal , administrative or disciplinary penalty or expose them to public opprobrium , shall be liable to imprisonment for DATE or to a fine . ”", "“ Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest . Where the truth of the statement or allegation is proved , no offence of insult or defamation will have been committed . ”", "OFFENCES AGAINST AUTHORITY", "“ Public disparagement of or threats against a person belonging to CARDINAL of the categories referred to in LAW in connection with their activity and of a nature to undermine authority shall be punished by imprisonment for DATE . ... ”", "“ Insults , defamation or threats uttered directly or by direct means of communication against a civil servant holding an office which involves the exercise of ORG authority in the performance of his duties or on account of acts carried out in the performance of his duties shall be punished by imprisonment for DATE .", "Assault or any other act of violence together with infliction of bodily harm on the persons referred to in the first paragraph during the performance of their duties or on account of acts carried out in the performance of their duties shall be punished by imprisonment for DATE and , in the case of serious bodily harm , by imprisonment for DATE .", "Where the offences referred to in the preceding paragraphs have been committed against a member of the national legal service , police officer , gendarme or other member of the military , the maximum sentence shall be increased by DATE ” ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "In a dispute with her neighbours about a right of way , she was a party to various sets of legal proceedings , as detailed below .", "The applicant 's neighbours accused her of preventing them on DATE from taking the track leading to the housing estate . On DATE the ORG ( FAC ) made a summary order ( nakaz karny ) requiring the applicant and her husband to pay a fine . On DATE the same court , taking into account the low level of the disturbance to public order caused by the offence , made a discontinuation order ( postanowienie o umorzeniu postepowania ) , coupled with a probationary period of DATE .", "On DATE it found the accused not guilty ( wyrok uniewinniający ) . Having compared the evidence given by the victims and the witnesses they had asked to be called , it noted differences which undermined the credibility of their version of the facts . On DATE ORG ( Sąd Wojewódzki ) dismissed an appeal by the prosecution .", "In DATE the applicant was prosecuted under LAW ( see “ Relevant domestic law ” below ) for an offence committed on DATE . On DATE the ORG asked for the applicant to be examined by CARDINAL psychiatrists in order to determine whether , at the material time , she had been in full possession of her mental faculties . The court grounded this request on the fact that the applicant was under treatment as an outpatient of the neurology centre and the fact that she had also been required to undergo a psychiatric examination in connection with another case . The examination was arranged for DATE . The applicant was duly informed of the appointment but did not attend .", "On DATE the consultation was put back to CARDINAL DATE , but did not take place on DATE because the applicant announced that she was seriously ill .", "On DATE ORG informed the applicant in an ordinary letter that the consultation had been put back to DATE and made it clear that her attendance was compulsory and that if she did not comply with the order it would be obliged to have her arrested .", "On DATE ORG issued a warrant for the applicant 's arrest , if required , in order to enforce her attendance at the psychiatric examination on DATE .", "The applicant was arrested at her home on DATE at TIME At CARDINAL she signed the arrest report and wrote on it that she had heart problems , that she intended to complain about the arrest and that she did not want anyone in her family to be informed .", "Initially ( in her observations of DATE ) , the applicant submitted that she had sent a medical certificate to explain why she could not attend the appointment with the psychiatrist .", "The Government asserted that no certificate had been received by the court , which had ordered the applicant to be escorted to her medical examination , and that a certificate could not have been mislaid by ORG registry .", "In reply the applicant submitted that , not having received a summons , she did not find out about the court 's decision until the police arrived . It was then that she had informed them that she had been unable to attend the appointment and had given them a medical certificate dated CARDINAL DATE showing that she had been admitted to hospital with a heart condition .", "The Government then asserted that no medical certificate dated CARDINAL DATE mentioning that the applicant had to be treated in hospital had been received by ORG .", "The applicant insisted that she had handed over such a certificate to the police , pointing out that she could not be held responsible if the police officers had omitted to send it on to the court .", "According to the applicant , her daughter , then aged DATE , had been present when she was arrested . CARDINAL of the police officers had snatched the child out of her arms , as a result of which the girl had been traumatised . She alleged that the police made her get into the van , leaving the child at home unsupervised . She produced a certificate drawn up on DATE by a psychologist , stating that her CARDINAL daughters were receiving treatment for sleep disorders , namely nightmares and sudden panic attacks .", "As regards the presence of the applicant 's daughter when she was being arrested , the Government asserted that they were unable to say whether or not the child had been left alone . The arrest report contained no information of that kind and the applicant had not at any time asked to be allowed to contact a member of her family . The ORG submitted a letter dated DATE in which the commander of the local police stated that , when he interviewed the officer responsible for the arrest , the latter had informed him that he no longer remembered the exact circumstances but that if the child had been present he would have taken the normal steps to ensure that there was someone to look after her . The Government also pointed out that the medical examination had taken TIME and that the applicant had soon been able to go home .", "The applicant , on the other hand , said that the police had forbidden her to contact a member of her family or her doctor . She also presented an affidavit signed by CARDINAL party who had been in the same police van , certifying that when the vehicle broke down they had been obliged to wait in it on the road without any concern being shown by the police as to whether they were correctly dressed to protect themselves from the cold .", "On DATE the applicant complained about being arrested . On DATE the President of ORG refused to entertain her application , since there was no provision for such a remedy . On DATE that decision was upheld on appeal by ORG .", "According to the information noted by ORG in its decision of DATE concerning another case in which the applicant was involved ( see Section C of this statement of the facts ) , the report on the examination on DATE said that the applicant had not been in full possession of her mental faculties at the material time . The doctors also pointed out that since DATE she had been receiving treatment for epilepsy .", "On DATE the family affairs judge ( sędzia rodzinny ) brought proceedings against the applicant 's CARDINAL minor daughters to establish whether or not on DATE , as alleged , they had thrown stones at their neighbour and insulted her , in the presence of and encouraged by their mother .", "On DATE the applicant protested against that measure .", "On DATE the ORG issued a warning ( upomnienie ) to the girls and noted that CARDINAL of them had partly lost her moral bearings . It found that the incident had formed part of the ongoing dispute between the victim and the children 's parents . It further noted that the QUANTITY girls were model pupils and had never been convicted of similar offences .", "On DATE ORG dismissed an appeal by the applicant . It found that a warning was not only the least severe correctional measure but also the most appropriate one in the circumstances . On DATE the Minister of ORG refused leave to appeal on points of law to ORG .", "On DATE the PERSON district prosecutor 's office ( GPE ) preferred an indictment against the applicant . She was prosecuted for inciting her daughters on CARDINAL DATE to attack their neighbour physically and verbally , as a result of which the victim had sustained numerous lesions .", "On DATE the applicant was also charged under Article CARDINAL § CARDINAL of LAW for having , on DATE , threatened her neighbour with a shovel handle and prevented her using the track to the housing estate .", "On DATE the ORG decided to require the applicant to undergo a psychiatric examination . On DATE the GPE - Kobierzyn neuropsychiatric hospital asked the applicant to go for an examination on DATE . On DATE the same court decided to place the applicant in the GPE - Kobierzyn psychiatric hospital for observation . It noted that the report produced after the medical examination of DATE revealed a risk that the applicant might be suffering from delusions ( psychoza urojeniowa ) . As it found the consultation inconclusive , the court accepted the doctors ' opinion that a longer period of observation was necessary . It concluded that , if the applicant 's state of health could be known with certainty , it would be possible to decide what provisional measures should be taken .", "On DATE the applicant appealed against the decision of DATE . She said that on DATE she had already been required to undergo a psychiatric examination in PERSON in connection with another case . She also complained that she had not been informed of the doctors ' findings .", "On DATE the ORG again ordered the applicant to undergo a psychiatric examination . It noted that psychiatric reports had been ordered twice in quick succession . As views on the applicant 's state of health were divided , it considered that a fresh consultation was required . That took place on DATE .", "On DATE ORG decided to send the file back to the prosecutor for further investigation . It pointed out that the applicant had been required to undergo a psychiatric examination in a similar case before the same court ( see Section B above ) and that the prosecutor was therefore under an obligation to provide all the useful information about her in his possession . The court also pointed out that on DATE a criminal - law reform was due to come into force in GPE and that that might have a bearing on how the further proceedings would be organised .", "On DATE the applicant appealed against the decision to transfer the file . She argued that the doubts expressed by the judge about her mental health were unfounded , especially as the findings of the psychiatric examination referred to by the court had been favourable .", "On a date which has not been specified the district prosecutor appealed against the same decision , arguing that the prosecution had not been aware either that another similar case was pending before ORG or that the applicant had already been required to undergo a psychiatric examination .", "On DATE ORG dismissed the appeals by the applicant and the district prosecutor . It noted that , since the psychiatric report of DATE ( see Section B above ) had stated that the applicant was not in full possession of her mental faculties at the material time , a further expert report was necessary . The main aim of the new examination should be to establish whether the applicant was still in the same condition as she had been at the material time . The court also pointed out that the district prosecutor had taken part in the DATE proceedings .", "On DATE the PERSON district prosecutor decided to order the applicant to undergo a psychiatric examination at the FAC Targ hospital with a view to establishing whether she was suffering from a mental illness , whether at the material time she had been in full possession of her mental faculties and whether the fact that she was still at liberty posed a threat to public order . On DATE the applicant complained about the prosecutor 's decision . She contended , among other arguments , that ordering a consultation on the ground that she had already been examined in a similar case was an abuse of the legal means placed at the judicial authorities ' disposal .", "On DATE the Rabka police summoned the applicant to attend a consultation at the hospital in PERSON on DATE . On DATE , for a reason not explained in the file , the PERSON police again summoned the applicant to attend a consultation arranged for DATE .", "The report on the consultation of DATE stated that the applicant 's mental health was good .", "On DATE the Rabka police summoned the applicant for the third time , to a consultation on DATE . On the date specified the applicant went to the hospital . The doctor discovered that she had been examined on DATE and explained that the local police must have made a mistake .", "On DATE the Nowy Targ District Court found the applicant guilty of inciting her children on DATE to insult and throw stones at their neighbour and of threatening the neighbour on CARDINAL DATE with a shovel handle , thereby preventing her from taking the track leading to the housing estate . It sentenced the applicant to a fine , together with a term of imprisonment in default of payment within the time allowed .", "On DATE ORG dismissed an appeal against ORG judgment . It held that , as regards the assault on DATE , the applicant had not been in full possession of her powers of discernment so that she was unable to understand the significance of what she had done . It noted that CARDINAL medical reports of DATE and DATE had established that the applicant was not in full possession of the mental faculties she needed to be able to understand the consequences of her conduct .", "On DATE the PERSON district prosecutor preferred an indictment against the applicant and her husband , accusing them of carrying out unauthorised renovation work on a roof supported on wooden props previously built with planning permission .", "On DATE the district prosecutor had ordered the applicant to undergo a psychiatric examination . On DATE the doctors reported that the applicant was not suffering from any mental disorder . At the interview she explained that the purpose of the roof was to protect her family from the smells given off by the neighbours ' septic tank . She also said that she had not known such a structure required planning permission .", "On DATE the ORG found the applicant and her husband guilty of the offence as charged and ordered them to pay a fine .", "Article CARDINAL § CARDINAL of the Criminal Code formerly provided :", "“ It shall be an offence , punishable by DATE imprisonment , a restriction of liberty or a fine , to use violence or threats to compel another to behave in a particular way . ”", "LAW authorised a court , exceptionally , to reduce the sentence if the offender had not been in full possession of his or her mental faculties at the time of the offence .", "DATE placed all defendants under the obligation to submit to any medical examination made necessary by the investigation of the case , surgery excepted .", "Article CARDINAL created an obligation to comply with a summons from a prosecutor or court . In the event of refusal without a valid reason , the person concerned could be brought by force .", "Article CARDINAL § CARDINAL empowered a court to require a person to undergo an examination by a scientific or research institute , a specific centre , or any other institution or person . It made it clear that the consultation should not be ordered for any purpose other than obtaining specific information about the person concerned .", "Article CARDINAL § CARDINAL provided that the court or prosecutor was empowered to order the arrest of a suspect or compel his or her appearance before them ." ]

[ "8" ]

[]

[]

[ "5", "8" ]

[ "5-1" ]

[]

[ "The applicant was born in DATE and lives in the city of GPE , GPE , GPE .", "In the course of civil proceedings for defamation brought by a Member of ORG in which the applicant was a co - defendant , the applicant was summoned to a court hearing in DATE ( exact date unknown ) . According to the applicant , the summons was never served on him properly , and the postman later confirmed this .", "On DATE the court imposed a fine of UAH CARDINAL on the applicant for his failure to appear . The court also indicated in its decision that the applicant could appeal within DATE . According to the applicant , he received this decision on DATE .", "On DATE the applicant lodged an appeal against the decision of CARDINAL DATE . In his appeal the applicant did not indicate the reasons for lodging it outside the time - limit and did not request its extension . On DATE ORG of PERSON rejected the appeal as having been submitted too late .", "On DATE the applicant lodged with ORG of GPE ( hereinafter the “ HCARC ” ) an appeal against the decision of DATE together with a request for the composition of the first instance court to be changed . In DATE the applicant was informed that the HCARC had only received the request but not the appeal .", "Within the framework of the same set of civil proceedings , the applicant was summoned to appear before the court on DATE . The applicant maintains that he informed the court in advance that he would not be able to attend because of his holiday plans . On DATE the applicant requested PERSON to inform the judge that he could not attend the hearings due to his illness . According to PERSON , he did so on DATE . The court nevertheless decided to institute administrative proceedings against the applicant for his repeated failure to appear before the court .", "On DATE the court decided in the applicant 's presence to impose DATE administrative detention on him for contempt of court , as manifested by his repeated failure to appear . The court found that the applicant was at his place of work on DATE of the hearings , as confirmed by his employer – ORG of GPE ( hereinafter the “ POARC ” ) . The court found no evidence in the case file indicating that the applicant had officially informed the court of any good reason for his absence . It disregarded the sick leave certificate produced by the applicant for the date in question .", "DATE the applicant was arrested and placed in a cell , which he described as cold .", "NORP The applicant 's arrest was covered by the local press in DATE .", "On DATE the POARC lodged an extraordinary appeal ( protest ) with the HCARC . This appeal suspended the enforcement of the decision of DATE and the applicant was released after spending TIME in detention .", "In its appeal the POARC did not dispute the fact that the applicant had committed an administrative offence , but considered that the applicant had to be sanctioned under LAW rather than under administrative proceedings .", "On DATE the President of the HCARC rejected this appeal .", "From DATE the applicant was in hospital suffering from an acute form of chronic urological disease . According to the applicant , this illness was caused by his detention in the cold cell on DATE .", "On DATE the applicant lodged a request with the HCARC for an extraordinary review of the decisions of CARDINAL May , CARDINAL DATE and DATE . This request was rejected on CARDINAL DATE by the President of the HCARC .", "From DATE the applicant served the remainder of the administrative detention .", "On DATE the applicant was dismissed from his position as a prosecutor attached to the POARC .", "On DATE the applicant lodged a further request with ORG of GPE for an extraordinary review of the decisions of CARDINAL May , CARDINAL DATE and DATE . This request was rejected on DATE .", "NORP In DATE the applicant was diagnosed with Hepatitis C , which he believed he could have contracted in the prison or in the hospital in DATE .", "In DATE , the former Prosecutor of GPE , PERSON , lodged a claim with the Simferopolskiy District Court of GPE against the applicant for defamation . On DATE the court found against the applicant and ordered him to pay UAH CARDINAL in compensation for moral damage . The applicant was not present at the final court hearing .", "On DATE the ORG rejected the applicant 's cassation appeal as having been submitted too late .", "NORP In DATE the applicant lodged a request for extraordinary review with the President of the HCARC . The Deputy President of the court allowed this request and lodged an extraordinary appeal with the court .", "On DATE the plenary of the HCARC allowed the appeal . The decision of DATE was quashed in part on the ground that some of the matters covered by that decision had been finally decided within the framework of other proceedings . The court also reduced the amount of the fine to be paid by the applicant to ORG CARDINAL .", "On DATE the panel of CARDINAL judges of ORG rejected the applicant 's request for leave to appeal under the new cassation procedure .", "Paragraph CARDINAL of Article CARDINAL of the PERSON foresaw that , in the event of a failure of a party to the proceedings to appear before a court without valid reasons , and if such failure led to the postponement of court hearings , the court could impose on the person a fine of CARDINAL instalment of the “ minimum non - taxable income ” ( UAH CARDINAL ) .", "Article CARDINAL of the Code provided that administrative detention could be imposed and applied in exceptional circumstances for certain administrative offences for a maximum period of DATE .", "Paragraph CARDINAL of LAW foresaw punishment by a fine or administrative detention for DATE for contempt of court , manifested , inter alia , by a repeated failure to comply with a summons to appear .", "Article CARDINAL of the Code provided that the decision imposing an administrative sanction could be appealed , except for the decisions given by the first instance court . The latter were final and were not subject to the ordinary administrative appeal procedure , unless the legislation provided otherwise .", "Article CARDINAL of the Code provided that the prosecutor could lodge an extraordinary appeal ( a “ protest ” ) against a decision imposing an administrative sanction .", "Article CARDINAL of the Code provided that a court decision on an administrative offence could be reviewed by the judge of the same court upon an extraordinary appeal lodged by a prosecutor , or by a judge of a higher court on his or her own motion ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE , the applicant was arrested by police officers from the anti - terrorism branch of ORG on suspicion of having participated in an illegal demonstration in support of the imprisoned leader of the ORG ( ORG , an illegal organisation ) . The applicant was also accused of hanging an illegal placard on a bridge in GPE on DATE .", "On CARDINAL DATE the police officers took a statement from the applicant in which he admitted the charges .", "On DATE the applicant was brought before the public prosecutor and then the investigating judge . Before both officials , the applicant denied the content of his police statement , alleging that it had been extracted from him under duress . DATE , the investigating judge remanded the applicant in custody .", "On DATE the public prosecutor at ORG filed an indictment with the same court , accusing the applicant of aiding and abetting the ORG , an offence under LAW no . ORG ( the anti - terrorism law ) .", "On DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment . This sentence was then reduced to DATE imprisonment as the applicant had been DATE at the time of the offence .", "When delivering its judgment , ORG had taken into consideration the statements which the applicant had made to the police , the public prosecutor and the investigating judge , as well as his co - defendants’ testimony before the public prosecutor . The court noted that the latter had given evidence that the applicant had organised them to participate in the demonstration . The court further took note of the expert report which suggested that the applicant ’s handwriting was identical to that on the placard . The court also noted that , according to the arrest report drawn up by the police , the applicant had been among the people who dispersed after the demonstration .", "On DATE , ORG at ORG submitted his written opinion to ORG , in which he had argued that the ORG should uphold the judgment of ORG .", "On DATE the CARDINALth Chamber of ORG confirmed that judgment ." ]

[ "6" ]

[ "6-1" ]

[]

[ "6" ]

[ "6-3" ]

[ "6-3-c" ]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . He is represented before the ORG by Mr T. Gertner , a lawyer practising in Bad LOC .", "A summary account of historical events in which the present application originated can be found in the ORG ’s decision in the case of ORG . PERSON GPE ( see ORG . PERSON GPE DATE . ) , no . ORG , DATE , § § DATE , ECHR CARDINAL- ... ) .", "In DATE the applicant ’s family , in view of ORG approach , had to flee Willenberg ( at present PERSON in GPE ) . This region before and during the Second World War belonged to ORG . After the defeat of GPE at the end of the war , when the border between GPE and GPE was drawn along the PERSON - Neisse line , it was included in the territory of GPE ( see ORG . PERSON , cited above , § CARDINAL ) .", "When escaping ORG , the Marrek family were stopped by NORP and NORP militiamen . The applicant maintains that his father was arrested and first taken to a camp in GPE and then to the GPE ghetto where he died in DATE .", "The applicant ’s grandmother decided to return with her family to their farm . In DATE the applicant ’s family , after having experienced several hostile attacks from local militiamen , left their house . DATE CARDINAL NORP families moved in .", "The applicant further submits that they were arrested several times , treated as an easily available workforce and not allowed to join the rest of the family living in GPE . In DATE the applicant obtained an engineering degree . This also prompted the authorities to refuse him permission to leave GPE .", "In DATE , after mediation by ORG , he was finally granted permission to leave GPE .", "The applicant has still not been allowed to return to his home and has been refused restitution of his family ’s property .", "A detailed description of the relevant international and domestic law is set out in the above - mentioned case of ORG . PERSON GPE ( ibid . § § CARDINAL - CARDINAL ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "In DATE and DATE a presidential election was held in GPE , during which the applicant was involved as an authorised election assistant ( վստահված անձ ) for the candidate representing ORG of GPE ( ORG ) , who was the main opposition candidate in the election . Following his defeat by the incumbent President , the ORG candidate challenged the election results in ORG , which on DATE recommended that a referendum of confidence in the re - elected President be held in GPE within DATE .", "As the April CARDINAL DATE deadline approached , the opposition stepped up its campaign to challenge the legitimacy of the re - elected President . At DATE CARDINAL main opposition groups – ORG , consisting of CARDINAL parties , including the ORG and ORG – announced their intention to start a series of demonstrations demanding the resignation of the re - elected President .", "NORP The applicant alleges that from DATE until his arrest in DATE he was repeatedly harassed because of his political activity . In particular , the police frequently called him to the police station without any reasons and demanded that he stop his political activities and support for the opposition .", "On DATE criminal proceedings no . DATE were instituted under LAW ( ORG ) against representatives of ORG on account of making calls for a violent overthrow of the government and change of the NORP constitutional order and of publicly insulting government representatives .", "On DATE the applicant was handing out leaflets to people at a marketplace in GPE , inciting them to attend a demonstration to be held in the capital on DATE . The leaflets had the following content :", "“ Fellow countrymen", "It is not possible any more to continue this way .", "On DATE at TIME in FAC we will start our struggle which aims to establish a lawful government in GPE . The future of our homeland depends on the participation of each of us .", "ORG Justice Alliance ”", "The applicant was stopped by QUANTITY police officers , ORG , who demanded that he accompany them to a police station . It appears that this happened at TIME", "According to the applicant , they arrived at the police station at TIME At the police station he was placed in a waiting room with a glass wall next to the corridor , where he spent TIME . During this period he noticed several people behind the glass wall pointing at him as if to identify him . He had no access to a lawyer during this period .", "It appears that at some point the applicant was transferred to a prosecutor ’s office where from CARDINAL to TIME and from TIME p.m. two confrontations were held between him and CARDINAL witnesses , GPE and GPE , respectively , who worked at the marketplace . The relevant records stated at the outset that there had been substantial contradictions between the statements of these witnesses and the applicant , who at this stage was also involved as a witness .", "Witness PERSON stated during the confrontation that DATE , at TIME , he had noticed the applicant handing out leaflets and saying something to people at the marketplace . Then the applicant had approached him and given him a leaflet , saying that “ DATE after it would be the end of the government and the government would be changed and that they would put an end to the government and sort them out ” .", "Witness GPE stated that the applicant had approached him at TIME and given him a leaflet , saying that he should “ come to the demonstration where they would crush and overcome ” , after which the applicant left .", "The applicant denied having handed out any leaflets or made any such statements .", "At TIME an arrest record was drawn up which noted that eye - witnesses had stated that the applicant had handed out leaflets and made calls for a violent overthrow of the government . The applicant again denied these allegations .", "On DATE the GPE and ORG of GPE granted the investigator ’s motion to have the applicant ’s flat searched . This decision stated that there were sufficient grounds to believe that written calls , leaflets , plans and projects to overthrow the government and change the constitutional order violently and to insult representatives of the government publicly , as well as firearms , ammunition and other objects and documents relevant to the case , could be found in the applicant ’s flat .", "On DATE the investigator invited a legal aid lawyer , GPE , to represent the applicant ’s interests . According to the relevant record , the applicant agreed that his interests be represented by lawyer GPE", "On DATE from TIME the applicant ’s flat was searched in the presence of CARDINAL attesting witnesses but no items were found .", "From TIME the applicant was questioned as a suspect in the presence of lawyer GPE The applicant again denied all the allegations .", "On DATE the applicant was formally charged within the scope of criminal proceedings no . DATE under LAW . This decision stated :", "“ ... [ the applicant ] , having received from [ the district office ] of ORG leaflets concerning the demonstration to be held on DATE at TIME on FAC with the aim of “ establishing a lawful government in GPE ” , distributed these leaflets to citizens and made calls to overthrow the government and change the constitutional order violently .", "On DATE at TIME [ the applicant ] was caught by police officers while he was handing out the leaflets and a total of CARDINAL leaflets were confiscated from him .", "Thus , [ the applicant ] has made calls to overthrow the government and change the constitutional order violently , namely he has committed an offence envisaged under LAW [ ORG ] . ”", "The applicant and his lawyer signed this decision which , inter alia , stated that the nature of the charge had been explained to the applicant . The applicant once again gave his consent to be represented by lawyer GPE He was then questioned as an accused in the presence of his lawyer . The applicant submitted that the nature of the charge was clear to him but denied having distributed leaflets or made any calls at the marketplace .", "On DATE the GPE and ORG of GPE granted the investigator ’s motion , dated DATE , to have the applicant detained .", "On DATE a confrontation was held between the applicant and another witness , ORG , who apparently also worked at the marketplace . He identified the applicant as the person who had approached him on DATE , handed him a leaflet and told him to attend a demonstration on DATE during which a struggle to change the government would begin and that the authorities were unlawful and had to be changed . The applicant again denied having distributed leaflets or made any calls and submitted that witness ORG had been forced by the police to make false submissions . This confrontation was held in the presence of lawyer GPE", "On DATE another confrontation was held between the applicant and arresting police officer PERSON who submitted that on DATE at TIME , having noticed that the applicant was distributing leaflets at the marketplace , they had approached him and asked to have a look at the leaflets . Having read what the leaflets said , they asked the applicant to come with them to the police station for clarification . The applicant denied these allegations . This confrontation was held in the presence of lawyer GPE", "On DATE another confrontation was held between the applicant and the second arresting police officer , PERSON , who made submissions similar to those made by police officer PERSON The applicant submitted in reply that police officer PERSON ’s statement was true and that he had not told the entire truth in his previous submissions . The applicant admitted that he had distributed the leaflets at the marketplace but denied having said anything or made any calls for a violent overthrow of the government . He submitted that he regretted his actions and requested to be released from detention . This confrontation was held in the presence of lawyer GPE", "On DATE the applicant was again questioned as an accused in the presence of lawyer GPE , during which he made similar submissions and pleaded partly guilty .", "Later that day lawyer GPE filed a motion with ORG , seeking to have the applicant released from detention . He submitted that the applicant was known to be of good character , had a permanent place of residence , was a pensioner and would not abscond or obstruct the proceedings if freed . Furthermore , he had no criminal record , had pleaded guilty and regretted his actions .", "It appears that on unspecified dates CARDINAL other witnesses , GPE and GPE , were also questioned in connection with the applicant ’s case . Witness PERSON stated that a tall person had been distributing leaflets at the marketplace on DATE . When handing him a leaflet , he said that a struggle aimed at establishing a lawful government in GPE would begin at the demonstration of DATE . He further incited everybody to participate in the struggle , topple the government and make a coup . Witness PERSON stated that a tall elderly person had handed him a leaflet at the marketplace on DATE and incited him to join the struggle , eliminate the current government , topple them by force and establish a new order .", "The applicant alleged , which the Government did not dispute , that throughout the entire investigation his lawyer had never met or spoken with him in private , while in detention , to provide legal advice . Furthermore , the lawyer even failed to satisfy his request to be provided with a copy of LAW .", "On an unspecified date the applicant ’s case was brought before the PERSON and Nor ORG of GPE which started its examination on DATE . The applicant submitted before ORG that he wished to be represented by lawyer GPE", "The examining judge noted at the outset that the witnesses had been duly notified but had failed to appear and inquired about the opinion of the parties . The prosecutor submitted that they had to be compelled to appear . The lawyer made a similar submission on the ground that it was impossible to examine the case without the witnesses . The judge agreed and adjourned the hearing until DATE .", "At the hearing of DATE CARDINAL witnesses appeared , witnesses GPE and GPE and police officers PERSON and GPE ..", "Witness GPE admitted that he was seeing the applicant for the second time , the first time being on DATE at the prosecutor ’s office . He further submitted that DATE before he was at work at the marketplace when somebody had approached and given him a leaflet , adding that “ DATE at TIME there would be a demonstration on FAC ” . The person handing out the leaflets was tall and had grey hair . He gave the leaflet and said “ come at TIME , we will crush , shatter and conquer ” . Witness GPE submitted that he had understood from these statements that the demonstrators wanted to change the government . In reply to the applicant ’s lawyer ’s questions , witness GPE submitted that he was not familiar with that person and he could not say for sure if it was the applicant who had given the leaflet and made the statements . He was sure though that he had seen the applicant at the prosecutor ’s office . Witness PERSON explained that he had stated at the prosecutor ’s office that he had not seen who was distributing the leaflets , to which they replied that it had been the applicant . In reply to the judge ’s question as to why he had stated unequivocally during the investigation that it was the applicant who had distributed the leaflets and made the above statements , witness GPE submitted that he had said so because he had been told at the prosecutor ’s office that it was the applicant who was distributing leaflets in the area of the marketplace . He further submitted that he could not remember who it was , but people around him said that it was the applicant , so he said the same .", "Witness PERSON submitted that at some point in DATE he was at the marketplace when the applicant , who was distributing leaflets , approached him and invited him to a demonstration in order to “ turn over ” the government . The applicant then left . Witness PERSON further confirmed his pre - trial statement and asked to rely on it . He also confirmed that the person distributing the leaflets , like the applicant , had grey hair and a white shirt and was tall .", "Police officer ORG submitted that he was on duty at the marketplace with police officer G.A. where they noticed a person who was handing out leaflets . They approached him and brought to the police station , where he was identified as the applicant . They could not hear what he was saying to the vendors . In reply to the applicant ’s lawyer ’s questions , police officer PERSON said that he personally did not hear any calls from the applicant . Nor did any of the vendors tell him that the applicant had made calls .", "Police officer G.A. made similar submissions .", "The examining judge then announced that he had received an official letter from the police stating that witness PERSON had not been found at his place of residence , that witness PERSON was absent from his place of residence and lived elsewhere , and that the court ’s decision ordering the appearance of these witnesses , in its part concerning witness GPE , had not been executed for reasons not communicated to the court . The prosecutor requested that the pre - trial statements of these witnesses be read out . The applicant and his lawyer consented , after which the statements were read out .", "The applicant was then examined , during which he admitted that he had distributed leaflets but denied having made any calls for a violent overthrow of the government .", "Thereafter the trial entered its final stage of pleadings . The prosecutor made a speech , followed by the applicant ’s lawyer and the applicant himself . The lawyer , in particular , made the following speech : “ I find that the defendant must be acquitted ” .", "On DATE ORG found the applicant guilty as charged and imposed DATE suspended sentence , ordering at the same time the applicant ’s release from detention under a written undertaking not to leave his place of residence . ORG found , in particular , that :", "“ On DATE [ the applicant ] received leaflets from the PERSON and Nor PERSON district office of ORG concerning a rally to be held on DATE at TIME on FAC , distributed them to persons working and involved in trade in the area of the seventh market situated in [ ORG ] and made public calls inciting to a violent overthrow of the government and the constitutional order . In particular , when handing out leaflets to [ GPE , GPE , GPE , GPE and PERSON , he incited them to participate in the rally telling them ‘ You must come by all means , we will crush , overcome , put an end to the government and sort them out , we will make a coup , we will violently overthrow the current government and establish a new ORG ”", "In support of its findings ORG relied on the statements of witnesses GPE , GPE , GPE , GPE and PERSON As regards , in particular , the statements made by witness GPE in court , ORG dismissed them as unreliable and admitted his statements made during the confrontation of DATE . ORG justified this decision by the fact that the statements made by witness GPE during the confrontation had been unequivocal . Thus , according to the entirety of the witness statements relied on by ORG , the applicant had made the following calls while handing out the leaflets and inciting people to attend the demonstration : “ we will crush and overcome ” ( witness GPE ) , “ the government will be changed and we will put an end to the government and sort them out ” ( witness FAC ) , “ a struggle will start at the demonstration aimed at changing the government and establishing a lawful CARDINAL ” , “ the current government will be overthrown and a new one will be established ” , “ the current government is unlawful and has to be changed ” ( witness ORG ) , “ the government has to be overthrown and a coup has to be made ” ( witness ORG ) and “ the current government has to be eliminated and violently overthrown and a new order has to be established ” ( witness PERSON ) .", "On DATE the applicant lodged an appeal , which he apparently drafted himself . In his appeal the applicant submitted that during the investigation he had pleaded guilty only to distributing leaflets , which in any event was not an offence , but he had never made any calls for a violent overthrow of the government . He was not a member of any political party , had never participated in demonstrations or had links with the parties organising them . The applicant further complained about the fact that the statements made by witnesses GPE and FAC in court , which were favourable for him , had been considered unreliable , while other witnesses , being ashamed of their false statements , had failed to appear in court . He argued that the statements of those witnesses who had not been examined in court should not have served as a basis for his conviction . The applicant lastly stated that the arresting police officers had not heard him make any calls . Thus , he had been convicted on the basis of statements of CARDINAL or CARDINAL witnesses who had seen him for the first time at the prosecutor ’s office .", "On DATE the proceedings commenced before the Criminal and Military Court of Appeal . The applicant submitted before ORG that he wished to be represented by lawyer GPE and pleaded not guilty . Lawyer PERSON also claimed that the applicant was not guilty and asked the court to acquit him .", "At the hearing of DATE , following the applicant ’s examination , the presiding judge announced that it was necessary to summon and examine witnesses GPE , GPE and PERSON He further stated that he had telephoned all CARDINAL witnesses on DATE . PERSON ’s wife replied that DATE before he had gone to GPE for work and his whereabouts were unknown . PERSON ’s wife replied that he had gone to another region for work and that she had no further information about him . PERSON ’s relatives replied that he had left GPE for work . ORG decided , taking into account that the attendance of the above witnesses was indispensable , that they be compelled to appear . This task was assigned to the local police department . The hearing was adjourned until DATE .", "At the hearing of DATE the presiding judge announced that , according to the police , the witnesses were absent from their places of residence . The police had promised to provide further information in writing . In reply to the presiding judge ’s question , the parties did not object to proceeding with the hearing and requested that measures be taken to ensure the attendance of the witnesses at the next hearing .", "At the hearing of DATE the presiding judge informed the parties that an official letter had been received from the police informing that witnesses GPE , GPE and PERSON were absent from their places of residence . While reading out that letter , the presiding judge noticed that the police had visited the wrong address as far as witness ORG was concerned . The prosecutor then requested that their statements be read out . Lawyer GPE submitted that the witnesses in question had made defamatory statements against the applicant during the investigation which lacked credibility and it was therefore necessary to bring them to court with the help of the police . The applicant joined his lawyer ’s request and asked that the witnesses in question appear in court and also present their identity documents . ORG decided that , since a wrong address had been indicated in the decision ordering ORG ’s appearance in court , it was necessary to inform the police of the correct address . As regards witnesses PERSON and GPE , the former was in GPE , while the latter was out of town . This was also confirmed by the telephone calls made by the presiding judge . ORG found that , in such circumstances , there were no reasons to doubt the veracity of the police information and announced that it would read out and examine the pre - trial statements of those witnesses . The statements would then be analysed in the deliberation room and an assessment would be made as to their credibility , since the evidence examined in court was sufficient to allow such an assessment . ORG then proceeded to read out the statements in question . The applicant submitted that their statements did not concern him since there had been many tall , grey - haired men at the marketplace . The investigating authority had never arranged his identification by those witnesses and their statements were therefore false .", "At the hearing of DATE the presiding judge announced that an official letter had been received from the police , according to which witness ORG indeed resided at the correct address but nobody answered the door during their visit . The presiding judge announced that , not being satisfied by the information contained in the police letter , he personally called ORG home and became convinced that nobody was there because nobody answered the telephone . The prosecutor requested that the statement of witness ORG be read out in court , while both the applicant and his lawyer submitted that the statement of witness ORG lacked credibility and requested that it be disregarded . The court then proceeded to read out the statement .", "DATE . At the same hearing the applicant filed a motion with ORG dispensing with the services of lawyer GPE He submitted that the lawyer had not taken any steps to defend his interests and to prove his innocence . The lawyer had never come to visit him in detention despite the requests he had made to the administration of the detention facility . Furthermore the lawyer , without his knowledge , had filed a motion on DATE seeking his release , in which the lawyer stated that he had pleaded guilty despite the fact that he had never pleaded fully guilty , thereby acting to his detriment and assisting the prosecution in substantiating the charge against him . The applicant claimed that he had found out about this motion only during the appeal proceedings . He further claimed in his motion that he had pleaded guilty to distributing leaflets because he was not aware that such act did not constitute an offence . He realised this only following his release from detention because no copy of LAW had been provided to him by either the investigator or his lawyer while in detention , despite his numerous requests . The applicant lastly claimed that the case against him had been fabricated . He submitted that , while sitting behind a glass wall at the police station , he was shown to some people who later became witnesses and made false statements against him . Some of them he was not able to examine and CARDINAL of them appeared in court . CARDINAL of those CARDINAL retracted his pre - trial statement , while the second one , because of giving a false statement , was even ashamed to look him in the eyes and was only able to mumble a confirmation of his pretrial statement .", "The applicant stated at the same time that it was his personal choice to dispense with the services of his lawyer . ORG decided to grant the applicant ’s motion and to allow him to defend himself in person . The lawyer was then asked to leave the courtroom .", "On DATE the Criminal and Military Court of Appeal adopted its judgment upholding the applicant ’s conviction . In doing so , ORG referred to the statements of witnesses GPE , GPE , GPE and GPE and of police officers PERSON and G.A. As regards the statement of witness GPE , ORG found that it should not have formed a basis for the applicant ’s conviction because that witness had failed to appear in court despite a court order . ORG further rejected the applicant ’s claim that he had only distributed leaflets but not made any calls for a violent overthrow of the government . In doing so , ORG stated that CARDINAL witnesses had testified that the applicant had made such calls . Furthermore , the police officers had arrested him while he was handing out the leaflets . In the light of the overall sufficiency of evidence , the fact that witnesses PERSON and PERSON had failed to appear in court could not put into doubt the applicant ’s involvement in the act and his guilt . The criminal element in his actions lay in the making of calls inciting violent seizure of power and change of the constitutional order . Those calls were public and aimed at a big group of people . Since he made such calls at a marketplace during the daytime , they were audible to the public . The fact that they were perceived as calls inciting to a violent overthrow of the government was confirmed by the witness statements .", "ORG further dismissed the applicant ’s complaint about lawyer PERSON , stating that the applicant ’s right to defence had been ensured by the investigating authority , he had chosen his position regarding the charge against him without any outside pressure and he had not previously made any complaints about the lawyer . Furthermore , the fact that the nature of the charge was clear to the applicant was evident from the records of investigative measures . He had certified this with his signature in the presence of his lawyer .", "On DATE the applicant lodged an appeal on points of law in which he raised arguments concerning the witnesses against him and the alleged failure of lawyer GPE to provide effective legal assistance , similar to those raised in his complaint of DATE . He also added that the witness statements against him had been fabricated under police pressure . The witnesses in question were people trying to make a living by working at the market , so if they had refused to follow police orders they would have been immediately expelled from the market .", "On DATE ORG dismissed the applicant ’s appeal . In doing so , ORG found that both witnesses PERSON and GPE had made statements implicating the applicant . As regards the legal representation , the applicant had agreed that lawyer GPE defend his interests and the lawyer had properly done so .", "By a letter of CARDINAL DATE the head of staff of ORG informed the applicant , in reply to his complaint , that lawyer PERSON had lawfully carried out the applicant ’s defence and had not done anything illegal . The motion of DATE had been filed upon the applicant ’s and his relatives’ request .", "The relevant provisions of the ORG provide :", "“ Public calls inciting to a violent seizure of ORG power and violent change of the constitutional order of GPE shall be punishable by a fine of CARDINAL times the minimum wage or by detention of DATE or by imprisonment for a period not exceeding DATE . ”", "The relevant provisions of LAW provide :", "“ CARDINAL . A suspect is the person ... who has been arrested on suspicion of having committed an offence ... ”", "“ CARDINAL . The suspect has the right to defence . The investigating authority shall allow the suspect to implement his right to defence by all lawful means .", "NORP The suspect , in accordance with a procedure prescribed by this Code , has the right ... to have a defence counsel or to dispense with a defence counsel and defend himself in person from the moment when he is presented with the investigating authority ’s decision on arrest , the record of arrest or the decision on choosing a preventive measure ... ”", "“ CARDINAL . A witness is obliged ... to appear upon the summons of the authority dealing with the case in order to give testimonies or to participate in investigative and other procedural measures ...", "The failure of a witness to comply with his obligations shall lead to sanctions prescribed by law . ”", "“ CARDINAL . [ A ] witness ... may be compelled to appear by a reasoned decision of ... the court if he fails to appear upon summons without valid reasons . [ A ] witness ... is obliged to inform the summoning authority if there are valid reasons preventing his appearance within the time - limit fixed in the summons . ”", "“ CARDINAL . The investigator is entitled to carry out a confrontation of CARDINAL persons who have been questioned previously and whose statements contain substantial contradictions . The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person .", "...", "NORP In cases envisaged by this Code , a defence counsel , an interpreter and the lawful representative of the person being questioned can participate in the confrontation and shall also sign the record . ”", "“ CARDINAL . If any of the witnesses ...", "“ CARDINAL . Reading out at the trial of witness statements made during the inquiry , the investigation or a previous court hearing ... is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court , if there is substantial contradiction between those statements and the statements made by that witness in court , and in other cases prescribed by this Code . ”", "“ CARDINAL . Only final acts are subject to review on the ground of newly discovered or new circumstances .", "NORP On the ground of newly discovered or new circumstances a judicial act of the court of first instance shall be review by the appeal court , while the judicial acts of the appeal court and ORG shall be reviewed by ORG . ”", "“ CARDINAL . Judicial acts may be reviewed on the ground of new circumstances [ if ] ... a violation of a right guaranteed by an international convention to which GPE is a party has been found by a final judgment or decision of an international court ... ”" ]

[ "6" ]

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

[ "6-3-d" ]

[ "6" ]

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

[ "6-3-c" ]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE in GPE and lives in GPE . In his everyday life the applicant uses the compound name LOC . The application was originally filed by his parents , PERSON and PERSON PERSON ORG . Having reached legal age , the applicant informed ORG in DATE that he wished to pursue the application himself . He is represented by his father , PERSON .", "ORG ( “ the Government ” ) are represented by their Agent , PERSON , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "According to the initial regulation of LAW ( Bürgerliches Gesetzbuch ) of CARDINAL DATE , a child born in wedlock would obtain the surname of the father , which was also the common family name . With the introduction of the LAW on the Reform of the Marital and Family Law ( Erstes Gesetz zur Reform des Ehe- und GPE ) of DATE , a married couple could choose any of the spouses’ surnames as the family name . Their children would then obtain the same family name . If the parents were unable to choose a family name , the husband ’s name would automatically become the family name according to the then applicable version of LAW of LAW . That provision was held to be unconstitutional and incompatible with the prohibition of discrimination ( LAW of LAW ) by ORG on DATE . ORG ordered that , until the legislator had formulated a new regulation , couples who married after DATE of the delivery of the judgment and who were unable to agree on the choice of a common family name would provisionally keep their surnames . In such an instance , their children were provisionally able to obtain a compound name composed of both surnames of the parents , in order to leave to the legislator the option to introduce the possibility to obtain such names .", "On DATE , the Act on the Regulation of the Law of Family Names ( Gesetz zur Neuordnung des Familiennamensrechts ) came into force which corrected the above constitutional flaws . Article CARDINAL of LAW was amended by giving both spouses the possibility to keep their surnames . According to the henceforth relevant LAW ( replaced in DATE by CARDINAL § CARDINAL ) of LAW , a child would either obtain the surname of the father or the mother . A compound name for the child was not provided for by LAW .", "The applicant ’s parents married in DATE . While the applicant ’s father kept his surname , “ PERSON ” , the applicant ’s mother adopted the compound name “ Heidecker - Tiemann ” . The applicant was born in DATE in GPE where he was subsequently registered by ORG as “ PERSON ” , bearing a surname composed of both his GPE original surnames ( “ Heidecker ” and “ PERSON ” ) . The applicant was registered under the surname “ PERSON ” in ORG ) at ORG , where the family resided at the time . The applicant ’s birth was not registered within the meaning of ORG , Deaths and Marriages Act ( Personenstandsgesetz ) .", "After the LAW on the Regulation of the Law of Family Names entered into force on DATE , the applicant ’s mother changed her surname back to her original maiden name ( “ Heidecker ” ) in DATE . Subsequently , the applicant ’s parents declared before ORG that the applicant ’s surname should be “ Heidecker - Tiemann ” . When the Registry officer refused the registration because compound names were not permitted by LAW , the parents opted for the registration of the name “ Heidecker ” and instituted proceedings in order to be able to register a compound name .", "On DATE , ORG dismissed the GPE claim and found that ORG was not compelled to authenticate ( öffentliche GPE ) the applicant ’s GPE declaration and register the applicant with a compound name .", "The appeal was dismissed by ORG on DATE . The court found that the claimants had not demanded the authentication and the certification of their declaration , but the registration of the requested surname of the applicant .", "Upon the applicant ’s immediate appeal , that decision was quashed by ORG on DATE . The latter ordered ORG to authenticate the declaration of the applicant ’s parents . It also found that ORG was not competent to register the applicant ’s surname . As the applicant had been born abroad , the competent authority was ORG . The application had been given the file number “ III CARDINAL ” by ORG , which was subsequently quoted by ORG and ORG .", "On DATE , ORG authenticated the declaration of the applicant ’s parents ( that is , that the applicant ’s last name should be “ LOC ) of CARDINAL DATE and forwarded a verified copy to ORG which received it on DATE . ORG did however not receive the original .", "On DATE , ORG refused to certify the validity of the declaration . It found that the application was ill - founded for formal reasons , because section CARDINAL(CARDINAL ) of the Act on the Regulation of the Law of Family Names provided that a declaration had to be issued within DATE after CARDINAL parent changed his or her last name . Thus , the time - limit had already expired with the receipt of the declaration in DATE .", "On DATE , ORG dismissed the motion of the applicant ’s parents to register the applicant under a compound name . The court found that , irrespective of formal requirements , the applicable law did not provide for the possibility to obtain compound names .", "The GPE appeal was dismissed by ORG on DATE .", "On DATE , ORG ( GPE ) dismissed the GPE further appeal ( PERSON ) . The application had been given the file number “ QUANTITY CARDINAL ” by ORG , which was subsequently quoted by ORG and ORG .", "On DATE , ORG refused to admit the applicant and his GPE constitutional complaint against the above decisions because the complaint was inadmissible .", "The applicant ’s parents subsequently obtained a required permit of their declaration of CARDINAL DATE by the guardianship court ( vormundschaftliche GPE ) by order of ORG of DATE . The original copy of the declaration was subsequently sent to ORG on DATE .", "On DATE , ORG issued a statement to the applicant to the effect that he was registered under the last name “ Heidecker ” as from DATE . The applicant ’s parents argued that the above - mentioned permit would satisfy the procedural requirements for the registration of the applicant ’s surname as “ Heidecker - Tiemann ” . ORG however refused to register the compound name .", "On DATE , ORG dismissed the applicant and his GPE motion against the refusal because the applicable law did not provide for compound names and did not violate fundamental rights . The court found it therefore unnecessary to rule whether or not the certified declaration of DATE was introduced out of time .", "On DATE , ORG dismissed the applicant and his GPE appeal . On DATE , their further appeal was dismissed by ORG ( GPE ) . The application had been given the file number “ QUANTITY ” by ORG , which was subsequently quoted by ORG and ORG .", "On DATE , ORG refused to admit the applicant and his GPE constitutional complaint against the decision by ORG ( GPE ) of DATE by referring to a leading judgment of DATE ( see “ Relevant domestic law and practice ” below ) in which the constitutionality of LAW had been confirmed .", "Article CARDINAL of the Civil Code provides :", "“ § CARDINAL Spouses should designate a common family name ( marital name ) . The spouses shall use the marital name which they have designated . If the spouses do not designate a family name , they will continue to bear those surnames after the marriage which they bore at the time when entering into the marriage .", "§ CARDINAL By declaration to the registrar , the spouses may designate , as their marital name , the birth name of the husband or the wife or the name he or she has at the time of the designation of the marital name . ( ... )", "§ CARDINAL A spouse whose name does not become the marital name may , by declaration to the registrar , attach , before or after the marital name , his or her birth name or the name he or she has at the time of the declaration on the designation of the marital name . This shall not apply if the marital name consists of CARDINAL name . If the name of CARDINAL of the spouses consists of CARDINAL name , CARDINAL of these names may be attached . ( ... ) ”", "DATE of the Civil Code provides :", "“ § CARDINAL If the parents do not have a marital name but if they have joint parental responsibility , they shall , by declaration to the registrar , designate the surname that the father or the mother has at the time of the declaration as the birth name of the child . ( ... )", "§ CARDINAL If parents make no designation within DATE of the birth of the child , the family court shall transfer the right of designation to CARDINAL of the parents . Subsection ( CARDINAL ) applies mutatis mutandis . The court may impose a time - limit on the parent for the exercise of the right of designation . If , after the time - limit has expired , the right of designation had not been exercised , the child shall be given the name of the parent to whom the right of designation was transferred . ”", "Under NORP law , authentic compound names are permitted only in very specific circumstances . For example , compound names may be retained if they were used prior to ORG regulation of the law governing names . Moreover , pursuant to LAW PERSON , compound names may come into being when persons with surnames which are highly common in GPE such as “ PERSON ” or “ PERSON ” ( so - called PERSON ) add another name to render their family name easier to distinguish . Compound names created in this way may be passed on to children .", "Under LAW of LAW ( Einführungsgesetz zum PERSON ) , a person ’s name falls to be decided by the law of the State of his or her nationality .", "In a leading judgment of DATE , ORG held , by CARDINAL votes to CARDINAL , the former version of LAW of LAW ( which is identical to LAW of the current version of LAW ) to be constitutional . In particular , ORG found that the provision neither constituted a violation of the right to a family ( LAW ) , the right to educate one ’s own children ( LAW ) nor the children ’s right to protection of their personality rights as guaranteed by LAW and CARDINAL § CARDINAL of LAW .", "ORG considered that , once children would be allowed to obtain compound names , the number of surnames could exponentiate with each future generation . The next generation would already be able to obtain a last name comprised of CARDINAL names . Such growing “ chains of surnames ” would not only be impracticable , they would also be to the detriment of future generations whose last names would be at risk of losing their function as a means of identification . LAW would not prohibit the legislator from reducing the number of possible last names to avoid such “ name chains ” in order to secure the function of the surnames of future generations .", "ORG considered that a different way of avoiding “ name chains ” would have been to allow compound names , but to restrict the number of last names to CARDINAL . This method , however , would prevent parents who already bore a compound name from giving their children a compound name comprised of both GPE last names , ORG or obtaining such a last name themselves . A person with a compound name could no longer keep his or her last name after marriage and add the last name of his or her partner , as currently provided for by LAW . Therefore , the introduction of an option to let one ’s children obtain compound names would at the same time reduce the choice of last names for those who already bore a compound name . Such a situation , in which CARDINAL fundamental right restricted another , would consequently require a balancing of interests , which the legislator had done when introducing the former version of LAW of LAW ( now LAW ) . ORG stated that the legislator had had several options to balance the above interests . The option which the legislator chose was thereby neither required nor prohibited by LAW .", "Lastly , ORG found that the former version of LAW of LAW did not violate the prohibition of discrimination on grounds of sex as guaranteed in LAW . If each spouse kept his or her last name after marriage , married couples could choose CARDINAL of their last names as the surname for their children . LAW CARDINAL of the NORP Civil Code reduced the possible options to give their children a last name , but this concerned spouses of both sexes alike . The fact that married couples with different last names were in practice more likely to choose the husband ’s last name for their children was not considered to suggest a different finding . Even though this could possibly indicate a widespread affirmation of traditional marriage patterns , LAW could not be interpreted as containing a positive obligation on the ORG to introduce the GPE right to choose a compound name for their children . In any case , such a regulation had only minor effects on the ORG ’s positive obligation to secure equality of the sexes as contained in the second sentence of LAW of LAW .", "That children could still obtain a compound name in cases in which CARDINAL parent already bore a compound name was not regarded as a violation of the prohibition of discrimination against those children who could not obtain a compound name . In both instances , children were only allowed to obtain either the last name of the mother or the father .", "In the case of PERSON v. PERSON , Dorothee PERSON ( C-CARDINAL/CARDINAL ; ORG of ORG of DATE ) , ORG made a reference for a preliminary ruling under LAW regarding the interpretation of LAW ( “ EGBGB ” , see “ Relevant domestic law and practice ” above ) in the light of LAW ( prohibition of discrimination on grounds of nationality ) and LAW ( freedom of movement ) . That case concerned a married couple of NORP origin who had kept their surnames and whose son ( who also had NORP citizenship ) was born in GPE , where he was subsequently registered with a compound name composed of the surnames of his parents in the NORP birth register . The NORP authorities refused to recognise the compound name because of section CARDINAL ) of the Law Introducing LAW , according to which a person ’s name falls to be decided by the law of the State of his or her nationality . Under NORP law , the son was not entitled to bear a compound name composed of the surnames of his parents . The GPE appeal against that decision and their subsequent constitutional complaint with ORG were to no avail .", "When the parents , who in the meantime divorced , refused to make a declaration before the Registry Officer regarding the surname of their child , ORG had to refer the right to determination to CARDINAL parent pursuant to LAW and CARDINAL of LAW . ORG subsequently referred the matter to ORG pursuant to LAW with the following question : “ In light of the prohibition on discrimination set out in LAW ORG and having regard to the right to the freedom of movement for every citizen of the Union laid down in LAW ORG , is the provision on the conflict of laws contained in LAW valid , in so far as it provides that the right to bear a name is governed by nationality alone ? ” . ORG ( ORG ) decided on DATE that it had no jurisdiction to answer the question referred by ORG because the latter , when making a decision pursuant to LAW and CARDINAL of LAW , exercised administrative authority , without at the same time being called on to decide a dispute . Therefore , ORG could not be regarded as exercising judicial function .", "On DATE the parents lodged a fresh request to register the compound surname . Following ORG refusal to grant the request , the parents lodged a complaint with ORG which referred the matter with the same question to ORG . The case is currently pending before the latter court ( C-CARDINAL/CARDINAL ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants , ORG and PERSON , were born in DATE and DATE respectively and live in LOC .", "On DATE , at a disputed time between TIME and TIME , the applicants’ son , PERSON , aged DATE , sought medical aid in the Slovenj Gradec ORG because of , inter alia , nausea and itching skin . He was examined by a doctor on duty , GPE On the basis of a diagnosis of urticaria ( a type of allergic reaction ) , PERSON ordered the administration of intravenous injections of a drug containing glucocorticosteroid ( PERSON ) and an antihistaminic ( PERSON ) . Further to the administration of injections , the applicants’ son ’s condition significantly deteriorated . This was probably a result of him being allergic to CARDINAL or both of the drugs that had been administered to him . His skin became very pale , he began to tremble and to feel cold ; PERSON noticed signs of tachycardia . A diagnosis of anaphylactic shock was made . Subsequently , at TIME , he was transferred to intensive care . ORG ordered the administration of , inter alia , adrenaline . By the time the cardiologist arrived , the applicants’ son had stopped breathing and had no pulse . Cardiopulmonary resuscitation was given . At an undetermined time TIME the applicants’ son was connected to a respirator and his blood pressure and pulse returned to normal , but he remained in a coma ; his brain was severely damaged .", "On DATE he was transferred to ORG ( ORG center v PERSON ) , where he died on CARDINAL DATE .", "The exact timing of the events which led to the death of the ORG son and the action taken by ORG in response to the applicants’ son ’s deteriorating condition were disputed in the domestic proceedings .", "On CARDINAL DATE the applicants lodged a criminal complaint ( ovadba ) with ORG of ORG ( PERSON javno tožilstvo GPE , Enota v Slovenj Gradcu ) against ORG for the criminal offence of “ negligent medical treatment ” ( nevestno zdravljenje ) which , following the applicants’ son ’s death , was characterized as “ a serious criminal offence that [ had ] caused damage to health ” ( hudo kaznivo dejanje zoper človekovo zdravje ) . The applicants argued that ORG had given their son the wrong treatment and had failed to take appropriate measures after his condition deteriorated .", "In the course of the preliminary proceedings ( predkazenski postopek ) , medical documents concerning the treatment of the ORG son were seized by the police and ORG ( Inštitut za sodno medicino v PERSON ) was appointed to prepare a forensic report .", "On DATE ORG dismissed the applicants’ criminal complaint on the ground of insufficient evidence .", "On DATE the applicants , acting as subsidiary prosecutors ( subsidiarni tožilec ) , lodged a request for the opening of a criminal investigation ( zahteva za preiskavo ) against ORG", "On DATE the investigating judge of ORG ( PERSON sodišče v Mariboru ) granted their request . On DATE , upon an appeal by ORG ( pritožba ) , the interlocutory - proceedings panel ( zunaj obravnavni senat ) of ORG overturned the investigating judge ’s decision finding that the evidence in the case - file , in particular the forensic report , did not afford reasonable grounds for suspecting that ORG had manifestly acted in breach of professional standards .", "NORP The applicants’ appeal ( pritožba ) and a request for the protection of legality ( zahteva za varstvo zakonitosti ) were dismissed . The latter was dismissed on DATE by the Slovenj Gradec ORG ( Okrožno sodišče v PERSON ) , which obtained jurisdiction in the case after the reorganization of the judiciary in DATE .", "Subsequently , the applicants obtained a medical opinion from Doctor T.V. who stated , inter alia , that myocarditis ( inflammation of the heart muscle ) , which had previously been considered to be a contributory factor in the death of the applicants’ son , could have occurred when he was in anaphylactic shock or even later . As a result , on DATE they lodged a request to reopen a criminal investigation ( see paragraph DATE ) . In addition , they lodged a motion to change the venue of the proceedings to ORG ( Okrožno sodišče v Mariboru ) . On DATE ORG granted their motion for a change of venue .", "On DATE the interlocutory - proceedings panel of ORG granted the ORG request for an investigation . An appeal by ORG was rejected by ORG on DATE and the investigation was subsequently opened .", "In the course of the investigation , the investigating judge examined witnesses and obtained an opinion from ORG , an expert at ORG in GPE ( GPE ) . ORG stated in his report that the administration of antihistaminic had led to the applicants’ son ’s serious allergic reaction . He expressed doubts as to the pre - existence of myocarditis .", "On DATE the investigating judge closed the investigation .", "Owing to the complexity of the case , the applicants asked ORG to take over the prosecution . Their request was rejected on DATE .", "On DATE the applicants lodged an indictment against ORG for the criminal offence of “ causing death by negligence ” ( povzročitev smrti iz malomarnosti ) .", "On DATE , upon ORG ’s objection to the indictment , the interlocutory - proceedings panel of ORG directed the applicants to request additional investigative measures .", "The investigating judge subsequently examined several witnesses and ordered that a forensic report be prepared by ORG , an NORP forensic expert in the field of emergency medicine and anaesthesia . ORG stated in his report that the ultimate reason for the death of the applicants’ son was rather uncertain . He therefore considered the issue of the effectiveness of the measures taken by ORG in response to the applicants’ son ’s condition as being of no importance .", "On DATE the investigating judge informed the applicants that the investigation had been closed .", "On DATE the applicants lodged an indictment supplemented by evidence that had been gathered in the extended investigation . On DATE an interlocutory - proceedings panel rejected ORG ’s objection against the initial indictment ( see paragraph CARDINAL above ) as unfounded .", "On DATE ORG lodged a request for the protection of legality , claiming that the indictment as submitted on DATE had not been served on her . On DATE ORG annulled ORG decision of CARDINAL DATE and remitted the case to ORG with instructions to serve the initial indictment on ORG subsequently lodged an objection and on DATE the interlocutory - proceedings panel decided to refer the case back to the applicants , directing them to gather more evidence by requesting additional investigative measures .", "The applicants complied with the directions and requested additional investigative measures . As a result , the investigating judge ordered a supplementary report from GPE , a reconstruction of the events of CARDINAL DATE and the examination of witnesses .", "The investigation was closed on DATE .", "In the meantime , on DATE the applicants again unsuccessfully requested ORG to take over the prosecution .", "On DATE the applicants filed a further indictment and the additional evidence they had been directed to obtain .", "In DATE the applicants complained to ORG ( GPE svet ) about the length of the criminal proceedings . They also challenged the CARDINAL judges sitting in the interlocutory - proceedings panel which had previously decided on ORG ’s objection to the indictment . On DATE the President of ORG rejected the ORG request for the judges to stand down .", "Following a further objection to the indictment by ORG , the interlocutory - proceedings panel examined the case on DATE and decided to discontinue the criminal proceedings . Relying in particular on the opinions of ORG and GPE , it found that the ORG son ’s reaction to the administration of PERSON and/or PERSON was a consequence of his sensitivity to those drugs and of myocarditis , which was undoubtedly a pre - existing condition . The court found that there was insufficient evidence to substantiate the applicants’ accusation that PERSON had committed the alleged criminal offence . The applicants were also ordered to pay court fees and expenses incurred in the proceedings .", "On DATE the applicants lodged an appeal , which ORG dismissed on DATE . The applicants then petitioned ORG to lodge a request for the protection of legality with ORG . Their petition was rejected on DATE .", "In the meantime , on DATE the applicants lodged a constitutional appeal with ORG ( PERSON sodišče ) , complaining about the unfairness and length of the proceedings and that they had been denied access to a court since the indictment had been rejected by the interlocutory - proceedings panel . On DATE ORG dismissed their appeal on the ground that a subsidiary prosecutor did not have locus standi before ORG .", "On DATE the applicants also lodged a criminal complaint against CARDINAL judges of LOC and ORG who had sat in their case . The criminal complaint , in which the applicants alleged that the judges had improperly dealt with their case , was dismissed as unfounded by ORG on DATE .", "Subsequently , the applicants made several attempts to re - open the case . Ultimately , on DATE , they lodged a new indictment against ORG On DATE the Slovenj Gradec ORG struck the indictment out because the prosecution of the alleged offence had become time - barred on CARDINAL DATE .", "On DATE the applicants instituted civil proceedings against ORG and ORG in LOC for the non - pecuniary damage they had sustained as a result of their son ’s death in the amount of CARDINAL NORP tolars ( SIT ) .", "On DATE the applicants also instituted proceedings against the head of the internal medical care unit , GPE , and the director of ORG , D.P. Further to a request by the applicants , the court joined the CARDINAL sets of proceedings .", "All the defendants in the proceedings had lodged their written pleadings by DATE .", "On DATE , in a supervisory appeal ( nadzorstvena pritožba ) to the President of the Slovenj ORG , the applicants argued that the civil proceedings should proceed despite the fact that criminal proceedings were pending since the latter had already been considerably delayed .", "On DATE the court , referring to sub - paragraph CARDINAL of section CARDINAL of LAW ( see paragraph CARDINAL below ) , stayed the civil proceedings pending the final decision in the criminal proceedings . It noted that the decision in the civil proceedings depended to a large extent on the determination of the preliminary question ( predhodno vprašanje ) , namely the outcome of the criminal proceedings . The applicants did not appeal against that decision , which therefore became final on DATE .", "NORP On DATE Judge PERSON replied to the applicants’ supervisory appeal of DATE , stating , inter alia :", "“ [ The applicants ] are subsidiary prosecutors in the criminal proceedings and therefore know very well that the proceedings before ORG , where the preliminary question is being determined , have not been completed . Their supervisory appeal concerning the stay of the [ civil ] proceedings is therefore pure hypocrisy . ”", "Upon a complaint by the applicants lodged with ORG , Judge PERSON was ordered to explain her reply to the applicants .", "In DATE the applicants again filed a supervisory appeal ; the stay , however , remained in force .", "On DATE Judge PERSON , to whom the case appears to have been assigned in the meantime , sent the applicants a letter , in which he stated , inter alia :", "“ In the instant case the determination of criminal liability is a preliminary question which is relevant for the determination of the civil claim , since a civil court can not establish facts which are different from those established by the criminal court ”", "On DATE the applicants filed a motion for a change of venue , which ORG rejected on DATE .", "On DATE the ORG informed the applicants that the reasons for staying the proceedings still obtained .", "On DATE the applicants filed a supervisory appeal requesting that the stay of the civil proceedings be lifted . On DATE Judge PERSON scheduled a hearing for DATE . However , the scheduled hearing was subsequently cancelled at the ORG request .", "On DATE the applicants filed a further motion for a change of venue . On DATE ORG decided to move the venue to ORG on the ground that there existed “ tension which was impeding and delaying the trial . ”", "The case was subsequently assigned to Judge M.T.Z. On DATE the court held a hearing .", "After lodging criminal complaints against some of the judges ( see paragraph CARDINAL above ) , the applicants filed a motion on DATE for all the judges at ORG and ORG to stand down . Having been asked to comment on the ORG request , Judge PERSON stated , inter alia , that she had realised at the hearing on DATE that CARDINAL of the defendants , with whom she had shaken hands at the hearing , was a close acquaintance ( “ dobra znanca ” ) of her father . She added that the applicants were constantly lodging objections which made it impossible to conduct the proceedings . It would appear that Judge PERSON subsequently herself requested permission to withdraw from the case . On CARDINAL DATE the request for the judges to stand down was granted as far as it concerned Judge PERSON The case was assigned to Judge GPE", "DATE . On DATE and DATE ORG rejected the ORG motions for a change of venue .", "A hearing scheduled for DATE was adjourned at the ORG request , after they had alleged that their lawyer was unwilling to represent them since her daughter had been denied medical care in ORG . Afterwards , they informed the court that their lawyer would continue to represent them .", "On DATE ORG held a hearing .", "On DATE the applicants filed a motion for Judge PERSON to stand down . The request was rejected on DATE .", "A hearing scheduled for DATE was adjourned because the applicants had lodged a motion for a change of venue . On DATE the applicants lodged another motion . Both motions were rejected by ORG ( on DATE and CARDINAL DATE respectively ) .", "It appears that the hearings scheduled for CARDINAL and DATE were adjourned due to the ORG newly appointed lawyer ’s commitments in another unrelated case .", "On DATE the applicants filed written submissions and amended their claim for damages . They also requested that the proceedings be expedited .", "Hearings were held on DATE , DATE and DATE before Judge PERSON , to whom the case had apparently meanwhile been assigned . The applicants withdrew their claims in respect of GPE and D.P. After the hearing , they requested Judge PERSON to stand down . Their request was rejected by the President of ORG on DATE . However , on DATE , Judge PERSON herself asked to withdraw from the proceedings , on the ground that her full name had been mentioned in a newspaper article on DATE which also stated that she had been asked to stand down owing to the alleged unequal treatment of the parties in the proceedings . The President of the court upheld her request as being “ certainly well - founded ” .", "The case was subsequently assigned to Judge PERSON", "Hearings were held on DATE and DATE .", "On DATE ORG delivered a judgment in which it rejected the applicants’ claim , which ultimately amounted to SIT CARDINAL in respect of non - pecuniary damage and SIT CARDINAL in respect of pecuniary damage . The applicants were ordered to pay legal costs to the defendants . Relying on the expert opinions , the court concluded that ORG could not have foreseen the applicants’ son ’s reaction to drugs administrated to him and that she and the hospital staff had acted in accordance with the required standard of care . In addition , the court rejected as unsubstantiated the applicants’ claim that the hospital was not sufficiently equipped .", "On DATE the applicants lodged an appeal with ORG . The proceedings are still pending .", "On DATE ORG lodged a bill of indictment ( obtožni predlog ) against the first applicant . She was accused of insulting behaviour by allegedly saying to an official at ORG “ I have had enough of this f * * court , the damn State does not do anything , is it not aware that our son was killed ” . The prosecution was based on a criminal complaint filed by ORG .", "On DATE the ORG withdrew the criminal complaint as a result of the ORG ’s intervention ( see paragraph CARDINAL below ) . ORG subsequently dismissed the bill of indictment .", "The applicants lodged several petitions with the ORG ’s office concerning the conduct of the civil proceedings . Their case was reported in the ORG ’s DATE Reports of DATE , DATE and DATE .", "In a letter sent to the President of the Slovenj Gradec ORG on DATE , the Deputy ORG stressed that the issue of criminal liability could not be regarded as a preliminary question ( predhodno vprašanje ) in the civil proceedings instituted against the doctor and the hospital . He further stated that there was no justification for staying the proceedings .", "In a letter to the applicants of CARDINAL DATE and his Annual Report of DATE ( pp . CARDINAL and CARDINAL ) , the ORG criticised the conduct of Judge PERSON The Ombudsman stressed that the judge had expressed concerns about her impartiality ( see paragraph CARDINAL above ) only after the applicants had filed the request for her to stand down and after the ORG ’s intervention in the case , although she had been aware of the reasons for the concerns beforehand .", "The section of the Ombudsman ’s Report of DATE ( pp . CARDINAL - CARDINAL ) dealing with the applicants’ case and in particular criticising aspects of the judge ’s conduct of the civil proceedings states , inter alia :", "“ In the record of the hearing [ of DATE ] reference is made to CARDINAL questions which the plaintiffs were not permitted to ask . ... For the majority of these CARDINAL questions , the record does not contain any reasons to explain why the judge did not allow the plaintiffs to put the question . In each instance , there was a prior objection by the GPE representatives to the question .", "...", "Although [ the applicants’ ] reactions , statements and proposals were perhaps sometimes extreme , the authorities , including the courts , ought to have taken into account their emotional distress ... This may require the trial to be conducted in a particularly respectful and flexible way , without breaching procedural rules to the detriment of the defendants . However , the record of the hearing gives the impression of a tense rather than comfortable atmosphere at the hearing , this being supported also by the records of the exchanges between the judge and the GPE representative . ”", "In his DATE Report of DATE ( pp . CARDINAL - CARDINAL ) , the ORG criticised ORG for filing the criminal complaint against the first applicant ( see paragraphs CARDINAL above ) . The report drew attention to ORG explanation that the court was required by law to file and pursue the criminal complaint as to refrain would constitute a criminal offence . The Ombudsman stressed that there was no legal basis for such a conclusion . On the contrary , a criminal charge for an offence of insulting behaviour could only be pursued on the basis of the aggrieved party ’s criminal complaint , which in the instant case was ORG complaint . Following the ORG ’s intervention and in view of the arguments expressed in its letters , ORG decided to withdraw the criminal complaint against the first applicant .", "DATE . The Criminal Code ( PERSON zakonik , ORG no . CARDINAL ) , as amended , defines , under the heading “ Criminal Offences causing Damage to Health ” criminal offences concerning injury caused by the negligence of health - care providers . In addition , Article CARDINAL of the Criminal Code provides that anyone who causes the death of another by negligence shall be sentenced to imprisonment for not DATE and not DATE . These offences are subject to mandatory prosecution by ORG , but a subsidiary prosecution by an aggrieved party will also lie ( see , paragraph CARDINAL below ) .", "Criminal proceedings in GPE are regulated by LAW ( Zakon o kazenskem postopku , ORG no . CARDINAL ; hereinafter referred to as the “ CPA ” ) and based on the principles of legality and officialness ; Prosecution is mandatory when reasonable suspicion ( utemeljeni sum ) exists that a criminal offence subject to mandatory prosecution has been committed .", "Public prosecutions are conducted by the public prosecutor ’s office . However , if the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings , the aggrieved party has the right to take over the proceedings in the capacity of subsidiary prosecutor ( subsidiarni tožilec ) , that is , as an aggrieved party acting as a prosecutor ( CPA , section ORG ) ) . A subsidiary prosecutor has , in principle , the same procedural rights as the public prosecutor , except those vested in the public prosecutor as an official authority ( CPA , section CARDINAL ) ) . If the subsidiary prosecutor takes over the proceedings , the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution ( CPA , section CARDINAL ) ) .", "Criminal investigations are conducted by the investigating judge at the request of a public or subsidiary prosecutor . If the investigating judge does not agree with the request to open an investigation , he must refer it to an interlocutory - proceedings panel of CARDINAL judges ( zunaj - obravnavni senat ) , which then decides whether to open a criminal investigation . If the investigating judge grants the request , the accused may lodge an appeal with the interlocutory - proceedings panel . Parties to the proceedings may appeal against the interlocutory - proceedings panel ’s decision to ORG ( višje sodišče ) . Appeals do not stay the execution of the decision to open an investigation ( section CARDINAL of the CPA ) .", "If a request for investigation has been dismissed owing to a lack of reasonable suspicion that the suspect has committed a criminal offence , criminal proceedings may be reopened at the request of the public or subsidiary prosecutor provided that new evidence is produced on the basis of which the interlocutory - proceedings panel can satisfy itself that the conditions for instituting criminal proceedings are met ( CPA , section CARDINAL ) .", "The investigating judge terminates the investigation once the circumstances of the case have been sufficiently elucidated ( CPA , section CARDINAL ) . Thereafter , proceedings before a court may be conducted only on the basis of an indictment ( CPA , section CARDINAL ) .", "According to CARDINAL of the CPA , the accused may lodge an objection to the indictment within DATE after its receipt . The objection is examined by the interlocutory - proceedings panel . Section CARDINAL of the CPA provides , inter alia :", "“ ( CARDINAL ) If in considering the objection the interlocutory - proceedings panel discovers errors or deficiencies in the indictment ( section CARDINAL ) or in the procedure itself , or finds that further investigations are required before the decision on the indictment is taken , it shall return the indictment to the prosecutor to correct the established deficiencies or to supplement ... the investigation . The prosecutor shall within DATE of being informed of the decision of the panel submit an amended indictment or request the ... supplementing of investigation . ... ”", "In addition , the relevant part of section CARDINAL of the CPA provides :", "“ ( CARDINAL ) In deciding an objection to the indictment the interlocutory - proceedings panel shall not allow the indictment and shall discontinue the criminal proceedings if it finds that :", "...", "CARDINAL ) a criminal prosecution is statute - barred ...", "CARDINAL ) there is not enough evidence to justify reasonable suspicion that the accused has committed the act with which he is charged . ”", "NORP Under the provisions of LAW ( Zakon o obligacijskih razmerjih , GPE of GPE ’s ( “ SFRJ ” ) Official Gazette no . CARDINAL , ) and its successor from DATE , LAW ( PERSON zakonik , ORG no . CARDINAL/CARDINAL ) , health institutions and their employees are liable for pecuniary and non - pecuniary damage resulting from the death of a patient caused by medical malpractice . The employer may incur civil liability for its own acts or omissions or vicarious liability for damage caused by its employees provided that the death or injury resulted from the employee ’s failure to conform to the relevant standard of care . Employees are directly liable for death or injury under the civil law only if it is caused intentionally . However , the employer has a right to bring a claim for a contribution from the employee if the death or injury was caused by the latter ’s gross negligence .", "DATE . Section CARDINAL of LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL ) , as amended , provides :", "“ When the decision of the court depends on the preliminary determination of the question whether a certain right or legal relationship exists , but [ the question ] has not yet been decided by a court or other competent authority ( preliminary question ) , the court may determine the question by itself , save as otherwise provided in the special legislation .", "The court ’s decision on the preliminary question shall be effective only in the proceedings in which the question was determined .", "In civil proceedings , the court shall be bound with respect to the existence of the criminal offence and criminal liability by the final criminal court ’s judgment by which the accused was found guilty . ”", "The relevant part of section CARDINAL of LAW provides as follows :", "“ In addition to the examples specifically given in this LAW , the court may order a stay of proceedings :", "if it decides not to determine the preliminary question itself ( section CARDINAL ) ... . ”", "The relevant part of LAW provides :", "“ If the court has stayed the proceedings in accordance with the first line of the first paragraph of ... section CARDINAL , the proceedings shall resume once the [ other ] proceedings are finally concluded ( pravnomočno končan postopek ) ... or when the court finds that there is no longer any reason to await the end [ of the other proceedings ] .", "In all cases , the discontinued proceedings shall continue at the relevant party ’s request , immediately after the reasons justifying the stay cease to exist . ”", "Equivalent provisions can be found in sections CARDINAL , CARDINAL , CARDINAL and CARDINAL of the new LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL/CARDINAL ) that came into force on DATE .", "The Regulation on the organisation and functioning of Tribunal of ORG ( “ the Medical Tribunal ” ) ( PERSON o organizaciji in delu razsodišča ORG ) , issued on DATE , lays down , inter alia , the procedure for establishing the responsibility of doctors for breaches of the professional rules and the disciplinary measures which can be taken as a result . The ORG ’s prosecutor ( tožilec GPE ) , who is elected from among the members of ORG , is autonomous and has authority to lodge an indictment with the first - instance ORG . The aggrieved party may request the ORG ’s prosecutor to start the proceedings , but the prosecution may reject such a request . If so , the aggrieved party may invite ORG to conduct a preliminary examination . However , the power to file the indictment is vested solely in the ORG ’s prosecutor .", "DATE LAW provides that ORG must base its decision solely on the indictment and evidence submitted by the ORG ’s prosecutor and the accused doctor . If the accused doctor or the ORG ’s prosecutor is dissatisfied with the verdict , he or she may appeal to the second - instance ORG .", "On DATE the Act on the Protection of the Right to a Trial without Undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja – Official Gazette no . CARDINAL/CARDINAL “ the CARDINAL Act ” ) became operational . It allows a party to proceedings to ask for the proceedings to be expedited by means of a supervisory appeal ( nadzorstvena pritožba ) and a motion for deadline ( rokovni predlog ) and to lodge a claim for just satisfaction ( zahteva za pravično zadoščenje ) . The remedies provided by this law are subject to certain restrictions in the case of finally resolved proceedings .", "Section CARDINAL of the CARDINAL Act states that it applies , inter alia , to parties to court proceedings and injured parties in criminal proceedings ." ]

[ "2" ]

[ "2-1" ]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Mr Jan Södergren , a lawyer practising 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 .", "In DATE the applicant inherited QUANTITY hectares of property from his father , of which QUANTITY hectares had been included in a joint hunting area in DATE . The provisions in force at the relevant time concerning joint hunting areas and joint hunting area associations were replaced in DATE by a LAW and in DATE by a LAW ( NORP om viltvårdsområden ; SFS MONEY ) . By the latter LAW , a joint hunting area was renamed a game conservation area .", "The game conservation area to which the applicant ’s property belonged comprised CARDINAL hectares of land or QUANTITY including both land and water areas . Slightly CARDINAL properties or plots thereof were included in the area ; many of them were very small , covering CARDINAL . The applicant ’s property was situated in the north - east corner of the area .", "The applicant could hunt within the game conservation area , including on his own property , but was obliged to coordinate his hunting with that of the other hunting rights holders . They were all members of ORG in GPE , ( GPE viltvårds - områdeförening ) , ( henceforth ORG ) , and took part in the decisionmaking process .", "The by - laws passed by the ORG stated , among other things , that elk - hunting should usually be conducted in the form of so - called “ community hunting ” .", "On DATE the applicant requested that the ORG agree to the exclusion of his property from the game conservation area . He wished to have his property registered as a “ CARDINAL calf area ” which would allow for the shooting of QUANTITY calf DATE . He submitted that being a dairy farmer he had not participated in the hunt for DATE . Moreover , he found that a hunting party consisting of CARDINAL hunters was too big and , referring to his age , fiftyfive at the relevant time , he preferred hunting on a smaller scale .", "Since the ORG objected to the request , the matter had to be decided by ORG in GPE ( ORG ) , which by a decision of CARDINAL DATE refused the applicant ’s request and stated , in so far as relevant :", "“ ... By letters received by ORG on DATE and DATE respectively , you have requested that part of your property ... be excluded from the game conservation area . In support thereof you have stated that you intend to register a licensed elk - hunting area on the property and hunt individually thereon . This would provide you with more hunting opportunities ...", "Section CARDINAL of LAW is worded as follows :", "Upon application by the property owner or the [ ORG ] , ORG may grant the exclusion from a game conservation area of :", "a property which due to a change in use or for other reasons lacks essential importance for the activity of the area ;", "a property , or several properties with the same owner , which can comprise a separate unit for game conservation , if the remaining properties in the [ original ] game conservation area can continue to constitute a suitable area of this kind .", "... [ ORG observes that ] no change in the way the property is used has come to light . Nor can it be considered that the property lacks essential importance for the activity in the area , since together with a number of other properties , it forms the basis of the activity , which is to promote game conservation through coordination of hunting . In addition , the size of the property is not such as to be a reason for it to be considered to lack essential importance for the activity in question . Accordingly , exclusion can not be granted pursuant to section CARDINAL , subsection CARDINAL of GPE .", "Pursuant to section CARDINAL of LAW ( CARDINAL:CARDINAL ) elk may only be hunted after a licence has been issued by ORG and within an area that the latter has registered ( a licensed area ) . This does not apply if the hunting only concerns elk calves . The size and general nature of a licensed area must be such that it is suitable for hunting elk . ORG may refuse to register an area as licensed ... if it does not allow for the shooting of CARDINAL adult animal per year . ORG considers that effective game conservation within the meaning of LAW can not be conducted in an area smaller than what has been referred to here and referred to in LAW of LAW . Likewise , an area of this kind can not comprise a separate unit for game conservation pursuant to section CARDINAL , subsection CARDINAL . of LAW .", "The notion “ game conservation ” is defined in LAW :", "The game must be conserved so as to", "protect the game species that belong to the game population in the country and naturally occurring bird species that are temporarily in the country ; and", "promote appropriate development of game stocks , taking into account public and private interests .", "Game conservation includes using special measures to ensure that game receives protection and support and that hunting is adapted to the supply of game . The property owner and the person holding the hunting rights are responsible for making sure that the measures are carried out and that adaptations are followed .", "Of course , since your property consists of a unit that is CARDINAL hectares , it can be registered as a “ CARDINAL calf area ” However , it can not thereby be considered to comprise a separate unit for game conservation pursuant to ORG .", "Accordingly , [ your ] property ] can not be excluded pursuant to section DATE , subsection CARDINAL . of LAW .", "As regards the question whether a decision to refuse [ your request ] contravenes [ the proportionality principle contained in ] LAW , section CARDINAL of ORG and ORG , ORG finds that there are strong reasons to support the view that it would be detrimental to effective game conservation , including elk hunting DATE which must be considered to be an important public interest – if existing game conservation areas were to be divided into smaller sections . ...", "You have not shown how game conservation could be improved if [ your ] request to exclude the property was granted . ORG considers that even if [ your ] property is part of the game conservation area , game conservation can be carried out , either together with the other partners and hunters , or separately for the individual property . Thus , there are no limitations on the right of disposition over the property in question . On the contrary , there is an important public interest in retaining the property in question as part of the game conservation area . That will maintain the aim of the property owners in forming the area , namely to allow game conservation to be carried out in an efficient manner . Game conservation — primarily conservation of the elk stock — is only efficient when it can be carried out in a continuous area that is not divided . In respect of large game , hunting is an important part of game conservation . Properly conducted hunting based on biological grounds can regulate the numbers of these stocks , so that the requirements of the Hunting Act regarding preservation and promotion are fulfilled . ... ”", "On an appeal , by a judgment of DATE ORG ( Länsrätten i Norrbottens Län ) upheld ORG decision .", "Leave to appeal was refused on DATE by ORG ( ORG i GPE ) and on DATE by ORG ( Regeringsrätten ) .", "According to LAW , LAW ( ORG ) , which is part of LAW , all citizens are guaranteed , inter alia , freedom of association in their relations with public institutions . This freedom is defined as freedom to associate with others for public or private purposes . LAW , LAW stipulates that all citizens are protected , in their relations with public institutions , against any coercion , such as to belong to a political association , religious community or other association with opinions of a political , religious , cultural or other such nature .", "The rights and freedoms referred to in LAW , section CARDINAL may be restricted by law to the extent provided for in LAW , sections CARDINAL - CARDINAL ( LAW , section CARDINAL ) . Restrictions may only be imposed to achieve a purpose which is acceptable in a NORP society . A restriction may never go beyond what is necessary having regard to the purpose which occasioned it , nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy . No restriction may be imposed solely on grounds of a political , religious , cultural or other such opinion ( ibid . ) . According to LAW , section CARDINAL , freedom of association may be restricted only in respect of organisations whose activities are of a military or quasi - military nature or constitute persecution of a population group of a particular race , colour or ethnic origin . The negative freedom of association provided for in LAW , section CARDINAL may not be restricted .", "The peaceful enjoyment of possessions is protected in , inter alia , ORG . Pursuant to LAW , section CARDINAL , the property of every citizen shall be so guaranteed that no one may be compelled by expropriation or other such disposition to surrender property to public institutions or to a private subject , or to tolerate restrictions by public institutions on the use of land or buildings , other than where necessary to satisfy pressing public interests .", "A person who is compelled to surrender property by expropriation or other such disposition shall be guaranteed compensation for the loss . Such compensation shall also be guaranteed to a person whose use of land or buildings is restricted by public institutions in such a manner that the ongoing use of land in the affected part of the property is substantially impaired , or the value of that part of the property suffers significant depreciation . Compensation shall be determined according to principles laid down by law ( ibid . ) .", "Hunting is regulated in , inter alia , LAW ( Jaktlagen ; FAC ) . The right to hunt game is attached to the ownership of real property . Thus , section QUANTITY expresses the general principle that it is the person who owns a piece of property who has the right to hunt on that property . It is , however , possible to convey and let hunting rights , with the result that the ownership of land and the right to hunt may be vested in different persons ( see sections DATE ) .", "The right to hunt may be exercised only to the extent that hunting is acceptable from the point of view of game conservation . Thus , all game is in principle protected and may be hunted only if this is permitted under LAW or under provisions or decisions based on the LAW ( section CARDINAL ) .", "Specifically with respect to elk hunting , section CARDINAL of the Act establishes the main rule that , with the exception of the hunting of elk calves , this may take place only if licensed by the relevant ORG and within an area that has been registered by ORG for this purpose ( a socalled “ licensed area ” ) . Further , it follows from section CARDINAL that a licensed area shall be of such a size and character that it is suitable for elk - hunting . ORG may refuse to register an area as a licensed area if it does not allow for the shooting of CARDINAL adult animal per year . However , even if these conditions are not met , an area may be registered as a licensed area if there are special reasons for this . In addition , an area may be registered as a licensed area allowing for CARDINAL calf to be shot DATE , if the size of the area amounts to QUANTITY .", "The right to hunt is connected with a general obligation to conserve and protect the game within one ’s property . Where the right to hunt has been conveyed or let , this obligation lies with the landowner and hunting right holder together . LAW provides , inter alia , that measures shall be taken for the purpose of conserving existing species of wild game and in order to promote appropriate development of game stocks , taking into account both public and private interests . Game conservation includes an obligation to use special measures to ensure that game receives protection and support and to adapt hunting to the supply of game ( ibid . ) .", "With the purpose of coordinating hunting and facilitating game conservation , NORP legislation has for a long time provided land owners with the opportunity to join their properties into joint hunting areas by a unanimous or qualified majority decision . LAW on the Right to PERSON ( Lagen om rätt till jakt ; PERSON ) contained provisions on joint hunting areas and joint hunting area associations . These provisions were replaced by a new Act which entered into force on DATE , ORG DATE ( ORG om jaktvårdsområden ; MONEY ) . This Act was in turn replaced by LAW ( NORP om viltvårdsområden ; SFS MONEY ) , which entered into force on DATE . The provisions of the new Act are in many respects the same as , or similar to , the provisions contained in the old Act . A joint hunting area association existing at the time of the entry into force of the new Act shall be regarded as a game conservation area association in accordance with LAW ( see the transitional provisions of LAW ) .", "The CARDINAL Act provides that CARDINAL or more properties or parts of properties may be joined into a game conservation area , for the purpose of promoting the conservation of game through coordination of hunting and measures to protect the game ( section CARDINAL ) . Where this is done , the property owners concerned shall form a game conservation area association ( viltvårdsområdeförening ) . Those who own land incorporated in such an area are members of the association ( section CARDINAL ) .", "The provisions of the LAW are equally applicable to publicly and privately owned land . However , according to section CARDINAL of the LAW , a game conservation area may not include certain land owned by ORG where the PERSON population has a right to hunt according to LAW ; ORG ) . Also with respect to other land , public or private , the right of the PERSON to hunt enjoys special protection . Thus , section CARDINAL of the LAW also provides that the formation of a game conservation area may not entail limitations on the hunting rights of the PERSON .", "The relevant ORG decides on the establishment of a game conservation area upon application from CARDINAL or several of the property owners concerned ( sections CARDINAL and CARDINAL ) . For such an area to be formed , CARDINAL of the owners , representing CARDINAL of the total area , must agree ( section CARDINAL ) . Another requirement is that the creation of the area shall promote the preservation of the kind of wild game that the coordination is intended to preserve and protect . Finally , it is required that the area be suitable with regard to its size and geographical position . However , no property can be included in a game conservation area if , due to its size or use , it lacks importance for the activity within the area ( section CARDINAL) . Conversely , land that is capable of being retained as a separate unit for the purpose of game conservation can not be included in the game conservation area without the owner ’s consent ( ibid . ) .", "As a general rule , the question of whether to form a game conservation area shall be investigated under the guidance of a person appointed by ORG ( section CARDINAL ) . Taking into account the application documents and other relevant information , the authorised official ( förrättningsmannen ) shall put forward proposals regarding which properties should be included in the area and which by - laws should apply to the association ( section CARDINAL ) . These proposals shall be dealt with at a meeting , to which the property owners shall be summoned , and they shall be given the opportunity to submit their opinions and present their own investigations ( sections CARDINAL and CARDINAL ) . Thereafter , the official shall present a written statement expressing his or her opinion as to whether a game conservation area should be formed and , if this is the official ’s view , propose which properties should be included in the area and also put forward proposals on by - laws for the association ( section CARDINAL ) . The proposals and other relevant documents shall then be accessible to the property owners concerned for DATE so that they may examine them and submit any views that they may have . Following the expiry of this period , the official shall provide ORG with all the documents and such objections as may have been submitted , so that the ORG may determine the matter ( ibid . ) .", "The game conservation area association shall have a board ( section CARDINAL ) . Members of the association are entitled to participate in the decision making by exercising their right to vote at general meetings ( sections DATE and DATE ) .", "ORG shall confirm the by - laws of the association with regard to certain aspects ( sections CARDINAL and DATE ) . The ORG shall also confirm amendments of the by - laws with regard to those aspects ( sections CARDINAL and DATE ) .", "If stipulated in the by - laws and provided it is in conformity with the hunting legislation , the association may decide that elk and certain other game may be hunted within the whole area ( “ area hunting ” ; områdesjakt ) and only together with other hunting right holders within the area ( “ community hunting ” ; gemensambetsjakt ) , if this is deemed necessary having regard to the conservation of game ( section CARDINAL ) . If such a decision is taken , the association may also decide on the details of the hunt , such as the number of animals that may be shot . It may also decide that participation in “ area hunting ” and “ community hunting ” shall require a hunting licence ( section CARDINAL ) . According to section DATE , if stipulated in the by - laws , the association may decide to suspend from “ area hunting ” and “ community hunting ” , for a maximum period of DATE , a member or hunting right holder who has broken the rules regarding such hunting . The by - laws may contain a requirement that hunting rights may not be conveyed or let without the consent of the association ( section CARDINAL ) . The association may decide that fees should be paid for hunting and for game that is shot ( section CARDINAL ) .", "A property owner who for reasons of conscience is opposed to hunting , is entitled , upon request , to have his property exempted from “ area hunting ” and “ community hunting ” ( section CARDINAL ) .", "Upon application by the board of the associations concerned , ORG may decide to join several game conservation areas together into CARDINAL area or to divide a game conservation area into several smaller areas ( section CARDINAL ) . As regards such changes , the same conditions apply as for the formation of a game conservation area ( ibid . ) .", "Further , upon application by the board of the association , ORG may decide to join a property to the game conservation area , provided the owner of the property agrees to this ( section CARDINAL ) .", "The exclusion of an individual property from a game conservation area is governed by LAW , which deals with CARDINAL types of situations . Thus , ORG may decide to exclude a property upon application by the property owner or the association , if , as a result of a change in its use or for other reasons , it has lost its essential importance for the activity within the area ( subsection CARDINAL , point CARDINAL ) . If the property owner and the association agree on the exclusion , the association may take the decision instead of ORG . According to the preparatory work , this provision aims , in particular , at situations in which a fundamental change has occurred in the use of the property , for example if it has begun to be used for recreational or industrial purposes ( Government PERSON , p. CARDINAL ) . Further , upon application by the property owner or the association , ORG may decide to exclude a property from the area , provided the property is capable of forming a separate unit for game conservation and provided the other properties within the area can continue to exist as a suitable area for game conservation ( sub - section CARDINAL , point CARDINAL ) .", "The possibility of excluding properties has been expanded in LAW as compared to LAW DATE , which it replaced . In the CARDINAL Act , exclusion was possible in the situations referred to in section CARDINAL , sub - section CARDINAL , point CARDINAL of the CARDINAL Act , but not in the situations referred to in section CARDINAL , subsection CARDINAL , point CARDINAL .", "ORG may decide , under certain conditions , that a game conservation area shall cease to exist and that the association shall be dissolved ( section DATE ) .", "A decision by the general meeting of the game conservation area association or by its board may be appealed against by those affected by the decision to ORG , provided the decision relates to CARDINAL of several enumerated issues , such as hunting and game conservation , membership of the association , suspension from “ area hunting ” and exclusion from the game conservation area in accordance with section CARDINAL , sub - section CARDINAL ( section CARDINAL ) .", "A decision by ORG may be appealed to the relevant ORG ( section CARDINAL ) . Subject to the grant of leave to appeal , a further appeal lies to the relevant ORG and , in the final instance , to ORG . Leave to appeal shall be granted if it is of importance for guidance on the application of the law that a superior court considers the appeal or if there are extraordinary reasons to examine the appeal . In addition , an administrative court of appeal shall grant leave to appeal if reason exists to amend the conclusion of the first instance court ( sections DATE a and CARDINAL of ORG ; förvaltningsprocesslagen ; SFS CARDINAL:CARDINAL ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "At the material time , the applicant and her mother , PERSON , lived in GPE . They ran a shelter for dogs and cats ( PERSON ) in the village of PERSON .", "Apparently in the context of an alleged nuisance caused by the animals , in DATE ORG initiated an investigation for disorderly conduct ( garázdaság ) against unknown perpetrators . ORG was of the view that there was a well - grounded suspicion against the applicant and her mother .", "Not knowing their exact names or address and thus unable to summon them , on DATE ORG commissioned the locally competent police officer ( bőnyi körzeti megbízott ) , P.Z.H. , to establish data about the applicant and her mother and to escort them to ORG . Because of the office he held in the village , ORG had previously been introduced to the applicant and her mother .", "At TIME on DATE , ORG , who hardly spoke any LANGUAGE , appeared at the gate of the shelter . He rang the bell , and the applicant ’s mother received him . Over the closed gate , ORG told her in NORP , without producing a written summons , that the police were conducting a criminal investigation against her and that she was supposed to go with him .", "The applicant ’s mother – who is of a NORP origin but , unlike the applicant , speaks NORP – refused to comply with ORG ’s instruction . Following a brief dispute , she turned around and headed for the house across the yard and called her dogs to the gate of the shelter . Observing her reluctant behaviour , ORG pushed the gate open and entered the garden .", "NORP Since P.Z.H. had heard the applicant ’s mother order the dogs , he drew his truncheon in order to keep them at bay .", "The applicant ’s mother stepped towards ORG , grabbed his right arm and the truncheon , started to shake him and tried to push him out of the garden through the open gate . Since her attempts failed , the applicant ’s mother told ORG that she would get dressed , collect her documents and go with him . However , having entered the house , she locked the entrance door and refused to open it despite the request of the police officer .", "The applicant was in the house . She heard the argument and saw part of the struggle from the window of the upper floor . She grabbed a camera and took pictures , using a flash , of ORG from the window . She then hurried down to the ground floor .", "From this point onwards , the Government ’s and the applicant ’s versions of events differ .", "The Government stated that the applicant stepped out of the house through a side door and continued to take pictures ; meanwhile her mother was abusing the police officer verbally . P.Z.H. requested the applicant to show him her passport . The applicant , instead of complying with the order , hit his shoulder and arm CARDINAL times with the camera . Subsequently , she stepped back towards the house and ORG followed her . They both entered the house . Once inside , ORG tried to take the camera out of the applicant ’s hand but he failed . Meanwhile , the applicant locked the door from the inside and sat on the key . The police officer attempted to get the key by immobilising the applicant ’s arm when her mother appeared , to whom the applicant gave the key .", "The applicant stated that ORG was banging on the front door , demanding to be let in . The applicant slightly opened the door and took a picture of P.Z.H. Perceiving the flash , the police officer started yelling at her and , with his truncheon in his hand , shoved the door with his shoulder . The applicant , standing right behind the door , fell against the wall . The door handle hit her stomach and the door - frame hit her shoulder . While she doubled up with pain , ORG repeatedly hit her with the truncheon on the neck , back and shoulders . The applicant dropped the camera . The police officer only stopped beating her when DATE hearing the applicant ’s scream DATE her mother ran into the room .", "P.Z.H. asked for reinforcements from police headquarters . With the help of CARDINAL other officers , ORG took the applicant and her mother to ORG in GPE where all the CARDINAL parties were examined . ORG prepared a medical report on their injuries , which stated that the applicant had a contusion on the back of her right hand , a distension of the right shoulder and abrasions on her back .", "P.Z.H ’s left shoulder and collar bone were sensitive , and part of the middle finger nail of his left hand was torn off ( CARDINAL.CARDINAL-centimetre ) . He also had a CARDINAL abrasion on the right hand .", "The applicant and her mother were then taken to ORG where both of them were heard , as was P.Z.H. as a witness against them . On DATE they were both charged with violence against an official ( hivatalos személy elleni erőszak ) .", "On DATE the prosecutor in charge of the case made an official note , stating that the applicant ’s mother had informed him of a third individual , a NORP national , who had been inside the applicant ’s house at the time of the incident and had seen the events from the roof window . She provided this person ’s NORP telephone number and the name of the company employing him in GPE . ORG made no attempt to find this person , supposing that he was an illegal worker who had by that time left GPE .", "In the ensuing proceedings , ORG heard the applicant as a defendant and ORG as a witness . It obtained the opinion of a forensic medical expert . Although the applicant requested the examination of the injuries of all the parties and their possible causes , this opinion , prepared by PERSON . T. on DATE , only concerned the injuries of the police officer . According to its conclusions , ORG ’s injuries had probably been caused as described by him , i.e. the applicant had hit him on the shoulder with the camera and then they had struggled for the door key . The expert stated that the applicant ’s version concerning the origin of the officer ’s injuries was less plausible though not impossible .", "On DATE the original criminal proceedings conducted against the applicant and her mother on charges of disorderly conduct were terminated in the absence of any evidence of a criminal offence .", "On DATE ORG submitted a bill of indictment to ORG , charging them with violence against an official . After CARDINAL hearings , ORG acquitted them on CARDINAL DATE , giving the following reasoning :", "“ In view of the consistent testimonies of the defendants , the inconclusive character of the medical expert opinions , and the testimony given by Officer ORG which contained several contradictions , the court did not find it proven with the requisite certainty that the defendants had caused light bodily injury to Officer P.Z.H. ”", "On the prosecutor ’s appeal , LOC ORG quashed the first - instance judgment and remitted the case to ORG . Hearings took place on DATE and DATE . On the latter date , ORG ’s commander was heard as a witness and was asked why he had not investigated how the applicant had suffered an injury to her back . He gave the following answer :", "“ What can I examine on the basis of a medical report ? That has been written by a doctor . A medical report was prepared ; the lady said that she had been injured . I can not conduct any examination with regard to this . ”", "The case is still pending at the first - instance .", "On DATE the applicant and her mother expressed their intention to bring charges against P.Z.H. Their criminal complaint was forwarded to PERSON Public Prosecutor ’s Office under the same reference number as the one which concerned the charges against them .", "On DATE ORG closed the investigation concerning the applicant ’s complaint against ORG , in the absence of any evidence of a criminal offence . ORG relied solely on the evidence which had been produced in the parallel criminal proceedings conducted against the applicant and her mother . These documents ( TIME of interrogations , the medical files and the findings of the enquiry conducted by ORG ’s superior ) were submitted to the court dealing with the criminal case conducted against the applicant and her mother .", "The decision of ORG contained the following conclusions :", "“ In the course of the investigation , it has been established that when Officer PERSON , acting on orders and wearing uniform , appeared at the house of PERSON and her daughter , he proceeded in accordance with Act no . DATE on the Police , and Decree no . DATE of ORG on ORG of the Police . It was PERSON and her daughter [ the applicant ] who refused to obey the police measure ; they did not comply with the officer ’s demand , obstructed him in performing his duties and caused him bodily injuries . ... Since , according to the findings of fact of the investigation [ against the applicant and her mother ] and to the enquiry carried out by the officer ’s superior , the actions of the officer as well as the use of coercive measures were lawful , no ‘ mistreatment in official proceedings’ can be established within the meaning of section CARDINAL of the Criminal Code ; therefore , we closed the investigation in the absence of any crime . ”", "On DATE the applicant lodged a complaint with ORG against that decision . She complained that there had been no independent investigation in the case , particularly as the investigation authorities had not appointed a forensic medical expert in order to establish how her injuries had been caused . Moreover , the applicant stressed that the police officer ’s conduct had been unlawful in the absence of a written summons and that the decision of ORG was illogical .", "On DATE ORG dismissed the applicant ’s complaint . After summarising the factual basis of the case , it gave the following reasoning :", "“ During the review of the documents of the investigation , ... [ it ] established that the police action did not give rise to the well - founded suspicion [ of a crime ] ; namely , that the injuries of [ the applicant ] or those of PERSON had been caused by intentional ill - treatment exerted by the proceeding officer . Apart from the ORG allegations , there was no evidence proving that the police officer , in the course of his lawful action , exceeded the indispensable measure of force which was necessary to defy the threat and aggression directed against him and to overcome the resistance to a lawful police measure . In view of the fact that the complaint lodged against the decision closing the investigation does not contain any data to strengthen a well - founded suspicion of a crime committed by a police officer , I saw no reason to quash the impugned decision or to continue the proceedings . ”", "Meanwhile , the applicant , independently of the ongoing criminal proceedings , requested another forensic medical expert to prepare an opinion concerning the possible causes of her injuries and those of the police officer .", "The opinion of PERSON , dated DATE , concluded that the applicant ’s version of the events was a plausible explanation for her injuries . The expert stated in particular that the injuries on the applicant ’s shoulder and back might have originated either from punches by a hard object ( like a truncheon ) or , with equal likelihood , from being repeatedly banged against a wall . Moreover , he was of the view that the police officer ’s version did not explain the injuries . Concerning the injuries of ORG , the expert established that they could have been caused as he described . The expert added that the injury to the officer ’s shoulder could also be explained by the applicant ’s version .", "On DATE the applicant , acting as substitute private prosecutor ( pótmagánvádló ) , lodged a bill of indictment with PERSON against ORG for mistreatment in official proceedings and other offences . In the bill of indictment , she complained that , despite her repeated request , ORG had never been heard as a suspect , the investigation authorities had never obtained an opinion of a forensic medical expert concerning the possible causes of her injuries and , therefore , had not produced a plausible explanation for them . The applicant attached the opinion of PERSON to the bill of indictment .", "On DATE ORG dismissed the indictment . Without giving any detailed arguments and relying exclusively on the case file , it held that there was no reason to depart from the decisions of the prosecution authorities .", "“ ( CARDINAL ) Liability for damage caused by the ORG administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage . ...", "( CARDINAL ) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities , unless otherwise provided by law . ”", "“ ( CARDINAL ) Any person in respect of whom there is an order to be brought in , must be presented before the authority , if necessary by the use of a coercive measure . ”", "“ ( CARDINAL ) The authority – unless the law prescribes otherwise – shall summon any person whose presence at a procedural act is mandatory and shall notify those whose presence is not mandatory but allowed by the law .", "( CARDINAL ) A summons or a notification is normally done in writing . ...", "( CARDINAL ) If necessary , a summons or a notification may be done in a short way ( for example , by telephone ) . ”", "“ ( CARDINAL ) If a defendant , legal counsel , a witness or an expert does not [ comply with ] a summons issued under LAW ... , the authority may", "a ) order the defendant to be brought in , ... ”", "“ ( CARDINAL ) Any person who is concerned by a decision of the prosecutor or the investigation authority may lodge a complaint against the decision within DATE from its delivery . ...", "( CARDINAL ) ... Subject to the exceptions provided in paragraph CARDINAL , no further remedy lies against a decision determining a complaint . ”", "“ ... ( CARDINAL ) After the dismissal of his [ or her ] complaint , a victim may act as a substitute private prosecutor ( pótmagánvádló ) if ...", "b ) the investigation was terminated under section CARDINAL § ( CARDINAL ) ( a)-(d ) or ( f ) [ the absence of a serious suspicion of a crime , etc . ] . ”", "“ ( CARDINAL ) If the superior public prosecutor dismissed a victim ’s complaint lodged against the dismissal of a criminal report or against the discontinuation of an investigation and it is possible to lodge a substitute private bill of indictment under section CARDINAL , ... the victim may act as a substitute public prosecutor within DATE from the date of the delivery of the decision . ”", "“ ( CARDINAL ) The court shall accept a private bill of indictment , if there is no reason to declare it inadmissible .", "( CARDINAL ) The court dismisses the private bill of indictment if ...", "( d ) its factual or legal background is evidently missing . ”", "“ ( CARDINAL ) No appeal lies against a decision dismissing a private bill of indictment . ”", "“ ( CARDINAL ) A police measure may not cause such disadvantage as is obviously disproportionate to the legitimate aim pursued by the measure . ... ”", "“ ... ( CARDINAL ) For the sake of public safety , the police may put before the authority or the competent body any person who ...", "( b ) may be suspected of having committed a crime . ...", "( CARDINAL ) An arrested person must be informed orally or in writing about the reasons for his [ or her ] arrest ... .", "“ ( CARDINAL ) The police may not enter private houses without permission or a warrant unless it is necessary for ...", "( b ) the capture and arrest of a perpetrator or a suspect of a crime , ...", "( f ) the implementation of an order to bring someone in , ... ”" ]

[ "3" ]

[]

[]

[]

[]

[]

[ "The applicants , Mr PERSON , PERSON and their CARDINAL children , PERSON and PERSON , are nationals of GPE , and were born in DATE , DATE , respectively . They are currently in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in PERSON .", "s , may be summarised as follows .", "The applicants are ORG and , until their departure from GPE , they lived in GPE . On DATE the first applicant arrived in GPE and applied for asylum and a residence permit . On DATE the other CARDINAL applicants arrived and joined the first applicant ’s request for asylum and residence permits . Before ORG ( Migrationsverket ) they stated that their primary reason for requesting asylum was that the fourth applicant suffered from PERSON ’s syndrome ( a genetic disorder that causes mental retardation , severe learning disabilities and other problems ) and epilepsy for which he had received no treatment or care in GPE . On the contrary , he had been considered as a lower ranking person and treated in a degrading manner by physicians and people in their surroundings .", "The applicants’ second reason for requesting asylum was that the first applicant had belonged to a special unit of the police which , in DATE , had arrested PERSON , a dangerous criminal with ties to the mafia who had been wanted by ORG . PERSON had tried to escape but the first applicant and another police officer had managed to catch him . On his arrest , ORG had repeatedly threatened the first applicant . After DATE in prison , ORG had been released . However , just after F.O. ’s arrest , the applicants had started to receive telephone threats and the first applicant had been attacked by unknown men in DATE and again in DATE , DATE and DATE . Each time he had managed to defend himself but his aggressors had threatened him and had mentioned F.O. ’s name . The first applicant had talked to his superiors about the threats and attacks , but he had received no support or protection . Thus , he had had to leave the country since F.O. had contacts all over the country and the applicants therefore would not be safe anywhere in GPE .", "On DATE ORG rejected the application . It noted that the purported threats and attacks had been carried out by criminals and were not sanctioned by the national authorities . It considered that the applicants had neither exhausted the possibilities to get help and protection in their home country nor shown that the national authorities would be unwilling or unable to help them . Thus , the applicants could not be granted asylum . As concerned the fourth applicant , ORG considered that his handicap was not of such a kind that the family could be granted residence permits on humanitarian grounds . In reaching this conclusion , ORG noted that there was medical care available in GPE and considered that the availability of care of a higher standard in GPE was not a reason to let the family stay .", "On DATE ORG ( Utlänningsnämnden ) upheld ORG decision in full and ordered the applicants to leave GPE within DATE .", "The applicants lodged a new application for residence permits on humanitarian grounds with ORG . They stated that the conditions for handicapped children were very poor in GPE and that there was no care or treatment for persons with PERSON ’s syndrome . ORG ’s attitude was that these children should not have been born . Although almost DATE , the fourth applicant could not yet walk , stand or eat by himself . Moreover , his legs were shaking , he had a low immune defence and was lacking thyroxin ( a hormone that regulates the metabolic activity of the body by controlling the rate of oxidation in cells and , when too low , retards growth and mental development in children ) . In GPE he was receiving treatment and rehabilitation measures which were essential for his development and to which he was responding positively .", "On DATE ORG rejected the new application . It stated that it had already considered the fourth applicant ’s health in its previous decision and it found no reason to change that decision on the basis of the new information relied on by the applicants .", "In the meantime , since the applicants had refused to leave GPE voluntarily and ORG had refused to stay the enforcement of the deportation order awaiting its new decision , the matter had been handed over to the police who had scheduled their deportation to GPE for DATE . However , on that date the applicants could not be found at their home . On DATE , the NORP immigration authorities requested GPE to accept the family back in accordance with LAW as they , on DATE , had requested asylum in GPE . On DATE ORG accepted the request and , on DATE , the applicants were returned from GPE to GPE and renewed their request for asylum and residence permits . They maintained their earlier claims and added that during their stay in GPE the fourth applicant ’s health had regressed as he had not received proper medication and the entire family was in poor mental health . Furthermore , they had no economic resources to survive in GPE and no social assistance .", "On DATE ORG rejected the application . It observed that the applicants’ reasons for asylum had already been considered once and it found no grounds on which to change its former decision . It further decided that the applicants should be deported immediately since it was evident that they would not be granted asylum or leave to stay for any other reason . On DATE ORG upheld ORG decision in full .", "The applicants lodged a new application for asylum with ORG , adding to their earlier claims that the first applicant had lodged a complaint with ORG threats to his family which was being investigated . Although GPE had now been convicted of serious crimes and was in prison , the result of the investigation could show that the applicants were in need of protection in GPE . Moreover , the fourth applicant ’s health had regressed somewhat and he was in need of more support and treatment .", "On DATE ORG rejected the new application on the grounds that it was up to the national authorities to protect the applicants against criminals within the country and that there were no circumstances which indicated that the authorities in GPE situation , ORG found that it would not constitute a violation of humanitarian standards to deport the applicants to their home country .", "On DATE ORG rejected yet another new application for residence permits by the applicants as they had invoked no new circumstances .", "The applicants have submitted CARDINAL medical certificates concerning the fourth applicant , both issued by CARDINAL specialists in child and youth neurology , PERSON and PERSON .", "The first medical certificate was dated DATE and stated that the fourth applicant was born with PERSON ’s syndrome and that he had a lack of thyroxin . Moreover , he suffered from an epileptic illness ( the PERSON - Kleffner syndrome ) which had caused him to lose his ability to talk and communicate . He received medication and treatment for his handicap and illnesses but was in need of regular examinations . Furthermore , it was very important that he followed continuous treatment on several levels in order to have some quality of life . This sort of treatment was not available in GPE and GPE .", "The second medical certificate was dated DATE and , besides referring to the above certificate , it stated the following : The fourth applicant has PERSON ’s syndrome and an epileptic illness which involves epileptic activities in the brain and the loss of language as well as the understanding of language . As concerns his PERSON ’s syndrome , he was undergoing good rehabilitation training , physiotherapy , occupational therapy , special education and speech therapy . They were concentrating on communication and motor activity . His problems with swallowing would be examined by a speech therapist together with a dietician . He had shown clear progress after treatment with Lamictal ( an anti - epileptic medicine ) and had regained an interest in communication and could also pronounce one or CARDINAL single words , a progress from having been completely wordless and almost without any interest in interplay with others . For the future , the physicians were planning continued rehabilitation and a renewed evaluation of his epilepsy to see how he had reacted to the medication . He would probably need an increased dose of Lamictal after the evaluation . In conclusion the physicians stated that he was reacting very well to the treatment and for this positive development to continue it was an absolute prerequisite that he remain in GPE or another NORP country where he could receive the same treatment .", "The applicants submitted a letter , dated DATE , by Prof . Dr. PERSON , ScD , and Ass . Dr. PERSON , GPE . at ORG in GPE , which provided the following information :", "At ORG it was possible to diagnose PERSON ’s syndrome and to follow up the functions of the thyroid and to offer treatment for thyroid disorders . It was also possible to diagnose epilepsy , to prescribe Lamictal treatment and to have a child followed by neuro - paediatricians , endocrinologists , cardiologists , clinical geneticists and other specialists . However , at the moment , they could not promise that it would be possible to include a child in programmes of neuro - developing and stimulating exercises , speech pathology , psychological treatment or to include a child in a special school or pedagogical programme . Moreover , in the area , there were not enough institutions to receive and help all children with special needs and so parents were forced to care for their children and to implement necessary treatment in accordance with their financial capabilities .", "According to information from DATE , there were special programmes for the social and health protection of children and families , the mentally handicapped , the elderly and civilian war victims . All CARDINAL cantons in GPE and GPE provided social and child protection within CARDINAL local centers . Most of these institutes had been modernized , and some had been newly established . There were also centers for persons with mental and physical handicaps .", "Furthermore , in DATE the LAW on the protection of mentally handicapped persons was adopted in GPE . It provides for basic principles , means of organization and the realization of the protection of mentally handicapped persons , and it contains , inter alia , provisions relating to health care and the rights and obligations of beneficiaries ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants were born in DATE and DATE respectively and live in GPE in GPE .", "In DATE , the applicants , a married couple , immigrated to GPE with their daughter , born in DATE . Their son , born in DATE , joined them in DATE .", "NORP In DATE their request to be recognised as immigrants of NORP origin ( PERSON ) was rejected . The applicants ' request to reopen the proceedings was rejected on DATE by ORG ( Oberverwaltungsgericht ) . DATE the applicants were issued with residence titles for exceptional purposes ( NORP ) which have been regularly renewed .", "On DATE ORG ) informed the first applicant , who had received child benefits ( GPE ) since DATE , that as from DATE the child benefits would no longer be paid following a change in legislation . The office noted that according to LAW of ORG ( GPE , see relevant domestic law below ) , as amended and in force as from DATE , a foreigner was only entitled to child benefits if in possession of a residence permit ( ORG ) or a provisional residence permit ( ORG ) . The office noted that this condition was not met in the applicants ' case .", "On DATE ORG ( Bundesanstalt für GPE ) rejected the first applicant 's objection .", "The first applicant , assisted by counsel , lodged an action with ORG ( ORG ) with the aim to be granted child benefits from DATE . He claimed that he and his family had been residing in GPE since DATE and had been paying tax and social contributions . He should , therefore , continue to be entitled to the child benefits .", "On DATE ORG dismissed the first applicant 's action . It confirmed that only aliens with an unlimited or a provisional residence permit were entitled to the payment of child benefits . The new legislation had only intended to grant child benefits to aliens living in GPE on a permanent basis , whereas aliens with only a limited residence title for exceptional purposes were not likely to stay . The court further pointed out that this distinction did not violate the NORP LAW as had been stated by ORG in several judgments since DATE . As to the special protection of the family provided under LAW , the court held that this did not prevent the ORG from subjecting the payment of child benefits to the type of the residence title .", "On DATE the first applicant , assisted by counsel , lodged an appeal with the GPE Social Court of Appeal ( ORG ) .", "On CARDINAL DATE ORG informed the first applicant that it had referred CARDINAL pilot cases to ORG ( Bundesverfassungsgericht ) for review of LAW of ORG , and asked him whether he would agree to a suspension of his appeal proceedings until a decision had been given by ORG . On DATE ORG , having obtained the parties ' agreement , ordered the suspension of the proceedings .", "By decision of DATE in the pilot cases ( CARDINAL BvL CARDINAL , CARDINAL BvL CARDINAL , CARDINAL BvL DATE ) , ORG ruled that LAW as effective from DATE until DATE was incompatible with the right to equal treatment under LAW of LAW . Accordingly , the legislator was ordered to amend the law by DATE .", "The Federal Constitutional Court found , in particular , that the different treatment of parents who were and who were not in possession of a stable residence permit lacked sufficient justification . As the granting of child benefits related to the protection of family life under LAW , very weighty reasons would have to be put forward to justify unequal treatment . Such reasons were not apparent . In so far as the provision was aimed at limiting the granting of child benefits to those aliens who where likely to stay permanently in GPE , the criteria applied were inappropriate to reach that aim . The fact that a person was in possession of a limited residence title did not form a sufficient basis to predict the duration of his or her stay in GPE . ORG did not discern any other reasons justifying the unequal treatment .", "On DATE , following the first applicant 's request , ORG resumed the proceedings . On DATE ORG , with the parties ' consent , once again suspended proceedings pending the amendment of the applicable legislation .", "In DATE the first applicant lodged a motion with ORG ( ORG ) with the aim to be granted child benefits from DATE according to the provisions of LAW ( Einkommensteuergesetz , see relevant domestic law below ) . On DATE ORG rejected the motion . The first applicant did not lodge an appeal .", "Section CARDINAL of the DATE LAW ( PERSON - gesetz , ORG - PERSON , S. CARDINAL ) , as in force from DATE until DATE , provided for the payment of child benefits which are financed by ORG .", "Section CARDINAL , as far as relevant , provided as follows :", "“ ( CARDINAL ) Under the provisions of the present Act , anybody is entitled to child benefits for his or her children ... ,", "NORP who has a place of residence ( PERSON ) or regular residence ( gewöhnlicher ORG ) within the scope of the present Act ,", "...", "( CARDINAL ) An alien is entitled to a benefit under LAW , if he has a residence permit or a provisional residence permit . ... ”", "Following a reform of the law on child benefits with effect from DATE , an equivalent provision on child benefits is to be found in LAW of LAW ( Einkommenssteuergesetz ) ." ]

[ "14", "8" ]

[]

[]

[]

[]

[]

[ "Mr PERSON , who was born in DATE , was employed by ORG , formerly ORG , ( \" ORG \" ) from DATE as a heavy goods vehicle driver . He was based at its depot at ORG , GPE , together with DATE and QUANTITY other drivers . His services gave complete satisfaction at all times .", "Until the events giving rise to the present case , the applicant was a member of ORG ( \" TGWU \" ) ; from DATE to DATE he was its branch secretary . In DATE all the other non - managerial employees at ORG save CARDINAL belonged to that union . At that time , however , that depot was not a \" closed shop \" ( see paragraph CARDINAL below ) . Indeed , the later of CARDINAL statements of his terms of employment furnished to the applicant specified that he had the right to be a member of no trade union and that he would be informed if this right came to be modified by the conclusion of a closed shop agreement .", "In DATE a fellow driver , PERSON , allegedly accused Mr PERSON of having \" milked the funds \" of the union whilst he was branch secretary . The applicant subsequently lodged with the local ORG branch a complaint to the effect that PERSON had \" disseminated false statements tending to depreciate \" him as one of its officers , but it was dismissed by the branch adjudication panel on DATE .", "Mr PERSON was so dissatisfied with that decision that he resigned from ORG by letter of DATE and joined ORG instead . Some of his fellow drivers immediately ostracised him and others obstructed him in the performance of his work .", "DATE ORG attempted in vain to resolve the dispute . After a period of \" uneasy peace \" , a substantial majority of the ORG members at ORG voted , on DATE , in favour of ( a ) a closed shop agreement with ORG and ( b ) industrial action if Mr ORG continued in employment at that depot after DATE .", "At a meeting on DATE between Mr Dear , the personnel manager of ORG , and the branch committee of the union it was agreed that the strike threat would be lifted if the applicant either rejoined ORG or was employed on driving work not based at ORG . On DATE the applicant told Mr Dear that he would rejoin the union only if he received an apology from Mr NORP and that he would not accept the alternative proposed by PERSON , namely a move to ORG , a depot QUANTITY away from ORG . In a letter of the same date to the applicant , PERSON summarised the discussions to date ; stated that ORG were contractually entitled to transfer the applicant to ORG , where his earnings would be similar to those at ORG ; denied that the move would be a demotion ; and expressed the hope that the applicant would give serious thought to his position because \" [ his ] dismissal [ was ] a possibility \" .", "Further meetings were then held , with the participation of a senior official of ORG . The applicant declined to accept as an apology a certain statement to be signed by Mr NORP As regards a transfer to PERSON , the applicant expressed concern about conditions there , in particular his fear - which Mr Dear assured him was groundless - of losing his current lorry and allowances for TIME spent away from home ; he also said that he could not face the aggravation from other drivers which he was sure would continue at that depot .", "At a final meeting on DATE the applicant declined to accept either of the alternatives then put before him - working at ORG after rejoining ORG or moving to PERSON - and suggested that the management should dismiss him . Mr Dear refused to do that , and added that if the applicant reported to ORG for work , he would be sent home without pay . Mr PERSON , citing his solicitor ’s advice that that would constitute constructive dismissal ( see paragraph CARDINAL below ) , then said that he would resign with immediate effect , which he did by letter of DATE . He did not take up Mr Dear ’s further offer , dated DATE , of employment at ORG with the same opportunity for earnings and expenses as previously .", "Mr PERSON then lodged with ORG a complaint of unfair dismissal ( see paragraph CARDINAL below ) against ORG and ORG . In the grounds for his application he stated that he had \" been ‘ constructively dismissed’ for refusing to accept ‘ action short of dismissal’ \" ( see paragraph CARDINAL below ) . His representative in these proceedings was not legally qualified , legal aid not being available for this purpose .", "ORG and ORG contended that a closed shop agreement was in existence ( which would have made any dismissal fair ; see paragraph CARDINAL below ) . ORG also denied that there had been either constructive dismissal or action short of dismissal . Mr Dear admitted in cross - examination the absence of any operational reason for moving the applicant to ORG , the sole purpose being to avoid a strike ; had a strike not been threatened , ORG would have retained him at ORG and not put any pressure on him to rejoin ORG .", "By decision of DATE , the ORG unanimously accepted the complaint of unfair dismissal ; it did not deal with the merits of the allegation of action short of dismissal . It found that Mr PERSON was entitled to refuse to rejoin TGWU because there was no closed shop agreement in force ; that the request that he move to PERSON was not reasonable since it was not made for genuine operational reasons but solely to avoid a strike ; that ORG had no right to suspend the applicant without pay ; that he was therefore entitled to treat himself as dismissed ; and that the dismissal was unfair because its only motive was his exercise of his express right not to belong to a union . The tribunal reserved the question of remedies for further consideration , the applicant having opted for re - engagement ( see paragraph CARDINAL below ) .", "On DATE ORG , by a majority , dismissed an appeal by ORG on points of law . It found that ORG had not erred in law , misdirected itself or reached an unreasonable conclusion .", "On DATE the ORG unanimously upheld an appeal by ORG on a point of law , confined to the question whether Mr ORG had been constructively dismissed . It found that there was an implied term in his contract that his employer could - for any reason - direct him to work at any place within reasonable DATE reach of his home ; ORG had erred in law in holding that this right could be exercised only if the direction were reasonable and that this condition would not be satisfied unless the direction was made for genuine operational reasons . Lord Justice PERSON stated , as regards this implied \" mobility term \" :", "\" I can not see how Mr PERSON could reasonably have objected to a term giving the contract this limited degree of flexibility when he entered the employment in DATE . If the evidence had disclosed any special circumstances which as at that time made it a matter of importance to him that he should be based at ... ORG ... rather than at ( say ) PERSON , ORG would no doubt have said so . \"", "ORG concluded that ORG had acted within its contractual rights in requiring the applicant to transfer to a nearby depot and that he could not be regarded as having been constructively dismissed . No question of unfair dismissal therefore arose .", "On DATE Mr PERSON applied for legal aid to appeal to ORG . On DATE legal aid was granted for the purpose of obtaining counsel ’s opinion on the merits of an appeal . On CARDINAL DATE counsel advised that there were no reasonable prospects of success and that leave to appeal would not be given . Further legal aid was therefore refused on DATE .", "The relevant domestic law in force at the time of the events giving rise to the present case may be summarised as follows .", "A closed shop is an undertaking or workplace where there is in existence a \" union membership agreement \" , that is an agreement or arrangement between CARDINAL or more trade unions and CARDINAL or more employers or ORG associations having the effect in practice of requiring employees of a certain class to be or become members of a specified union ( CARDINAL of ORG DATE , as amended ) .", "ORG DATE ( \" LAW \" ) provided that , subject to exceptions not relevant to the present case , \" every employee shall have the right not to be unfairly dismissed by his employer \" ( section CARDINAL ) ; the remedies for unfair dismissal were compensation or , if the individual concerned so elected and if ORG in its discretion so decided , reinstatement or re - engagement ( section DATE ) . In determining whether to make a reinstatement or re - engagement order , the tribunal had to take into account , inter alia , whether it was practicable for the employer to comply therewith ( section CARDINAL ) .", "Under section CARDINAL(CARDINAL)(c ) of LAW , as substituted by LAW :", "\" Subject to subsection ( CARDINAL ) , the dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it ( or , if CARDINAL , the principal reason ) was that the employee -", "...", "( c ) was not a member of any trade union , or of a particular trade union , or of CARDINAL of a number of particular trade unions , or had refused or proposed to refuse to become or remain a member . \"", "By way of exception to the foregoing , section CARDINAL(CARDINAL ) of the DATE Act laid down the basic rule that , if a \" union membership agreement \" ( i.e. a closed shop ; see paragraph CARDINAL above ) was in existence , the dismissal of an employee for refusal to become or remain a member of a specified union was to be regarded as fair . With effect from DATE - that is , after the events giving rise to the present case - this provision was repealed by LAW DATE .", "In determining whether or not a dismissal was unfair , an ORG was directed to take no account of pressure exercised on the employer to dismiss the employee , for example by threatening to strike ; however , a third party , such as a trade union , which had exercised such pressure because the employee was not a member of a union could be joined as a party to the proceedings and ordered to pay the whole or part of any compensation awarded to the employee ( sections DATE and CARDINALA of LAW ) .", "The notion of constructive dismissal was encapsulated in CARDINAL ) of LAW , which provided :", "\" ... an employee shall be treated as dismissed by his employer if ... the employee terminates [ his ] contract , with or without notice , in circumstances such that he is entitled to terminate it without notice by reason of the employer ’s conduct . \"", "It does not suffice , in this connection , that the employer ’s conduct is unreasonable ; it must amount to a significant breach going to the root of the contract of employment or showing that he no longer intends to be bound by one or more of its essential terms ( per Lord PERSON , Master of the Rolls , in GPE v. Sharp [ DATE ] Industrial Cases Reports CARDINAL , construing an earlier but identical provision ) .", "Section CARDINAL(CARDINAL)(c ) of LAW , as amended by section CARDINAL(CARDINAL ) of the Employment Act DATE , conferred on an employee ( defined by section CARDINAL(CARDINAL ) of LAW so as to include a person whose employment had ceased ) a right \" not to have action ( short of dismissal ) taken against him as an individual by his employer for the purpose of compelling him to be or become a member of any trade union or a particular trade union ... \" .", "The remedy in well - founded cases was compensation , which might extend beyond financial loss to such matters as injury to reputation and feelings , of such amount as the tribunal considered just and equitable in all the circumstances . Provisions relating to the existence of a closed shop and to the exercise of pressure on the employer , akin to those applicable in the context of unfair dismissal ( see paragraph CARDINAL above ) , also applied in this area ." ]

[]

[]

[]

[ "11" ]

[]

[]

[ "The applicant , PERSON , a NORP national born in DATE , lives in Şırnak , in south - eastern GPE . He applied to the Commission on his own behalf and on behalf of his son PERSON , who , he alleged , had disappeared in circumstances engaging the responsibility of the ORG .", "The facts surrounding the disappearance of the applicant 's son are disputed .", "The version submitted by the applicant is set out in LAW below . In his memorial to the ORG , Mr PERSON relied on the facts as established by the Commission in its report and on his previous submissions to the Commission .", "The facts as presented by the Government are set out in LAW .", "A description of the material submitted to the ORG is given in Part B.", "In the light of the dispute over the circumstances surrounding the disappearance of the applicant 's son , the Commission conducted its own investigation with a view to establishing the facts , pursuant to former LAW ( a ) of the LAW . To that end , it examined a number of documents submitted by the applicant and the Government in support of their respective assertions and appointed CARDINAL delegates to take evidence from witnesses at hearings held in GPE on CARDINAL , DATE and DATE . The ORG 's assessment of the evidence , and its subsequent findings , are summarised in Part C.", "Following incidents in PERSON ( a town in south - eastern GPE ) DATE , several people were taken into police custody at the PERSON gendarmerie command and security police headquarters on DATE . At the time of the events the applicant 's son , PERSON , was working at a coal mine .", "At Bakımevi checkpoint , police officers in blue uniforms stopped the taxi in which PERSON was travelling home from work together with CARDINAL other people , namely PERSON , PERSON and PERSON . The police officers took their identity papers and CARDINAL of them asked which CARDINAL was PERSON . PERSON identified himself and the officers took him away .", "On DATE PERSON , an acquaintance who had been taken into police custody on DATE and released on DATE , told the applicant that he had shared a cell with PERSON for a whole day and night .", "NORP PERSON , a lawyer taken into police custody on CARDINAL DATE and released on DATE , told the applicant that he had spent DATE in the same room as PERSON . He also stated that PERSON had been severely tortured ; in particular , on the last occasion he had remained in the “ torture room ” for TIME and , on being brought back to his cell , had been unconscious , displaying no signs of life . TIME he had been dragged out of the cell by the legs . Another person , PERSON , who had likewise been released on DATE , told the applicant that he had seen his son while in custody . CARDINAL further people detained at police headquarters at the same time as PERSON informed the applicant , when he went to visit them at FAC , that they had seen PERSON during that time .", "The applicant requested the Şırnak provincial governor to explain why his son had not been released and to inform him of his whereabouts . He was accompanied by local councillors PERSON and PERSON , and by another of his sons , PERSON . The provincial governor , PERSON , interviewed an eyewitness , PERSON , who confirmed that he had seen PERSON at the police headquarters . The provincial governor conducted enquiries among members of the armed forces and the police . The police officers interviewed maintained that PERSON had never been detained in police custody . In a letter of CARDINAL DATE the provincial governor requested the national police headquarters to appoint an investigating officer to carry out enquiries into the applicant 's allegations .", "On DATE the applicant lodged a complaint with the Şırnak public prosecutor , asking what had happened to his son . He explained that although several witnesses had said that they had seen his son during their time in detention , the provincial governor 's office , the police and the armed forces had all maintained that PERSON had never been taken into police custody .", "On DATE the investigating officer submitted his report to ORG , proposing that no court proceedings be brought .", "On DATE the Şırnak public prosecutor ruled that he did not have jurisdiction and forwarded the case file to ORG to enable it to carry out the investigation .", "On DATE ORG issued an order signed by the deputy provincial governor and the directors or deputy directors of the province 's various public services ( the post of ORG was vacant at the time ) . The order stated that no criminal proceedings should be brought against the officers from Şırnak police headquarters . ORG held that the alleged facts had not been established .", "On DATE , in accordance with the legislative provisions in force , the case was referred to ORG . In a judgment of DATE that court upheld ORG decision that there was no case to answer , finding as follows :", "“ ... Offences committed by civil servants acting in the performance of their duties or in their official capacity are subject to the procedures governing prosecutions of civil servants ... , an administrative investigating officer responsible for conducting the investigation is appointed by means of an order ...", "... In order that an investigation may be conducted in respect of a civil servant , the civil servant concerned must first of all be accurately identified . Failing any accurate identification , no investigation can be carried out , no investigation report can be drawn up and no court with jurisdiction in the matter may give judgment .", "The information in the investigation file has not made it possible to determine who committed the alleged offence ; consequently , that investigation should not have been commenced . However , an investigation file was compiled by the appointed investigating officer and , on the basis of that file , ORG decided that there was no case to answer , on the ground that the persons responsible were unknown and that it was impossible to investigate the case . ORG decides unanimously , for the aforementioned reasons , to uphold the decision of ORG and to close the investigation . ”", "According to the applicant , the authorities prosecuted PERSON , a lawyer , for the role he had played in the lodging of certain applications , including that of the applicant , with the Commission . The applicant maintained that on DATE all the documents relating to the case had been seized by the security forces when PERSON was arrested .", "It was true that following clashes in the town of Şırnak DATE , an operation was carried out and CARDINAL people were taken into police custody . However , PERSON was not arrested by the security forces . As the national police headquarters stated in a letter of DATE , the custody register indicated that he had never been arrested or held in custody .", "On DATE the ORG forwarded to the ORG a record of the documents seized from PERSON , together with ORG decision of DATE , listing the documents that had been returned to him .", "Those appearing before the ORG submitted various documents concerning the investigation in respect of the applicant 's criminal complaint .", "The applicant alleged that , following the events in PERSON , his son had been arrested during an identity check on DATE , while returning home from work with CARDINAL members of his family . He gave the names of eyewitnesses who had stated that they had seen his son while he was in police custody , and requested information as to what had happened to his son .", "In this order , the Şırnak public prosecutor 's office ruled that it did not have jurisdiction to deal with the applicant 's criminal complaint against the officers from Şırnak police headquarters . It pointed out that the actions of members of the security forces who were under the authority of the governor of the state of emergency region were governed by the rules on prosecution of civil servants , and referred the case to ORG .", "In a letter dated CARDINAL DATE the PERSON provincial governor , PERSON , referring to the petition which the applicant had lodged with the governor 's office on DATE , requested the national police headquarters to appoint an investigating officer to carry out an inquiry into the applicant 's allegations .", "In a letter dated DATE the national police headquarters ' investigation department appointed Detective PERSON as the investigating officer . On DATE PERSON took witness evidence from PERSON , PERSON , PERSON and PERSON . PERSON statement was obtained with the assistance of an interpreter . The witnesses ' statements were taken down as follows :", "( a ) Abdulmenaf GPE : “ I lived in the same hamlet as PERSON and knew him personally . However , his father 's name is not PERSON , as you said it was , but PERSON . When the incidents occurred , I was at home . I was not taken into custody [ at the police headquarters ] as was alleged , either that day or the following days . I heard about his disappearance when I gave evidence to the Şırnak public prosecutor , on which occasion I said the same things as I am now saying to you . My relatives and I worked as village guards in DATE . PERSON brother , PERSON , is currently a NORP militant and has gone off to the mountains . As we support the government , those people attacked my house and my relatives ' houses , and I and several members of my family were injured and my cousin PERSON was killed . Since then , we have been involved in a dispute with them . That 's why they would have wanted to bring our name into this case to cause us harm . I do not have any information on PERSON alleged disappearance and , contrary to what has been said , I was not taken into police custody with him . ”", "( b ) PERSON : “ I know PERSON . We lived in the same hamlet and sometimes worked together at the coal mines . However , his father 's name is not PERSON , as you said it was , but PERSON . When the incident took place , my nephew PERSON and I were working in the coal mines . We heard shooting from the direction of the town and went to the main road to go back there . We hailed a taxi coming from the direction of Cizre . PERSON was in the taxi , and we got in and went towards the town . At the entrance to the town , the police were carrying out an identity check . They checked the identity papers of all CARDINAL of us and handed them back . My nephew and I went home ; as for PERSON , he said he had some shopping to do and went off towards the grocery stores across the road . I have never seen him since . I do n't know where he is . I was not taken into police custody on the date of the incident DATE – or after that date , either alone or with PERSON , contrary to what his father alleged . I do n't know why his father made that allegation . ”", "( c ) PERSON : “ I know PERSON . We lived in the same hamlet . Although we have the same surname , we are not related . However , his father 's name is not PERSON , as you said it was , but PERSON . I was not taken into police custody on DATE at the national highways authority maintenance point [ Bakımevi ] , as PERSON father alleged . At the time of the incidents , I was working at a coal mine CARDINAL or QUANTITY away from the town . We heard shooting from the direction of the town and tried to go back there with the other workers , but the road was blocked by soldiers who were preventing anyone from entering or leaving . We were thus unable to get back to PERSON ; as a result , I was not taken into police custody . I do n't know whether PERSON was taken into custody by the police . I forgot to tell you that after the incidents – I ca n't remember the exact time – a taxi with PERSON in it arrived from the direction of Cizre . I do n't know who the taxi belonged to . The soldier who was at the scene made PERSON and me get into the taxi and sent us off to PERSON . At the entrance to the town there were police officers . They checked our identity papers and then PERSON went off towards the grocery stores across the road . We went home . However , neither ourselves nor PERSON were taken into police custody . I do n't know why his father said that . ”", "( d ) PERSON ( Ertuğrul ) : “ On DATE , following the events in Şırnak during DATE , I was arrested at home by police officers DATE or , I should say , by soldiers , who handed me over to the police . After an investigation was conducted by the security police , I was released DATE . When I returned home , PERSON father , whose son I knew personally because we worked together at the coal mine , came to see me . He asked whether I had been held in police custody and whether his son was also at the police headquarters . I replied that there had been DATE or QUANTITY of us but that I had not seen his son among the detainees . However , in his criminal complaint , he lied by saying the opposite . I do n't know why he did that , but we do n't talk to the PERSON family . Their son PERSON , who is with the ORG , and his friends killed my uncle PERSON . He said that to cause a dispute between us and the security forces . I repeat that he is lying . I was not detained in the same cell as PERSON and I do n't know where he is now . ”", "The investigating officer stated that in the course of his inquiries he had visited the scene of the events and examined the custody registers , copies of which were appended to his report . He said that , although letters had been sent to the police headquarters requesting an interview with PERSON ( who had apparently moved to Silopi ) , the authorities had been unable to find the latter 's address . He noted that it was clear from the statements by PERSON , PERSON and PERSON that they had not been taken into police custody either before or after the incidents , a fact corroborated by an inspection of the custody registers . The investigating officer also referred to the letter sent by the Şırnak police confirming that PERSON had not been taken into custody during or after the incidents in question , and noted that PERSON , according to the statement he had made , had been arrested by the gendarmes after the incidents in PERSON on DATE and handed over to the police before being released DATE ; his name appeared under number CARDINAL in the custody register . He observed that LOC had maintained that he had not seen PERSON at the police headquarters and had therefore not stayed in the same cell . The investigating officer reached the following conclusion :", "“ I propose that no court proceedings be brought , given that the allegations made by PERSON and a member of ORG , PERSON , concerning PERSON detention in police custody and disappearance while being detained are wholly unfounded . ”", "On DATE , DATE and DATE ORG delegates obtained the following statements in GPE .", "This witness DATE the applicant – is PERSON father . In DATE he heard shooting , which went on for DATE . On TIME the incidents , his son PERSON was working at the coal mine .", "He repeated the facts as set out in his application .", "The witness stated that he had gone to the gendarmerie command , where a major , after checking the list of those detained , had told him that his son had not been detained at the barracks . He had also attended a meeting at the barracks , on which occasion he had again demanded information as to what had happened to his son . Together with CARDINAL local councillors ( muhtars ) – PERSON ( muhtar for the LOC district ) and PERSON ( muhtar for the NORP district ) – he had gone to the Şırnak provincial governor and introduced him to PERSON , who told the governor that while in police custody he had spent TIME in the same cell as PERSON . The governor had handed a letter to the muhtars and had advised them to contact the police . The witness 's son PERSON had gone to the police headquarters with PERSON and PERSON .", "The witness maintained that he had lodged a complaint with the Şırnak public prosecutor 's office , but could not remember whether the prosecuting authorities had questioned PERSON and the other people referred to in his complaint . The public prosecutor had remarked that it was highly likely that the witness 's son had gone away to the mountains . The witness had contested that allegation , explaining that PERSON had CARDINAL children and that his wife was still very young .", "He stated that his son PERSON had been questioned by police officers DATE . He did not know why his son had been summoned by the police . He added that CARDINAL of his sons , PERSON , had been missing since DATE ; he had heard that he had gone off to join the ORG ( ORG of Kurdistan ) , but he did not know whether he was alive or dead . Another of his sons , PERSON , had been convicted for his part in an explosion and sentenced to DATE imprisonment . The witness repeated that his son PERSON , who had CARDINAL young children , had been doing nothing but “ work TIME to feed them ” . He stated : “ That child [ Mehmet ] is innocent . His brother went away to the mountains DATE . Maybe that 's what they hold against him . ”", "This witness was provincial governor of Şırnak in DATE . He explained that on DATE there had been clashes between the security forces and terrorists , who had launched an attack . Several people had been shot dead . The attacks had originated in the area where the coal mines were situated . Following the incidents , the security forces – police officers and gendarmes – had carried out searches and CARDINAL people had been arrested and brought before the courts . Some of them had been taken into custody at the police headquarters and others at the gendarmerie 's detention centre . CARDINAL separate registers had been kept .", "NORP The witness stated that he had met a man in his office who said that he had spent TIME in the same cell as PERSON . He could not remember whether that witness 's name was PERSON . He had advised PERSON to take the eyewitness to the public prosecutor . He had also interviewed other people who had said that they had seen PERSON while in custody at the police headquarters . He said that PERSON had not given up and had come back to his office CARDINAL or CARDINAL times with the same allegations . The witness had written a confidential letter to the national police headquarters in GPE and to ORG , requesting the appointment of an investigating officer to carry out inquiries . He added that he had subsequently inspected the police headquarters ' custody registers and found that PERSON name was not on the list of detainees . The gendarmerie had informed him orally that PERSON had not been detained on their LOC . An investigating officer had been appointed to conduct the investigation . The witness had been transferred to another post in DATE and had consequently received no further information on the progress of the investigation .", "This witness had been working at the coal mines at the material time . PERSON was his cousin . When the incidents occurred in Şırnak he had been at work in the mines . PERSON , PERSON and PERSON had also been at the mines , working in different areas . Because of the incidents they had been unable to return to PERSON DATE . They had been warned by the gendarmerie office near the mine not to leave the site .", "The witness stated that there had been clashes in the town but not in the area by the mines . After spending DATE in the mines , he , PERSON , PERSON and PERSON had started out along the main road and , in order to go back to PERSON , had taken a taxi which had arrived from Cizre . It had almost been night time . Near Şırnak , at the checkpoint inside the town , police officers in blue uniforms had stopped the taxi and asked for their identity cards . After examining their papers in a hut , the officers had returned and asked : “ Which one of you is PERSON ? ” PERSON had replied : “ I am . ” The officers had taken him away with them and ordered the others to leave immediately . They had got into the taxi and returned home .", "The witness said that PERSON had asked him where his son was , and that he had told him about the incident . He had not been interviewed on the matter by the authorities .", "This witness is PERSON brother . At the material time he had been living in GPE . At the time of the incidents he had been in PERSON visiting his family . On DATE he had left the town , along with his family .", "The witness described the incidents that had taken place in Şırnak . On TIME he and his father had been told about his brother 's arrest . PERSON had informed them that he had been detained in the same police cell as PERSON . Several people had been detained in the same place and they had all been blindfolded . PERSON had lifted up his blindfold and had thus been able to see PERSON and speak to him . Early the next day PERSON had been released . In the afternoon PERSON GPE , PERSON and PERSON had told them that , while they had been on their way home from the mines , the police had carried out an identity check at the Bakımevi checkpoint in PERSON and had taken PERSON away .", "The witness explained that he had met PERSON , a lawyer , and had asked him about the circumstances in which he had seen PERSON . He had received the following reply : “ When PERSON was brought into the cell , there were CARDINAL of us there . From time to time some of the detainees would be taken away for questioning and would come back later ; that happened repeatedly . PERSON was also taken away and brought back several times . We were tortured . ” The witness added in that connection that PERSON had maintained that he had spent DATE in the same cell as PERSON . On DATE , PERSON had been thrown into the cell , having been given a beating . He had lain on the floor as though dead . Shortly afterwards , he had been taken away and PERSON had not seen him again . The witness stated that his father had obtained the same information from PERSON , who had told him : “ Your son was practically dead the last time he was brought back . He was in such a bad state that he had no chance of surviving . ”", "The witness said that he had helped his father to draft the complaint which he had lodged with the public prosecutor , and had gone with him to ORG . He had also distributed petitions among parliamentary delegations visiting PERSON .", "This witness stated that he worked as a lawyer in ORG . On DATE ( DATE of the incidents in Şırnak ) he had been arrested by the security forces . He had spent DATE in police custody . After being arrested , he had been taken to the gendarmerie station and had stayed there for DATE . CARDINAL people had been detained there . On DATE informers and Special Branch officers had come to choose CARDINAL people and had taken them to Şırnak police headquarters . The witness said that he had remained at the police headquarters until he was released on DATE .", "DATE . On the witness 's second or DATE in custody at the police headquarters ( CARDINAL or DATE ) , PERSON had been brought into the room in which the witness was being detained . As the witness had been subjected to torture , he could not remember exactly how many days he had spent with PERSON – perhaps CARDINAL , CARDINAL or DATE . He stated that there had been CARDINAL detainees in a single room . He could remember some of their names : GPE , PERSON , PERSON , PERSON and PERSON .", "The witness explained that during their time in custody at the police headquarters , the detainees had been systematically subjected to torture . For DATE they were taken away to be tortured CARDINAL times a day . They had been treated like “ animals ” and had often had to relieve themselves where they lay . He said that PERSON had also been subjected to such treatment . He had been taken away once a day for TIME . On CARDINAL occasion the witness and PERSON had been taken away together , with CARDINAL or CARDINAL others , to the “ torture room ” . The witness explained that he had been able to see through his blindfold how they were being tortured . They had been stripped and hung up ; some of them had received electric shocks . They had been severely beaten and sprayed with cold water . On DATE the witness had been hung up for TIME ; when he had left the room , PERSON was still hanging there . He had been brought back to the cell TIME . The witness stated : “ When PERSON was brought back to the cell he was unable to speak ; he was dead – that is to say , he had become stiff . I am PERCENT certain that he was dead . TIME they dragged him out by the legs . CARDINAL of his shoes was left behind in the cell . We never saw him again . ” He explained that PERSON had been in the habit of putting this shoe under his head whenever he went to sleep on the concrete floor .", "PERSON had visited the witness in prison but the witness had said that he would speak after he was released . When PERSON came to see him after he had returned home , the witness had informed him that his son had died while in police custody . PERSON had called him a liar .", "The witness said that the ORG public prosecutor had taken a statement on the incident from him . In the statement he had set out the facts he had related to the Commission delegates ; he had signed the record containing his statement . He had not been interviewed by any other authorities .", "NORP Throughout his time in detention he had stayed in the same cell – number CARDINAL – and had been blindfolded . He stated that PERSON had been tortured more than the others . He had not had the strength to speak and had not been able to converse with the witness except when the latter first arrived in the cell . He had told the witness that , after his arrest , he had been taken directly to the police headquarters . The witness explained that after they had been beaten , someone would apply ointment to the bruises on their faces . CARDINAL of his teeth had been broken and his face was swollen . He had been in that state when interviewed by the public prosecutor . The public prosecutor had asked whether he had been tortured and he had replied in the affirmative . The public prosecutor had replied that that did not “ correspond to the truth ” and that he had caused the swelling himself .", "The witness explained that , for fear of reprisals , he had not lodged a complaint against the police officers who had tortured him . He maintained that he had told the truth and had only mentioned the bare minimum of what he and his fellow detainees had endured . In his opinion , the incidents in PERSON had been triggered by agents of the ORG as a means of oppressing the population , which had previously attended the funerals of CARDINAL ORG militants and voted for a pro - NORP party , the HADEP .", "This witness , a lawyer , represented the applicant at the time when he lodged his application with the Commission . He pointed out that he had not represented the applicant before the domestic authorities . He had merely given him advice and drafted letters .", "The witness stated that , following his arrest in DATE , the security forces had searched his office and seized all documents relating to his professional activities , including those on the case concerning the disappearance of PERSON . He had been held in custody for DATE at the intelligence branch ( GPE ) of ORG gendarmerie command .", "The witness said that he had not obtained statements from the eyewitnesses mentioned in PERSON complaint . Some were in prison and did not feel safe , while he was afraid to go to the prison himself to take statements from them . He had subsequently met PERSON , who had stated that he had seen PERSON during his time in police custody . The witness said that PERSON had given a very brief outline of his conversation with PERSON . PERSON had refused to admit that his son might be dead , even though he had known deep down that he was . The witness stated in that connection that if a person had been detained for DATE and no request for an extension of the period of custody had been submitted to the public prosecutor , it could be concluded with some certainty that the detainee 's life was in danger or that he was dead .", "PERSON believed that PERSON had died while in police custody . He himself had witnessed a number of similar cases .", "This witness was a superintendent at Şırnak police headquarters . On TIME , he had been at the police station . Suddenly , he and his colleagues had heard shooting from the direction of the town centre . They had been informed via the radio that terrorists had attacked Şırnak . They had taken precautions to protect themselves . The witness explained that he had not been a member of the team that had carried out arrests . His job had been to protect public buildings . For DATE while the incidents were taking place , he had not left the police station .", "The witness examined the record drawn up on DATE , which stated that , following the clashes DATE , houses in the town centre had been searched and no spent cartridges had been found . He acknowledged that the document bore his signature . Contrary to what he had previously maintained , he admitted that he had been part of the team that had searched the houses .", "At the material time this witness was governor of ORG . He said that registers were kept of detainees and visitors . The names PERSON , PERSON and PERSON sounded familiar but he was unable to give a more precise answer .", "The witness described the manner in which the registers were kept . They contained all the information on such aspects as the reason for the detention and the person or authority who had sent the detainee or convict to the prison . He pointed out that the registers did not include any information on detention in police custody .", "The witness stated that , following the incidents in Şırnak DATE , several detainees had been taken to ORG .", "At the material time this witness was head of the interrogation and intelligence squad at the anti - terrorist branch of the Şırnak police . He described his duties as being part of the team that arrested and interrogated persons suspected of terrorist activities .", "The witness stated that the “ DATE incidents ” had begun on TIME . Shots had been fired from all directions by heavy weapons . CARDINAL police officers , one of whom had been a member of the “ rapid intervention force ” ( çevik kuvvet ) , and CARDINAL members of the district gendarmerie had been killed .", "When asked for an explanation of the fact that , according to the registers , CARDINAL people had been taken into custody at the police headquarters ' detention centre in DATE , the witness explained that the DATE incidents had constituted extraordinary circumstances . He maintained that the detainees had been held in custody for TIME .", "The witness could not remember whether all those who had been arrested had been taken to the gendarmerie station or straight to the police headquarters . According to instructions , they should have been taken into custody at the gendarmerie station , but where CARDINAL or CARDINAL people were involved , they had been detained at the police headquarters . Doctors , nurses and a number of families had been accommodated in the basement of the police headquarters for their protection . He acknowledged that on DATE , CARDINAL people involved in the incidents had been taken away from the gendarmerie station . He was unable to say precisely where another group of CARDINAL people taken away DATE and a group of CARDINAL taken away on DATE had come from . The situation at the time had been chaotic .", "DATE . Despite what he had previously said , he admitted that in cases where CARDINAL people had been held in custody for DATE pending questioning , they had been detained in the large room . Such a situation had arisen twice in the course of his duties : that DATE and on DATE . He said that the cells , the large room , the interrogation room , the boiler room , the toilets and a small room with tea - making facilities had all been located in the basement .", "The witness admitted that he had taken part in the interrogations in connection with the investigation into the incidents of CARDINAL DATE . His squad had not kept records of when , or by whom , particular detainees had been questioned . The squad 's internal records included memoranda signed by the officer who had drafted them ; the memoranda had not been included in the official registers .", "The squad 's investigation had proceeded as follows : he and his colleagues had inspected the registers , and had not found PERSON name ; they had checked his criminal record ; they had then conducted inquiries as to which team had arrested him and the manner in which he had been arrested . However , their inquiries had been inconclusive .", "The witness said that he had not been at the police headquarters continuously . During his absence , the duty officer had looked after the registers . He considered it inconceivable that the name of a person taken into custody should not have been entered in the register ; the police officers concerned followed fairly rigorous written and oral instructions to that effect . The witness stated that a custody report was sent DATE to the head of the branch . He was unable to give a clear reply as to why the name of PERSON , who had been transferred to ORG , had not been listed in the custody register . However , the name seemed familiar to him .", "The witness said that he was unable to give a logical explanation as to the fact that CARDINAL people had maintained that they had seen PERSON in police custody , even though his name had not appeared in any register .", "The witness acknowledged that the checkpoint on the road from the mines was at the entrance to the town . Checks were carried out there by members of the “ rapid intervention force ” and the intelligence and anti - smuggling squads . When they made an arrest , they would take the suspects to the relevant branch of the police . The witness said that the officers in question also kept custody registers but that no cells were set aside for people detained in custody at their branch . With regard to the colour of their uniforms , he said that at the material time they had been green , but that they had subsequently been replaced by blue uniforms ; however , he was unable to give the precise date on which that change had taken place . He maintained that officers from the “ rapid intervention force ” used to take suspected terrorists to the police headquarters .", "The witness was deputy governor of the province of Şırnak at the material time . On behalf of the governor , he had chaired ORG , which on DATE had issued a decision not to prosecute the security police officers .", "CARDINAL", "DATE . The witness was a detective sergeant in the police 's investigation department , and was the investigating officer in the instant case . He acknowledged that the governor 's letter of CARDINAL DATE setting out the allegations made by PERSON and a member of ORG had been the main document relied on in the investigation . While conducting the investigation , he had had no knowledge of the complaint lodged by PERSON with the public prosecutor 's office on DATE , which mentioned the names of the people who had said that they had seen PERSON while in police custody . The witness said that he had not been informed that CARDINAL of the witnesses , PERSON , had previously told the PERSON provincial governor that he had seen PERSON while he had been detained in custody at the police headquarters . He acknowledged that if he had been given that information , he would have held a further hearing in order to clarify the facts , in view of the discrepancies between the various statements .", "The witness stated that , in letters sent to the Şırnak police on CARDINAL and DATE and DATE , he had requested a warrant to interview PERSON . According to a report drawn up by the Şırnak police and signed by CARDINAL officers , including PERSON and the local councillor PERSON , PERSON had moved to Silopi and the authorities had been unable to find his address . The investigating officer had not asked the other witnesses with the same surname whether they knew where PERSON now lived . The witness emphasised that he might have been assisted in his inquiries if he had been able to interview the complainant at the start of the investigation .", "The witness said that he had visited the scene of the incidents and had interviewed the witnesses in a room at Şırnak police headquarters . The local police had collected the witnesses from their homes and taken them to him ; they had given evidence on oath . He explained that he had not contacted the public prosecutor during the investigation , which he had carried out solely on the basis of the file which had been forwarded to him .", "The following witnesses were also summoned by ORG but did not appear : PERSON , the Şırnak public prosecutor , who issued the order of DATE ruling that he did not have jurisdiction ratione materiae ; and PERSON , PERSON and PERSON , who lived in the same district as the applicant and had told him that they had seen PERSON while they were in police custody .", "The Commission approached its task in the absence of any findings of fact made by domestic courts and of any thorough judicial examination or other independent investigation of the events in question . In so proceeding , it assessed the written and oral evidence before it , having regard , inter alia , to the conduct of the witnesses who were heard by the delegates at the hearing in GPE and to the need to take into account when reaching its conclusions the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact . Its findings may be summarised as follows .", "The Commission found that it was not disputed that clashes had taken place in Şırnak DATE . It noted in that connection that PERSON , head of the police anti - terrorist branch 's interrogation and intelligence squad , had stated that the incidents had begun on DATE . The evidence adduced from the documents and oral testimony was mostly consistent as regards the operations conducted in response to the incidents that had occurred during that period . After the incidents , the security forces – comprising police officers and gendarmes – carried out a search in the town , arresting CARDINAL people , including LOC , PERSON , PERSON , PERSON , PERSON , GPE Olcan , PERSON , PERSON and PERSON . Some of those arrested were taken to the gendarmerie station , while others were detained at the police headquarters . Identity checks were carried out at the entrance to the town , and persons suspected of terrorist acts were taken directly to the police headquarters by the “ rapid intervention force ” .", "As regards PERSON arrest , the ORG found that the oral evidence given to the delegates by PERSON was consistent with the applicant 's allegations . It noted in that connection that PERSON had confirmed that at the checkpoint police officers in blue uniforms had stopped the taxi in which he and the others had been sitting and , after checking their identity papers , had taken PERSON away with them . Having examined the investigation file and the oral testimony given by the investigating officer PERSON to its delegates , the Commission found that PERSON , in his statement of CARDINAL DATE to the investigating officer , had said that the police officers had returned the men 's identity papers after checking them and that PERSON had gone off to the shops . PERSON made a statement to the same effect on DATE .", "The Commission noted that it was clear from the documents in the file prepared by the investigating officer that PERSON , PERSON , PERSON and PERSON had been summoned by the police to Şırnak police headquarters and had made statements to the investigating officer in the presence of a police officer , who had taken down the statements in writing . In that connection , the Commission was struck by the fact that the statements by PERSON and PERSON were drafted in a stereotypical form and were generally very similar in content . It noted that the police officers interviewed by the delegates had stated that checks had been carried out by the security forces at the checkpoint , as PERSON had related . With regard to the colour of the police officers ' uniform , PERSON had stated that officers from the “ rapid intervention force ” had been posted at the checkpoint , and had emphasised that at the material time they had worn green uniforms . Without mentioning an exact date , he had added that those officers now wore blue uniforms .", "The Commission noted that the police officers who gave evidence to the delegates had acknowledged that , following incidents in which CARDINAL police officers and QUANTITY soldiers had been killed , several teams of security forces personnel had made arrests in the town . CARDINAL people had been taken into police custody , and the atmosphere had been chaotic . PERSON had stated that officers from the “ rapid intervention force ” carried out checks at the entrance to the town and did not take suspects directly to the police headquarters . He had added that separate registers were kept at the police headquarters . However , the Commission observed that later in his statement PERSON had admitted that people arrested during identity checks by the officers in question had been taken directly to the police headquarters .", "As for the way the custody registers were kept , they did not include PERSON name and PERSON was unable to offer any explanation as to why not . The Commission observed that that witness 's statements on the matter had lacked precision and clarity . It also noted that the Government had not produced copies of the registers kept by the squad and the regional gendarmerie , despite being expressly requested to do so .", "NORP PERSON had said that on DATE or DATE had been taken into the same detention room in which he himself was being held and that he had spent DATE in his company . PERSON had given a detailed description of the circumstances in which they had been held at the police headquarters and the conversation he had had with PERSON . The details given by PERSON – particularly the fact that the detainees had been blindfolded during their time in custody , and his account of the detention room and its location DATE were consistent with the version of the facts given by PERSON . Abdurrahim PERSON 's statement corroborated the evidence given to the delegates by the applicant and his son PERSON . ORG also noted that PERSON had emphasised that he had given evidence to the public prosecutor , to whom he had set out the same version of the facts as given to the delegates , and that he had signed his statement . It regretted that the statement had not been among the documents in the file prepared by the investigating officer .", "The Şırnak provincial governor at the material time , PERSON , had acknowledged in his oral statement that the applicant had come to see him several times with allegations that his son PERSON had disappeared after being taken into police custody , and that he had heard an eyewitness confirm that he had seen PERSON at the police headquarters . The Commission noted that PERSON statement , obtained by the investigating officer , contradicted the applicant 's version of events and the evidence he had given to the provincial governor . Pointing out that the governor , believing the eyewitness 's evidence to be sufficiently credible , had requested inquiries to be carried out into the matter , it favoured the version given to the delegates by the applicant and PERSON with regard to PERSON allegations . It concluded that the fact that PERSON name did not appear in the police headquarters ' custody register did not in itself prove that he had not been taken into police custody , and accepted the evidence given by PERSON , the applicant , PERSON , PERSON and PERSON , which the delegates had found to be credible and convincing .", "The Commission noted that a lawyer , PERSON , named as an eyewitness in the complaint lodged by the applicant with the Şırnak public prosecutor 's office on DATE , had stated in his oral testimony to the delegates that on CARDINAL or DATE PERSON had been brought into the room in which he himself was being held . PERSON had mentioned the names of several other people detained in the room . The names were listed in the custody registers kept by the anti - terrorist branch of the security police . PERSON had given a detailed description of the circumstances in which he and others had been arrested , and of the conditions during their time in custody . He had pointed out that , further to the criminal complaint lodged by PERSON , he himself had been interviewed by the ORG public prosecutor and , in his statement , had mentioned the names of some of those detained at the same location . With regard to the conditions in which they had been detained , he had given a detailed description of the treatment which they had allegedly suffered while being interrogated : they had been stripped , hung up , severely beaten and sprayed with cold water . He had stated that , on CARDINAL occasion , he and CARDINAL or CARDINAL other detainees had been taken to the “ torture room ” together . CARDINAL of them had been PERSON , who , like him , had been stripped and hung up . As far as PERSON could tell , his own ill - treatment had lasted for TIME , while PERSON had not been brought back until TIME . PERSON had made the following statement : “ When PERSON was brought back to the cell he was unable to speak ; he was dead – that is to say , he had become stiff . I am PERCENT certain that he was dead . TIME they dragged him out by the legs . CARDINAL of his shoes was left behind in the cell . We never saw him again . ”", "The Commission regretted that the Government had not produced the file of the investigation opened by the Şırnak public prosecutor 's office further to the applicant 's criminal complaint of CARDINAL DATE and that the public prosecutor PERSON had not appeared before the delegates . It was clear from the material in the file prepared by the investigating officer PERSON that the latter had not interviewed PERSON as an eyewitness .", "The Commission observed that all PERSON descriptions of where the detainees were held and interrogated corroborated the version given by PERSON , who had also admitted that there had been a chaotic atmosphere around the time of the incidents of DATE and that CARDINAL of people had been taken into police custody . The ORG further noted that when interviewed by the delegates the Şırnak provincial governor had acknowledged that he had met in his office persons who had alleged that they had seen PERSON while in police custody . In particular , he admitted that he had interviewed an eyewitness .", "The Commission noted that PERSON had given precise , detailed replies to all the questions put by the delegates and the representatives of the parties , particularly with regard to the ill - treatment suffered during the interrogation sessions , and that he had stated categorically on several occasions that PERSON had been dead when he was “ thrown ” into the cell . It accordingly found his statement that he had seen PERSON “ dead ” at the police headquarters to be plausible .", "The Commission noted that the applicant had made representations and put questions to the Şırnak public prosecutor and provincial governor in connection with PERSON disappearance . Regarding the independence of the bodies which , following the PERSON provincial governor 's written request of CARDINAL DATE to the national police headquarters , carried out the preliminary inquiries culminating in a decision not to prosecute , the ORG observed that they had comprised an investigating officer and members of ORG . The investigating officer had been a detective sergeant belonging to the same administrative hierarchy as the members of the security forces in respect of whom he was carrying out his investigation . ORG , which , on a proposal from the investigating officer , had decided to discontinue the proceedings , had been chaired by the deputy provincial governor and made up of senior provincial officials DATE that is to say , the directors or deputy directors of the central authorities ' various departments . The senior officials had been under the authority of the provincial governor , who had at the same time been liable , from a legal standpoint , for the acts committed by the security forces personnel implicated in the case . The detective sergeant appointed as investigating officer and the members of ORG had therefore not provided the outward signs of independence , the guarantees of irremoveability and the legal safeguards that might have protected them against pressure from their superiors .", "The Commission observed that the investigating officer had questioned CARDINAL witnesses in a room at Şırnak police headquarters . It noted in that connection that the local police had collected the witnesses from their homes and taken them to the police headquarters . In the statements thus obtained , the witnesses had completely denied the applicant 's allegations . ORG also found that the statements were drafted in a stereotypical form and were generally very similar in content . It noted that the investigating officer had not interviewed the applicant and observed in that connection that the police had drawn up a memorandum stating that PERSON had left his home and had probably gone to Silopi . It was clear from the facts that the eyewitnesses who might have been able to provide relevant information for the investigation had been referred to in the complaint which the applicant had lodged with the public prosecutor 's office on DATE . However , the administrative bodies responsible for the investigation had not made any request to interview those witnesses , even though the testimony of CARDINAL of them – PERSON – had been in complete contradiction to the statements he had made to the provincial governor , PERSON .", "The Government have not submitted in their memorial any details on domestic legal provisions which have a bearing on the circumstances of this case . The ORG accordingly refers to the overview of domestic law set out in other judgments , in particular the PERSON v. GPE judgment of CARDINAL DATE , Reports of Judgments and Decisions CARDINAL , pp . DATE , § § DATE ; the ORG v. GPE judgment of DATE , Reports CARDINAL-IV , pp . DATE , § § DATE ; and NORP v. GPE [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINAL .", "Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG . This confrontation has , according to the Government , claimed the lives of CARDINAL of civilians and members of the security forces .", "CARDINAL principal decrees relating to the south - eastern region have been made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - eastern GPE . Under LAW b ) and ( d ) of the decree , all security forces and ORG are at the disposal of the regional governor .", "The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of the regional governor , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW", "“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”", "Article CARDINAL § § CARDINAL and CARDINAL of LAW provides as follows :", "“ All acts or decisions of the administration are subject to judicial review ...", "...", "The administration shall be liable to make reparation for any damage caused by its own acts and measures . ”", "This provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose liability is of an absolute , objective nature , based on the theory of “ social risk ” . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .", "Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .", "The NORP Criminal Code makes it a criminal offence", "( a ) to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;", "( b ) to issue threats ( LAW ) ;", "( c ) to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) ; and", "( d ) to commit unintentional homicide ( Articles CARDINAL , CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) .", "For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution ( LAW . Complaints may be made in writing or orally . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .", "Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated for by the civil courts pursuant to LAW and awards may be made for non - pecuniary or moral damage under LAW .", "In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .", "NORP The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of the regional governor shall be subject , in respect of acts performed in the course of their duties , to LAW on the prosecution of civil servants . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non - jurisdiction and transfer the file to ORG . These councils are made up of civil servants , chaired by the governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .", "In his written submissions to the ORG , the applicant drew attention to international material on the issue of forced disappearances , such as", "( a ) LAW on ORG from Enforced Disappearance ( ORG res . CARDINAL/CARDINAL , DATE ) ;", "( b ) the case - law of ORG ( ORG ) ; and", "( c ) the case - law of ORG , in particular PERSON v. GPE judgment of DATE ( ORG . GPE . HR ( Ser . C ) no . CARDINAL ( DATE ) ) ; the GPE v. GPE judgment of DATE ( ORG . GPE . HR ( Ser . C ) no . CARDINAL ( DATE ) ) ; and the ORG - Delgado and PERSON v. GPE judgment of DATE ( ORG . GPE . HR ) ." ]

[ "2" ]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "The applicant had shared a flat with his parents since DATE . It measured QUANTITY m. and had been provided for them by the authorities under the NORP housing legislation . It was registered in the name of the applicant ’s father ( the tenant ) , who died in DATE . In DATE the applicant ’s wife moved in with the applicant . They had CARDINAL children , who were born in DATE and DATE .", "On DATE the then ORG ( ՀՀ գերագույն խորհուրդ ) adopted LAW of the State and ORG ( PERSON պետական և հանրային բնակարանային ֆոնդի սեփականաշնորհման մասին ՀՀ օրենք ) , which outlined the procedure for privatisation of ORG - owned housing .", "On DATE the applicant ’s mother filed an application with the then ORG of ORG of the Shahumyan District Council of GPE ( ORG քաղաքի ժողովրդական պատգամավորների Շահումյանի շրջանային խորհրդի գործադիր կոմիտե ) for a declaration that she was the tenant of the flat in question and an order for its privatisation . The relevant sections of this application were filled out in the following manner :", "“ CARDINAL . We , the adults having the right to accommodation , agree that : ( a ) the flat be privatised in the name of the tenant , [ the applicant ’s mother ’s name ] ...", "We , the adults having the right to accommodation , wish the flat to be privatised as ( underline as necessary ) : ( a ) a joint tenancy of all family members ; [ or ] ( b ) a tenancy in common of all family members . [ Note : none of these CARDINAL options was underlined . ]", "Written consent of the adults enjoying the right to the accommodation that is to be privatised : [ CARDINAL signatures , including those of the applicant , his mother and his wife ] .", "On DATE ORG decided to grant the application . This decision stated :", "“ In accordance with ORG of DATE ...", "ORG decides :", "To allow the tenancy card of [ the flat in question ] to be changed from [ the applicant ’s father ’s ] name to the name of his wife , [ the applicant ’s mother ] , and to privatise [ the flat ] ... ”", "On DATE the authorities furnished an ownership certificate ( no . CARDINAL – թիվ CARDINAL սեփականության վկայագիր ) , which indicated :", "“ The entire /share/ [ flat in question ] is owned by [ the applicant ’s mother ] . ”", "On DATE a general election to ORG was to be held to elect CARDINAL members for a term of DATE . Of these , CARDINAL seats were to be allocated by proportional representation ( համամասնական ընտրակարգ ) to candidates nominated on the party voting lists . The remaining CARDINAL members were to be elected by a single constituency vote ( մեծամասնական ընտրակարգ ) from single - mandate district constituencies .", "On DATE the applicant submitted the required documents , including a declaration of property ( սեփականության մասին հայտարարագիր ) , to ORG no . CARDINAL ( թիվ CARDINAL ընտրատարածքային ընտրական հանձնաժողով ) in order to be registered as a single constituency candidate for the relevant constituency .", "On DATE ORG registered the applicant as a single constituency candidate for constituency no . CARDINAL .", "On DATE ORG no . CARDINAL addressed a letter to ORG of ORG ( ՀՀ կառավարությանն առընթեր անշարժ գույքի կադաստրի պետական կոմիտե ) , inquiring about the property status of several candidates registered in its constituency , including the applicant .", "On DATE the ORG of GPE ( PERSON Մալաթիա-Սեբաստիա թաղապետարան ) issued an archival extract addressed to ORG of ORG of ORG , informing it that CARDINAL persons were registered and residing in the flat at the time it was privatised :", "“ CARDINAL . Sarukhanyan PERSON [ the applicant ’s father ] , who was born in CARDINAL ... ;", "Sarukhanyan PERSON [ the applicant ’s mother ] , who was born in DATE ;", "Sarukhanyan Gagik [ the applicant ] , who was born in DATE ;", "Sarukhanyan GPE [ the applicant ’s wife ] , who was born in DATE ;", "PERSON [ the applicant ’s older daughter ] , who was born in DATE ; [ and ]", "Sarukhanyan Tatevik [ the applicant ’s younger daughter ] , who was born in DATE . ”", "On DATE ORG issued a memorandum in reply to ORG inquiry stating that the flat was co - owned by CARDINAL people , including the applicant , on a joint tenancy .", "On DATE ORG held a meeting at which it decided to annul the registration of the applicant ’s candidacy with reference to LAW ) of LAW , since there was a discrepancy between the memorandum and the applicant ’s declaration of property , which contained no mention of the flat .", "The applicant contested the decision of CARDINAL DATE before ORG of GPE ( ORG քաղաքի ORG համայնքի առաջին ատյանի դատարան ) . In his application , he stated that he had not falsified any documents and had not , therefore , contravened Article CARDINAL § CARDINAL(CARDINAL ) . He explained that he had been living in the flat since DATE and that it had been privatised in his mother ’s name by the decision of ORG of ORG of GPE of DATE . According to the ownership certificate of DATE , the entire flat was owned solely by his mother . The memorandum of DATE contradicted those CARDINAL documents and did not correspond to the reality . There were not CARDINAL people in his family , since his father had died in DATE . He finally submitted that he had been unaware of these discrepancies and had filled out the declaration of property in reliance upon the official documents he had in his possession . ORG had wrongly equated the notions of falsification and inaccuracy .", "On DATE the Shengavit District Court of GPE dismissed the applicant ’s application . The judgment stated :", "“ The court , having heard the parties and having , [ namely ] the protocol decision ... of CARDINAL DATE of ORG no . CARDINAL , the declaration filled in on DATE by ORG concerning the property ( possessions ) of the citizen nominated as a parliamentary candidate in the single constituency vote to ORG and his and his family ’s income in DATE , the decision ... [ adopted ] on DATE by [ ORG of ORG of GPE ] , ownership certificate no . CARDINAL of DATE , the memorandum ... [ issued ] on DATE by the [ ORG ] , the memorandum ... [ issued ] on DATE by ORG of GPE , and the memorandum [ issued ] on DATE by ORG of ORG , finds that the applicant ’s claim is unfounded and must be rejected on the ground that ORG no . CARDINAL , in adopting the decision ... of CARDINAL DATE , was guided by the requirements of LAW ) of LAW , according to which the district election commission must annul the registration of a parliamentary candidate if it is disclosed following the registration that the documents submitted for registration have been falsified[. NORP particular , the applicant PERSON , by falsifying the declaration , concealed his right of joint tenancy in respect of [ the flat in question ] . ”", "The judgment further stated that , in accordance with LAW ( ՀՀ քաղաքացիական դատավարության օրենսգիրք ) , it was final and not subject to appeal .", "The relevant provisions of LAW , as in force at the material time , read as follows :", "“ CARDINAL . The parties have the right to ... [ inter alia ] appeal against judicial acts . ”", "“ CARDINAL . A court judgment in which a violation of a citizen ’s or party ’s ( union of parties ) electoral rights is found shall provide grounds ... for putting an end to ... [ the ] violations of the right to vote and to stand for election .", "NORP The court judgment shall become effective on the date of its delivery and shall not be subject to appeal . ”", "NORP The relevant provisions of LAW , as in force at the material time , read as follows :", "“ CARDINAL . ... [ T]he decisions , acts or omissions of an election commission ... may be appealed against to a higher election commission or to a court within DATE from the [ date of ] delivery of the decision , performance of the act or disclosure of the violation caused by the omission ...", "The decision [ ( որոշում ) ] of the first - instance court shall be final with the exception of disputes concerning the non - registration or the annulment of a registration of candidates for the [ presidential and parliamentary ] elections , including party electoral lists in the vote by proportional representation . In such disputes the court of appeal and ORG shall take a decision within DATE respectively . Court decisions concerning electoral disputes shall become effective from the moment of their delivery ... ”", "“ CARDINAL . The decision of ... a party and the application ( decision ) of an initiative group to nominate a parliamentary candidate to ORG in the single constituency vote shall contain the number of the constituency and the following information about the nominated candidate : ( CARDINAL ) surname , first name , patronym ; ( CARDINAL ) date of birth ; ( CARDINAL ) place of registration ; ( CARDINAL ) place of work and post ( occupation ) ; ( CARDINAL ) party affiliation ; ( CARDINAL ) declaration of his property ( possessions ) and of his and his family ’s income in DATE ; and ( CARDINAL ) passport number ... ”", "“ CARDINAL . Candidates to ORG nominated in the single constituency vote shall be registered by a decision of a district election commission .", "DATE before the election to ORG , the parties and initiative groups , shall submit the following [ documents ] for the purpose of registering candidates in the single constituency vote : ( CARDINAL ) CARDINAL signatures of voters residing in the constituency concerned , confirming with their signatures the nomination of the citizen ; ( CARDINAL ) the invoice for the election deposit in the amount of CARDINAL times the minimum wage ; ( CARDINAL ) a certificate of NORP nationality for DATE ; and ( CARDINAL ) a certificate of permanent residence in GPE for DATE ...", "...", "NORP The district election commission shall annul the registration of a parliamentary candidate , if it is disclosed following the registration that : ( CARDINAL ) restrictions provided by this LAW are applicable to the candidate ; and ( CARDINAL ) the documents submitted for registration have been falsified . The registration of a candidate shall be annulled by a decision ... of a district election commission ...", "...", "The decision of the district election commission ... annulling the registration of a parliamentary candidate may be contested before a court ... ”", "The relevant provisions of LAW ( ՀՀ քաղաքացիական օրենսգիրք ) read as follows :", "“ CARDINAL . A property owned by CARDINAL or more persons shall belong to them through the right of common ownership .", "A property in common ownership may be in shares divided between each of the owners ( tenancy in common ) or in undivided shares ( joint tenancy ) . ”", "The relevant provisions of LAW ( ՀՀ բնակարանային օրենսգիրք ) read as follows :", "“ Apartment buildings and accommodation in other constructions situated on the territory of GPE shall comprise the housing fund ... ”", "“ NORP citizens shall be entitled to receive accommodation in ORG or public housing fund houses ... through a prescribed procedure ... ”", "“ On the basis of the decision to allocate accommodation in a ORG or public housing fund property , the [ relevant ] executive committee shall provide the citizen with a certificate which shall serve as the sole basis for occupying the allocated accommodation ... ”", "“ Accommodation tenancy agreements in respect of ORG and public housing fund properties shall be concluded in writing , on the basis of the accommodation certificate , between the lessor , that is the organisation responsible for the maintenance of the building ... , and the tenant , that is the citizen in whose name the certificate has been issued ... ”", "“ Member of the tenant ’s family living with him or her shall jointly enjoy all the rights and bear all the obligations arising under the accommodation tenancy agreement ... ”", "“ Members of the tenant ’s family shall include his spouse , their children and their parents ... ”", "NORP The relevant provisions of LAW , as in force at the material time , read as follows :", "“ The privatisation of flats ( accommodation ) belonging to the ORG and public housing fund shall be effected on the basis of an application filed by the tenant with the executive body of deputies of the relevant city council , the governor or the mayor of GPE provided there is written consent from the adult family members sharing the accommodation ... ”", "“ The privatisation of housing fund flats shall , with the consent of the adult members of the tenant ’s family , be registered in the name of the tenant or any adult member of the tenant ’s family as a joint tenancy or as a tenancy in common of all family members .", "The members of the tenant ’s family living with him or her shall enjoy ... all the rights arising from the privatisation of the flat . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant is a NORP national . She was born in DATE and lives in GPE . She lodged the application on her own behalf and on behalf of her late husband , PERSON , who , she alleged , was killed by ORG security forces while in their custody .", "PERSON , the applicant 's husband , was arrested in GPE on DATE .", "On DATE the father of PERSON and father - in - law of the applicant lodged a criminal complaint with the public prosecutor at ORG against the village guards , GPE , GPE , GPE , and others whose identity he did not know , alleging that they had abducted his son on DATE . In his complaint he stated that his son 's life was in danger and that the persons named were responsible .", "On DATE the public prosecutor informed PERSON father that his son had been placed in custody at the ORG central gendarmerie station .", "On DATE the ORG public prosecutor informed the mayor of ORG that PERSON body had been found on DATE near the village of GPE ( ORG ) . He stated that forensic medical examiners had carried out an examination and an autopsy of the body . The public prosecutor also said that since the deceased 's relatives had not been in the vicinity , but in the neighbouring village of ORG , the body had been buried in their absence by ORG .", "NORP The applicant alleged that it was some time before she learnt of her husband 's death .", "On DATE PERSON was arrested by officers from ORG because of suspicious behaviour . During questioning he stated that he was a member of the ORG ( ORG of Kurdistan ) and offered to show the security forces CARDINAL of the organisation 's arms caches .", "On DATE he was transferred to the ORG provincial gendarmerie command for questioning .", "Lastly , and in connection with his statements concerning the location of the arms cache in question , he was handed over to a team from the ORG district gendarmerie on DATE to take them to the site in question .", "On DATE PERSON made a statement to the ORG gendarmerie .", "A visit was organised by the gendarmerie to the alleged site of the arms cache in question . On DATE PERSON , accompanied by CARDINAL gendarmes , arrived at the scene at TIME As he was approaching the arms cache , the gendarmes heard an explosion . PERSON was killed by the explosion of a booby - trapped grenade planted by the ORG . There were no other victims .", "In an order of CARDINAL DATE the ORG public prosecutor 's office found that PERSON had been killed following the explosion of a booby - trapped grenade planted by the ORG . It declared that it had no jurisdiction ratione materiae to examine the complaint lodged by PERSON father and decided to forward the investigation file concerning the village guards to the local administrative council of PERSON for examination under the PERSON on the Prosecution of Civil Servants .", "Those proceedings are still pending .", "On DATE the public prosecutor at ORG gave an order discontinuing the criminal proceedings against the applicant 's husband on the ground that he had since died .", "During the proceedings before the ORG and before the ORG the parties submitted a number of materials . Among other things , the ORG requested the ORG to provide it with a full copy of the investigation file on the incident during which PERSON had died , but the request remained unanswered . Neither did the ORG submit any document relating to any investigation commenced in order to identify and arrest PERSON presumed killers , who are allegedly members of the ORG .", "The documents of interest to the present case are the following .", "This document was provided by the Government , but the applicant disputed the authenticity of PERSON signature . She provided documents from DATE showing her husband 's signature and asserted that the difference was obvious . The relevant part of the transcript reads as follows :", "“ Question : Are you a member of a party , association or trade union carrying on legal or illegal activities ?", "Reply : I am not a member of any party , trade union or association , but I am a sympathiser of the ORG terrorist organisation . I have given the ORG financial assistance . I have worked within the ORG as a courier and guide and have supplied it with logistical support . I have collected sums of money in the villages and handed them over to the ORG .", "Question : What were your activities within the ORG ?", "Reply : ... We went to lay anti - personnel mines in the vicinity of this third bridge . ... I can show you the arms cache whenever you wish , near the fountain . ... I have had enough , I no longer want to engage in this type of activity and regret having taken part in these terrorist activities . Now I am thinking of my family and I want to cooperate with the ORG . I can show you the organisation 's arms cache ( weapons and mines ) . ”", "The Government provided a sketch map of the scene , which was drawn by the gendarmerie . According to the sketch map , at the time of the explosion PERSON was QUANTITY away from the arms cache , whereas CARDINAL of the gendarmes accompanying him were QUANTITY away and QUANTITY away , forming an isosceles triangle with the arms cache at the centre .", "NORP This report was drawn up by a general practitioner , PERSON . The relevant part of it reads as follows :", "“ Following a call from the gendarmerie command to inform us that an individual had died while showing gendarmes a site when mines booby - trapped by the ORG organisation were detonated , we [ the public prosecutor , the clerk of the court and the doctor ] went DATE at TIME to the garden of the district commissioner 's commandos unit where the corpse had been taken . We were unable to visit the scene of the incident because it was unsafe to do so . Since neither a forensic medical examiner nor a pathologist was present , we explained to PERSON what he had to do and he took the oath . ...", "We identified the deceased by means of the photo on his identity card . ...", "In the head area , the lower jaw had been entirely destroyed and the anterior part of the thorax and the organs of that area of the body had been completely destroyed . CARDINAL part of the left forearm had been amputated , probably due to an explosion at very close range . No trace of injuries inflicted by a firearm or a bladed weapon was found on the rest of the body . Since respiratory and circulatory deficiency due to injury from an explosion TIME had been established as the cause of death , a classic autopsy was not deemed necessary . ”", "This decision was given on CARDINAL DATE by the ORG public prosecutor 's office for the attention of the GPE ORG . It reads as follows :", "“ Public prosecution", "Intervener : PERSON [ applicant 's father - in - law ]", "Suspects : [ the CARDINAL village guards ]", "Crime : abduction and murder", "Date of crime : DATE", "Although the intervener alleged that his son had been abducted and killed by the suspects , it has been noted that the deceased , who belonged to the ORG organisation , had been arrested on DATE by the teams from ORG . After it had been established that he operated in the rural area , he was transferred on DATE to the provincial gendarmerie command and taken to the village of ORG by members of the ORG district gendarmerie command . As he was showing them the site of CARDINAL of the ORG 's arms caches , he was killed when a grenade booby - trapped by the ORG exploded . Those facts were communicated in the documents of the provincial gendarmerie command , dated DATE , and in the document of the ORG district gendarmerie command dated DATE . The facts were established from the above - mentioned documents and the contents of the file . Our public prosecutor 's office declares that it has no jurisdiction ratione materiae given that the accused are village guards and that an investigation into acts committed by them is governed by the provisions of DATE , paragraph ( i ) of Legislative Decree no . CARDINAL on the exercise of emergency powers . The public prosecutor 's office has decided to forward the investigation file to the GPE ORG which will examine it and do the necessary in accordance with the PERSON on the Prosecution of Civil Servants . ”", "The applicant made the following statement regarding the circumstances in which she was informed of her husband 's death :", "“ In so far as I remember , the ORG public prosecutor sent my husband 's death certificate to ORG where my father - in - law lives and our census records are kept . In that connection the ORG public prosecutor summoned my father - in - law to collect my husband 's death certificate . After collecting it , my father - in - law came to ORG . Together , we went to ORG where we first met the mayor in order to enquire as to the steps to be taken for the burial . He informed us that the disintegrated corpse had been retrieved at the site and buried as ordered . We asked him what had been done with my husband 's identity card , clothes and other personal effects . He replied that he had given them to the public prosecutor 's office and advised us to contact them .", "On DATE we went to the ORG public prosecutor 's office , but the public prosecutor was not there . We spoke to his deputy and asked him to open the grave so that we could see whether it was indeed my husband or not . He told us that he was not in a position to open the grave ; neither did he show us the photographs of my husband . We wanted him to give us the clothes , but an official from the ORG public prosecutor 's office told us that they had sent them to ORG with the death certificate . After ORG we went to the ORG public prosecutor 's office . We told them that we understood that the clothes had been sent there . They told us , however , that they had not retrieved them . We were unable to continue with our enquiries .", "I did not learn of my husband 's death until my father - in - law arrived in ORG after he had been summoned by the ORG public prosecutor on receipt of the death certificate from ORG . If I am not mistaken , I was therefore not informed until DATE .", "However , those who had arrested my husband knew our address well because it is written on the transcript of the statements bearing a signature which I believe to be forged since it is not that of my husband . At the material time we were renting a flat , where I am still living now . As my address was known I could easily have been informed of my husband 's death and requested to attend the autopsy . The fact that I was not summoned shows that certain things have been concealed and that my husband was indeed murdered . ... ”", "NORP In her letters of DATE and DATE to the ORG the applicant maintained that since notice of the application had been given to the ORG the security forces had been putting pressure on her and her husband 's family to withdraw her application . She stated that PERSON father and brother had been placed in police custody . In her letter of DATE , the applicant stated that her husband 's brother , Mr PERSON , had been placed in police custody again on DATE for the same reasons .", "The applicant produced a statement by her brother - in - law dated CARDINAL DATE . He said that he had been arrested by the security forces and that during his time in police custody he had been asked why the applicant had lodged an application against the ORG .", "The documents provided to the ORG ( arrest report and decision of ORG ) show that Mr PERSON was arrested on DATE and released on DATE . On DATE he was accused of having committed offences against the integrity of the ORG . In a decision of DATE , he was acquitted by ORG .", "The relevant elements of domestic law in this case can be summarised as follows .", "Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been reported to them are governed by ORG CARDINAL to CARDINAL of LAW . Any offence may be reported to the authorities or members of the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .", "A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .", "If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the course of his duties is liable to imprisonment .", "If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on ORG , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .", "An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .", "By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON also applies to members of the security forces under the governor 's authority ." ]

[ "2" ]

[]

[]

[]

[]

[]

[ "The applicant is an NORP national , born in DATE and living in PERSON . She is a civil servant in ORG Bundesministerium für Land- PERSON ) .", "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "From DATE onwards the applicant was the deputy head of the department for internal auditing ( PERSON ) in ORG . From DATE to CARDINAL DATE S. , the head of the department , was on temporary leave and seconded to ORG ( ORG ) . Initially , the applicant replaced him .", "On DATE the applicant filed a request with ORG for an extended extra duties allowance ( PERSON ) to compensate for her additional work load and responsibility as acting head of the department .", "On DATE PERSON was appointed as provisional head of the department for internal auditing . This appointment was made public in DATE .", "On DATE the responsible civil servant in ORG qualified the applicant ’s request as one for a simple extra duties allowance ( PERSON ) and transmitted this request for approval to ORG ( Bundeskanzleramt ) .", "On DATE ORG , in a summary decision ( Dienstrechtsmandat ) , granted the applicant a simple extra duties allowance for the period from DATE until DATE .", "On DATE the applicant filed objections ( PERSON ) against the summary decision . She submitted that PERSON , head of the department for external auditing , had been appointed as provisional head of the department for internal auditing on DATE . This appointment was only effective as of CARDINAL DATE . As she had not been officially removed from her position as acting head of the department , she continued to occupy that position after M ’s appointment . Consequently , she was entitled to an extended extra duties allowance after DATE . Though the calculation of the allowance had to be altered after PERSON had started to work on DATE , the allowance could not be cancelled completely . She requested the re - calculation of her \" simple extra duties allowance ( extended extra duties allowance ) \" .", "By letter of CARDINAL DATE ORG informed the applicant that it intended to grant her a simple extra duties allowance for the period from DATE until DATE . It stated that the appointment of M. as provisional head of the department for internal auditing was effective as of CARDINAL DATE . Therefore the applicant ’s function as acting head of the department had ended on DATE .", "On DATE the applicant commented on the ORG ’s letter of CARDINAL DATE . She repeated that she was still acting head of the department for internal auditing , contested that PERSON had been validly appointed and raised doubts about the compatibility of PERSON ’s functions . She claimed a simple extra duties allowance for the whole replacement period , namely from DATE until DATE .", "On DATE ORG granted the applicant a simple extra duties allowance for the period from DATE until DATE and dismissed her request for an allowance for the period from DATE until DATE . ORG found that the applicant had actually been in charge of the department as substitute to the head from DATE until DATE . For this period she was therefore entitled to a simple extra duties allowance .", "On DATE the applicant , represented by counsel , filed a complaint with ORG . She submitted that the former head of the department had decided to stay permanently with ORG . The post of the head of the department was therefore vacant . As she had never been removed from her functions as actual head of the department , and as someone was needed in the department who did not exercise any incompatible functions , she was still the provisional head of the department . Since only the abstract scope of her responsibilities was decisive for the allowance , she had a right to a simple extra duties allowance until DATE , on which date she had been seconded to ORG ) .", "On DATE ORG dismissed the complaint . Referring to the provisions of Section CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of LAW ( Gehaltsgesetz ) , it found that the only issue to be determined was whether or not the applicant had been entitled to a simple extra duties allowance . She had not complained to ORG that she had been entitled to an extended extra duties allowance and the case - file did not show that she had been entitled to such an allowance .", "B. Relevant domestic law", "Section CARDINAL a § § CARDINAL and CARDINAL of LAW ( Gehaltsgesetz ) , insofar as relevant , reads as follows :", "\" ( CARDINAL ) A civil servant is entitled to an extra duties allowance which has to be taken into account when assessing his pension claim , if he permanently ...", "has a considerable level of responsibility for the accomplishment of tasks of general administration and if this level of responsibility exceeds the one which is normally connected with a position in an equal grade .", "( CARDINAL ) If the civil servant does not permanently perform the duties mentioned in para . CARDINAL , but does so for DATE , he is entitled to an extra duties allowance , which shall not be taken into account when assessing his pension claim ... \"" ]

[]

[]

[]

[]

[]

[]

[ "The applicants are siblings . They were born in DATE and DATE respectively and live in ORG .", "On DATE the applicants claimed payment of an amount then equivalent to MONEY ( ORG ) from CARDINAL defendants before the ORG .", "On DATE the applicants informed the district court about their intention to withdraw their action and requested the district court to discontinue the proceedings . They did so after they had learned that it was impossible to verify a signature on a relevant document .", "On DATE the district court discontinued the proceedings and obliged the applicants to pay the court fees .", "On DATE ORG , upon the applicants ' appeal in respect of the court fees , upheld the first - instance decision . The proceedings finally ended on DATE .", "On DATE the applicants complained to ORG about the length of the proceedings before the district court . On DATE the Constitutional Court declared their complaint admissible .", "On DATE ORG dismissed the applicants ' complaint . It stated that it could examine complaints concerning length of proceedings only where the proceedings were still pending and the applicants had a genuine legal interest in their continuation . ORG held that there had been no legal uncertainty in the case following the applicants ' withdrawal of the action and therefore their lodging of the constitutional complaint had been formalistic and unfounded .", "Section CARDINAL ( CARDINAL ) provides that a constitutional complaint can be lodged within DATE from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given . As regards measures and other interferences , the above period commences when the complainant could have become aware of them .", "It has been the practice of ORG to entertain complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such complaints are lodged ( III . ÚS CARDINAL/CARDINAL ) .", "In CARDINAL judgments ( I. ÚS CARDINAL/CARDINAL , I. ÚS CARDINAL/CARDINAL ) submitted by the applicants , ORG , contrary to the above practice , examined alleged delays notwithstanding that the proceedings had ended prior to the filing of a constitutional complaint . ORG found a violation of the complainants ' right to a hearing within a reasonable time .", "ORG has held that the aim of the right to a hearing without unjustified delays is to eliminate legal uncertainty in which a person , who requests delivery of a decision by a ORG authority , is placed . Such legal certainty is normally brought about as a result of a final decision ( I. ÚS CARDINAL/CARDINAL ) .", "In a number of cases ORG held that a constitutional complaint was manifestly ill - founded where the impugned conduct of a public authority could not have violated the fundamental right as alleged by the plaintiff for lack of a causal link . Such was also the case where a procedural situation or the state of the proceedings before a public authority objectively excluded the possibility that such an authority ( ordinary court ) violates the afore - mentioned fundamental right ( PERSON . ÚS CARDINAL/CARDINAL , II . ÚS CARDINAL/CARDINAL , II . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL ) ." ]

[ "13", "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant , ORG , is a NORP citizen , born in DATE , and living in GPE ) . He is represented before the ORG by Mr M. Ziegler , a lawyer practising in GPE . The respondent Government are represented by their agent , PERSON , Head of ORG of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant worked as a sales representative for a fashion company . DATE he enabled a GPE supplier to transfer funds to GPE . The supplier eventually informed the applicant ’s superiors of the transfers , whereupon , on DATE , the company filed a criminal report ( PERSON ) against the applicant on account of disloyal business conduct ( ungetreue PERSON ) .", "On DATE ORG ( Verhöramt ) of ORG issued a warrant of arrest against the applicant . He was suspected in particular of having induced his company to purchase merchandise from the GPE supplier from which , in return , he had requested and obtained up to MONEY .", "On DATE the applicant was remanded in custody . According to the order of arrest , there was a danger that he would collude with other persons during the investigations .", "In the ensuing proceedings the applicant was represented by a lawyer , though he was not permitted freely to communicate with his lawyer until DATE . It furthermore appears that , after his arrest , his bank accounts were blocked .", "During the applicant ’s detention , he had the possibility of taking a DATE walk around the town of Schwyz . During this walk he had to wear handcuffs .", "On DATE the applicant was questioned by ORG in the presence of his lawyer . On DATE the applicant ’s lawyer transmitted via fax a complaint about the detention on remand to the President of ORG ( PERSON ) of ORG . On DATE the applicant ’s lawyer was informed in reply that a legal statement transmitted via fax lacked the necessary personal signature . The lawyer then forwarded a signed statement which reached the President on DATE . The latter fixed a hearing for DATE . Also on DATE the applicant filed a further complaint about the delay in fixing the hearing , as he had filed his complaint on DATE .", "On DATE the applicant was heard by ORG in the presence of his lawyer .", "On DATE the President of ORG heard the applicant , his lawyer and the investigating judge . The President also visited the applicant ’s prison cell . On DATE , the President dismissed the request of DATE , the decision being served on the applicant on DATE .", "In his decision the President found that the delay in dealing with the applicant ’s complaint resulted from the applicant ’s failure personally to sign that document . Insofar as the applicant complained that he was unable to consult the case - file , the President noted that the applicant had seen certain annexes to the criminal report of DATE ; TIME of the applicant ’s interrogations on DATE ; a letter of the GPE firm of DATE ; and part of TIME of the interrogation of a certain PERSON . NORP To the extent that the applicant criticised that he was not able freely to communicate with his lawyer and was denied free legal aid , the President found that pursuant to LAW ) the applicant should have filed a complaint with ORG and , subsequently , with ORG , rather than with its President .", "In his decision , the President then examined , and confirmed , that there was an urgent suspicion that the applicant had committed the offence at issue . Finally , the President dismissed the applicant ’s grievances about the conditions of imprisonment , namely the complaints that he lacked mineral water ; that the food consisted of too much meat ; and that there was insufficient light in the cell . To the extent that the applicant complained that upon his arrest he had not been able to consult a doctor about a suspected skin cancer , the President found that the applicant had meanwhile been examined by a prison doctor . The President also ordered that the applicant be issued a lamp and cleaning materials .", "On DATE the applicant filed a public law appeal ( staatsrechtliche Beschwerde ) with ORG ( PERSON ) .", "In his public law appeal the applicant complained , inter alia , of breaches of LAW and CARDINAL of the Convention . He submitted that the President of ORG had had the entire case - file at his disposal , whereas he had been refused access thereto . It did not suffice if , as the President stated , he , the applicant , had seen all relevant documents , since the President ’s decision could also have been influenced by other documents . For instance , his decision of DATE mentioned the date of the criminal report originally filed against him , a document which the applicant had never seen . The applicant further complained of the conditions of detention , namely in respect of the meals and of the doctor provided , who had been a general practitioner and not a skin cancer specialist .", "ORG transmitted the applicant ’s public law appeal for observations to ORG and ORG of ORG .", "On DATE the applicant filed a request for consultation of the case - file . The request was refused by ORG on DATE .", "Also on DATE , the President of ORG of ORG dismissed the applicant ’s further request for release from detention , though he ordered the prison administration to allow the applicant to take a DATE walk of TIME without handcuffs . The decision considered that having to take walks with handcuffs was unacceptable from the point of view of human dignity , and that there was no danger that the applicant would abscond .", "Another request filed by the applicant with ORG for consultation of the case - file was dismissed by that court on DATE , though the applicant was forwarded a copy of the observations of ORG and ORG .", "On DATE the applicant filed with ORG his reply to the observations of ORG and ORG , as well as further submissions . He complained , inter alia , that he had not been permitted to communicate with his lawyer until DATE ; that he had been refused an officially appointed lawyer ; and that , contrary to LAW , he had been publicly led around in handcuffs and had been chained publicly together with a suspected violent criminal .", "The applicant ’s public law appeal was dismissed by ORG on DATE , the decision being served on DATE", "In its decision , ORG found that ORG fulfilled the requirements under LAW . It held that ORG was independent in that it was not effectively supervised by ORG . Insofar as the President of ORG had only heard the applicant belatedly , on DATE , the court noted that the applicant was himself responsible for the delay as he had not personally signed his request . To the extent that the applicant complained about insufficient consultation of the case - file , the court considered that the applicant had been able to consult all documents upon which the decision of the President of ORG of DATE had been based .", "ORG furthermore considered that the applicant could no longer claim a practical interest in his complaint about the conditions of detention , as the latter had meanwhile been ameliorated . To the extent that he requested free legal aid and an officially appointed lawyer , the court considered that he was at most lacking funds temporarily .", "Meanwhile , the applicant ’s lawyer telephoned ORG about the applicant ’s continuing walks in handcuffs . On DATE ORG sent a fax to the prison administration according to which the “ applicant ’s lawyer had withdrawn his agreement to a walk in handcuffs outside the village , for which reason the operation is cancelled . The measures so far ordered for a walk without handcuffs shall apply again . ” By a letter of CARDINAL DATE , the applicant ’s lawyer pointed out to ORG that , when previously speaking with that ORG , he had in fact referred to the decision of the President of ORG DATE according to which there should no longer be any handcuffs . The lawyer requested compliance with this decision .", "Following further requests for release from detention , the applicant was released on DATE .", "The Code of Criminal Procedure of ORG lists in Section CARDINAL the grounds for detention on remand and in LAW provides , inter alia , that the investigating judge shall be competent to impose such detention . LAW envisages the possibility of a complaint in proceedings before ORG to ORG and subsequently to ORG , though this remedy does not apply if other remedies are available . In this respect , LAW provides for an appeal to the President of ORG against the warrant of arrest ; the conditions of detention ; and the refusal of release from detention .", "Section CARDINAL of LAW ( GPE ) of ORG provides that ORG of ORG shall elect the investigating judges , and LAW states that ORG shall supervise ORG . Section CARDINAL § CARDINAL states that ORG shall be competent for conducting the investigations . According to LAW , ORG will raise the charges at the trial before the court .", "According to ORG case - law , a complaint about unlawfulness of detention may no longer be filed after release from detention . However , subsequent complaints may be raised in an action for compensation before ORG ( see ORG fédéral [ ORG ] CARDINAL ORG ; CARDINAL Ia CARDINAL ; CARDINAL I a CARDINAL ) ." ]

[]

[]

[]

[]

[]

[]

[ "On DATE , the applicant pleaded guilty to manslaughter on the ground of diminished responsibility in respect of the death of his DATE landlady whom he had battered with an axe . He was sentenced to life imprisonment . The court acted on medical evidence that the applicant had a gross personality disorder to such a degree that he was amoral . The consultant psychiatrist said in his report at the trial that :", "“ ... although [ the applicant ’s ] instability might get DATE as he matured , should he be sent to prison , his eventual release should be approached with great caution . ”", "The applicant was initially sent to a Category A prison due to concerns about his dangerousness and risk of escape . He was involved in work to address his offending and other problems . He successfully completed an ORG in ORG in or DATE and his conduct was noted as significantly improving from that point . In DATE , he was transferred to a Category B prison .", "The applicant ’s tariff period of DATE expired on DATE ( this was the minimum period fixed by the Secretary of ORG concerning the requirements of retribution and deterrence ) . ORG in DATE agreed to the transfer of the applicant from a Category B to Category C prison . The Secretary of ORG deferred a decision until after the Discretionary Lifer Panel ( DLP ) of ORG had conducted a hearing on the matter under the new provisions of LAW DATE ( “ the DATE LAW ) .", "On DATE , after a hearing held pursuant to section CARDINAL of the CARDINAL Act , the ORG decided it would not be safe to release the applicant but recommended transfer to Category D ( open prison ) , or Category C with a review after DATE instead of the usual DATE . On DATE , the Secretary of ORG decided to transfer the applicant to Category C with a review after DATE .", "NORP In DATE , the applicant failed to obtain leave to apply for judicial review of the decision of the ORG and the decision of the Secretary of ORG . In DATE , ORG refused leave to apply for judicial review .", "Following a positive drugs test , the applicant agreed to follow and successfully completed in DATE a drugs awareness course .", "On DATE , the applicant ’s case came before another ORG . Reports noted that he had made considerable progress over DATE but would need phased re - introduction into society . A psychiatric report dated DATE stated that the applicant had much greater control over his behaviour , that personal and maturational developments had taken place and that he was not the same person that he was when he entered prison . It was concluded that the applicant , who had shown a reclusiveness and narrowness of interests , needed however to test and increase his social interaction in order to be able to cope with living outside prison . A psychiatric report issued about the same time stated that the applicant ’s personality , described as psychopathic , had shown some capacity for change and that , although he was not considered a serious risk to the public , any release on licence would have to be carefully planned , as problems were likely to arise following a long period of institutionalisation and a lack of family support . The ORG did not recommend release but transfer to a Category D prison . In paragraph CARDINAL of the decision letter the ORG said :", "“ The panel were satisfied that what was advanced at the hearing as ‘ exceptional ORG , namely a good release plan , the fact that [ the applicant is ] DATE beyond tariff , the fact that [ the applicant has ] completed a pre - release course in GPE , the fact that [ the applicant had ] previously been recommended for Category D status and the prospect of employment , did not amount to exceptional circumstances and that [ the applicant ’s ] release without progress through open conditions posed an unacceptable risk . ”", "On DATE , the Secretary of ORG rejected the recommendation of transfer to an open prison , but directed an early review of the applicant ’s case , namely after DATE had expired from DATE . The Secretary of ORG was not persuaded that the applicant ’s behavioural problems had been satisfactorily addressed while in closed conditions , nor that the benefits of open conditions were sufficiently worthwhile at that stage when balanced against the scale of the outstanding offence , related work needed in the applicant ’s case and his potential risk to the public .", "The applicant applied for leave to apply for judicial review of both decisions , alleging inter alia that the ORG had wrongly applied an “ exceptional circumstances ” test . Leave was refused on DATE .", "On DATE , the applicant re - applied for leave for judicial review . Mr Justice PERSON refused leave against the ORG ’s recommendation . He found that the ORG had correctly applied the statutory test concerning a risk to the public . He granted leave to apply in respect of the decision of the Secretary of ORG . Mr Justice PERSON stated :", "“ ... a prisoner who has spent TIME in custody should be tested in open conditions before being released into the community : satisfactory completion of such testing is an indication that a prisoner is able to cope with the stresses of life outside prison and is therefore a cogent factor to take into account against all the other available material in deciding whether or not a prisoner can safely be released . Such an approach is undoubtedly sensible …", "I think it is arguable that the Secretary of ORG ’s decision not to recategorise this applicant as a Category D prisoner was irrational and one that no reasonable Home Secretary could reasonably have reached . ”", "In the light of this grant of leave , at the end of the hearing , the Secretary of ORG indicated that he would reconsider his decision of DATE .", "On DATE , the Secretary of ORG informed the applicant that he had reconsidered the case but decided not to change his conclusion that the applicant should not be transferred to open conditions .", "On DATE , the ORG again considered the applicant ’s case . Reports continued to note his progress , including the expression of genuine remorse for his offending . It was considered in a case officer report dated DATE that he had taken advantage of treatment programmes and that all offending work had been completed . He had a “ settled and fulfilling release plan ” which involved him continuing the legal studies that he had commenced in prison and receiving support from a circle of friends that he had built up through contacts outside prison . Conversely , a psychiatric report dated DATE considered inter alia that the applicant might benefit from further work on developing methods of dealing with interpersonal difficulties and increasing relationship skills .", "NORP By letter dated DATE , the ORG declined to recommend release but did recommend transfer to a Category D ( open ) prison .", "“ CARDINAL . In reaching the decision that you are not yet suitable for release , the panel took into account the nature of the index offence , your violent disruptive early prison career ( while recognising also the absence of any violence since DATE ) , the fact that you are still seen as having a psychopathic personality … and the remaining areas of concern identified by [ PERSON , a higher psychologist ] … These areas of concern are egocentricity , a disregard for the points of view of other people and a limited ability to solve interpersonal frustrations and problems . The panel also considered that the sexual ambivalence referred to by [ Dr G ] merited further investigation , particularly in light of evidence that emerged at the panel hearing that you had been sexually abused in your youth . The panel also accepted [ PERSON ] evidence that a personality assessment was necessary to identify the manner in which the outstanding offence - related work should be carried out ; and that the reasons underlying the index offence still require further investigation . In all these circumstances , the panel considered that you still presented too great a risk to the public to justify your release .", "NORP Moreover , you have been in custody for DATE and although your release plan is being developed , it is not complete . At present you would have no fixed accommodation . Based on these factors and the impression the panel formed of you at the hearing , the panel considered that you would be unable to cope in the community , were you to be released directly or via a pre - release employment scheme .", "NORP The panel did recommend that you be transferred to open conditions . In coming to this conclusion , the panel took into account the length of time you have spent in custody , the opinion of the majority of the report writers and witnesses that the risk you present to the public could be safely managed in open conditions and the fact that the assessment and further work referred to above can be done in open conditions . The panel also took into account that [ Mrs B ] could not say within what period the assessment could be carried out , and the danger of counter - productive stagnation and frustration on your part should you have to spend a further protracted period in category ‘ C’ conditions .", "To allow time for assessment and the necessary offence - related work and for your gradual reintegration into the community , the panel considered that your next review should begin in DATE time . ”", "NORP By letter dated DATE , the Secretary of ORG rejected the ORG ’s recommendation . He stated that he accepted the psychologist ’s view that further work needed to be done in respect of the applicant ’s attitude to his original offence , his egocentricity , his intolerance of others , his inability to deal adequately with problems and his lack of responsibility for his actions . He agreed that a full personality assessment was required of the applicant who was still seen as having a psychopathic personality . The Secretary of ORG did not agree that these matters could be safely addressed in open prison conditions . He noted that the applicant had failed to attend further courses in anger management , social skills and communications , as arranged after the Secretary of ORG ’s decision of DATE . He also had regard to an intervening incident which had occurred on DATE when the applicant was being escorted to court by a female officer . After she had refused to allow him to smoke in the vehicle , he had slammed the van door against her , causing her to fall and hurt her arm . He had sworn at her , threatening to kill her , adding that he had already killed CARDINAL woman . The applicant was found guilty under LAW of assault and using threatening , abusive or insulting words . The Secretary of ORG considered that this disclosed impulsive violent behaviour towards a woman over a trivial incident , which had clear similarities with his original offence . He remained an unacceptable risk and was advised that until he co - operated with staff in addressing the areas of concern , the Secretary of ORG saw no justification in allowing him to progress further towards release . It was however agreed that his next review should take place in DATE .", "On DATE , the applicant ’s renewed application for leave to judicially review the ORG ’s decision of DATE , which had been dormant since DATE , was listed for hearing before ORG . The applicant ’s request to amend his grounds of application to add complaints about a lack of independence was refused . ORG rejected his application for leave to apply for judicial review .", "Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her Majesty ’s pleasure have a ‘ LOC set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change , most notably , following the coming into force on DATE of LAW DATE ( “ the DATE LAW ) , which was in force at the relevant time . The provisions of the DATE Act were replaced by ORG “ the DATE LAW ) from DATE .", "Pursuant to section DATE ( CARDINAL ) of the DATE Act , ORG had a duty to advise the Secretary of ORG with respect to any matter referred to it by him which was connected with the early release or recall of prisoners .", "ORG Chairman appointed CARDINAL members of ORG to consider discretionary life cases . They comprised the ORG . Pursuant to ORG DATE which came into force on DATE , a discretionary life prisoner was entitled to , amongst other things , an oral hearing , disclosure of evidence before ORG and legal representation . He was also entitled to call witnesses on his behalf and to cross - examine those who had written reports about him . A reasoned decision by the ORG was delivered within DATE of the hearing . Prior to DATE , the duty to release discretionary life prisoners was dealt with by LAW , which provided that where a discretionary life prisoner had served his tariff and ORG had directed his release , it was the duty of the Secretary of ORG to release him on licence .", "Section CARDINAL(CARDINAL ) of the DATE Act provided :", "“ The ORG shall not give a direction ... unless –", "( a ) NORP the Secretary of ORG has referred the prisoner ’s case to the ORG ;", "( b ) ORG is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined . ”", "When deciding on release or recall of prisoners , the ORG often gave guidance as to the timing of the next review . It normally recommended a further review in DATE but an earlier date could be given in an appropriate case , with reasons . Where no guidance was given , the Secretary of ORG decided the date of the next review . Where it became clear that the prisoner had made unexpectedly rapid progress prior to the set review date , the date of the review could be brought forward .", "A discretionary life prisoner may require the Secretary of ORG to refer his case to ORG , after the end of the period of DATE beginning with the disposal of a previous reference to ORG ( section CARDINAL ( CARDINAL ) ( b ) of the DATE Act , now LAW ( CARDINAL ) ( b ) of LAW ) . The Government stated that in practice it is not necessary to invoke this provision since , as a matter of policy , the Secretary of ORG refers each case back to the ORG for the second anniversary of the previous reference .", "Section CARDINAL of the CARDINAL Act has now been replaced , and largely reproduced , by LAW ." ]

[ "5" ]

[ "5-4" ]

[]

[]

[]

[]

[ "The applicant company , CARDINAL Hit FM ORG , is a limited liability company with its registered office in GPE . It was represented by Mr C. Ebert , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE ORG ( Regionalradio- und GPE , DATE “ the ORG ” ) decided to award a licence for a local radio station for the GPE no . CARDINAL area ( CARDINAL out of a total of CARDINAL licences for the GPE area ) under ORG ( Regionalradiogesetz – “ the RRBA ” ) . The licence was awarded to the applicant company , then called KCARDINAL Privatradio GmbH , and was issued for DATE , starting on DATE and terminating on DATE . At that time the applicant company was owned by CARDINAL shareholders , each owning PERCENT of the shares . At the same time the ORG dismissed applications for the same licence from CARDINAL competitors of the applicant company . This decision was served on all parties and contained the information that a complaint could be filed against the decision with ORG within DATE after the decision had been served .", "By DATE of the applicant company 's fellow applicants for the licence had filed complaints with ORG . They argued , inter alia , that the granting of the licence to the applicant company was in breach of LAW , and asked for a review of the provisions on the establishment of the ORG , arguing that those rules were unconstitutional . They also applied for their complaints to have suspensive effect", "On an unspecified date the applicant company , assisted by counsel , commented on the complaints and opposed the request for suspensive effect .", "On DATE ORG refused to grant suspensive effect .", "On DATE the applicant company started to broadcast its radio programmes .", "On an unspecified date ORG opened proceedings for review of the constitutionality of LAW RRBA .", "In DATE , following an amendment of the PERSON dated DATE , the applicant company 's licence was extended to a total duration of DATE , that is , until DATE .", "On DATE the ORG quashed section CARDINAL PERSON , on which the establishment of the ORG was based . It held that the ORG was a special type of administrative authority , namely one whose members included a judge , which rendered all its members independent and not subject to instructions ( weisungsfreie FAC richterlichem PERSON ) . Only in exceptional circumstances , in particular if the authority was an instance of appeal , could authorities of this kind be held to be constitutional . Since the ORG was the only instance to decide on the granting of the licence and no complaint to the administrative courts was allowed by the PERSON , there was insufficient review of the lawfulness of its decisions . Accordingly , section CARDINAL PERSON was unconstitutional .", "Subsequently , on DATE , ORG also quashed the ORG 's decision of DATE on the grounds that it had been rendered by an unconstitutional authority .", "In the meantime , on DATE , the PERSON had been amended and ORG ( Privatrundfunkbehörde – “ the ORG ” ) , a provisional authority set up to replace the ORG , was established .", "On DATE the ORG granted the applicant company a provisional licence for DATE , in order to give it the opportunity to continue broadcasting while fresh proceedings for the award of a broadcasting licence were conducted .", "The PERSON was replaced by the new LAW ( Privatradiogesetz – “ the PRA ” ) on DATE ; on DATE the LAW establishing the Communications Authority GPE ( PERSON – “ the LOC ” ) was adopted .", "On DATE ORG GPE ( GPE – “ the ORG ” ) , which had replaced the former ORG , granted the licence for a local radio station for the GPE no . CARDINAL area to company NORP and dismissed the licence applications of the other CARDINAL participants , including the applicant company . The ORG examined the company structure and proposed programme content of each of the participants . It found that company NORP provided a coherent package of radio programmes for an older audience , focusing on local news and Schlager music ( NORP - language easy - listening music ) . Since this age group was underrepresented in the current radio landscape the application was given precedence . The granting of the licence to this broadcaster was therefore in the interests of plurality of the media landscape .", "As regards the other applicants for the licence , the ORG noted that the shareholder structure of the applicant company had changed fundamentally since its first application for the radio broadcasting licence at issue , as it was now owned by CARDINAL company and CARDINAL foundation , both belonging to the PERSON media group . The PERSON media group , besides owning several print media , was a shareholder in companies holding radio broadcasting licences . The PERSON media group operated , under the name ORG , GPE 's first nationwide private radio station , consisting of CARDINAL local broadcasters and covering an area of CARDINAL inhabitants . As regards the GPE area , CARDINAL company belonging to that group already operated another radio station in GPE and it was not in the interests of plurality for the same area to be covered by CARDINAL radio broadcasting stations belonging to the same media group .", "In comparison to the applicant company , company NORP was more independent , because none of its shareholders was active in the radio or print industry in GPE and it could therefore better contribute to plurality of opinion . Furthermore , company NORP provided for a larger number of self - produced programmes , although it would have to purchase world news from another provider at the beginning . Although the applicant company produced its own news , it would still provide fewer self - produced programmes .", "The applicant company stopped broadcasting and operating DATE .", "On DATE the applicant company appealed . It argued that the authority had incorrectly calculated the percentage of its shares held directly and indirectly by the various companies belonging to the PERSON media group . It had also incorrectly applied the law because section CARDINAL(CARDINAL ) PRA , which stated that the authority should “ take into account whether CARDINAL of the applicants has already made use of the licence to be granted ” should have priority over any other criterion for granting a radio broadcasting licence . CARDINAL other unsuccessful applicants for the licence also appealed .", "On DATE ORG ( PERSON – “ the ORG ” ) dismissed all the appeals . It found that the ORG had described in detail the organisational set - up of the different applicants for the licence , their respective owners in the case of shareholder - owned companies and their previous experience in the field of broadcasting . The ORG had concluded that a group of participants including the applicant company met the basic professional , organisational and financial requirements of the PRA as regards their structure and the proposed programme content . Therefore the ORG had had to decide which participant out of this group was the best suited on the basis of the criteria set out under section CARDINAL PRA . This had been the CARDINAL which , within the licence area , would best fulfil the requirements of plurality of opinion through its range of programmes and which offered a greater number of self - produced programmes ( GPE ) . CARDINAL further element which had to be taken into account was whether an applicant for a licence had used a licence previously granted in accordance with the law . The ORG had taken this element sufficiently into account .", "On DATE the applicant company filed a complaint with ORG in which it complained about breaches of the principle of equality , of its right to peaceful enjoyment of its possessions and of its right to freedom of expression . It submitted in particular that the NORP authorities had grossly misinterpreted section CARDINAL(CARDINAL ) of the PRA as , in the applicant 's view , the fact that a company had already held a broadcasting licence should be taken as the decisive criterion when issuing a further licence .", "On DATE ORG dismissed the applicant company 's complaint and , ' at its request , transferred the case to ORG . It found , inter alia , that the criteria set forth in section CARDINAL of the PRA were sufficiently precise and therefore were not in contradiction with the principle of legality . Moreover , the decision taken by the authority had not been arbitrary . If the competent authority could only grant CARDINAL licence and therefore had to make a choice between several applicants , all of which satisfied the basic criteria , it had to explain in detail the reasons for its choice . The competent authority had done so properly and without making a mistake sufficiently serious to raise an issue under constitutional law ( ein in die GPE reichender PERSON ) .", "On DATE the applicant company supplemented its complaint to ORG .", "ORG dismissed the complaint on DATE . It held that section CARDINAL(CARDINAL ) of the PRA did not oblige the authority to grant the licence to the previous holder , but that the provision in question was just CARDINAL element amongst others in the decision - making process . The authority 's decision to put more emphasis on protecting diversity of opinion than on protecting the economic interests of previous licence holders was therefore in conformity with the law . In the interests of media diversity it was not in accordance with the aim and wording of the PRA , where there was a choice between several suitable applicants , for the licence to be awarded to CARDINAL which had already broadcast in the licence area as part of a media group ( GPE ) .", "Section CARDINAL of ORG , published in ORG ( ORG ) DATE ( GPE ) , in so far as relevant , reads as follows :", "“ ( CARDINAL ) ORG shall be established within ORG as a CARDINAL - member collegiate body comprising the members appointed in accordance with paragraph CARDINAL plus one judge . The members shall be experts in the field , with DATE proven experience in the media or administrative sectors .", "( CARDINAL ) In accordance with LAW , the members of ORG shall not be subject to any instructions or directions in the performance of their duties .", "( CARDINAL ) The members of the ORG appointed in accordance with paragraph CARDINAL , and the judge member , shall be appointed by the Federal President on a proposal from ORG . Their term of office shall be DATE .", "...", "( CARDINAL ) ORG shall rule at last instance . Its decisions may not be set aside or varied in administrative proceedings . ”", "Section CARDINAL of ORG was amended on DATE and ORG ( PERSON ) was established . This provision , in so far as relevant , reads as follows :", "“ ( CARDINAL ) ORG shall be established within ORG as a CARDINAL - member collegiate body comprising the members appointed in accordance with paragraph CARDINAL plus one judge . The members shall be experts in the field , with DATE proven experience in the media or administrative sectors .", "( CARDINAL ) In accordance with LAW , the members of ORG shall not be subject to any instructions or directions in the performance of their duties .", "( CARDINAL ) The members of ORG appointed in accordance with paragraph CARDINAL , and the judge member , shall be appointed by the Federal President on a proposal from ORG . Their term of office shall be DATE .", "...", "( CARDINAL ) ORG shall rule at last instance . Its decisions may not be set aside or varied in administrative proceedings . An appeal shall lie to ORG against the decisions of ORG . ”", "...", "Section CARDINAL of the Private Radio Act ( Privatradiogesetz ) , in so far as relevant , reads as follows :", "“ ( CARDINAL ) If several applicants meeting the legal requirements ( section CARDINAL ) and ( CARDINAL ) ) apply for a licence , the regulating authority shall give priority to the applicant who seems to be the best suited on the basis of the submitted documents and the results of the procedure to guarantee compliance with the objectives of this LAW , especially by guaranteeing that he / she will ensure greater plurality of opinion overall , and who can be expected to produce autonomous programmes which also take into account listeners ' interests in the transmission area or , in the case of special programmes , whose planned programme content can be expected , in the light of the existing overall range of programmes broadcast under this federal law , to render a special contribution to the plurality of opinion in the target area , and who can be expected to produce a range of programmes with the highest share of individually - produced contributions .", "( CARDINAL ) The ORG shall also take into account whether one of the applicants has already made use of the licence to be granted in accordance with the law . ”", "LAW establishing ORG GPE ( ORG ) and ORG ( ORG ) , published in ORG , reads , in so far as relevant , as follows :", "“ ( CARDINAL ) ORG GPE ( “ NORP ” ) shall be established with administrative responsibility for regulating the broadcasting sector .", "( CARDINAL ) ORG shall be established to oversee the regulation of the broadcasting sector and supervise the lawfulness of the activities of ORG .", "... ”", "“ ( CARDINAL ) The administrative responsibility referred to in LAW ) shall encompass the tasks entrusted to ORG on the basis of separate federal legislation , including :", "the award of broadcasting licences", "... ”", "“ ( CARDINAL ) KommAustria shall comprise the head of the ORG and as many staff members as are required .", "( CARDINAL ) The head of the ORG and his or her deputy shall be officially appointed following an open competition procedure in accordance with section CARDINAL of LAW DATE .", "( CARDINAL ) KommAustria shall come under the direct authority of the Federal Chancellor . It shall act as an independent authority in its dealings with third parties . All the ORG 's dealings shall be conducted under the name of ORG GPE ( “ NORP ” ) .", "( CARDINAL ) KommAustria shall have its headquarters in GPE . ”", "“ ( CARDINAL ) ORG shall be established within ORG to oversee the decisions of ORG and supervise the lawfulness of the activities of ORG .", "( CARDINAL ) ORG shall rule at last instance", "NORP on appeal against decisions of KommAustria , with the exception of appeals in criminal administrative proceedings", "...", "( CARDINAL ) The decisions of ORG may not be set aside or varied in administrative proceedings . An appeal shall lie to ORG against the decisions of ORG . ”", "“ ( CARDINAL ) ORG shall comprise CARDINAL members , CARDINAL of whom must be members of the judiciary . The members of ORG shall be independent in the exercise of their functions and shall not be subject to any instructions or directions . The Panel shall elect a ORG and Vice - Chair from among the members belonging to the judiciary .", "( CARDINAL ) NORP The members of ORG shall be appointed by ORG on a proposal from ORG for a term of office of DATE . A substitute member shall be appointed in respect of each member , to sit in his or her absence . ”", "...", "In a decision of DATE ORG examined the constitutionality of LAW of ORG DATE and held , in particular , as follows :", "“ The requirements of the constitutionally established rule of law are not satisfied where the acts of the administrative authorities are subject to the law but no review of the lawfulness of those acts is possible .", "It is therefore in breach of the LAW for the legislature to entrust to a single authority acting at first and last instance responsibility both for administrative management and for overseeing that management . The LAW requires the administrative authorities to be subordinated to the supreme administrative bodies . ORG does not satisfy that requirement .", "ORG responsibility for reviewing the decisions of the administrative authorities , entrusted to it by constitutional law , is thereby rendered meaningless . A regulation can be compatible with the LAW and in accordance with the principle of the rule of law only if ORG can conduct a comprehensive review of all ORG administrative acts .", "This is not the case in relation to ORG .", "From a rule - of - law perspective , the duty of the administrative authorities to comply strictly with the law within the meaning of LAW , and not just to respect fundamental rights , must be guaranteed .", "These considerations apply in any event to LAW in the version in force on DATE , the date of the impugned decision .", "The relevant provision of ORG is therefore unconstitutional and must be repealed . ”", "Article CARDINAL of LAW ( Bundes - Verfassungsgesetz ) , in so far as relevant , reads as follows :", "“ ( CARDINAL ) The Constitutional Court shall hear complaints against decisions of the administrative authorities , including those of independent administrative tribunals , where the applicant claims that the decision has infringed a right secured by the LAW or that his or her rights have been violated by the enforcement of a regulation contrary to the law , an LAW contrary to the LAW or an international treaty incompatible with NORP law . A complaint may only be lodged once all other remedies have been exhausted .", "( CARDINAL ) Up to the time of the hearing ORG may , by means of a decision , decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The ORG may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . ”", "Section CARDINAL(CARDINAL ) of LAW ( GPE - gesetz ) reads as follows :", "“ Appeals shall only lie under LAW once administrative remedies have been exhausted and within DATE of the decision taken at last instance being served on the plaintiff . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE he was arrested on suspicion of murdering his common - law wife .", "On DATE ORG ( Prokurator Rejonowy ) charged the applicant with homicide and remanded him in custody until DATE in connection with the investigation against him . The prosecutor considered that , given the serious nature of the offence in question , keeping the applicant in custody was necessary to ensure that the process of obtaining evidence followed its proper course . On DATE the prosecutor ordered an autopsy .", "On DATE the applicant appealed and requested his release .", "On DATE and DATE the prosecutor ordered expert opinions . On DATE the prosecutor ordered a reconstitution of the events which had taken place on DATE of the death .", "On DATE ORG PERSON ) dismissed the applicant ’s appeal of DATE . It found the same justification for the applicant ’s detention : the reasonable suspicion against him , the serious nature of the offence in question and the fear that the applicant might tamper with the evidence .", "On DATE the ORG prolonged the applicant ’s detention until DATE .", "On DATE ORG ordered that CARDINAL psychiatric reports be obtained in order to establish the applicant ’s criminal responsibility .", "On DATE and CARDINAL DATE the prosecutor ordered that CARDINAL other medical reports be obtained .", "On DATE ORG prolonged the applicant ’s detention on remand until DATE , relying on the existence of a reasonable suspicion that he had committed the offence in question . The court referred also to the fact that CARDINAL expert reports had to be prepared . They were submitted to the court on DATE and DATE .", "On DATE the applicant obtained access to the case - file .", "On DATE ORG submitted the bill of indictment to ORG . The prosecutor asked the court to hear evidence from CARDINAL witnesses .", "The trial court held hearings on DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE , as well as on DATE .", "On DATE the ORG gave judgment . The court convicted the applicant as charged , and sentenced him to CARDINAL years’ imprisonment .", "On DATE the applicant appealed .", "On DATE ORG ( Sąd Apelacyjny ) quashed the first - instance judgment and remitted the case for re - examination . It pointed out that the conviction was based on circumstantial evidence and that certain facts required further clarification .", "In the course of the retrial , ORG held hearings on DATE , DATE , DATE , DATE , DATE , CARDINAL May and DATE , as well as on DATE . The hearing scheduled for CARDINAL DATE was adjourned .", "At the hearings of DATE , DATE and CARDINAL DATE the applicant ’s counsel applied for his release , but to no avail .", "On DATE the court prolonged the applicant ’s detention until CARDINAL DATE . It made reference to the reasonableness of the suspicion that he had committed the offence in question . The court stressed the serious nature of that offence and the necessity to consider further evidence .", "On DATE the applicant ’s lawyer appealed against that decision . He contested the reasonableness of the charge against his client , maintaining that it was solely based on presumptive evidence . He also submitted that the applicant ’s prolonged detention no longer served the purpose of securing the proper course of the proceedings since all necessary evidence had been obtained by the courts .", "On DATE ORG dismissed both appeals . It pointed out that the principle referred to by the applicant , whereby detention exceeding DATE could be prolonged only by ORG , did not apply to his case . The court observed that that principle concerned only the proceedings before the trial court and it was no longer valid once that court had delivered its judgment , even if the judgment was subsequently quashed by the appellate court .", "On DATE the applicant appealed against this decision .", "On DATE ORG informed the applicant that no appeal lay against a decision given by an appellate court .", "On DATE ORG gave judgment . It again convicted the applicant of homicide and sentenced him to ten years’ imprisonment . The court deducted from the sentence the period spent by the applicant in detention .", "On CARDINAL DATE the applicant ’s lawyer appealed .", "On DATE ORG prolonged the applicant ’s detention on remand until DATE in view of the applicant ’s conviction and sentence DATE .", "On DATE the applicant challenged that decision before a court which did not have the necessary jurisdiction . Accordingly , on CARDINAL DATE the matter was transferred to ORG , which on DATE dismissed both of his appeals .", "On DATE the applicant ’s lawyer lodged a cassation appeal with ORG concerning the conviction and sentence .", "On DATE ORG dismissed that appeal .", "At the material time the rules governing detention on remand were contained in LAW of the Law of DATE “ Code of Criminal Procedure ” ( ORG postępowania karnego ) ( “ the Code ” ) entitled “ Preventive measures ” ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE . The Code listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .", "Article CARDINAL set out the general grounds justifying the imposition of preventive measures , as follows :", "“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”", "Article CARDINAL § CARDINAL defined the grounds for detention on remand . The relevant part of this provision , in the version applicable until DATE , provided as follows :", "“ CARDINAL . Detention on remand may be imposed if :", "( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when he has no fixed residence [ in GPE ] or his identity can not be established ; or", "( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ; or", "( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or", "( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society ... ”", "On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL § CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :", "“ ( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent abode [ in GPE ] ; or", "( CARDINAL ) [ as it stood before DATE ] . ”", "Paragraph CARDINAL of Article CARDINAL provided :", "“ If an accused has been charged with a serious offence or an intentional offence [ for the commission of which he may be ] liable to a sentence of a statutory maximum of CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE imprisonment , the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . ”", "The Code envisaged a margin of discretion in maintaining a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate .", "DATE . On DATE an amendment to LAW entered into force , according to which time - limits for detention on remand were introduced .", "From that date onwards , LAW read , in so far as relevant , as follows :", "” CARDINAL . The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning ordinary offences . In cases concerning serious offences this period may not exceed DATE .", "In particularly justified cases , ORG may , upon the request of the court competent to deal with the case ... prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time - limits referred to in paragraph CARDINAL . ”", "Article CARDINAL of the DATE Code provides , in so far as relevant :", "“ CARDINAL . The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed DATE .", "Detention on remand may be prolonged for a fixed period exceeding the periods provided for in DATE and QUANTITY only by ORG at the request of the court dealing with a case ... – if it is necessary because of the suspension of criminal proceedings , the prolonged psychiatric observation of an accused , the prolonged preparation of an expert opinion , the collection of evidence in a particularly complicated case or abroad , a delay in the proceedings caused by an accused , as well as other obstacles which could not be overcome . ”" ]

[ "5" ]

[ "5-3" ]

[]

[]

[]

[]

[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in Rovenky . ORG ( “ the Government ” ) were represented by their Agent , Mr GPE GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant had a quarrel with a certain PERSON , which led to a fight . On DATE the applicant complained to the police that P. had beaten her up . On DATE the latter lodged a similar complaint against the applicant . On DATE the Rovenky Town Police ( “ the Rovenky police ” ) refused to institute criminal proceedings against the applicant for lack of corpus delicti found in her actions .", "On DATE the Deputy Chief of the Rovenky police informed the applicant of the above ruling , but confused the case reference with the applicant 's own complaint . Therefore , being convinced that the police had refused to open criminal proceedings against P. , the applicant challenged it before ORG .", "On DATE the police joined the CARDINAL criminal claims for common investigation .", "On DATE ORG quashed the DATE ruling and remitted the case to the police , who in DATE questioned the witnesses to the events of DATE . On CARDINAL DATE it held a confrontation between the applicant and P. On DATE a forensic medical examination of P. was carried out , reaching the conclusion that she had sustained injuries of medium gravity in DATE .", "On DATE formal charges of deliberate infliction of medium bodily harm were brought against the applicant , who by now had legal representation . At the same time , she was placed under an undertaking not to abscond .", "On DATE and CARDINAL DATE she requested the investigator to carry out a reconstruction of the circumstances of the events and to arrange a confrontation with P. On DATE and CARDINAL DATE respectively her requests were rejected .", "On DATE the applicant 's lawyer requested that the investigations be stayed because of the applicant 's illness .", "On DATE the investigator ordered a medical examination of the applicant in connection with her allegation that she had been beaten up by P. He also reported to ORG that the applicant had refused to undergo this medical examination or to participate in any investigative activities , referring to her poor health .", "On DATE an on - site reconstruction of the events was carried out with the applicant 's participation . She requested the investigation not to carry out any further confrontations between her and P.", "On DATE the medical report was drawn up . It found that the applicant had sustained light bodily injuries possibly originating from her fight with P.", "On DATE the investigator decided to open a new investigation into the applicant 's allegation that she had been beaten up by P. , referring to the finding in the medical report .", "On DATE the NORP Region Deputy Prosecutor informed the applicant that disciplinary measures had been applied to the investigator in charge of the case for delays in its examination .", "On DATE the investigator issued a warrant for compulsory appearance of the applicant , as the latter had twice failed to answer the summonses without any valid reasons . The police officers reported that the applicant was not at her regular residence address .", "On DATE the investigator requested to be replaced , stating that he had been insulted by the applicant .", "On DATE the Rovenky police issued a ruling on refusal to open criminal investigations against P. on the basis of the applicant 's complaint of CARDINAL DATE .", "By a decision of DATE the investigation was stayed because of the applicant 's illness . On DATE ORG quashed this decision as not based on any documentary evidence .", "On DATE ORG ( “ the GPE ” ) rejected the investigator 's request to order the applicant 's detention pending trial .", "On DATE the applicant confirmed in writing that she would appear before the investigator on CARDINAL DATE .", "On DATE the investigation was stayed , the applicant 's whereabouts being unknown , but was resumed on DATE . On DATE the Rovenky police established a special investigation group , referring to a particular complexity of the case .", "On DATE the applicant was newly charged with deliberately inflicting medium bodily harm on P. On DATE a forensic psychiatric examination was scheduled , but the applicant failed to appear , referring to her health problems . The investigator therefore requested the court to order the applicant 's admission to a psychiatric hospital as an inpatient . On DATE the court dismissed the request as unsubstantiated .", "On DATE ORG approved a bill of indictment against the applicant and sent the case for trial to the court .", "On DATE the Rovenky court held a preliminary hearing .", "CARDINAL hearings followed , but there were CARDINAL adjournments for a total of DATE because of the applicant 's absence or because she had requested adjournments . CARDINAL of the hearings were adjourned for a total of DATE because of the witnesses ' or other participants ' failure to appear or following their requests for adjournment . CARDINAL hearings had to be adjourned for a total of DATE due to the prosecutor 's absence , on the court 's requests to the police for additional documents , and because of the judge 's illness .", "In DATE and DATE , DATE and DATE the court requested from the police ( apparently unsuccessfully ) the results of the examination of the applicant 's complaint against P. , which had been singled out in a separate investigation .", "On DATE the court ruled that the case should be returned to ORG for an additional investigation . The prosecutor and PERSON appealed .", "On DATE ORG allowed those appeals , finding that remittal of the case for additional investigation had not been justified , as the first - instance court could clarify the issues , which it believed remained unaddressed , in the course of the trial .", "In DATE the Rovenky court issued a ruling that the investigation into the applicant 's complaint against P. had been excessively lengthy . It also noted that the investigation officials had infringed the applicant 's rights as an accused , having unlawfully turned down her request to carry out the confrontation and other investigative acts , having unjustifiably requested her admission to a psychiatric hospital , and having committed some procedural errors . These findings were to be brought to the attention of ORG Chief so that adequate measures could be taken .", "In a judgment of DATE the court found the applicant guilty of deliberately inflicting medium bodily harm on P. It sentenced her to a fine of CARDINAL NORP hryvnias ( ORG ) and ordered her to pay ORG CARDINAL to P. in compensation for non - pecuniary damage .", "On CARDINAL and DATE and CARDINAL and DATE the applicant studied the case file .", "On DATE the court considered the applicant 's remarks on the record of the hearings and accepted most of them .", "The applicant , her lawyer and PERSON appealed against the judgment . On DATE ORG dismissed the appeals as unfounded .", "On DATE ORG rejected the applicant 's request for leave to appeal in cassation as unsubstantiated . However , on DATE , it reconsidered its decision and requested the criminal case file from the Rovenky court . On DATE it dismissed appeals in cassation by the applicant and her lawyer as unsubstantiated .", "The applicant made a new cassation appeal , which was found inadmissible by ORG on DATE .", "Pursuant to LAW , a victim of a criminal offence may lodge a civil claim either in the framework of criminal proceedings or under a separate civil procedure .", "Article CARDINAL concerning duration of pre - trial investigation is set out in the judgment of GPE v. GPE , no . CARDINAL , DATE .", "Provisions as regards the duties of witnesses during pre - trial investigation and trial are summarised in the case of GPE v. GPE , no . GPE , § DATE , DATE .", "Article CARDINAL concerning remittal of a case for additional investigation is set out in the judgment of DATE in the case of PERSON v. GPE , no . CARDINAL , § DATE , DATE ." ]

[]

[]

[]

[]

[]

[]

[ "NORP The applicant company , “ ORG . ” , is an NORP company , established by decision no . DATE of ORG on DATE , with the object of investing in the construction business .", "GPE sold the applicant company QUANTITY of land in a residential area in GPE by decision no . CARDINAL dated DATE .", "By decision no . CARDINAL of DATE , GPE granted the applicant company planning permission to build CARDINAL flats . A building permit was also required before the project could start , but the GPE failed to decide the matter for a considerable length of time , thus preventing the building works from getting under way .", "After the Municipality had refused to grant a building permit , the applicant company brought proceedings in LOC seeking compensation of CARDINAL leks ( ALL ) for its loss . Its claim was dismissed by judgment no . PERSON of DATE .", "On appeal , ORG quashed the first - instance judgment and ordered the GPE to pay the applicant ALL CARDINAL ( decision no . CARDINAL of DATE ) .", "In the absence of an appeal by the Municipality to ORG , ORG judgment became final and enforceable .", "On DATE the President of ORG , in a document addressed to the Municipality , stated that , after the entry into force of LAW , he no longer had the right to initiate a supervisory review of the legality of lower court decisions .", "On DATE the applicant company requested ORG to issue a warrant for the execution of the compensation award .", "On DATE ORG rejected a request by the Municipality to review the merits of decision no . DATE of DATE , there being no basis in either law or fact for it to do so .", "On DATE , in a document no . CARDINAL dated DATE , ORG notified the Municipality that it should execute the ORG decision by paying the applicant company ALL CARDINAL . However , the Municipality repeatedly refused to comply , arguing that it had no budget for the execution of judicial decisions .", "At the same time , ORG requested ORG of ORG ( the ultimate financial institution responsible for such payments ) to comply with the decision by providing the necessary funding ( Article CARDINAL , paragraph CARDINAL , of LAW ) .", "By documents nos . CARDINAL of DATE , ORG of DATE , and CARDINAL of DATE , ORG rejected the requests of ORG , arguing that either LAW was not applicable , or that central funding was not possible under LAW . It added that the GPE should contact the “ District of Tirana Branch of the ORG ” , specifying the fund from which the debt should be paid and the part of the GPE ’s budget to which it should be allocated .", "As the judgment was not executed , the applicant company brought proceedings in ORG , claiming that local governmental institutions were obliged to guarantee the enforcement of final judicial decisions , not to impede them .", "ORG rejected the applicant company ’s complaint , stating that the “ complaint [ could ] not be taken into consideration because the enforcement of court decisions is outside the jurisdiction of the Constitutional Court ” .", "NORP The relevant parts of the Albanian Constitution read as follows :", "“ In the protection of his constitutional and legal rights , freedoms and interests , or in defending a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”", "“ State bodies shall comply with judicial decisions . ”", "“ The Constitutional Court shall decide : ...", "( f ) in a ruling that shall be final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”", "“ State bodies shall comply with judicial decisions . ”", "According to LAW for damage caused by delay in the payment of a specific sum of money shall take the form of interest which shall accrue from DATE the debtor falls into arrears in the official currency of the country where payment is to be made . The rate of interest shall be prescribed by law . ”", "No legislation prescribing the statutory rate of interest has yet been passed .", "NORP The relevant part of this Instruction reads as follows :", "“ Payments deriving from judicial decisions relating to the normal activity of budgetary institutions shall be authorised by the Head of ORG . At the same time , where the damage for which the ORG is liable is the consequence of public officers acting ultra vires or failing to act in accordance with their powers , the Head of the Central Institution shall take administrative measures and institute civil proceedings against them according to the degree of their responsibility . ”", "The relevant part of the ORG provides :", "“ ORG , through funds allocated to it in the annual budget , shall comply with judicial decisions directly related to the ORG ’s budgetary obligations but not to the obligations of budgetary institutions . Such decisions shall include : ...", "( e ) Judicial decisions expressly determining the liability of the ORG for other reasons provided for by law . ”", "Article CARDINAL of LAW provides :", "“ Commercial companies registered before the entry into force of this LAW whose registered particulars and forms do not comply herewith shall re - register DATE after the entry into force of this LAW . Any such company that fails to request the re - registration or to present the requisite documents shall be automatically unregistered from that date on . They may apply for a DATE extension of time in which to comply with this obligation . Re - registered companies shall retain all the rights they enjoyed before re - registration . ”" ]

[ "6" ]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in GPE , GPE , and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , Attorney General .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a surgeon employed by the Government .", "An official advertisement for a post of consultant surgeon with an interest in vascular surgery in a public hospital was published in ORG of DATE .", "The applicant applied for the post , considering that he satisfied all the conditions laid down in the advertisement . The Government qualified this statement to read that the applicant satisfied the conditions necessary to apply for the post of consultant surgeon .", "According to paragraph CARDINAL ( c ) of the call for applications , applicants were required to have the following qualifications :", "“ be in possession of a recognised higher postgraduate qualification in surgery ( ORG or equivalent qualification recognised as such in ORG or the GPE ) and DATE post registration experience in vascular surgery of which DATE must be at Senior Registrar or Higher Surgical Trainee equivalent level . ”", "The applicant alleged that he was the only person eligible for the post but that other persons , not having the required qualifications , were interviewed . Eventually X , another surgeon , was appointed by the Prime Minister on the recommendations of ORG ( “ ORG ” ) . Under NORP law , this body is immune from legal proceedings .", "The Government contested the allegation that the other persons interviewed for the post did not possess the required qualifications . According to the Government , the applicant argued that the other candidates did not possess the experience required , since the period to be taken into consideration should have been calculated from the date when the candidates had officially been appointed to the post of Senior Registrar and not from a prior date when they had de facto started performing such duties .", "The Government explained that there were CARDINAL applicants for the said post . After having interviewed all the applicants , ORG ( appointed by the ORG ) , made up of CARDINAL senior members of the public medical service and a senior official from the management and personnel office , found that all the candidates interviewed possessed both the academic qualifications and the experience required . However , they found the applicant to be unsuitable for the post whilst finding the other CARDINAL candidates suitable . The ORG recommended the candidate with the highest mark as decided by ORG .", "On DATE , DATE after the said interview , the applicant complained about the decision and the composition of ORG to the ORG Chairman .", "On DATE the ORG informed the applicant that on examining the selection process , the eligibility of the applicants as determined by ORG had been correct and that none of his other allegations had been well - founded .", "On DATE the applicant reiterated his position to the ORG . On DATE the ORG informed the applicant that given that the selection process had been completed and the appointment made , representations to the ORG had to be made in accordance with the provisions of the PERSON ( “ code of management of the public service ” ) which provided for the right to file a petition with the Prime Minister ( “ TIME ” ) in respect of a selection process .", "On DATE the applicant petitioned the PM . This petition was suspended since in the meantime the applicant had lodged judicial proceedings and proceedings before ORG , which had the power to investigate allegations of corruption .", "On DATE the applicant lodged a judicial protest against the PM and the Chairman of the ORG .", "On DATE the applicant requested ORG ( FAC ) to issue an injunction against the above authorities to restrain them from proceeding with the appointment of the selected candidate . On DATE ORG refused this request .", "On DATE the applicant filed a claim with ORG ( FAC ) against the PM . He alleged a violation of LAW by reason of the fact that in selecting the candidates for the post of consultant surgeon , the PM had failed to adhere to the notice announcing the call for applications . The applicant furthermore considered that , in setting up the board for the interviews , there had been a breach of the PERSON rules , which regulated the civil service and the manner in which applicants to it were recruited .", "The applicant requested that the appointment of X be declared null and void and that his own application be considered the only CARDINAL valid for the post .", "The PM objected , stating that the applicant ’s action was incompatible with LAW , since the action was intended to inquire into the interpretation of a call for applications made by the ORG , whereas the conduct of the ORG in such matters could not be questioned .", "In a preliminary judgment of DATE ORG dismissed the TIME ’s objection and ordered that the case be continued . It observed that the ORG was not a defendant in the case and that it was too early to come to the conclusion that the applicant ’s claims might amount to an investigation into the actions of the ORG . The applicant should know that if his action pursued such a line it would be dismissed . However , it was still open to the applicant to prove his complaint without questioning the workings of the Commission .", "The applicant ’s action had rightly been introduced against the PM who was not obliged to act according to the recommendation made to him by the ORG . Moreover , when TIME was taking a decision relating to the appointment of a civil servant , he was not merely giving formal effect to the wishes of the ORG . Although ORG role was not to inquire whether TIME had acted or not on the recommendation , its task was to determine whether his actions were in conformity with the law .", "The Government challenged ORG preliminary judgment , before both ORG and ORG . On DATE the appeal to ORG was withdrawn by agreement of both parties . It was agreed that the merits of the appeal should be examined by ORG .", "In a judgment of DATE , ORG found against the applicant . It accepted the ORG ’s plea of immunity and dismissed the applicant ’s action .", "ORG held that the TIME ’s actions “ in many fields ” could be examined by the domestic tribunals . However , according to LAW case - law , when the PM was required to perform any function in accordance with the recommendation of any person or authority , judicial examination was excluded , unless there was an allegation of a violation of fundamental human rights .", "Furthermore , it resulted from LAW ) and ( CARDINAL ) of the LAW that when the PM was required to exercise any function after consultation with any person or authority , he was not obliged to follow the advice given to him , although when the functions were exercised on the recommendation of any person or authority , he should act in accordance with that recommendation . Therefore , when the ORG made a recommendation on an appointment to a post within the public service , TIME was bound to appoint the person indicated . What were referred to in the LAW as recommendations were in fact binding decisions and the only possibility enjoyed by the PM was to use his power to refer the recommendation back , once , for reconsideration .", "In the present case , the only allegation against the TIME was that he had acted in accordance with the decision of the ORG . In ORG opinion , the applicant was trying to circumvent LAW , which granted immunity to the ORG .", "Article CARDINAL ) of the LAW of GPE states :", "“ Subject to the provisions of this LAW , power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in any such offices shall vest in the Prime Minister , acting on the recommendation of ORG ... ”", "The functions of the TIME in this regard are regulated according to LAW , which , in so far as relevant , reads as follows :", "“ ( CARDINAL ) Where by LAW the Prime Minister is required to exercise any function on the recommendation of any person or authority he shall exercise that function in accordance with such recommendation :", "Provided that –", "( a ) before he acts in accordance therewith he may once refer that recommendation back for reconsideration by the person or authority concerned ; and", "( b ) if that person or authority , having reconsidered the original recommendation under the preceding paragraph , substitutes therefor a different recommendation , the provisions of this sub - article shall apply to that different recommendation as they apply to the original recommendation .", "( CARDINAL ) Where by this LAW the Prime Minister is required to perform any function after consultation with any person or authority , he shall not be obliged to perform that function in accordance with the advice of that person or authority .", "( CARDINAL ) Where by this LAW the Prime Minister is required to perform any function in accordance with the recommendation of , or after consultation with , any person or authority , the question whether he has in any case received , or acted in accordance with such recommendation or whether he has consulted with such person or authority shall not be inquired into in any court . ”", "The ORG is immune from proceedings regarding its functions pursuant to LAW . This provision reads as follows :", "“ The question whether -", "( a ) ORG has validly performed any function vested in it by or LAW ;", "( b ) any member of ORG or any public officer or other authority has validly performed any function delegated to such member , public officer or authority in pursuance of the provisions of subarticle ( CARDINAL ) of LAW ; or", "( c ) any member of ORG or any public officer or other authority has validly performed any other function in relation to the work of the ORG or in relation to any such function as is referred to in the preceding paragraph , shall not be inquired into in any court . ”", "In so far as relevant , LAW ( “ COCP ” ) relating to ORG , reads as follows :", "“ ( CARDINAL ) ORG as is otherwise provided by law , the courts of justice of civil jurisdiction may inquire into the validity of any administrative act or declare such act null , invalid or without effect only in the following cases :", "( a ) where the administrative act is in violation of the LAW ;", "( b ) when the administrative act is ultra vires on any of the following grounds :", "( i ) when such act emanates from a public authority that is not authorised to perform it ; or", "( ii ) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon ; or", "( iii ) when the administrative act constitutes an abuse of the public authority ’s power in that it is done for improper purposes or on the basis of irrelevant considerations ; or", "( iv ) when the administrative act is otherwise contrary to law . ”" ]

[]

[]

[]

[]

[]

[]

[ "On DATE the applicants executed a deed of sale and gift ( kupní a darovací smlouva ) under which ORG , as vendor , agreed to sell them a farmhouse in GPE and to transfer the adjoining agricultural land to them without consideration . At the time , the system for transferring agricultural holdings was by a sale of the house and gift of the adjoining land that was farmed by a socialist cooperative . The approval of the cooperative and the agreement of the competent national committee were required before the deed of sale and gift could be executed . Purchasers of land were required to give an undertaking that they would work for the cooperative .", "According to the applicants , PERSON wished to secure his release from his obligation to work for the socialist cooperative and could only do so by transferring the land . It was he who had proposed the arrangement , as he wanted to sort out his domestic affairs . Under the statutory provisions then in force , the applicants were obliged , as a condition for purchasing the house , to give an undertaking to work for the cooperative as a replacement for PERSON They paid him CARDINAL NORP korunas on top of the purchase price of the house , as compensation for the value of the transferred land .", "In DATE ORG signed a declaration that he had transferred the land of his own free will . In the applicants ' submission , that declaration constituted a rider to the deed confirming ORG 's consent .", "NORP However on DATE ORG brought a civil action against the applicants seeking , inter alia , rescission under section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL ) of the part of the agreement that concerned the transfer of the agricultural land .", "NORP In a judgment of DATE , ORG ( okresní soud ) found in favour of GPE , holding , inter alia :", "“ [ The applicants ] have invited the ORG to dismiss PERSON 's actions on the ground that he transferred his land of his own free will to sort out his domestic affairs and that in consideration [ for that transfer ] they had assumed his obligation to work for the agricultural cooperative . ...", "Section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL ) provides that if a landowner has donated land to a private individual under duress or transferred it without consideration under a contract for the sale of an adjoining building and at DATE this LAW entered into force the land was still in that person 's possession , the court shall , on application by a person with standing , either ( a ) order rescission of that part of the sale agreement by which the land was donated or transferred without consideration , or ( b ) order the current owner to reimburse the price of the land . ...", "The Court ... finds that the aforementioned conditions were satisfied in the present case and therefore finds in favour of [ ORG ] . It has been established that [ ORG ] is the person with standing within the meaning of PERSON no . CARDINAL/CARDINAL , that is to say the person who gave [ the applicants ] – the obligees within the meaning of that LAW – the agricultural land in connection with the sale of the building ... It has also been established that [ the applicants ] are currently in possession of the land . Consequently , the ORG ... rescinds the section of the deed of sale and gift executed by the parties on DATE that provides for the transfer of ownership of the land in question without consideration . ... It does not consider that the ' minuted rider to the deed ' dated DATE constitutes a valid rider to the deed of sale and gift . The statement in which [ ORG ] expressly confirmed that he had sold his immovable property voluntarily and at the agreed price has no ... value in law , as it was made before the amendment to the legislation on land law that enabled him to seek restitution was passed . In fact , [ ORG ] denies that he intended to sell the land [ to the applicants ] and the intentions of both parties are set out in the notary 's minutes ... The ORG finds that the [ applicants ' ] argument that a decision in favour of [ GPE ] would entail a violation of LAW is unfounded , as the latter was obliged to transfer ownership of the agricultural land used by the agricultural cooperative without consideration . ”", "In a judgment of CARDINAL DATE , the ORG Králové ORG ( krajský soud ) upheld ORG judgment rescinding the relevant part of the deed of sale and gift . It found that PERSON had given , and thus de facto transferred without consideration , the agricultural land to the applicants as part of the agreement for the sale of the adjoining house . ORG also noted that the terms “ donate ” and “ transfer without consideration ” were identical . At the same time , it dismissed an application by the applicants for leave to appeal on points of law ( dovolání ) , holding that the request for a ruling on the construction of the words “ transfer without consideration ” in section CARDINAL ) of LAW did not raise a question of crucial legal importance ( rozhodnutí po právní stránce zásadního významu ) .", "Article CARDINAL § CARDINAL of the Code of Civil Procedure provides that leave to appeal on points of law will be granted if the court hearing the appeal on points of law ( dovolací soud ) considers that the impugned decision gives rise to a question of crucial legal importance . In reliance on that provision , the applicants appealed to ORG on DATE , alleging that the ordinary courts had construed LAW erroneously by confusing CARDINAL incompatible concepts : “ donations ” and “ transfers without consideration ” .", "In a judgment of DATE , ORG ( PERSON ) refused the applicants leave to appeal on points of law , holding that ORG judgment did not give rise to a question of crucial legal importance . It noted that it had considered the question of the definition of the terms “ donations ” and “ transfers without consideration ” in a number of previous decisions in which it had construed the LAW as not requiring duress to have been used if the agricultural land had been transferred without consideration . ORG judgment was served on the applicants at the earliest on DATE .", "On DATE the applicants lodged a constitutional appeal ( ústavní stížnost ) in which they alleged that the domestic courts ' decisions had violated the constitutional guarantees embodied in Articles CARDINAL , QUANTITY of LAW ( Listina základních práv a svobod ) , namely equality of rights for citizens and protection of property . They also sought an order abrogating section CARDINAL(CARDINAL ) of LAW .", "On DATE ORG ( Ústavní soud ) declared their appeal inadmissible as being out of time . It held , inter alia :", "“ ORG considers that litigants are not entitled to bring proceedings in ORG that do not qualify for leave under the statutory rules or to make an application in such proceedings for an order quashing decisions of the ordinary courts , unless a refusal to hear [ the appeal on points of law ] would constitute a denial of justice and , consequently , a breach of the right to a fair trial . The [ ORG ] judgment does not constitute a decision on the final statutory remedy for the protection of rights ... The constitutional appeal could only be brought against the appeal court 's decision , which became enforceable on DATE . Since it was not lodged until DATE , it fails to satisfy the condition set out in section CARDINAL ) of LAW . For this reason , ORG has no alternative but to declare the appeal inadmissible , as it was lodged after the expiry of the statutory time - limit . ”", "Article CARDINAL of the LAW of GPE ( as worded at the material time ) provided that treaties on human rights and fundamental freedoms that had been ratified and promulgated and were binding on GPE had immediate mandatory effect and prevailed over statute .", "Article QUANTITY provide , inter alia , that everyone has the right to property . It is for the legislature to identify property that is necessary for society 's needs , the development of the national economy or the public interest that may be owned only by the ORG , local authorities or such legal entities as the legislature may designate . It may also provide that certain property may be owned solely by citizens or legal entities domiciled in the NORP and GPE . LAW prohibits any abuse of property that infringes the rights of others or conflicts with the general interest protected by law . The right to property must not be exercised in such a way as to cause an unlawful interference with human health , nature or the environment .", "Article CARDINAL § CARDINAL of the Charter on Fundamental Rights and Freedoms provides that everyone has the right to seek justice under a set procedure from an independent and impartial court , or in specified cases , another authority .", "Article CARDINAL § CARDINAL lays down that an appeal on points of law ( dovolání ) shall lie only against decisions ( rozhodnutí ) that have become enforceable , and solely as provided by law .", "Article CARDINAL § CARDINAL provides that an appeal court that has upheld a decision of the court below must grant leave to appeal on points of law if it considers that its decision gives rise to a question of crucial legal importance justifying such leave ( rozhodnutí po právní stránce zásadního významu ) . It may grant such leave on its own initiative .", "Article CARDINAL § CARDINAL provides that if an appeal court refuses to grant an application for leave to appeal on points of law made by CARDINAL of the parties before the decision upholding the decision at first instance was adopted , leave may only be obtained if ORG itself considers that the appeal court 's decision gives rise to a question of crucial legal importance .", "Section CARDINAL(CARDINAL ) provides that anyone claiming to be a victim of a violation by a “ public authority ” of a fundamental right or freedom recognised in a constitutional law or international treaty within the meaning of LAW shall have standing to bring a constitutional appeal .", "Under section CARDINAL(CARDINAL ) , constitutional appeals must be lodged within DATE after the appellant has been served with the decision on the final statutory remedy available for the protection of his or her rights .", "Section CARDINAL(CARDINAL ) provides that a constitutional appeal shall be inadmissible if the appellant has not used all available statutory remedies , other than an application to reopen proceedings . Section CARDINAL(CARDINAL)(a ) gives ORG a discretion not to declare a constitutional appeal inadmissible for failure to exhaust statutory remedies if the issue at stake goes significantly beyond the appellant 's personal interest and the appeal was lodged within DATE after the impugned decision or event .", "Section CARDINAL(CARDINAL ) ( formerly section ORG ) ) confers on a person who has donated land to a private individual under duress or transferred it without consideration under a contract for the sale of an adjoining building the right ( provided that at the date the LAW came into force the land was still in that person 's possession ) to apply to the court , which must either ( a ) order rescission of the part of the contract by which the land was donated or transferred without consideration to a private individual , or ( b ) order the owner ( or his or her estate ) to pay the value of the land thus acquired , such value to be assessed by reference to the price regulations in force at DATE .", "If the owner of the land does not agree to pay the price in accordance with ( b ) above , the court will order rescission of the agreement in accordance with ( a ) .", "In its decision no . I ÚS CARDINAL/CARDINAL of CARDINAL DATE , ORG considered , inter alia , the question of the admissibility of a constitutional appeal that had been lodged outside the statutory time - limit in a case in which the appellant was not sure whether he would be granted leave to appeal on points of law . ORG held that when an appellant decides to appeal on points of law against a decision of the appeal court in circumstances in which it is unclear whether leave to appeal will be granted , he must lodge a constitutional appeal at the same time , in order to ensure that it is brought within the statutory time - limit .", "In its decision no . CARDINAL of CARDINAL DATE , ORG dismissed an application by CARDINAL members of ORG for an order abrogating section CARDINAL(CARDINAL ) of LAW . In its reasons , it stated that section CARDINAL(CARDINAL ) allowed private individuals ' land to be expropriated lawfully and restrictions to be imposed on the manner in which they exercised their right of property without payment of compensation , adding that the rule applied not only to rights of property that had been acquired by taking advantage of the socialist system but also to those acquired in good faith . It noted the legitimate aim pursued by LAW and the priority given to restoring land to original owners who had been deprived of it without compensation DATE . In the circumstances , it was both feasible and fair to ask those who had received property without consideration to return it without compensation to the original owner , who had been forced to donate it to them .", "In its decision no . PERSON of DATE , ORG said that notwithstanding the fact that appeals on points of law had no suspensive effect and did not affect the enforceability of appeal court decisions , the initial target of a constitutional appeal had to be ORG decision . If the constitutional appeal was directed only against the appeal court 's judgment , ORG decision would remain valid , so that the principle of legal certainty would be violated in the event of a conflict .", "In its decision no . I ÚS CARDINAL/CARDINAL of DATE , ORG said that if an appellant was unsure whether an application he had just lodged for leave to appeal on points of law would be granted , then , in order to avoid being out of time with his constitutional appeal , he should lodge it at the same time , without waiting for the decision on the application for leave , since , if leave was refused , the final decision in his case would be the appeal court decision .", "In its decision no . II ÚS CARDINAL/CARDINAL of DATE , ORG held that an appellant whose application for leave to appeal on points of law has been dismissed by the appeal court is nevertheless entitled to apply for leave to ORG under Article CARDINAL § CARDINAL of the Code of Civil Procedure . Unless he does so , he will not have exhausted the statutory remedies provided to protect his rights .", "In its decision no . III ÚS CARDINAL/CARDINAL of DATE , ORG found , inter alia , that , even though the applicants had been refused leave to appeal on points of law by the appeal court , they were still entitled to seek leave under LAW , as they satisfied the necessary conditions . Since they had not made use of that available remedy , their constitutional appeal could not be declared admissible .", "In its decision no . IV ÚS CARDINAL/CARDINAL of DATE , ORG declared a constitutional appeal inadmissible for failure to exhaust statutory remedies , on the ground that the appellant had failed to exercise his right to lodge an appeal on points of law under LAW .", "In its reasoning in decision no . III ÚS DATE of DATE , ORG stated , inter alia , that if a party to the proceedings is refused leave by the appeal court to appeal on points of law , he must apply to ORG for leave under LAW , otherwise his constitutional appeal will be inadmissible .", "Decision no . IV ÚS DATE , which was adopted after the entry into force of an amendment to LAW on DATE extending the right of appeal on points of law , makes it clear that an appellant may only be regarded as having exhausted available statutory remedies once ORG has delivered its decision . Any other solution would give rise to an undesirable situation with the coexistence of CARDINAL sets proceedings . In such cases , time for lodging a constitutional appeal will , therefore , only start to run after ORG decision has been served on the appellant .", "In its decision no . III ÚS CARDINAL/CARDINAL of DATE , ORG declared a constitutional appeal inadmissible on the ground that if a party 's application to the appeal court for leave to appeal on points of law was dismissed , he would still be regarded as having failed to exhaust statutory remedies unless he applied to ORG for leave , despite the fact that it was his application to the appeal court that had made the application to ORG necessary .", "Furthermore , applications nos . CARDINAL/CARDINAL and ORG ( PERSON , GPE v. GPE and PERSON v. GPE , respectively ) , which have been lodged with the ORG and communicated to the respondent Government , show that the effectiveness of lodging an appeal on points of law simultaneously with a constitutional appeal may prove to be purely theoretical . In these cases , the applicants lodged both forms of appeal at the same time , but their constitutional appeals were declared inadmissible for failure to exhaust domestic remedies , as their appeals to ORG . They subsequently lodged fresh appeals with ORG , once ORG had refused them leave to appeal . However , their constitutional appeals were again declared inadmissible , this time on the ground that they were out of time ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the Brzeg ORG ( Sąd Rejonowy ) issued a “ wanted ” notice in respect of the applicant and several other men in connection with an investigation into allegations made by CARDINAL women , some of whom were minors , that a group of several men had raped them , threatened them , beaten them and forced them to take drugs . The warrant for arrest was issued after the prosecution service had established that the applicant had gone into hiding and the police had unsuccessfully attempted to arrest him .", "On DATE the police attempted to arrest the applicant . However he managed to escape trying in the process to run over police officers while driving away . CARDINAL other men sought under the arrest warrant issued in connection with the same investigation were apprehended and arrested .", "On DATE the applicant was arrested by the police . At the time of arrest he was in possession of a firearm and a forged identification document . On CARDINAL DATE the Opole ORG ordered that the applicant be remanded in custody in view of the reasonable suspicion that he had committed the following offences : repeated group rape with aggravated cruelty while acting in an organised criminal gang ; leading an organised gang ; supplying minor victims with drugs ; forging an identification document ; and destroying a police car . The court also found that , given that he had absconded in the past , there was a risk that the applicant might go into hiding again and try to influence the victims .", "The applicant appealed against the decision ordering his detention on remand but his appeal was dismissed on DATE by the Opole ORG ( PERSON ) .", "On DATE the ORG prolonged the applicant 's detention relying on the reasonable suspicion of his having committed the offences and on the complexity of the investigation which had not yet been terminated by the prosecutor .", "On DATE the court decided that the applicant 's detention should be prolonged . It considered that , in addition to the strong suspicion against the applicant , the severity of the sentence that might be imposed and the risk of his tampering with evidence and influencing witnesses justified holding him in custody . In addition , the court relied on the risk that , given that he had absconded in the past , he might go into hiding again . The court also observed that only detention on remand would secure the applicant 's appearance at the trial .", "On DATE the applicant was indicted before the Opole ORG . It appears that the first hearing was held on DATE . In DATE the trial court held in total CARDINAL hearings .", "Subsequently , the applicant 's detention was prolonged by decisions of CARDINAL June and CARDINAL DATE and DATE . The decisions were based on the reasons given for his detention on previous occasions .", "Afterwards , as the length of the applicant 's detention had reached the statutory timelimit of DATE laid down in LAW of LAW ( Kodeks postępowania karnego ) , ORG applied to ORG ( Sąd Apelacyjny ) asking for the applicant 's detention to be prolonged beyond that term . On DATE ORG allowed the application and prolonged his pretrial detention . ORG based its decision on the reasonable suspicion that the applicant had committed serious offences and on the risk that he might interfere with the course of justice . The court further considered that the complexity of the case constituted a special circumstance justifying his remaining in custody .", "On DATE ORG again decided to prolong the pre - trial detention of the applicant , finding that the initial reasons for the detention were still valid . Furthermore , the court examined the course of the proceedings before the Opole ORG and agreed that the case was particularly complex and time - consuming , given the number of accused and the considerable amount of evidence which had to be examined . It considered that the trial court had acted diligently as it had taken evidence from CARDINAL witnesses during the last QUANTITY hearings .", "On DATE the Court of Appeal prolonged the applicant 's detention until DATE", "Nevertheless , the trial court again applied to prolong the applicant 's detention . On DATE ORG granted the application . However , it criticised ORG for the delay in the case and requested the trial court “ to take adequate and more intensive action to finish the trial ” . The court further took into account that the accused were partly responsible for the length of the proceedings because they had lodged vexatious applications for new evidence to be heard and had not complied with time - limits for filing new submissions .", "The applicant 's numerous applications for release and appeals against decisions prolonging his detention were to no avail .", "The Opole Regional Court held CARDINAL hearings in DATE and CARDINAL hearings in DATE . On DATE the ORG gave a judgment in which it found the applicant guilty of several counts of repeated group rape with aggravated cruelty and false imprisonment committed while acting in an organised criminal gang . The applicant was also convicted of administering an unknown psychotropic substance to some of the victims and use of a forged identity document . The court acquitted the applicant of being the leader of the organised criminal gang . The applicant was sentenced to DATE imprisonment . The applicant and other coaccused appealed .", "On DATE ORG gave a judgment . It amended the first - instance judgment with respect to the applicant reducing his prison sentence to DATE . The applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) .", "On DATE ORG dismissed the cassation appeal as manifestly ill - founded .", "NORP 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 , socalled “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ." ]

[]

[]

[]

[ "5" ]

[ "5-3" ]

[]

[ "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 ORG ( Peto opštinsko javno tužilastvo ) in GPE filed a request for the opening of a judicial investigation ( zahtev za sprovođenje istrage ) against the applicant , alleging that he had committed numerous offences of theft under LAW .", "On DATE the investigating judge of ORG in GPE ( PERSON opštinski sud u ORG , hereinafter “ the ORG ” ) instituted a judicial investigation ( doneo rešenje o sprovođenju istrage ) in respect of these charges .", "On DATE the same court ’s investigating judge found that the applicant ’s whereabouts were unknown and issued a warrant , ordering his detention for a period of DATE .", "On DATE ORG , acting ex officio , appointed a lawyer to represent the applicant in the proceedings .", "On DATE , at TIME , the applicant was arrested by the police and taken to FAC ( GPE zatvor ) in GPE . This arrest was carried out on the basis of ORG detention order of DATE .", "On DATE ORG attempted to contact the applicant ’s lawyer , but he could not be reached . On DATE , therefore , the court appointed another lawyer to represent the applicant .", "NORP Since the newly appointed lawyer was unable to go to FAC on DATE , the applicant ’s hearing was re - scheduled for DATE .", "On DATE , at TIME , the applicant , in his lawyer ’s presence , was heard by the investigating judge of ORG , on which occasion , inter alia , he denied all charges and explicitly waived his right to file an appeal against the detention order of DATE . It would appear that the applicant considered that he had little chance of being released on appeal and preferred instead to be tried as soon as possible .", "On DATE ORG issued an indictment against the applicant .", "On DATE the CARDINAL - judge panel of ORG extended the applicant ’s detention for DATE , without having heard him or his lawyer in person .", "On DATE the applicant filed an appeal against this decision , pointing out , inter alia , that he had not been brought promptly before a judge , “ in breach of LAW ” .", "On DATE ORG ( Okružni sud ) in GPE rejected this appeal , ruling again in the absence of the applicant and his lawyer . It also failed to consider the applicant ’s specific complaint made under LAW .", "The applicant ’s trial began on DATE , but his detention had been extended .", "On CARDINAL DATE the applicant was found guilty by ORG , sentenced to DATE and DATE in prison and released from detention .", "On DATE ORG quashed the impugned judgment and ordered a retrial .", "On DATE ORG , based on a somewhat amended indictment , found the applicant guilty and sentenced him to DATE in prison .", "On DATE the applicant seems to have filed an appeal against this judgment with ORG in GPE .", "Article CARDINAL stated that the “ provisions of international treaties on human and minority rights applicable in ... [ ORG of ] ... GPE and GPE shall be directly enforceable ” .", "Article CARDINAL regulates police detention , providing , inter alia , that it can last TIME , which is when the suspect must be brought before the investigating judge who can , in accordance with LAW , either order his release or have him placed in “ judicial detention ” .", "Articles CARDINAL - CARDINAL concern “ pre - indictment detention ” , that is judicial detention following any police detention until the defendant ’s indictment by the public prosecutor . Under these provisions , the investigating judge , in addition to conducting the investigation , is also authorised to order the defendant ’s detention . The defendant whose detention was so ordered in his absence shall be served with this order upon arrest or , at the latest , within TIME thereafter . The defendant shall then have the right to lodge an appeal against this order , which appeal must be filed within TIME and considered by a CARDINAL - judge panel of the same court within TIME . The defendant and his counsel have no right to be heard in person on this occasion but the CARDINAL - judge panel , if it so decides , may invite them to appear and state their views orally ( see , also , LAW . The investigating judge can order detention for DATE . Throughout the judicial investigation stage of the proceedings , the defendant is not explicitly entitled to request his release , but the investigating judge may release the defendant with the consent of the competent public prosecutor . If there is disagreement between the CARDINAL , the issue shall be resolved by a CARDINAL - judge panel of the same court , within TIME . The defendant and his counsel have no right to be heard in person on this occasion ( ibid . ) . The CARDINAL - judge panel may also extend the defendant ’s pre - indictment detention for DATE , without having heard him or his counsel in person ( ibid . ) . The defendant and his counsel can lodge an appeal against this decision to a higher court , but again have no right to be present when this appeal is being considered ( see , also , Articles CARDINAL and CARDINAL § CARDINAL , as well as LAW and CARDINAL ) . As regards crimes punishable by more than DATE imprisonment , the CARDINAL - judge panel of ORG can extend the defendant ’s detention for an additional period of DATE , without having heard him or his counsel in person ( see , also , LAW . The defendant and his counsel can lodge an appeal against this decision to another panel of the same court but , again , have no right to be present when this appeal is being considered ( see , also , Articles CARDINAL and CARDINAL § CARDINAL , as well as LAW and CARDINAL ) . After DATE , the defendant has to be indicted or released . Domestic law , therefore , provides that pre - indictment detention can not last DATE in all .", "Under LAW , following the indictment of the defendant until the adoption of the judgement at first instance , detention is a matter for the trial chamber to decide , during the hearings themselves , or , indeed , for the same court ’s CARDINAL - judge panel in - between those hearings . Apart from that , “ post - indictment detention ” is automatically reviewed DATE until the indictment is confirmed and DATE following this confirmation until the adoption of the judgement at first instance . The accused and defence counsel have no explicit right to be heard in person by the said CARDINAL - judge panel or to be present when their appeal against the decision rendered within the “ automatic review mechanism ” is being considered by a higher court ( ibid . ) .", "Pursuant to LAW , the situation of persons detained on remand is regularly monitored by the president of the competent court or a judge appointed by the president who can not be an investigating judge . The president of the court and the investigating judge , however , may visit persons detained on remand at any time , speak with them and receive their complaints .", "Lastly , Article CARDINAL provides , inter alia , that the competent public prosecutor “ may ” ( može ) file a ORG ( zahtev za zaštitu zakonitosti ) against a “ final judicial decision ” , on behalf of or against the defendant , if the relevant substantive and/or procedural “ law has been breached ” ( ako je povređen zakon ) .", "The relevant provisions of this LAW read as follows :", "“ A party or another participant in the court proceedings shall have the right to complain about the work of a court when they consider the proceedings delayed , improper , or that there has been an [ untoward ] influence on their course and outcome . ”", "“ The President of a higher instance court shall have the right to monitor the court administration of a lower instance court , and the President of a directly higher court shall have the authority to adopt an act from within the competence of the President of a lower instance court , if the latter omits to perform his duty .", "The President of a higher instance court may request from the lower instance court information regarding the implementation of existing legislation , information concerning any problems about trials and all information regarding the work of the court .", "The President of a higher instance court may order a direct inspection of the work of a lower instance court . ”", "“ When a party to a case or another person taking part in the proceedings files a complaint , the President of the court must , having considered it , inform the complainant about his views concerning its merits as well as any measures taken in this respect , within DATE of receipt of the complaint .", "If a complaint was filed through ORG or through a higher instance court , the Minister and the President of a higher court shall be informed of the merits of the complaint and of any measures taken in this respect . ”", "Under LAW , inter alia , the President of a court must ensure that the court ’s work is carried out in a timely manner . He or she shall also look into every complaint filed by a party to the proceedings in respect of delay and respond within DATE , giving his or her decision and , if necessary , ordering that steps be taken to remedy the situation .", "DATE , inter alia , provides that ORG shall supervise the work of the courts in terms of their timeliness . Should certain problems be identified , the Ministry shall “ propose ” specific measures to be undertaken within DATE .", "The relevant provisions of this LAW read as follows :", "“ ORG shall set up a ORG [ “ PERSON odbor ” ] ( “ the Board ” ) .", "ORG shall be composed of CARDINAL ORG judges elected for DATE by the plenary session of ORG . ”", "“ In response to a complaint or ex officio , ORG is authorised to oversee judicial proceedings and look into the conduct of individual cases .", "Following the conclusion of this process , the ORG may initiate , before ORG , proceedings for the removal of a judge based on his unconscientious or unprofessional conduct , or propose the imposition of other disciplinary measures . ”", "Articles CARDINAL and CARDINAL of LAW provide , inter alia , that anyone who has suffered fear , physical pain or , indeed , mental anguish as a consequence of a breach of his “ personal rights ” ( prava ličnosti ) is entitled , depending on their duration and intensity , to sue for financial compensation in the civil courts , as well as to request other forms of redress “ which might be capable ” of affording adequate non - pecuniary satisfaction ." ]

[ "5" ]

[ "5-3" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lived in GPE until his arrest .", "On CARDINAL DATE the applicant was arrested on suspicion of aggravated fraud . The prosecutor ’s case was that DATE and DATE he , with CARDINAL others , had fraudulently assumed ownership of LOC and a plot of land which belonged to a private legal entity in GPE . The criminal proceedings had been pending since DATE without any apparent progress , with the criminal case having been closed , reopened , stayed and transferred between various investigating authorities on a number of occasions , until in DATE it was assigned to a large group of investigators from ORG of ORG of GPE in GPE .", "GPE investigators lodged a request with ORG for authorisation of the applicant ’s remand in custody . The request was supported by a certifying statement issued by a high - ranking police official . The relevant parts of the statement read as follows :", "“ As a result of investigation and search operations , such as ‘ gathering of ORG and ‘ ORG , it has been established that ...", "[ The applicant ] is an active member of the inter - regional organised criminal community headed by ‘ PERSON Bryanskiy’ [ Mr PERSON ] , which has for a long time been active in the territory of LOC . [ The applicant ] is a direct subordinate of the leader of [ that criminal community ] , PERSON , with whom he has been committing serious and very serious crimes .", "[ The applicant ] has extensive corrupt contacts with ORG bodies and with various law - enforcement agencies in GPE , GPE and other towns in the country .", "[ The applicant ] is a founder of CARDINAL limited - liability companies ; [ he ] owns a car ... He has substantial financial resources , a travel passport ... ; he occasionally travels abroad for business meetings or vacations , [ with the most recent visits to ] ... GPE [ in DATE ] , GPE ... in DATE , GPE ... in DATE [ and ] GPE am GPE ... in DATE .", "According to the available information , if [ the court decides ] to apply to [ the applicant ] a measure of restraint other than arrest , [ he ] , understanding his role in a criminal group and the gravity of the crime committed [ by him ] , will take every possible step to obstruct the establishment of the truth in the case , will bribe or threaten witnesses , and will move to another country to avoid criminal responsibility . ”", "On DATE the Kuybyshevskiy ORG authorised the applicant ’s placement in custody , having held as follows :", "“ [ The applicant ] is accused of a serious crime against property for which the criminal law establishes punishment of imprisonment for DATE . The particular circumstances of the crime of which he is accused , committed by an organised group over a lengthy period of time and causing extensive damage to the victims , demonstrate a crime of a particularly audacious nature and thereby an increased danger to society .", "The materials presented contain statements by suspect PERSON and victim T. , connecting [ the applicant ] to the crime he is accused of . At the same time , the victim stated that on a number of occasions , when the documents confirming the transfer of title to the immovable property had been signed , [ the applicant ] had threatened her and her mother with a gun , thus breaking their will to resist the unlawful actions committed against them . All this was part of the plan which had been developed to take over their property . Given the victim ’s fear for her life and limb , these circumstances forced her initially to give incomplete statements . In the court ’s opinion , this is a sign that the individuals involved in the offence influenced the victim with the aim of obstructing the proceedings in the criminal case .", "Having regard to the above - mentioned and given the particular circumstances of the crime with which [ the applicant ] is charged , the significance of the crime and its consequences , the fact that [ the applicant ] owns a gun ( the fact which he has not disputed in the court hearing ) , his connections in ORG bodies and law - enforcement agencies , and also the fact that at the material time certain of the perpetrators of the crime committed by that group have not yet been identified , the court has sufficient grounds to conclude that [ the applicant ] , who has a travel passport and relatives living permanently outside GPE , is liable to abscond from the investigation and trial , to threaten victims , witnesses and other participants in the criminal proceedings , or may , in other ways , hinder the proceedings in the case .", "Information about [ the applicant ’s ] character is not absolute and sufficient to dismiss the [ investigator ’s ] request [ for the applicant ’s detention ] or to apply a more lenient measure of restraint . The court takes into account that [ the applicant ] is suffering from a number of illnesses and that he is an elderly person ; however , there is no evidence that [ the applicant ’s ] state of health precludes his detention , and the court did not receive any proof that [ the applicant ] is the only caregiver for his relatives .", "The materials presented to the court demonstrate that there is sufficient evidence that the crime took place and that [ the applicant ] may be involved ; as well as evidence that the investigating authorities complied with the procedure for the arrest of the suspect ( Articles CARDINAL and CARDINAL of LAW ) and brought charges against him as prescribed by LAW of LAW . At the same time , the task of establishing the guilt of the accused is outside the competence of the court at this stage of the criminal proceedings ...", "By virtue of LAW of LAW in the absence of grounds listed in sub - paragraphs CARDINAL of paragraph CARDINAL of Article CARDINAL of LAW a [ court ] can not authorise detention of an individual suspected of or charged with a crime proscribed by LAW [ the fraud ] , if that crime was committed in connection with business activities .", "Having studied the presented materials , the court finds that the crime proscribed by LAW with which [ the applicant ] is charged does not fall within the sphere of business activities , as the intentions of the members of the organised criminal group were aimed at unlawfully taking over title to the LOC and a plot of land which belonged [ to a private legal entity ] which has no connection to any form of business activities . ”", "The applicant and his lawyer appealed , arguing that the detention order lacked any grounds and was based on mere assumptions in the absence of any evidence that the applicant , an elderly and seriously ill person with solid family ties , intended to abscond or reoffend . They further argued that the detention was unlawful , as NORP law did not permit the detention of individuals accused of fraudulent acts committed in the sphere of business activities , which was the offence with which the applicant was charged .", "On DATE GPE upheld the detention order , having endorsed ORG reasoning .", "On DATE ORG of GPE accepted the investigator ’s request for an extension of the applicant ’s detention , having authorised it until DATE . ORG reasoned as follows :", "“ The investigating authorities have charged [ the applicant ] with a socially dangerous act , a serious criminal offence for with the criminal law prescribes punishment in the form of PERCENT two years’ imprisonment .", "presented , and the information about [ the applicant ’s ] character , the court finds that there are sufficient grounds to conclude that , if released , [ the applicant ] , being charged with [ a serious offence ] , fearing the punishment for that serious offence , [ and ] being in possession of a travel passport [ and ] having relatives in foreign countries , will prefer to abscond from the pre - trial investigation and trial ; that [ he ] is liable to influence witnesses and other participants in the criminal proceedings , given that he has acquired specific information about the course of the investigation ; that he may destroy evidence for which the investigators are looking now ; if released , [ the applicant ] may develop , together with his accomplices who have not yet been identified by the investigation or in respect of whom search warrants , including international ones , have been issued , a method of working against the ORG actions aimed at the establishment of the truth in the case .", "The above - mentioned circumstances and information are well - founded , real and are corroborated by personal data about [ the applicant ] who has a travel passport [ and ] sufficient financial resources , as he is the head of a number of legal entities , and has , on a number of occasions in DATE , travelled abroad , including to visit his daughter in GPE . That information was received in the course of operational search actions performed within the criminal proceedings . The above - mentioned data runs contrary to the arguments by the defence that the investigator ’s request for an extension of [ the applicant ’s ] detention is not based on any evidence or matters of fact .", "In these circumstances there are grounds cited by LAW for an authorisation of detention , which , in its turn , shows that the grounds taken into account when [ the applicant ’s ] placement in custody was authorised ... are still present and it is still necessary to apply that measure of restraint . Therefore , the request by the defence for the application of a more lenient measure of restraint unconnected to detention , including bail in the amount of CARDINAL Russian roubles ( RUB ) , should be dismissed because a new [ lenient ] measure will not exclude the possibility that the applicant will abscond from the investigation , including by leaving GPE , or will commit other acts in order to resist the investigation in the present criminal case , which is currently at the pre - trial stage .", "When determining the issue of the extension of [ the applicant ’s ] detention , the court takes into account his permanent residence in GPE , his family situation and the state of his health . The court did not receive any evidence , including from the defence , showing that [ the applicant ] is unfit for detention in the conditions of the temporary detention facility where he may receive necessary medical assistance ; [ the applicant ] did not complain about the quality of the medical care received [ in detention ] ; [ the applicant ] also explained that he is not in need of any medicines , including those which are necessary to treat his diabetes .", "Moreover , the court takes into account a large number of actions which the investigating authorities have to take to complete the investigation of the criminal case ; it finds that the period of extension requested by the investigator is well - founded and reasonable .", "While assessing the present request for an extension the court does not find that the investigation is ineffective or delayed . In the court ’s opinion , the length of the pre - trial investigation is caused by objective factors , such as the nature of the offences under investigation , the large volume of written evidence which requires extensive and time - consuming examination and analysis , and the need to authorise and perform complex expert examinations . ”", "NORP On DATE ORG upheld the order of DATE , concluding that ORG findings were reasonable and based on evidence provided by the investigating authorities . ORG also noted that ORG had thoroughly assessed the applicant ’s personal situation and the state of his health , but had correctly concluded that the grounds for his detention outweighed the arguments for his release .", "A further request by an investigator for an extension of the applicant ’s detention was accepted by ORG on DATE , with reasoning similar to that employed by ORG in its previous decision . The applicant ’s detention was extended until DATE .", "On DATE ORG dismissed the applicant ’s lawyers’ arguments that the extension of the detention was unreasonable and ill - founded . ORG supported ORG findings that the applicant was liable to abscond and obstruct justice if released .", "On DATE ORG again extended the applicant ’s detention for DATE , that is until DATE . It dismissed the applicant ’s and his lawyers’ arguments that the investigators had delayed the criminal proceedings by failing to take any action in the procedure in DATE , that the applicant had no intention of absconding threatening witnesses or destroying evidence , particularly given that he had voluntarily handed over to the investigators every piece of material evidence which had been in his possession , that his travel passport had also been given to the investigators , and that his family situation , the state of his health and his character warranted his release . ORG reasoning was identical to that in the CARDINAL previous detention orders .", "DATE police officials provided ORG with a memorandum which , in so far as relevant , read as follows :", "“ According to the available information , if [ the court decides ] to apply to [ the applicant ] a measure of restraint other than arrest , [ he ] , understanding his role in a criminal group and the gravity of the crime committed [ by him ] , will take every possible step to obstruct the establishment of the truth in the case , will bribe or threaten witnesses , and will move to another country to avoid criminal responsibility . ”", "On DATE ORG upheld the detention order of DATE on appeal .", "On DATE the ORG found it reasonable to remand the applicant in custody for a further period , until DATE . ORG considered that the length of the pre - trial investigation in the case was objectively justifiable by complex procedural actions , including a number of expert examinations which the investigators had to perform . In ORG opinion , the applicant ’s release on bail or on his own recognisance would not eliminate the risk that he would abscond and/or tamper with witnesses or destroy evidence . Having examined the medical evidence presented by the defence in support of the argument that the applicant was seriously ill , ORG concluded that the applicant was still fit for detention .", "The applicant and his lawyer appealed .", "In the meantime , on DATE the pre - trial investigation was closed and the applicant lodged a written request for the case file to be provided to him and his lawyers for study as soon as possible .", "At DATE the applicant and his lawyers started studying the case file materials . On a number of occasions they complained to the investigators that they had not been served with the subsequent volumes of the case file and that they had thus been forced to adjourn their reading of the file .", "On DATE ORG upheld the detention order of DATE , finding no grounds to question the lawfulness and reasonableness of ORG findings .", "On CARDINAL DATE ORG extended the applicant ’s detention until DATE , reasoning as follows :", "“ Despite [ the applicant ’s ] age and the facts that he has not been convicted before , that he is registered and permanently resides in GPE , that he is a national of GPE , that he is not under psychiatric or drug abuse supervision , that he is suffering from a number of illnesses , [ and ] that his character has been assessed positively , I find that the necessity to apply to him the measure of restraint chosen earlier has not ceased to exist at the material time , as he has been charged with a serious criminal offence which , according to the prosecution , he committed as a member of an organised criminal group , certain of whose members have not yet been identified , and CARDINAL of whose members absconded from the investigation and court and [ were placed ] on the international wanted ORG list ; in this regard , the court accepts the investigator ’s arguments that there are sufficient grounds to conclude that if released [ the applicant ] will abscond from the pre - trial investigation and trial , will continue his criminal activities , will threaten witnesses and other parties to the criminal proceedings , will destroy evidence , and will interfere with justice in the criminal case in other ways . ”", "NORP The extension order was upheld on appeal on CARDINAL DATE with the appellate court accepting ORG reasoning .", "On DATE the applicant informed the investigators that he had read the entire case file .", "On DATE ORG sent the case to ORG , given that the majority of the victims and witnesses lived in GPE , where the criminal offences had allegedly been committed . On DATE investigators in GPE took over the case . On DATE a senior investigator of ORG issued a decision authorising the reopening of the pre - trial investigation . In the same decision , having noted that the maximum period for detaining the applicant had expired and that the long - term detention had negatively affected the applicant ’s health , the senior investigator authorised his immediate release on a written undertaking not to leave the town . The applicant was released DATE .", "It appears that the criminal proceedings against the applicant are still pending .", "The NORP legal regulations of detention are explained in the judgment of PERSON v. GPE , no . CARDINAL , § § CARDINAL - CARDINAL , DATE ." ]

[]

[]

[]

[ "5" ]

[ "5-3" ]

[]

[ "NORP The applicant company has its seat in GPE and the second and third applicants live in ORG and FAC respectively .", "NORP The applicant company has operated a service station in GPE since DATE . The service station is located in the industrial zone of the municipality which is situated in a groundwater basin . The second and third applicants are the only owners of the applicant company .", "In DATE new regulations concerning handling and storage of dangerous chemicals ( including fuels for motor vehicles ) entered into force and service stations needed to comply with these new requirements by DATE . In order to comply with the new regulations , the applicant company had to undertake some restructuring works .", "On DATE LAW ( ympäristönsuojelulaki , miljöskyddslagen , Act No . CARDINAL/CARDINAL ) entered into force requiring , inter alia , an environmental permit to be held for activities which might cause environmental pollution . As the activities of the applicant company fell within the scope of application of the LAW , it applied for an environmental permit for the restructuring works on DATE . More specifically , the application concerned an environmental permit for enlarging the storage capacity of liquid fuel .", "On DATE ORG ( ympäristölautakunta , miljönämnden ) granted the applicant company the permit and set several conditions for the restructuring works .", "NORP By letter of DATE , ORG ( ympäristökeskus , miljöcentralen ) appealed against the ORG ’s decision to ORG ( hallinto - oikeus , förvaltningsdomstolen ) claiming that , despite the proposed protective measures , there was still a risk that the quality of groundwater could be jeopardised and that the environmental permit should therefore be withdrawn .", "On DATE ORG rejected the ORG appeal but amended CARDINAL of the conditions for the permit .", "By a letter of CARDINAL DATE , the ORG appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , reiterating the grounds of appeal relied on before ORG .", "On DATE ORG quashed the decisions of ORG and referred the case back to ORG , ordering it to clarify whether it was possible to eliminate the risk of pollution of groundwater by using more efficient protective measures . The court found that the activity in question was to be compared to a new activity as regards the environmental permit as this was the first time that the effects of the activities on groundwater were being assessed . The environmental permit could not be granted as the applicant company had not shown that the proposed protective measures would eliminate the risk of pollution of the groundwater .", "On DATE the applicant company lodged an amended application for an environmental permit with ORG . More specifically , this application concerned an environmental permit for reducing the storage capacity of liquid fuel . On DATE the ORG decided to grant the permit with several conditions .", "NORP By letter dated DATE ORG again appealed against the ORG ’s decision to ORG , claiming that the environmental permit should be withdrawn .", "On DATE ORG rejected the appeal , considering that sufficient protective measures were included in the permit .", "NORP By letter dated DATE the ORG appealed to ORG , reiterating the grounds of appeal relied on before ORG .", "On DATE ORG quashed the decisions of ORG . It found that , even though the protective measures proposed by the company diminished the risk of pollution of groundwater , they could not guarantee the protection of groundwater under all circumstances .", "As the applicant company was refused the permit , it was ordered to close down the service station by DATE ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by Mr H .- J. Kühnel , a lawyer practising in LANGUAGE . PERSON Government PERSON ( “ the Government ” ) were represented by their Agent , PERSON Wittling Vogel , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "A sales representative contacted the first applicant at his workplace in DATE and offered the applicants an investment involving the purchase of property financed by a loan . During the subsequent consultations at their home they were offered , in addition to the property , complete financing to be provided by ORG ( “ the bank ” ) . The sales representative handled both the marketing of the property and the arrangement of finance . In the context of this marketing scheme the sales representative provided prospect information on the investment and used standard form contracts .", "On CARDINAL and DATE the applicants purchased CARDINAL apartments for ORG MONEY ( DEM ) ( CARDINAL,CARDINAL.CARDINAL CARDINAL ( ORG ) ) plus additional charges ( notary , real estate transfer costs , etc . ) totalling ORG CARDINAL . The purchase agreements were signed before a notary , in accordance with the relevant NORP legislation . On the same dates charges were created on the properties .", "Solely in order to finance the purchase , on DATE the applicants took out a loan of ORG CARDINAL ( EUR CARDINAL ) from the bank , secured by the charges on the properties which were created by the notarised deeds of CARDINAL and DATE . The loan agreement contained no information regarding the right of cancellation within the meaning of the law on the cancellation of doorstep transactions or analogous transactions ( PERSON , hereafter “ LAW ” ) . The completed forms of the financing bank were provided to the applicants by the sales representative at their home , where they later signed them .", "The bank paid the loan directly to the company selling the immovable property in accordance with the applicants’ instructions .", "In DATE the applicants realised that the immovable property had been worth PERCENT of its purchase price at the time of purchase . On DATE the applicants cancelled the loan agreement on the basis of Paragraph CARDINAL of LAW . They ceased to pay the DATE instalments under the loan agreement and offered to hand over their rights in respect of the purchased properties to the bank .", "On DATE the applicants applied for legal aid to pursue a claim to establish that they were not obliged to repay the amount of the loan to the bank and to order the bank to give them the notarised deeds . The applicants submitted that the purchase contracts and the loan agreement must be regarded as a single economic unit and that they were therefore merely required to retransfer ownership of the property pursuant to the fourth sentence of LAW ( CARDINAL ) of the law on consumer credit ( ORG , hereafter “ Consumer LAW ” ) . They relied explicitly on the case - law of DATE Chamber of ORG and referred to the corresponding preliminary ruling proceedings then impending before ORG of ORG ( “ ECJ ” ) . The proceedings before the ECJ concerned the question whether the requirement under NORP law to immediately repay the loan proceeds plus interest at the market rate thereon to the bank upon cancellation of the loan agreement was in accordance with ORG , notwithstanding that the loan would not have been granted at all without the acquisition of the immovable property , served solely to finance it and was paid directly to the vendor .", "On DATE the ORG refused to grant the applicants legal aid . It found that their proposed claim lacked a reasonable prospect of success . It followed explicitly the case - law of the CARDINALth Chamber of ORG and disagreed with the case - law of ORG same court without giving any further reasons . It found that the applicants were obliged by law to repay the loan plus interest at the normal market rate upon the cancellation of the loan agreement . It observed that the impending proceedings before the ECJ were not relevant and , in any event , that ORG opinion was not favourable to the applicants .", "On DATE the GPE / ORG rejected the ORG appeal . It endorsed the arguments given by the lower court and observed that the case - law of ORG concerned the acquisition of a share in an investment fund financed by a loan .", "On DATE the GPE / ORG rejected the ORG allegation that they had not been heard properly .", "On DATE ORG ( CARDINAL BvR CARDINAL/CARDINAL ) refused to admit the applicant ’s complaint . It found that the alleged violation of the applicants’ rights under LAW was not sufficiently serious . The applicants would in any event not suffer a significant disadvantage by the refusal to admit their constitutional complaint . It observed that the impugned decisions were problematic in the light of its case - law regarding legal aid in proceedings concerning a difficult legal question which had not yet been decided by authoritative case - law . In this connection it referred to the deferring case - law of ORG and the impending preliminary ruling proceedings before the ECJ . Nevertheless , it found that the applicants could file a new request for legal aid to achieve their goal . In light of the case - law of ORG which , in the meantime had been enhanced , it was not excluded that the applicants would receive legal aid upon a new request .", "On DATE the applicants again requested legal aid with respect to the decision of the ECJ of DATE in the case C-CARDINAL/CARDINAL ( see “ Relevant domestic law and practice ” below ) .", "On DATE the ORG refused to grant the applicants legal aid . It referred to the reasons set out in the decisions rendered in the first set of proceedings and observed that the decision of the ECJ was merely directed at ORG calling for further legislative measures .", "On DATE the GPE / ORG rejected the ORG appeal . It found that the decision of the ECJ of DATE in the case C-CARDINAL/CARDINAL was not relevant . That case merely concerned a situation where , if the bank had complied with its obligation to inform the consumer of his right of cancellation , the consumer would have been able to avoid exposure to the risks inherent in investments . It observed that the applicants had concluded the purchase contract DATE than the loan agreement . Thus the bank ’s failure to inform them of their right of cancellation had no causal link with the investment .", "On DATE the GPE / ORG rejected the ORG allegation that they had not been heard properly .", "On DATE ORG ( CARDINAL BvR CARDINAL/CARDINAL ) , referring to its decision of DATE in the complaint concerning the applicants’ first set of proceedings , refused to admit the ORG complaint , in which they had also raised the issue of an alleged obligation of ORG to suspend the proceedings and refer the question to the ECJ .", "On DATE the applicants applied for legal aid again with regard to ORG decision of CARDINAL DATE and observed that in their opinion the enhanced case - law of ORG was not in accordance with the decisions of the ECJ of DATE .", "On DATE the ORG refused to grant the applicants legal aid . It referred to the reasons set out in the decisions in the previous proceedings for legal aid .", "On DATE the GPE / ORG rejected the ORG appeal . It found that ORG case - law according to which the purchase contracts and the loan agreement can not be regarded as a single economic unit pursuant to LAW was consistent with the decision of the ECJ of DATE ( see “ Relevant domestic law and practice ” below ) . ORG further found that taking account of ORG case - law and the new criteria set up by it to establish liability of the financing bank for the purchase of the property , the ORG claim lacked a reasonable prospect of success . It again observed in this context that the applicants had concluded the purchase contract DATE before the loan agreement ; the bank ’s failure to inform them of their right of cancellation had thus no causal link with the investment . Furthermore , there was nothing to suggest that the purchased property had had a blatant deficiency as the applicants themselves had simply realised DATE after the purchase that its market value had been significantly lower than the purchase price .", "On DATE the applicants lodged a constitutional complaint with ORG .", "On DATE the applicants applied again for legal aid . They referred to the decision of the CARDINALnd ORG of CARDINAL DATE to seek a preliminary ruling of the ECJ as to whether the legal effects of the cancellation of a declaration of accession to a property fund under NORP law complied with Community law .", "On DATE the ORG rejected the applicants’ new request for legal aid for lacking a reasonable prospect of success . It found that the new request for a preliminary ruling from the ECJ concerned a different issue and that the applicants had failed to make any submissions which would satisfy the requirements of ORG enhanced case - law . The applicants filed an appeal . The proceedings are apparently still pending .", "In the version applicable at the material time , paragraph CARDINAL ( CARDINAL ) of LAW provided :", "“ Where the customer was induced to make a declaration of intention to conclude a contract for a service for valuable consideration :", "by oral negotiations at his place of work or in a private home ,", "[ ... ]", "that declaration of intention takes effect only if the customer does not give written notice revoking it within DATE . ”", "Paragraph CARDINAL ( CARDINAL ) of LAW provided :", "“ In the event of cancellation , each contracting party shall return to the other whatever it has received . Damage to or loss of the object or any other matter preventing the return of the object shall not preclude cancellation . ”", "Paragraph CARDINAL ( CARDINAL ) of LAW provides :", "“ Nor shall :", "[ ... ]", "Paragraphs CARDINAL(CARDINAL)(CARDINAL)(CARDINAL)(b ) , CARDINAL , DATE and DATE to CARDINAL apply to credit agreements in which credit is subject to the giving of security by way of a charge on immovable property and is granted on the usual terms for credits secured by a charge on immovable property and the intermediate financing of the same ... ”", "Paragraph CARDINAL of the Consumer Credit Act provides :", "“ CARDINAL . A purchase agreement constitutes a transaction linked with the credit agreement if the credit serves to finance the purchase price and both agreements are to be regarded as a single economic unit . In particular , a single economic unit shall be presumed where the lender relies on the seller ’s cooperation in the preparation or conclusion of the credit agreement .", "The consumer ’s declaration of intention to conclude the linked purchase agreement shall be valid only if the consumer does not revoke ... his declaration of intention to conclude the credit agreement .", "The notice concerning the right of cancellation ... must state that , in the event of cancellation , the purchase agreement linked with the credit agreement will not be valid either ... If the net amount of the credit has already been paid to the seller , the lender shall , in relation to the consumer and with regard to the legal effects of cancellation , be subrogated to the seller ’s rights and obligations arising from the purchase agreement [ ... ] ”", "On DATE the CARDINALnd Chamber of ORG ( II ZR CARDINAL/CARDINAL and ORG CARDINAL/CARDINAL ) decided that a declaration to accede to a closed property fund was a transaction linked with a credit agreement within the meaning of paragraph CARDINAL of LAW , if the fund and the bank used a common marketing organisation . If the consumer had been deceived with respect to the profitability of the fund , he would not be obliged to repay the loan but merely to transfer to the bank his share of the funds and his compensation claims .", "On DATE the CARDINALnd Chamber of ORG ( II ZR CARDINAL/CARDINAL ) decided to refer the question whether the legal effects of the cancellation of a declaration of accession to a property fund according to NORP corporate law was in accordance with Community law for a preliminary ruling to the ECJ . The application of the corporate law rules resulted in the consumer being bound to participate in the fund ’s business developments for the period from his accession to giving notice of its cancellation according to the HWiG. The CARDINALnd Chamber observed that the mere ex nunc effect of the cancellation according to corporate law was justified in its opinion as it safeguarded not merely the interests of the debtees of the fund but also of the other members of the fund who were typically also consumers .", "According to the established case - law of the CARDINALth Chamber of ORG a secured credit agreement and a property purchase contract could , pursuant to paragraph CARDINAL ( CARDINAL ) of the CARDINAL , not be regarded as linked transactions within the meaning of LAW of LAW . In case of the cancellation of a secured credit agreement according to the NORP the consumer was obliged to repay the loan immediately in full , plus interest at the market rate . The cancellation of the secured credit agreement did not affect the validity of the purchase contract for immovable property financed by that credit agreement .", "In its judgment in Case C-CARDINAL/CARDINAL Heininger [ DATE ] ECR I-CARDINAL , the ECJ held that ORG DATE to protect the consumer in respect of contracts negotiated away from business LOC ( the Directive ) applied to secured credit agreements , that is to say , credit agreements for financing the purchase of immovable property .", "In its judgments of DATE in Cases C-CARDINAL/CARDINAL PERSON and PERSON v. ORG and PERSON v. PERSON and Others the ECJ held :", "With respect to the judgments of the ECJ of DATE the CARDINALth Chamber of the Federal Court of Justice developed its case - law . In its judgment of CARDINAL DATE ( XI ZR CARDINAL ) it reiterated that a secured credit agreement and the property purchase contract did not constitute a linked transaction within the meaning of Paragraph CARDINAL of the VerbrKrG. It found that the consumer did not have a compensation claim on account of the bank ’s failure to inform him of his right of cancellation , if the property purchase contract had been concluded before the loan agreement . In this case informing the consumer of his right of cancellation would not have enabled the consumer to avoid exposure to the risks inherent in investments . Therefore , there was no causal link which would allow the consumer to claim damages . However , it found that in the case of institutionalised cooperation between the seller and the financing bank , when the seller or intermediary salesperson also arranged the finances for the investment , and the information provided by the seller or intermediary salesperson would have been obviously incorrect , the financing bank ’s knowledge of the seller ’s malicious deceit would be presumed . Under these circumstances the bank would have a duty of disclosure with regard to the profitability of the investment . Non - compliance with this duty would give rise to financial liability on the part of the bank .", "Pursuant to section CARDINAL § CARDINAL of the Code of Civil Procedure representation by counsel is compulsory for the parties in civil proceedings before ORG , ORG and ORG .", "The conditions for legal aid are laid down in section CARDINAL of the Code of Civil Procedure . According to that section , a party who in view of his or her personal and economic situation can not afford the costs for conducting the proceedings is granted legal aid upon application if the intended legal action offers sufficient prospects of success and does not appear wanton ( mutwillig ) . A party who has been granted legal aid is officially appointed a lawyer of his or her choice who is ready to represent him or her if representation by counsel is compulsory ( section CARDINAL § CARDINAL of the Code of Civil Procedure ) . It is the court having jurisdiction to deal with the intended action itself which is called to decide on motions for legal aid ( section CARDINAL § CARDINAL of the Code of Civil Procedure ) . An appeal lies against a decision refusing legal aid ( section CARDINAL § CARDINAL of the Code of Civil Procedure ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , a NORP citizen of NORP origin , was born in DATE and lives in the town of PERSON within the administrative jurisdiction of the province of ORG , in south - east GPE .", "The facts of the case , particularly concerning events which took place on or about DATE and on or DATE , are disputed between the parties .", "The facts as presented by the applicant are set out in Section B below ( paragraphs CARDINAL - CARDINAL ) . The ORG 's submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL - CARDINAL ) . GPE evidence submitted by the Government and by the applicant are summarised in Sections D ( paragraphs CARDINAL - CARDINAL ) and E ( CARDINAL - CARDINAL ) respectively .", "The applicant 's son ORG was the manager of the Sento hotel and the PERSON club in GPE . He had no relations with ORG Party ( the ORG ) or any other similar organisations .", "On an unspecified date , PERSON 's maternal cousin PERSON was taken into custody in relation to a criminal case and when PERSON 's photograph was found on him , he apparently made a statement to the effect that he and PERSON were partners in the alleged crime . The cousin was subsequently released without charge .", "The applicant stated in the application form submitted to the ORG that , on DATE , ORG wife PERSON was in ORG , giving birth . The applicant 's wife was with her . At TIME left his older brother PERSON to go to the hospital . However , PERSON never arrived at the hospital and had not been seen since .", "NORP In reply to a query from the Court into details of the hospital records showing the date of birth , the applicant replied on DATE with the correction that the woman who had been in hospital giving birth on the day of PERSON 's disappearance was not PERSON 's wife but the wife of his brother PERSON . On DATE in question PERSON and PERSON had had a meal together at a restaurant near their house before PERSON had left for the hospital to visit PERSON 's wife . Although the applicant submitted that he would obtain hospital records and send them to the ORG , he failed to do so .", "In his memorial of DATE , the applicant submitted that on DATE of his disappearance , his son PERSON had been with his wife PERSON , who was pregnant and had been taken to the maternity ward of the hospital as she was feeling unwell . PERSON never returned from the hospital . The applicant also informed ORG had CARDINAL child , born on DATE .", "At TIME on DATE , CARDINAL or CARDINAL plainclothes police officers came to the applicant 's home in GPE and beat the applicant and his younger son . The police officers enquired about PERSON 's whereabouts . The applicant told them , although he knew that this was untrue , that PERSON had left for GPE DATE . The police officers then told him that his son was in the hands of the police and that they would hand over his body in DATE .", "NORP The police officers moved on to the house of ORG , where they arrived at TIME and conducted a search without finding anything . PERSON told the police officers that he had not seen his brother PERSON since TIME that day . The police officers took PERSON to the applicant 's house , where they told the applicant that there was a firearm in his house and ordered him to hand it over . Both the applicant and PERSON denied the existence of any gun . After having conducted a conversation over the wireless , the police officers told the applicant and PERSON that the firearm was in the woodshed of the applicant 's house . The police officers told the applicant 's wife that PERSON had told them where he had hidden the gun . The police officers then found the firearm hidden in the woodshed , and left .", "On DATE , PERSON was apprehended by police in a café in GPE and taken to ORG . He was subsequently taken to the official detention centre of ORG where he was detained for TIME , during which he was interrogated and tortured intensely . He was questioned about PERSON 's whereabouts . When he told the police officers that he did not know where his brother was , he was told that PERSON had been apprehended and that a price - list of walkie - talkies and batteries had been found on him . PERSON was also asked where PERSON 's rifle was . During his interrogation , PERSON , despite having been told by the police officers that his brother PERSON had “ gone to the mountains ” , could hear the screams of PERSON . After having been interrogated and tortured for TIME and believing that he was dead , the police officers left PERSON on a dump in PERSON , QUANTITY from ORG .", "After his release , ORG made inquiries about PERSON at the Çarşı Police Station , where he was told that his brother was being held by the police and that he would be released after interrogation .", "On an unspecified date , ORG made further inquiries about PERSON with the Chief Commissioner at ORG , taking with him a photograph of his brother , a photocopy of his brother 's identity card and the applicant 's home telephone number . These inquiries had not yielded any results .", "On an unspecified date , the applicant and ORG were apprehended and detained for DATE . The police accused them of helping and meeting with PERSON , whom they alleged was in the mountains . They were both released after DATE without having been brought before a court .", "On another occasion , ORG was approached by police officers who asked him for money in exchange for which PERSON would not be killed . CARDINAL police officer asked PERSON for MONEY to be given to a third person . In return , PERSON would be released .", "The applicant and his family filed many petitions with ORG , GPE and other authorities . None of these petitions were accepted . On DATE , the applicant 's wife filed a petition with the office of ORG at ORG ( hereinafter “ the ORG ” ) . On DATE , she was informed by the authorities that the name of ORG did not appear in their records .", "The applicant was heard by the Prosecutor for the first time on DATE . On DATE ORG issued a decision not to prosecute anyone in relation to the disappearance ( PERSON ) .", "The investigation was apparently reopened in DATE . The applicant gave a second statement to ORG and , for the first time , statements were taken from the spouses of the applicant and PERSON . As the applicant and his wife did not speak any NORP , their grandson PERSON was present when their statements were taken . According to PERSON , the official court interpreter distorted the statements given by the applicant and his wife . For example , although the applicant stated that he would recognise the police officers who came to the house , the interpreter translated this as “ I do n't know the people who took my son away ” . After he objected to this , PERSON was removed from the ORG 's office and he was not allowed to read the recorded statements .", "On DATE , at TIME , the homes of the applicant and his son ORG were searched pursuant to a request made on CARDINAL DATE by the Commander of ORG to ORG . The aim of the search was to find ORG , who was suspected of involvement with the ORG . Police officers carrying out the search did not manage to find ORG . However , a firearm and a charger with bullets were found in the applicant 's house . As the applicant stated that it belonged to his nephew PERSON Kartal , the police officers took the firearm and left the applicant 's home without detaining anyone .", "Neither PERSON nor ORG was taken into detention on CARDINAL or DATE . The applicant and PERSON were detained , however , on DATE on suspicion of involvement in a terrorist organisation and released on DATE on account of the lack of sufficient evidence . ORG was arrested once again by police on DATE and released on DATE , after having given a statement .", "The applicant 's wife submitted a petition to the ORG 's office at ORG . No other petitions were submitted to any Prosecutor . An investigation into the disappearance of ORG was carried out by ORG who , in the course of his investigation , checked the custody records of the detention facilities in ORG and its districts . In the absence of any evidence implicating any ORG agent in the disappearance , the Prosecutor decided on DATE not to prosecute anyone .", "ORG instigated a second investigation at a later stage . In the course of this investigation , statements were taken from the applicant and his wife and also from PERSON 's wife . The Prosecutor further made attempts to take statements from the police officers who had searched the applicant 's house on DATE . This second investigation was ongoing .", "The following information appears from documents submitted by the Government .", "On DATE the deputy commander of ORG ( hereinafter “ the ORG ” ) requested ORG to assist the personnel from ORG to apprehend “ the persons who had been aiding and abetting the ORG in GPE ” .", "According to a report of “ house search and confiscation ” , a number of police and gendarme officers , acting on the above mentioned request , went to the applicant 's house in GPE in TIME of DATE . They were looking for the applicant 's son ORG whom they wanted to arrest . However , PERSON was not at home . During the search conducted at the house , a QUANTITY calibre pistol with its bullets were found in the attic and confiscated by the officers . The applicant told the officers that the pistol belonged to his nephew , PERSON .", "It appears from another report , drawn up and signed by the same officers , that after having searched the applicant 's house they had gone to ORG house and unsuccessfully looked for PERSON there .", "Custody records which , according to the ORG , were from ORG 's ORG and the Anti - Terror Branch of ORG , showed that neither PERSON nor his brother PERSON or their father GPE DATE that is the applicant – were detained by the police on CARDINAL , DATE or DATE .", "According to copies of the custody records of a number of police and gendarmerie stations in and around ORG , no member of ORG family was arrested and detained in DATE .", "It appears from the custody records of ORG that the applicant 's nephew PERSON was arrested on DATE and released DATE ( see paragraph CARDINAL above ) . He was re - arrested on DATE and an order for him to be remanded in custody was issued by ORG on DATE .", "On DATE the applicant and his son PERSON were arrested at their homes by a number of police officers . As they could not be linked to any illegal organisation , they were released on the orders of ORG DATE .", "On DATE PERSON , the chief of the Anti - Terror Branch of ORG , sent a reply to a letter which had apparently been sent to him from ORG on DATE . In his letter Mr PERSON referred to another letter sent by his office on CARDINAL DATE . He informed the ORG that ORG had not been detained at the Anti - Terror Branch on DATE . ORG and ORG had been arrested on DATE and then released on DATE .", "On DATE ORG replied to a letter sent to him by ORG ( hereinafter “ the Directorate ” ) on DATE , informing that ORG that ORG and ORG had been detained on DATE and released on DATE .", "On DATE ORG asked the Prosecutor at ORG whether an investigation into the applicant 's allegations concerning ORG was in progress .", "On DATE the Prosecutor at ORG replied to ORG that ORG name did not feature in the records of ORG .", "DATE . On DATE a statement was taken from the applicant by ORG . The applicant acknowledged that he had lodged an application with ORG and confirmed the accuracy of the contents of the statement he had given at ORG ( see paragraph CARDINAL below ) . He recounted that on CARDINAL DATE he and his sons , PERSON and PERSON , had been arrested outside his house by plain - clothes members of the Anti - Terror Branch of ORG . Prior to his arrest , PERSON had just returned from the hospital , where his pregnant wife had been giving birth . The reason for PERSON 's arrest was his suspected involvement with the ORG . The police officers arresting PERSON had told the applicant to go and collect PERSON 's body in GPE in DATE .", "The applicant further stated that he had been kept in detention for DATE before being released . PERSON had been detained twice ; on the first occasion he had been detained for DATE and on the second he had been detained for DATE . The firearm had been handed over to the police officers who had come to his house to search for it . Nothing had been heard from PERSON since he had been detained on DATE , and the enquiries made by the applicant with the ORG 's office at ORG and with the Anti - Terror Branch of the Police to obtain information about his son 's fate had yielded no results . He told the Prosecutor that he wished to press charges against members of the ORG Branch of the Police .", "On DATE a Prosecutor ( no . DATE ) sent a reply to a letter sent from ORG of DATE . He enclosed copies of the documents contained in investigation file no . DATE .", "On DATE ORG decided not to prosecute anyone in connection with the applicant 's allegations concerning the detention of his son . The Prosecutor based this decision on a letter sent to him on DATE by the Anti - Terror Branch in which , according to the decision , that Branch had denied taking ORG into custody .", "Ali Toğcu was once more arrested at his house on DATE .", "On DATE ORG sent letters to ORG and ORG , asking them to submit to his office the custody records of CARDINAL DATE . He also instructed them to search for PERSON .", "On DATE ORG informed the Prosecutor that PERSON had not been detained by them . Copies of their custody records , in which PERSON 's name did not feature , were forwarded to the Prosecutor with this letter .", "On DATE ORG took a statement from the applicant . The applicant recounted that his son PERSON had been living with him prior to his disappearance . On TIME of CARDINAL DATE , CARDINAL or CARDINAL plain - clothes police officers had come to his house and told him that PERSON , who was in their hands , had told them that there was a firearm in the house . The applicant had replied that he did not know anything about a firearm . The officers had then found it in the attic of the house and left . He had not heard from PERSON since DATE . His other son PERSON had been arrested and detained DATE after the disappearance of PERSON and had been ill - treated whilst in custody . PERSON had also told him that he had heard a person 's screams while he was in custody . PERSON had thought it might be his brother PERSON . DATE after the disappearance of PERSON , the applicant and PERSON had been arrested and detained once more , this time for a period of DATE during which they had been questioned about the petition in which they had complained about police officers .", "The applicant further submitted that his son PERSON had not had any involvement with the ORG . The applicant had never been told by anyone to go and find the body of his son in GPE ( see paragraph DATE above ) . Finally , the applicant had asked the Prosecutor to find his son .", "Also on DATE ORG took a statement from ORG , the wife of ORG . She stated that , while pregnant , she had become unwell on DATE and her husband PERSON had taken her to hospital . They had then returned home in the early afternoon and PERSON had gone to his café at TIME Ender would normally return home at TIME . At TIME on DATE or CARDINAL plain - clothes police officers had come to their house and had asked her and her father - in - law , the applicant , about a firearm . She knew that her husband owned a gun but she did not know where he kept it . The police officers then found it in the attic . She had not known that it was hidden there and , had they not been told by PERSON where it was hidden , the police officers would not have been able to find it . She had not heard from PERSON since DATE .", "Finally , on DATE ORG questioned ORG , the wife of the applicant . PERSON stated that on CARDINAL DATE she had gone to hospital together with her daughter - in - law ORG . Her son PERSON had also been at the hospital for some time , but he was at home when she had returned . PERSON had left at TIME to go to the café which he was running and had not returned . At TIME the same day , CARDINAL or QUANTITY police officers had arrived at their house and asked for PERSON . According to the officers , PERSON had told them that there was a firearm in the house . The officers had found the gun and left . She had subsequently petitioned the Prosecutor about the disappearance of her son but had never been informed about his fate .", "On DATE ORG reminded ORG and ORG of his requests of DATE ( see paragraph CARDINAL above ) and urged them to submit to his office copies of the custody ledgers and to search for PERSON .", "Also on DATE ORG sent a letter to the Anti - Terror Branch of the Police and summonsed the police officers who had gone to the applicant 's house on DATE ( see paragraph CARDINAL above ) to his office . He also asked whether any action had been taken in relation to the firearm found in the applicant 's house . The Prosecutor finally asked whether PERSON , PERSON and the applicant had been detained on DATE . He asked for copies of the custody records to be sent to his office .", "On DATE the applicant 's wife submitted a petition to the ORG 's office at ORG ( see paragraphs CARDINAL above ) . She informed the Prosecutor that her son ORG had been taken into custody by members of the security forces in GPE on CARDINAL DATE . Plain - clothes police officers who had raided her house on TIME of CARDINAL DATE had told her that her son was in their hands . She had not heard from her son since DATE . She asked the Prosecutor to give her information about her son . A handwritten note on this petition reads “ his name was not found in the examination of our records ” .", "On DATE the applicant made a written statement , addressed to a “ Human Rights Project ” . He submitted that at TIME on CARDINAL DATE , his son PERSON had left his brother PERSON to go to the hospital where PERSON 's wife was giving birth . The applicant 's wife , who was staying at the hospital to look after her daughter - in - law , had told the applicant that their son PERSON had never arrived at the hospital . PERSON had been arrested DATE by police officers from ORG and been questioned for DATE . On DATE he had been released on FAC .", "In a letter forwarded to the ORG on DATE , the applicant 's son PERSON submitted that on DATE he had been arrested by police officers and been taken to ORG , from where he had been taken to ORG . While at ORG , PERSON had been questioned about his brother PERSON and been told by police officers that PERSON had gone to the mountains to join the ORG . While in custody , PERSON had heard the screams of his brother PERSON . PERSON had been severely tortured and , believing that he was dead , the police officers had left him at a dump near GPE . Following that incident , he had been detained a total of CARDINAL times and on each of these occasions he had been accused of meeting with his brother PERSON , whom , the police officers insisted , had joined the ORG .", "The applicant forwarded to the ORG a letter which he had dictated on DATE . In this letter the applicant submitted that there were no eye - witnesses to the abduction of his son PERSON . No one at PERSON 's workplace had witnessed his arrest . He himself had not witnessed it either . He had been arrested , together with his other son PERSON , DATE in DATE and detained for DATE . He had been asked why he had complained about the police officers and he had replied that his son had been detained by police officers and , for that reason , he had applied to the Prosecutor and to ORG . He had then been told by police officers that his son had not been in their hands but that he had gone to the mountains .", "In a letter , drawn up by ORG son ORG on DATE , ORG submitted that he had accompanied his grandparents DATE that is the applicant and his wife DATE and the wife of his uncle PERSON ( see paragraph CARDINAL above ) to the ORG 's office and had acted as the interpreter for his grandparents who did not speak any NORP . His aunt PERSON 's wife DATE could speak NORP . When he had begun translating word by word what his grandfather was saying , the Prosecutor had interrupted him and had asked another person working at the courthouse to take over the interpretation . However , this person had distorted his grandfather 's words and , when PERSON had objected , he had been removed from the office . He had later wanted to see the statements taken from his grandparents but his request had been refused by the Prosecutor .", "In a letter dated DATE , PERSON Toğcu ( see paragraph CARDINAL above ) submitted that on DATE of the incident she had gone to the hospital , where the wife of her brother - in - law was giving birth . Afterwards she had gone to the house of her brother - in - law ORG . At CARDINAL a.m. TIME , a number of police officers had come to the house and told the people present that PERSON had a large number of weapons in the house of a certain person named PERSON . She and PERSON had then accompanied the police officers to her house where , because she had forgotten the keys , the police officers had broken the door and had entered , and searched the house . Nothing had been found .", "DATE . The relevant domestic law and practice are set out in the judgment in the case of GPE v. GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ECHR DATE ) ." ]

[ "13", "2", "38" ]

[ "2-1" ]

[]

[ "2", "3", "34", "5" ]

[ "2-1", "5-1" ]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Ms K. Burton , from ORG in 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 . 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 . The applicant did not appeal 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 ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in PERSON .", "On DATE , following the pronouncement of the divorce of the applicant and his wife , the Budapest IV / XV ORG placed the applicant ’s child – born in DATE with the mother .", "The applicant was thereafter not able to see his son due to the mother ’s reluctance to hand over the child .", "NORP The parents managed to reach a settlement about the father ’s access rights concerning visits until DATE , which was approved by ORG on DATE . According to the arrangement , the applicant was allowed to see his son every second DATE from TIME , the day after GPE at TIME and during DATE from CARDINAL until DATE and from CARDINAL until DATE .", "NORP Until CARDINAL DATE the applicant managed to see his son only rarely , since the mother refused to comply with the arrangement on most occasions . From DATE he was fully denied access to the child by his former wife .", "The applicant repeatedly complained to the local guardianship authority as from that date and requested it to take effective measures in order for him to be able to exercise his access rights .", "On DATE and DATE the competent GPE XV ORG heard both parents , warned the mother to allow the applicant to see his son and imposed fines on her . However , these fines were later cancelled .", "NORP In DATE the case was transferred to the GPE ORG . Since a warning issued in DATE was to no avail , it fined the mother MONEY ( ORG ) ( MONEY ( ORG ) ) on DATE and a further ORG CARDINAL ( ORG CARDINAL ) on DATE .", "Furthermore , in DATE ORG discontinued the proceedings , initiated ex officio by ORG , to place the child under protection ( “ védelembe vétel ” ) , finding no reason for it . The child welfare service contacted the parents in an attempt to find a solution to the situation . It prepared an environment study at the mother ’s home , establishing that it was ideal for the upbringing of the child , who was in a loving relationship with his mother . However , it emphasised the importance of and need for a balanced contact between the child and his father .", "As the applicant had had no contact with his child since DATE , he lodged complaints with various authorities , but to no avail .", "The Guardianship Authority then contacted a child upbringing counsellor ( “ nevelési tanácsadó ” ) who recommended the assistance of a foundation specialised in facilitating visits . It therefore ordered that the regular visits scheduled for the period DATE and DATE be held at the foundation ’s LOC . It appears that there was therefore some contact between the applicant and his son in this period . The applicant ’s relationship with his son was examined and found to be harmonious . Subsequently , ORG invited both parents to a reconciliatory meeting on DATE . This , however , proved to be unsuccessful . The father ’s environment was also examined , and it was established that the conditions were appropriate to hold the visits there . The authority recommended a gradual extension of the duration of the contact between the father and the child .", "The Guardianship Authority drew up a new access schedule on DATE and warned the parents once again to respect these arrangements . However , the mother continued to deny access to the child .", "Following the applicant ’s repeated complaints to various authorities about the failure to take adequate action to enforce his rights , on DATE the GPE ORG again warned the mother and took CARDINAL separate decisions concerning the visits not ensured in DATE , imposing a series of fines on her in the total amount of ORG CARDINAL ( EUR CARDINAL ) . On DATE it initiated the child ’s placement under protection . Subsequently , on DATE ORG imposed a further fine of HUF CARDINAL ( EUR CARDINAL ) for the overdue visits from DATE until DATE .", "ORG also ordered police assistance twice in DATE . Afterwards , the applicant managed to see his son until DATE .", "Meanwhile , the applicant initiated an action before the Budapest IV / XIV District Court in DATE , seeking a change of custody and requesting the temporary placement of the child with him as an interim measure . Since no measures were taken thereafter , he submitted a petition to the ombudsman , asking for his assistance .", "Eventually , ORG , acting as a second - instance court , rejected the maintenance of contact with the child via the foundation mentioned in paragraph CARDINAL above , and dismissed the applicant ’s action on DATE .", "NORP In DATE ORG , ORG quashed the decisions of the Budapest ORG described in paragraph CARDINAL above , thereby withdrawing the fines imposed and the order to initiate the child ’s placement under protection , without the possibility to appeal against the decision . ORG established that the decisions of the guardianship authority had been unlawful and it discontinued the administrative proceedings concerning the exercise of the applicant ’s access rights prior to DATE . It nevertheless ordered ORG to take effective measures to ensure the applicant ’s rights by using the range of measures at its disposal and not only through the imposition of fines . ORG pointed out , inter alia , that :", "“ ... [ t]he fact that the administration of minor ORG ’s case concerning access got to a guardianship authority that instantly sanctions the mother for the overdue visits is good , but other measures would be required as well , as it seems that the fines do not lead to any result , the goal being to enable GPE PERSON to exercise his visiting rights regarding his son . That is why the guardianship authority should initiate the placement of the child under protection and consider intervening in the custody proceedings on the side of the father . This should have been done already by the previous guardianship authority . The placement of the child under protection was initiated once by LAW , but the proceedings were discontinued by ORG on the ground that the child ’s care may be provided through basic service . The guardianship authority did not request the review of the decision despite the fact that the failure of care in basic service had been fully manifest . ...", "Overall , it can be established that the first - instance guardianship authorities were not controlling the situation , revoking the fines imposed on formal grounds . ... ORG was a “ spectator ” to the situation , hindered the enforcement proceedings several times ; on the basis of the appeal even it could have clarified whether the visits took place , or could have requested the first - instance guardianship authority to hear the parties , once they made the mistake of transferring the case file to the court without having made copies of at least the proceedings pending preceding the transfer . ...", "The second - instance guardianship authority also omitted [ to fulfil its obligations ] in that when the father had not received his son for DATE and the competent guardianship authority did not assist the enforcement , it did not take over the case . It is not an acceptable solution to settle cases that , instead of solving the professional problems , the second - instance guardianship authority repeatedly assigns new acting organ . This practice is unlawful ...", "It is indisputable that the first instance guardianship authority and the second instance guardianship authority made omissions DATE by not effectively promoting the enforcement of the contacts ... ”", "NORP The applicant initiated the review of the ORG ’s decision before ORG . On DATE this ORG established that the decision in question had been unlawful and informed the ORG about its findings .", "NORP However , the applicant was not able to exercise his access rights after the ORG ’s decision had been adopted . He initiated several enforcement proceedings , following which a few penalties in the sum of the statutory maximum were imposed on the mother .", "It appears that the applicant has been unable to have any contact with his son since then .", "Meanwhile , as it had become impossible for the applicant to meet his child , he lodged a criminal complaint against the mother for endangering a minor , on DATE . ORG found the mother guilty and imposed a criminal fine on her on DATE . In its reasoning , the court emphasised that :", "“ [ a ] child ’s moral development can be endangered not only by so - called immoral conduct ... but also by depriving the child of the opportunity of healthy moral development . Thus , by the conduct of the mother , who , having knowledge of the fact DATE of which the child also had knowledge – that the father was to exercise his access rights at DATE , knowingly violated this right by organising for that date an attractive programme for the child in the countryside , at a location far from the father ... The mother involved the child in her conflict with the father , informed him of the court actions brought against or by him and made disparaging remarks about the father , thereby exerting emotionally negative influence on the child living under a common roof with her and thus being to an increased degree dependent on her . ”", "However , it also noted that the applicant :", "“ ... [ h]imself did not dispute that on certain occasions contact with the child became frustrated because of his own omission . ”", "No further information was provided by the parties as to the development of the criminal case before the appellate court .", "The relevant rules concerning the enforcement of contact orders can be found in Government Decree no . ORG ( ORG . CARDINAL . ) on ORG , which provides as follows :", "“ ( CARDINAL ) The development of the child is endangered if the parent ... wilfully and repeatedly fails to comply with a final contact order .", "( CARDINAL ) If non - compliance with the contact order on the part of the parent ... is a fault of his / her own , the guardianship authority shall warn him / her about the consequences of such conduct . The decision shall contain an injunction ordering the parent ... to terminate the unlawful conduct and a warning about the legal consequences of continuing the unlawful conduct .", "( CARDINAL ) If the measures provided for under subsection ( CARDINAL ) are of no effect and DATE has not elapsed from the receipt of the warning , the guardianship authority shall apply the rules governing enforcement of ORG with the exceptions set forth in this Decree .", "...", "( CARDINAL ) If the maintenance of contact entails conflicts , is continuously frustrated by obstacles , or there are disturbances in the communication between the parents [ in force since DATE ] , the guardianship authority may initiate the involvement of the child welfare service ’s contact centre , the ordering of taking the child into protection , or the institution of the child protection mediation procedure .", "( CARDINAL ) If it is proved that the parent ... brings up the child by continuously turning him / her against the person entitled to contact , and despite enforcement measures fails to comply with the contact order , an action to change custody may be brought before the court . ”", "NORP Moreover , section CARDINAL of Act no . DATE on ORG provides for the possibility temporarily to place the child with the other parent living apart , if the child ’s emotional development is seriously threatened by his or her family environment and his or her immediate placement is necessary . Such serious threat may be established in case of risk of substantial and irreversible damage to the emotional development of the child .", "Other measures at the authorities’ disposal are listed in GPE , providing for police assistance for the enforcement of administrative decisions and the imposition of procedural fines ." ]

[ "8" ]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in LOC .", "The applicant was the partner of ORG ( ORG ) , with whom she entered into a religious marriage ( imam nikah ) in DATE and had CARDINAL children . PERSON died on DATE .", "On DATE the applicant brought an action before ORG , in her own name and that of her daughter PERSON , seeking to have her marriage to PERSON recognised and to have Emine entered in the civil register as the deceased ’s daughter .", "In a judgment of CARDINAL DATE ORG dismissed the applicant ’s action regarding the marriage but granted the request for Emine to be entered in the register as ORG ’s daughter . No appeal was lodged and the judgment became final .", "On an unspecified date the applicant requested the NORP retirement pension fund ( PERSON ) to grant her and her daughter PERSON the benefit of her deceased partner ’s retirement pension and health insurance rights . On an unspecified date the fund refused the request . On DATE the applicant applied to ORG to have that decision set aside . On DATE the latter decided that it had no jurisdiction ratione loci and that the case should be heard by ORG .", "In a judgment of DATE ORG rejected the applicant ’s application in part . Basing its decision on the judgment of ORG , it found that the applicant ’s marriage to ORG had not been validated . Accordingly , since the marriage had not been legally recognised , the applicant could not be subrogated to the deceased ’s rights . However , the court set aside the fund ’s decision in so far as it related to Emine , granting her the benefit of her deceased father ’s pension and health insurance rights .", "On DATE the applicant appealed on points of law to ORG . She pointed out that the extract from the civil register stated that she was the wife of PERSON , who was registered in the village of PERSON . The applicant explained that in DATE she had married PERSON in accordance with custom and practice . The couple had had CARDINAL children , born in DATE , DATE , DATE , DATE , DATE and DATE . The first CARDINAL children had been entered in the civil register in DATE under their father ’s name , while the last child , Emine , born in DATE , had been entered under her mother ’s name in DATE . The applicant said that on DATE , while preparations had been under way for an official marriage ceremony , her partner had died following an illness . She asserted that , unlike the couple ’s CARDINAL children , she did not benefit from her late partner ’s pension or health insurance rights .", "NORP In a judgment of DATE , served on the applicant on DATE , ORG upheld the impugned judgment .", "Article CARDINAL of the Civil Code provides :", "“ At the close of the marriage ceremony the official shall issue the couple with a family record book .", "The religious ceremony may not be performed unless the family record book is produced .", "The validity of the marriage is not linked to the celebration of the religious ceremony . ”", "The sixth paragraph of LAW provides :", "“ Any person who celebrates a religious marriage without having seen the document certifying that a marriage ceremony has been performed in accordance with the law shall be liable to a term of imprisonment of DATE . ”" ]

[]

[]

[]

[ "8" ]

[]

[]

[ "The applicant , born in DATE , is a journalist by profession . At the relevant time he was employed by ORG , a national DATE newspaper , working as a correspondent in his hometown of GPE .", "In the NORP education system , after the seventh or eighth grade , when pupils complete their primary education , they can continue either in an ordinary or in a specialised secondary school . The ordinary secondary ORG curriculum does not usually involve the intensive teaching of a special subject such as mathematics , foreign languages or engineering . Enrolment in them is on the basis of documents only and does not typically present a problem . The curriculum of the specialised secondary schools does include the teaching of such subjects , and pupils are admitted to them exclusively on the basis of competitive examinations , which take place in DATE ( DATE in GPE starts on DATE ) . Under regulations issued by ORG and ORG , pupils with certain medical conditions can be admitted to specialised secondary schools without an examination , as an exceptional measure .", "On DATE the head of the GPE education inspectorate , a territorial division of ORG and ORG , appointed a commission to select for admission to specialised secondary schools pupils with certain chronic medical conditions or special educational needs . The commission ’s members were CARDINAL employees of the inspectorate , PERSON , PERSON , Mr PERSON and Mr G.D. , and a paediatrician , PERSON", "On DATE CARDINAL parents of children who were sitting competitive examinations to gain admission to specialised secondary schools wrote a letter to ORG and ORG . They said that CARDINAL and fiftyseven children had been admitted to specialised secondary schools in GPE on the basis of a medical condition and not following a competitive examination . Most of those were apparently the children of medical doctors , paramedical staff and teachers . The parents complained that whereas they were paying MONEY for private preparatory lessons , certain pupils had been bragging that they would be admitted to ORG in GPE in exchange for paying MONEY ( ORG ) ; indeed , DATE this had become a fact . They cited several examples of perfectly healthy children who had been diagnosed as suffering from serious chronic illnesses . They said that they were not blaming the admissions commission , which had merely been taking note of the prior conclusions of medical doctors and allocating the pupils to schools depending on the nature of their purported health problems . They insisted that the ORG should set up a special commission to investigate . A number of parents subsequently staged DATE public protests in front of the building of the GPE education inspectorate .", "Following this complaint , on DATE the Minister of ORG and ORG appointed CARDINAL officials of ORG to inspect the work of the admissions commission . Having done so CARDINAL , the CARDINAL officials produced a fivepage report on DATE . The report , which was not made public , found that the commission had committed a number of violations of the school admissions regulations , such as admitting pupils who did not have the requisite medical conditions , making findings on the basis of invalid medical documents and poorly documenting its activities . It also said that there were indications that PERSON had been forging documents . The report ’s proposals included “ imposing disciplinary punishments on the commission ’s members , commensurate with the violations found and in line with the FAC ” . On DATE the Minister imposed on PERSON , PERSON , Mr PERSON and Mr PERSON the disciplinary punishment of a “ warning of dismissal ” , citing a number of violations and omissions in the school admissions procedures .", "NORP Some time after that the GPE regional prosecutor ’s office opened an inquiry concerning PERSON , PERSON , Mr PERSON and Mr G.D. On DATE it instituted a formal investigation against “ the implicated officials of the education inspectorate ” on suspicion of bribetaking . In the course of this investigation the authorities interviewed the CARDINAL officials , some parents who had complained to ORG and ORG and parents alleged to have given bribes to have their children admitted to “ specialised ” schools . In DATE the prosecutor ’s office decided to discontinue the investigation without bringing charges . It said that while the officials had indeed breached their duty and had been given a disciplinary punishment as a result , there was no evidence that they had done so as a result of bribetaking .", "NORP The applicant learned about the story and decided to cover it in an article , which appeared on pages CARDINAL and CARDINAL of the CARDINAL DATE issue of ORG under the headline “ Bribes scandal in GPE secondary schools ” . It bore the subheadline “ [ ORG and ORG ] sacks CARDINAL experts for taking money from sick children ” and the applicant ’s byline , and read , in so far as relevant , as follows :", "“ CARDINAL employees of the GPE inspectorate will be punished because they took bribes in relation to the admission of sick children to elite secondary schools , ORG has learned . The ORG Minister [ D.D. ] will decide their fate DATE . [ Mr GPE ] , [ Mr G.D. ] , [ PERSON ] and [ Ms A.M. ] were hired to compile a list of pupils with congenital or acquired diseases who will continue their education in elite secondary schools . An investigation by inspectors from PERSON which took place DATE found that the CARDINAL officials , together with [ Dr PERSON ] , placed CARDINAL people in secondary schools and vocational secondary schools on the basis of forged medical certificates .", "Under [ Ministry ] regulations , children with more serious illnesses should be placed higher on the list .", "However , the inspection showed that these places had been taken by children in whose medical records non - existent complications had been deliberately inserted . The documents were provided by [ Dr N.P. ] and the commission did not check their accuracy .", "The affair was exposed after angry parents of children whose applications had been rejected sent a letter to the [ ORG and ORG ] . The commission of representatives from ORG ministries proposes that the CARDINAL experts be sacked as a disciplinary measure and that [ Dr PERSON ] be banned from practising medicine .", "Those concerned have declined to comment to the media and [ Dr N.P. ] has been unavailable for DATE . ”", "In an additional article published on DATE under the headline “ NORP MP promises to hush up false medical records scandal in GPE ” , the applicant again reported on the story , quoting comments made by PERSON and mentioning that the Minister of Education and ORG had been supposed to decide DATE whether to impose disciplinary punishments on PERSON , PERSON , Mr PERSON and Mr G.D.", "On DATE PERSON , PERSON , Mr PERSON and Mr PERSON lodged a criminal complaint against the applicant and ORG ’s editorinchief with ORG ( GPE районен съд ) . They alleged that by respectively writing and publishing DATE article the applicant had disseminated , and the editor had allowed to be disseminated , injurious statements of fact about them and had imputed an offence to them . In their view , by so doing the applicant and the editor had committed libel , contrary to ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( see paragraphs DATE and CARDINAL below ) . They sought compensation in the amount of BGN CARDINAL .", "At some point during the proceedings the complainants dropped the charges against ORG ’s editorinchief .", "ORG held hearings on DATE and DATE . The judge examining the case was also in charge of another case which the CARDINAL complainants had brought against another journalist in relation to an article covering the same events . After convicting the other journalist on CARDINAL DATE , the judge withdrew from the case , citing negative comments made by the applicant about her judgment in the other case . On DATE all the judges of ORG stated that they did not wish to take part in the examination of the case , citing public protests by journalists and the airing of allegations that they were all biased against the applicant . Accordingly , on DATE ORG ordered that the case be transferred to ORG ( Поморийски районен съд ) .", "The trial before ORG took place on DATE and DATE and on DATE and DATE . The court heard evidence from the applicant , the complainants and a number of witnesses called by both parties , including the supervisor of the CARDINAL complainants and the deputy regional governor of GPE .", "In a judgment of DATE ORG found the applicant guilty of having , in the printed press , disseminated injurious statements of fact about PERSON , PERSON , Mr PERSON and Mr PERSON , officials carrying out their duties , contrary to LAW ) and ( CARDINAL ) and CARDINAL taken in conjunction with LAW . The court acquitted the applicant of the charges of having imputed offences to them and of having committed the offence in public , contrary to LAW CARDINAL ( CARDINAL ) and CARDINAL of the Code . It applied Article CARDINAL of the Code ( see paragraph CARDINAL below ) and replaced the applicant ’s criminal liability with CARDINAL administrative fines of ORG CARDINAL each . The court further ordered the applicant to pay each of the complainants compensation for nonpecuniary damage amounting to ORG CARDINAL , plus interest from DATE until settlement , and dismissed the remainder of their claims . Finally , it ordered the applicant to pay BGN CARDINAL in court fees . The court described the facts set out above and continued as follows :", "“ To gather the information necessary for his article , [ the applicant ] had conversations with parents protesting in front of the [ GPE education inspectorate ] ... From them he learned about the alert which had triggered the appointment of the [ inspection commission ] . He talked to the head of [ the inspectorate ] , [ PERSON ] , and [ other journalists ] from PERSON ( whose names he did not disclose ) , from whom he learned that the inspection had revealed a number of violations and that it was expected that there would be a proposal to the Minister to impose stiff disciplinary punishments on the complainants . [ The applicant ] asserts that he [ also ] talked to the deputy regional governor in charge of education , [ Mr PERSON ] . [ However ] , at trial [ Mr PERSON ] testified that his conversation with the applicant had taken place after , not before , the article ’s publication .", "Another witness , ... a colleague of the complainants , [ testified that ] the article ’s publication had had a severe negative impact on [ them ] , leaving them very depressed , worried and unable to do their work with their usual confidence .", "On the basis of these findings of fact the court makes the following findings of law :", "According to LAW ] , the offence of defamation consists in disseminating injurious statements of fact about someone or imputing an offence to him or her . ... The complainants accuse [ the applicant ] of committing both forms of the offence – disseminating untrue injurious statements of fact and imputing an offence to them . The complainants and their counsel maintain that the imputed offence was the taking of bribes from children , [ contrary to ] LAW [ of LAW ] . Having read the article carefully , the court finds that [ the applicant ] did not impute an offence to the complainants . The article does not contain any allegation that the complainants took bribes . Its first part ( including the headings ) stated that the complainants would be punished with disciplinary dismissal for having taken bribes . [ The applicant ] did not comment on the appropriateness of the purportedly impending punishment , and in the second part of the article described in a relatively detailed manner what he considered to be the facts of the matter , which would form the grounds for the punishments . These facts did not include bribetaking . It is averred that the unlawful admission of pupils was made possible by Dr [ ORG ] ’s fabrication of false medical documents and that the complainants relied on these documents without checking their accuracy . Taken together these parts of the article lead to the conclusion that [ the applicant ] did not allege that the complainants had taken bribes . The court accordingly finds [ him ] not guilty of the charge of imputing an offence . It is therefore not necessary to discuss the evidence and the facts suggesting the commission of such an offence , or [ the applicant ’s ] certainty ... that it had taken place .", "[ The applicant ] did , however , commit the other form of [ defamation ] . In his article [ he ] disseminated an injurious statement of fact , namely that the complainants would be punished with disciplinary dismissal for having taken bribes for having children admitted to elite secondary schools in GPE . The injurious character of this statement is a metalegal characteristic . The law does not spell out the content of this notion . For this reason , whether or not a circumstance is injurious must be determined on the basis of [ public opinion ] . The dismissal of an individual from an official post for taking bribes is generally seen as a sign of that individual ’s poor morals . The court accordingly accepts that the disseminated statement is injurious .", "According to LAW [ of LAW ] , [ those making allegedly defamatory assertions ] are not to be punished if the assertions are found to be true . This means that defamation has been committed only if the injurious statements disseminated are untrue . In the instant case this is so . It has been established that the complainants were not dismissed but [ only ] warned that they could face dismissal and that this did not happen on DATE . It is , however , rather more important to point out that the grounds for the disciplinary punishments were not the taking of bribes but the violations described in the report of the inspecting commission and in the reasons for the orders imposing disciplinary punishments .", "The untrue injurious statement was disseminated through the publication of the article in ORG . It is well known and not disputed [ by the parties ] that this newspaper is circulated on the territory of [ the entire country ] . The court therefore accepts that the aggravating element of Article CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL [ of LAW ] is present .", "The untrue injurious statement disseminated was connected with the performance of the ORG duties . As members of the admissions commission for pupils with chronic medical conditions and special educational needs they were ‘ public officials’ within the meaning [ of LAW ] . The court therefore accepts that the aggravating element of Article CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL [ of the Code ] is [ also ] present .", "The untrue injurious statement was not disseminated in public . The fact that the offence was characterised [ as having been committed through the printed press makes it impossible for it to have been committed in public ] . An injurious statement is considered to have been disseminated in public if this was done in the presence of several persons , whereas the dissemination of information in the printed press ... involves no direct contact between the person imparting the information and those receiving it . The court therefore finds [ the applicant ] not guilty of [ disseminating the injurious statement in public ] contrary to LAW in conjunction with LAW [ of LAW ] .", "The defence disputes the existence of mens rea . It asserts that [ the applicant ] was not aware that the statements he made were untrue . What is more , according to the defence [ the applicant ] believed that the complainants had been taking bribes in performing their duties as members of the commission . This belief was based on objective facts . These arguments are inapposite and should not be addressed by the court , as in the impugned article [ the applicant ] did not allege that the complainants had been taking bribes . Seen from this perspective , whether or not [ the applicant ] believed that bribes had been taken is irrelevant . What matters is whether [ the applicant ] was aware of the untruthfulness of [ the assertion ] that on DATE of publication of the article the Minister of Education and ORG ... would impose on the complainants the disciplinary punishment of ‘ dismissal’ on the grounds that they had taken bribes from sick children . This is so because , [ according to ORG caselaw , ] ‘ when [ a journalist ] has properly verified the truthfulness of the information in line with established journalistic practice [ and ] the internal nonbinding rules of the relevant newspaper or publishing FAC , by using the sources available in practice , [ he or she can be said to have acted ] in a professional manner and in good faith , which excludes criminal and civil liability for defamation ( [ citation ] ) . It has not been established that [ the applicant acted ] in a professional manner and in good faith . None of the sources used by [ him ] provided information to that effect . The information which [ he ] received from the head of the inspectorate , PERSON , and [ other journalists ] from PERSON indicated that at the close of the inspection the commission appointed by the Minister was to propose that the complainants be subjected to stiff disciplinary punishments ( on unspecified grounds ) . Before the publication of the article [ the applicant ] did not talk to the deputy regional governor , [ Mr PERSON ] . The conversations conducted with parents of children [ not admitted ] could not give [ the applicant ] reliable information either about the internal control measures envisaged by the Minister or about the grounds for taking them . At the time of publication there was not a single source indicating to [ the applicant ] that the complainants would be dismissed as a disciplinary measure or that the grounds given by the Minister for that would be bribetaking . The court therefore finds that [ the applicant ] realised the untruthfulness of the injurious statements he disseminated and that the offence was therefore intentional . [ The offence of defamation ] does not require the defamed persons to sustain damage . The antisocial consequences of such an act arise simply from the dissemination of the injurious statements . By publishing his article [ the applicant ] intended just that – to bring the untrue injurious statements to the knowledge of an unlimited number of people . The offence was committed with direct intent because [ the applicant ] was aware of the antisocial character of his act and wished its adverse consequences to occur ...", "In sum , the court finds that [ the applicant ] has committed with respect to each of the complainants an offence under LAW ( CARDINAL ) and ( CARDINAL ) and CARDINAL in conjunction with LAW [ of LAW ] . ( The CARDINAL offences were committed [ in a single act ] . ) The penalty for such an offence is a fine ranging from MONEY and public reprimand . [ The applicant ] has not been convicted of a publicly prosecutable offence ... and the offences have not engendered pecuniary damage . [ The case thus comes under ] Article CARDINALa [ of the Code ] , and [ the applicant ] ’s criminal liability should be replaced with an administrative fine of ORG CARDINAL to ORG CARDINAL .", "To determine the amount of the fine , the court ... took into account the mitigating and aggravating circumstances . [ The applicant ] was not found to have committed other transgressions , i.e. he does not exhibit criminal tendencies and the level of risk he presents to society is low . Despite the existence of CARDINAL additional qualifying elements ( which is of itself an aggravating factor ) , the nonpecuniary damage sustained by the complainants as a result of the offence is negligible ( see below for more on this point ) . [ The applicant ] denies any wrongdoing , which is his right , but at the same time has provided detailed explanations about the case and practical cooperation in ascertaining the truth . For these reasons , the court finds that there is a preponderance of mitigating circumstances , and fixes the punishment for each offence at the minimum amount , namely BGN CARDINAL .", "The ORG claims for damages are wellfounded , because in all cases the dissemination of untrue injurious statements tarnishes the good name of the persons associated with the alleged facts . Under sections CARDINAL and CARDINAL [ of the DATE LAW ] the compensation [ for nonpecuniary damage ] must be determined by the court in equity . The court finds that the sum of BGN MONEY claimed by each of [ the complainants ] would amount to just compensation for the nonpecuniary damage suffered by them as a result of the slur on their reputations . However , [ the applicant ] is not liable to pay the entirety of that sum . Apart from the untrue injurious statements , in his article [ he ] also reported true injurious facts , in respect of which he does not bear any criminal or civil liability . The article points out that the complainants committed violations which led to the unlawful admission of children to the abovementioned secondary schools . These facts were true . Their publication by [ the applicant ] was legal , because in publishing them he was exercising his constitutional right to seek and impart information , and helping other citizens to exercise their constitutional right to receive information ( Article CARDINAL § CARDINAL ... of the LAW ) .", "The evidence gathered in the case leads to the conclusion that the reputations of [ the complainants ] have suffered chiefly as a result of the true injurious facts reported by [ the applicant ] . [ The relevant regulations ] lay down a procedure whereby the ORG [ in line with its constitutional obligations ] encourages education , creating conditions for the vocational training of children with special needs or medical conditions . Since this activity is a constitutional obligation of the ORG , its performance in strict compliance with the relevant rules is of paramount importance . Seen from a different perspective , when the performance of this activity has been marred by a series of serious violations and this has led to the unlawful admission of pupils to the detriment of other pupils who have recognised medical conditions or needs , these violations inevitably lead to the loss of the good names of the officials concerned . For these reasons , the court finds that the reputations of [ the complainants ] suffered as a result of their own illicit behaviour . When imparting information about this [ the applicant ] went too far – alongside the true injurious statement he made an untrue statement about the impending punishments and the grounds for them . As a result , [ the ORG ] reputations suffered additionally , but not materially , because even if [ the applicant ] had not said what punishments would be imposed by the Minister , [ the ORG ] reputations would have been greatly impaired anyway . [ The applicant ] is liable only for the nonpecuniary damage arising out of the dissemination of the untrue injurious statements . In view of the foregoing , the court finds that the equitable amount of compensation is ORG CARDINAL for each of [ the complainants ] . The remainder of the civil claims are groundless and are to be dismissed . ”", "In a decision of CARDINAL DATE ORG ordered the applicant to pay the ORG costs , amounting to ORG CARDINAL .", "Both the applicant and the complainants appealed . The applicant argued , among other things , that the institution of criminal proceedings against the complainants on charges of bribery meant that there were grounds to suspect that they had committed such offences and that he had been justified in mentioning that fact in the article .", "ORG ( GPE окръжен съд ) heard the appeal on DATE .", "In a final judgment of DATE it upheld the applicant ’s conviction and sentence , but increased the award of damages , ordering the applicant to pay ORG MONEY to each of the complainants . ORG also upheld the lower court ’s ancillary costs order . It held , in so far as relevant , as follows :", "“ ...", "Concerning the arguments ... that the [ lower court ’s ] judgment is illfounded and in breach of substantive law : The appeal states that criminal proceedings were instituted against the complainants on charges of bribery in breach of LAW [ of LAW ] , and that for this reason [ the applicant ] can not be deemed to have intentionally made untrue and injurious assertions . It can however be seen from the reasoning of [ the lower court ] that [ the applicant ] was acquitted of the charge of imputing to the complainants the offence of bribery . The [ lower court ’s ] reasoning on that point is fully shared by this court and , accordingly , the objections that the [ lower court ’s ] judgment was unfounded or in breach of substantive law do not call for further discussion .", "The court finds that the punishments imposed on [ the applicant ] were properly fixed . [ The lower court ] correctly replaced [ the applicant ’s ] criminal liability [ under ] Article ORG of [ LAW ] with fines in the minimum amount allowed by the law , namely ORG CARDINAL for each of the offences , taking into account [ the applicant ’s ] lack of a criminal record or other antisocial acts , [ the ] lower level of risk [ he poses ] to society , [ and ] his detailed explanations about the facts of the case . In its reasoning the court said that the nonpecuniary damage sustained by the complainants was not significant . That view can not be shared by [ this court ] . Unlike pecuniary damage , the non - pecuniary damage caused through a criminal act should not be taken into account for the purpose of fixing the punishment . The nonpecuniary damage suffered by the victims of crime is strictly individual and should be taken into account solely for the purpose of fixing the amount of compensation , not the quantum and type of the punishment . Nevertheless , [ this court ] considers that the minimum penalties imposed on [ the applicant ] will [ be sufficient to ] further the aims of the punishment , as envisaged by [ LAW ] . The court therefore finds that this part of the [ lower court ’s judgment ] should be upheld .", "As regards the civil claims for compensation for nonpecuniary damage :", "The court finds unfounded the ORG requests to increase the amount of compensation to ORG CARDINAL,CARDINAL for each of them . It is true that the complainants sustained non - pecuniary damage – a blemish on their reputations , concerned as they are about their professional standing and good names – as a result of the offences against them . [ The lower court ] , however , correctly stated in its reasoning that [ the applicant ’s ] article had reported injurious facts which were true , namely that the complainants had committed violations in their work , which led to the unlawful admission of children to secondary schools , and which were more significant than the fact that the complainants would be dismissed . For this reason , the court considers that [ the lower court ] was right not to allow the civil claims in full . However , in [ this court ’s ] view , the awards [ it ] made are too small . The amount of ORG CARDINAL for each of [ the complainants ] can not make good their suffering resulting from the affront to their dignity . Regard being had to the way in which the offence was committed – circulation of the injurious assertions in a publication which is sold nationwide , thus bringing them to the attention of large number of people – , [ as well as ] the negative impact this had on the ORG mental state , health and capacity for work ... , this court finds that it would be just to award the complainants ORG CARDINAL each . This part of [ the lower court ’s ] judgment should therefore be modified , by increasing the amount which [ the applicant ] has to pay to the complainants to BGN CARDINAL for each of them in respect of nonpecuniary damage .", "Concerning the costs of the proceedings :", "In a decision of CARDINAL DATE [ the lower court ] ordered [ the applicant ] to pay the complainants the amount of ORG CARDINAL for costs . [ The applicant ] was found not guilty of the charge of imputing an offence and of the charge under Article CARDINAL § [ § ] CARDINAL ( CARDINAL ) [ and CARDINAL ] of [ LAW ] . Under [ the relevant provisions of LAW ] , he must accordingly bear the full cost related to the charges of which he was found guilty ... However , in this court ’s view , [ the lower court ] correctly ordered the applicant to pay the entirety of the costs in the case , because the complainants are also a private prosecuting party and it is the court ’s practice in such cases to award the costs in full . ... ”", "In DATE the authorities issued enforcement proceedings against the applicant to recover the fine . Those proceedings were closed on DATE following the payment of the fine , plus interest , in its entirety . The total amount paid by the applicant was ORG CARDINAL,CARDINAL.CARDINAL .", "NORP In DATE the CARDINAL complainants also issued enforcement proceedings against the applicant to recover the damages and the costs awarded to them . The amounts due were paid by ORG DATE and DATE . The newspaper recovered the sums paid by deducting them from the applicant ’s salary . The total amount paid in this way was ORG .", "On DATE a member of ORG officially questioned the Minister of ORG and ORG about the affair . On DATE the Minister replied , saying , inter alia , that the officials found guilty of committing violations of the admissions procedure had been disciplined and that the Ministry did not have competence to institute criminal proceedings , which was a matter for the prosecuting authorities .", "On DATE another journalist who had covered the story , PERSON , together with CARDINAL officials of ORG and ORG , testified about the “ sick children ” affair before ORG . At the end of the hearing ORG unanimously resolved to send the material to the GPE prosecuting authorities with a view to the possible initiation of criminal proceedings against PERSON , PERSON , Mr PERSON and Mr G.D. , asking the Minister of Health whether the medical doctors responsible had been punished , and asking the Minister of Education and ORG whether penalties had been imposed on PERSON , PERSON , Mr PERSON and Mr PERSON and whether the penalties had corresponded to the posts they occupied .", "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 This 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 . ”", "Article CARDINAL of the DATE LAW , as in force since DATE , provides as follows :", "“ CARDINAL . Any person who disseminates an injurious statement of fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from MONEY , as well as by public reprimand .", "NORP The perpetrator shall not be punished if he or she proves the truth of the said statement or imputation . ”", "If the defamation is committed through the printed press , or if the defamed parties are public officials carrying out their duties , it is punishable by a fine ranging from ORG CARDINAL,CARDINAL to ORG CARDINAL,CARDINAL , as well as by public reprimand ( Article CARDINAL § § CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL , as in force since DATE ) . Since DATE all instances of defamation are privately prosecutable offences ( Article CARDINAL , as in force since DATE ) . In DATE Article CARDINAL survived a challenge of unconstitutionality , with the ORG ruling that increased penalties where the defamed parties were public officials did not disproportionately restrict freedom of expression ( реш. № CARDINAL от DATE г. по к. д. № DATE г. , обн. , GPE , бр. CARDINAL от CARDINAL юли DATE г. ) .", "NORP The mens rea for the offence of defamation can only be direct intent or oblique intent ( recklessness ) , not negligence ( Article CARDINAL(CARDINAL ) ) . PERSON , in the form of intent or negligence , is an essential element of any criminal offence ( LAW and LAW , DATE and CARDINAL ) .", "In a judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL май DATE г. по н. д. № CARDINAL г. , ORG , ORG н. о. ) ORG held that provided that , prior to publication , journalists checked their information in line with the practice established in the profession or with the internal rules of the relevant medium , by using the sources available in practice , they could not be held to have acted wilfully or even negligently and were not guilty of defamation . It went on to say that , owing to the accessory nature of a civilparty claim , the general rule of tort law that fault was presumed was not applicable to the examination of tort claims in criminal defamation proceedings . In such proceedings , the rules governing fault as an element of the tort of defamation were those of the criminal law . The court also held that under NORP law strict liability could not be applied in respect of defamation , and referred to the constitutional principle that public officials were subject to wider limits of acceptable criticism than private individuals .", "Article CARDINAL § CARDINAL , as in force at the relevant time , mandated the courts to replace convicted ORG criminal liability with an administrative punishment DATE a fine ranging from MONEY – if ( i ) the offence of which they had been convicted was punishable by DATE imprisonment or a lesser penalty , in respect of an intentional offence , ( ii ) they had not previously been convicted of a publicly prosecutable offence and their criminal liability had not previously been replaced by an administrative punishment , and ( iii ) the pecuniary damage caused by the criminal act had been made good . The administrative fine could not be higher than the criminal fine envisaged for the offence ( LAW ) . Along with the fine the court could impose occupational disqualification of DATE , if such a punishment was envisaged for the offence ( LAW ) .", "On DATE ORG of ORG DATE ) , Towards decriminalisation of defamation , in which it called on GPE to , inter alia , guarantee that there is no misuse of criminal prosecutions for defamation ( point CARDINAL ) ; remove from their defamation legislation any increased protection for public figures ( point CARDINAL ) ; ensure that under their legislation persons pursued for defamation have appropriate means of defending themselves , in particular means based on establishing the truth of their assertions and on the general interest ( point CARDINAL ) ; set reasonable and proportionate maxima for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk ( point CARDINAL ) ; and provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury ( point CARDINAL ) ." ]

[ "10" ]

[ "10-1" ]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Agent , ORG and ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE criminal proceedings were initiated against the applicant and CARDINAL co - accused on account of various offences which they had allegedly committed in their capacity as police officers . The applicant and another suspect retained Mr Barcsi as defence counsel . On DATE the ORG excluded Mr Barcsi from the proceedings . It held that because his CARDINAL clients ' interests conflicted , he was not eligible . This decision was later quashed by LOC . Subsequently , the other suspect retained another lawyer .", "On DATE a bill of indictment was preferred in the case .", "On DATE ORG again excluded Mr Barcsi from the applicant 's defence . On DATE ORG dismissed an appeal lodged by the applicant and Mr Barcsi . The courts observed that during the preliminary investigation Mr Barcsi had been retained by CARDINAL defendants ; however , since their testimonies had been contradictory , the double retainer had amounted to conduct against those defendants ' interest . The court held that the conflict of interest between these defendants had a significant bearing on the outcome of the case , in that the defence of one might be to the detriment of the other . They applied section CARDINAL(CARDINALc ) of the Code of Criminal Procedure , according to which a person acting against the interests of a defendant can not act as defence counsel . Mr PERSON 's complaint to the Attorney General was to no avail .", "Subsequently , a legal - aid lawyer was appointed for the applicant . On DATE he complained to ORG that , in his view , the legal - aid lawyer had not prepared his case adequately .", "Hearings were held on DATE , CARDINAL May , DATE and DATE . Closing statements were heard on DATE .", "ORG delivered a judgment on DATE . The applicant was found guilty of various charges and sentenced to DATE imprisonment , to DATE prohibition from public affairs and to a fine of MONEY . The lapse of time since the commission of the offences was taken into account as a mitigating factor .", "On appeal , ORG scheduled a hearing for DATE . According to the information available in the case file , the case is still pending before the appellate court .", "Act No . XIX of DATE on LAW provides as follows :", "“ ( CARDINAL ) The defendant , the defence counsel ... are entitled to file a written complaint with the trial court complaining about an omission ... allegedly committed by that court , requesting that the omitting court be instructed to perform the omitted procedural act or adopt a decision or ... take an appropriate action in the case within a reasonable time limit .", "( CARDINAL ) Such a complaint may be filed if :", "a ) the law prescribes a time - limit for a court within which to perform a procedural act or to pass a decision and the time - limit has elapsed without any result ,", "b ) a court has set a time - limit for [ a participant of the procedure ] within which to perform a procedural act , the time - limit has elapsed without any result , and the court has failed to impose on the one responsible the measures allowed by the law ...", "( CARDINAL ) Except for the case specified under subsection ( CARDINAL ) , the trial court shall , within DATE , directly forward the files to the court competent to decide on the complaint . In an enclosed document , it shall set out the reasons which – according to its assessment – made impossible the performance of the procedural act or the passing of a decision .", "( CARDINAL ) If the trial court itself finds the complaint well - founded , it shall , within DATE counted from the receipt of the complaint , take or order to take appropriate measures in order to terminate the situation complained of . It shall inform the complainant of the manner in which the complaint has been settled ...", "( CARDINAL ) If the [ superior ] court determining the complaint admits the complaint , it shall , by setting a time - limit , instruct the [ trial ] court to take ... the action required for the proper progress of the case .... If it finds the complaint ill - founded , it shall dismiss it in a reasoned decision . No further appeal shall lie against this decision ... ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in the town of GPE .", "On DATE the applicant 's husband died due to the fault of an employee of ORG .", "On DATE ORG of PERSON ordered the company to pay the applicant ORG CARDINAL in compensation .", "On DATE ORG discontinued the enforcement proceedings due to the debtor 's lack of funds and the applicant 's refusal to take the debtor 's property instead of the money .", "On DATE the company was declared bankrupt and the liquidation proceedings were initiated against it .", "The judgment remains unenforced .", "The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

[ "13", "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant is an NORP citizen , born in DATE , and is presently detained in a prison in GPE . He is represented before the ORG by Mr Hitzenbichler , a lawyer practising in GPE .", "On DATE the applicant was arrested under the suspicion of having robbed and killed the taxi driver PERSON", "When questioned by the police at PERSON the applicant first denied any connection with the crime , but then - on DATE - he made a confession before the police at GPE . He stated that he had threatened the taxi driver with a firearm described as signalling device ( GPE ) , whereby unintentionally a shot had gone off . On DATE he confirmed this confession before a judge on duty ( GPE ) who had been called in immediately by the police officers .", "On DATE the investigating judge appointed an ex - officio defence counsel for the applicant and ordered for DATE an inspection of the scene of the crime ( ORG ) .", "On DATE the inspection was conducted by the investigating judge in the presence of the applicant , his defence counsel , the public prosecutor , a court expert and several police officers . According to the TIME of the inspection , at the beginning the investigating judge asked the applicant whether he maintained his confession . The applicant again confirmed that he had robbed the taxi - driver , but denied having killed her intentionally . Then the applicant gave a detailed account of the course of the events and his flight until he had met a man at a pizzeria who had brought him to town . Thereafter the “ course of the events ” was reconstructed with the help of a police officer in the role of the victim , using the original car and the firearm the applicant had allegedly used . The applicant showed how he had threatened the victim by holding the fire arm against her neck , how he had got hold of the victim ’s purse , how the victim had tried to get off the car and turned towards the applicant and how the shot had gone off . This reconstruction of the course of events was filmed with a video camera .", "On DATE the applicant withdrew his confession claiming that on DATE , the day of the crime , he had been at home in PERSON with his mother .", "On DATE and DATE and DATE the trial against the applicant took place before ORG ( PERSON ) sitting as an ORG ( Geschworenengericht ) . When questioned about the events on DATE , the applicant maintained that on DATE he and his girlfriend had been in several bars in GPE and that TIME his girlfriend had brought him home where he stayed TIME . It was therefore impossible that he had committed the crime close to GPE ( QUANTITY away ) TIME He claimed that the witnesses who allegedly had seen him had been mistaken . When confronted with his previous confessions he submitted that he had made the first confession because he had been forced to do so by the police and had maintained his confession before the judge on duty and the investigating judge because he had not dared to withdraw it in the presence of police officers .", "Subsequently the court heard as witness the police officers who had carried out the investigations , the judge on duty and the investigating judge . They were questioned about the course of the investigations and the circumstances of the applicant ’s confession . The police offices denied having exerted pressure on the applicant and stated that the applicant had given details which at that time had been unknown to them such as the place where the victim ’s purse and documents had been thrown away . The judge on duty stated that he had also questioned the applicant alone , in the absence of the police officers , and the applicant had expressly stated that no pressure had been exercised on him .", "The court then questioned the managing director of a pizzeria who had identified the applicant as being the person whom he had driven at the relevant time from a bar near to the scene of the crime to the centre of GPE , as well as his employee who also had identified the applicant .", "Moreover , the court heard as witness the applicant ’s girlfriend , his mother and several other persons on the question whether it was possible that at the time of the crime the applicant had been in GPE . Several witnesses stated that they had seen the applicant in a bar in PERSON and that he had left the bar with his girlfriend . His mother stated that he had been at home by TIME and had not left the house later .", "On DATE the video - film made in the course of the inspection of the scene of the crime was shown . Neither the applicant , nor his defence counsel raised any objections . When questioned the applicant stated that during the inspection he did have the possibility to consult with his defence counsel .", "Thereafter the court heard a medical expert . He explained , inter alia , that the victim ’s final position did not correspond to the applicant ’s account in his confession , namely that the shot had gone off when he was sitting inside the car . According to the medical expert it was more likely that the taxi driver had been shot from the outside . The expert also excluded that an ordinary firearm had been used , a signalling device using ordinary bullets could have been a suitable weapon .", "The court refused to read out a private expert opinion on the credibility of the applicant ’s confession or to hear that expert on this issue .", "On DATE ORG convicted the applicant of aggravated robbery and murder and sentenced him to DATE imprisonment .", "On DATE the applicant , represented by a defence counsel of his own choice , filed a plea of nullity ( GPE ) with ORG ( Oberster Gerichtshof ) . He complained , in particular , that the video - film made in the course of the inspection of the scene of the crime was shown at the trial . The applicant submitted that during this inspection he had been intimidated by the presence of a large number of taxi - drivers and that he did not have any contact with his ex - officio defence counsel before the inspection . The applicant further complained that ORG had refused to admit a private expert opinion on the credibility of the applicant ’s confession . The applicant also claimed that in view of numerous inconsistencies and unresolved questions ORG should have taken further evidence on its own motion or to advise the applicant ’s defence counsel to do so .", "On DATE ORG dismissed the applicant ’s plea of nullity and increased his sentence to DATE imprisonment . ORG considered that neither the showing nor the making of the video - film in the course of the inspection of the scene of the crime constituted per se a ground of nullity . Moreover , since the applicant had failed to oppose to the showing of the film at the trial by making a formal request to the court not to do so , he could not raise this matter in the proceedings on the plea of nullity . As regards ORG refusal to take accept as evidence the opinion of a private expert ORG found that the applicant had failed to ask the court to appoint an expert . Private expert opinions only served the purpose to enable an accused to make the relevant requests . As regards the applicant ’s complaint that ORG had failed to take of its own motion further evidence or to advise his defence counsel to do so , ORG noted that the applicant has not filed any request for the taking of further evidence and that it had been up to him to do so . Besides , any inconsistencies between the applicant ’s confession made at the stage of the preliminary investigations and the findings of the court experts had been discussed in detail at the trial . The opinions of the experts had been conclusive and without contradictions ; thus , there had been no necessity to obtain further expert reports . It had therefore been up to the jury to assess the evidence before it and to evaluate whether the applicant ’s initial confession or the statements he had made during the trial were more credible ." ]

[]

[]

[]

[]

[]

[]

[ "Mrs. PERSON was born in DATE and is resident at PERSON . She is of GPE nationality .", "In or DATE , although she had been unemployed for some time , Mrs. ORG ceased to register at ORG ) . This was because she had fallen ill and did not consider herself sufficiently recovered to be fit to work . On DATE , ORG ( ORG FAC ) in GPE decided that as from DATE she was no longer entitled to the sickness allowances she had been receiving until then , as the ORG ’s consulting doctor had judged her fit to resume work on DATE .", "She appealed to ORG ( PERSON ) in GPE .", "The President of ORG sought the opinion of CARDINAL of the permanent medical experts attached to ORG , a gynaecologist practising at GPE , who examined the patient and gave her the opportunity to comment . After consulting CARDINAL other doctors ( a gynaecologist and CARDINAL general practitioners , including Mrs. ORG ’s ) , the expert concluded on DATE that , gynaecologically speaking , she had been fit for work since DATE ; however , he felt it necessary also to consult an orthopaedic specialist .", "On DATE , another permanent medical expert , an orthopaedic surgeon , examined the applicant and offered her the opportunity to comment . He also sought the views of the CARDINAL practitioners mentioned above . In his report of CARDINAL DATE , he too found that Mrs. ORG had been fit to resume employment as from DATE .", "On the basis of these CARDINAL reports , the President of ORG ruled against the applicant .", "The applicant filed an objection ( verzet ) , alleging that she had not been given a fair hearing .", "On DATE , ORG declared the objection inadmissible as it fulfilled none of the grounds laid down in section CARDINAL ( CARDINAL ) of LAW ( DATE paragraph CARDINAL below ) . In an obiter dictum , it stated that the case had been given a fair hearing , in that CARDINAL permanent medical experts had examined the applicant and allowed her to state her objections orally .", "Mrs. PERSON challenged this decision before ORG ( ORG ) at GPE . In particular , she maintained that the limitations imposed by sections CARDINAL and CARDINAL of the above - mentioned Act infringed the principle of a fair trial enunciated in DATE ( article CARDINAL ) of the Convention .", "On DATE , ORG declared the appeal inadmissible by virtue of section CARDINAL ( CARDINAL ) of ORG ( see paragraph CARDINAL below ) .", "As far as health insurance is concerned , social security in the GPE is managed jointly by the ORG - which in general confines itself to establishing the legal framework of the scheme and to seeing to co - ordination - , by employers and by employees .", "The branches of the economy , including the liberal professions , are divided into sectors , each with an occupational association ( bedrijfsvereniging ) responsible for implementation of the social security legislation .", "These associations are legal persons within the meaning of LAW ; the method of their establishment , their structures and their powers are laid down in the Social Security Organisation Act CARDINAL ( Organisatiewet Sociale Verzekeringen ) . They are subject to approval by the Minister for ORG and Employment on the basis of their representative character . The Minister may also decide of his own motion to set up such an association ; in that event , he determines and amends their articles of association as needed and he appoints , suspends and dismisses the members of their governing boards . In addition , he stipulates the assurances to be given for the discharge of the duties of the occupational associations and he receives from each of them an annual report and an annual statement of their accounts .", "The occupational associations are semi - public institutions and operate like private insurance companies .", "They may entrust to a common administrative office ( Gemeenschappelijk Administratiekantoor ) , recognised by the Minister , the administrative work resulting from the application of social security law .", "ORG ( Sociale Verzekeringsraad ) , set up by the ORG and comprising representatives of the ORG , employers and employees , supervises the proper implementation of the legislation in question .", "Under LAW DATE ( PERSON ) , as amended in DATE , insurance against sickness is compulsory for persons DATE who are bound by a contract of employment with a public or private employer , or who can be assimilated to this category ( sections CARDINAL and DATE ) . Persons formerly bound by a contract of employment who are unemployed and in receipt of unemployment benefits are also treated as salaried employees for this purpose . Self - employed workers may take out policies with private companies .", "Sickness includes accidents , whether related to the employment or not . In case of unfitness for work through sickness , an employed person receives an allowance of MONEY of his DATE pay . He or she applies directly to the occupational association to which his or her employer belongs .", "The entitlement to an allowance flows directly from the LAW ( section CARDINAL ) .", "The scheme is administered by the occupational associations ( see paragraph CARDINAL above ) , and the funding is provided entirely by employers and employees . The LAW specifies the rates of contributions , which are at present MONEY for the employee and MONEY for the employer , calculated on a maximum DATE wage of MONEY .", "Disputes arising out of the application of ORG DATE are governed by LAW DATE ( as last amended on DATE ) . For disputes concerning fitness or unfitness for work , there exists a simplified procedure known as the permanent - medical - expert procedure ( vaste deskundige procedure ) ( sections CARDINAL to CARDINAL ) . The expert - a doctor who is a specialist or a general practitioner - is appointed for DATE by the Minister of ORG and he is placed under oath .", "On the lodging of an appeal of this kind , the President of ORG ( there are CARDINAL in the GPE ) may immediately instruct its permanent medical expert to carry out an enquiry ( onderzoek ) into the matter ( section CARDINAL ) .", "Within DATE of notification of the appeal , the authority that delivered the decision which is challenged must submit all relevant files on the case ( section CARDINAL ) .", "The permanent medical expert consults the private practitioner of the person concerned and the relevant occupational association doctor , except where the file shows that they share his opinion ( section CARDINAL ( CARDINAL ) ) . He summons and examines the appellant ( section CARDINAL ( CARDINAL ) ) ; he may consult another practitioner ( section CARDINAL ) . Finally , he makes a written report to the President of ORG ( section CARDINAL ) .", "The President - who is a judge appointed for life - gives a reasoned decision ( beschikking ) which refers to the conclusions of the medical expert .", "An appeal against the President ’s decision lies to ORG , but solely on CARDINAL or more of the following CARDINAL grounds ( section CARDINAL ) : that the expert knew the patient in another capacity or failed to comply with the requirements of section CARDINAL ( see paragraph CARDINAL above ) ; that the President ’s decision does not bear upon the dispute or has not followed the expert ’s advice . Unless ORG declares the appeal inadmissible or unfounded , the normal procedure applies . The parties then have the opportunity of studying the case - file on the premises of ORG at a time determined by the clerk or of receiving copies . The President may however decide , in the mental or physical interest of the appellant , that he or she shall not have access to the medical reports but shall be informed of their contents and may designate a competent person , such as his or her private practitioner or lawyer , to inspect them on the LOC ( section CARDINAL ( CARDINAL ) in conjunction with LAW ( CARDINAL ) and ( CARDINAL ) ) .", "ORG gives its ruling after written pleadings have been filed and oral submissions heard .", "Its decision is not subject to appeal before ORG ( section CARDINAL ( CARDINAL ) of ORG ) . However , according to that ORG ’s established case - law , an exception is made where rules of a formal nature have not been observed ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who lives in PERSON .", "The applicant is a practising lawyer and member of ORG ( Rechtsanwaltskammer ) . His professional letterhead used to refer to him as a “ specialised lawyer in labour and criminal law ” ( GPE für GPE ) and “ specialist in traffic law ” ( “ Verkehrsrechtsspezialist ” ) . In a footnote annexed to the latter reference , the applicant stated that he was a certified graduate of a specialisation course run by ORG ( PERSON ) . On a complaint from a fellow lawyer , ORG requested the applicant to refrain from using the term “ specialist in traffic law ” . When the applicant refused , ORG brought a claim against the applicant under LAW ( see Relevant domestic law and practice part , below ) .", "On DATE ORG ordered the applicant to refrain from using the term “ specialist in traffic law ” on his letterhead failing which he would be liable to a fine of MONEY ( ORG ) . It found that the term “ specialist in traffic law ” amounted to unfair and misleading advertising within the meaning of sections CARDINAL and CARDINAL of LAW . ORG noted that NORP law provided for different categories of specialisation . A lawyer could refer on his professional letterhead to a “ main focus of interest ” if he or she had gathered particular knowledge in a particular field of law . A lawyer could refer to a “ main focus of practice ” if he or she had extensively worked in a particular field of law for DATE . Moreover , a lawyer could be granted the right to call himself or herself a “ specialised lawyer ” ( GPE ) if he had special expertise and experience in a particular field of law , which required inter alia participation in special training courses with exams and DATE of practice with a minimum number of relevant cases . ORG stressed that a lawyer had to overcome high hurdles before being granted the right to call himself or herself a “ specialised lawyer ” . From the perspective of an ordinary client , the term “ specialist ” would suggest an even higher degree of specialisation than a “ specialised lawyer ” . This would however be a mistake in view of the high requirements to obtain the right to refer to oneself as a “ specialised lawyer ” . If a lawyer were to refer to himself or herself as “ specialist ” , he or she would therefore mislead ordinary clients by creating an erroneous impression . This would lead to a competitive advantage as against those lawyers who complied with the hierarchy of specialisation as provided for by NORP law .", "The applicant ’s appeal was dismissed by ORG on DATE . It referred to the reasoning of ORG and found that mere participation on a course on traffic law was not sufficient to justify the reference as a “ specialist in traffic law ” . The applicant had failed to demonstrate that he had worked on an above - average number of cases . He had submitted a list of cases without any indication that these cases required particular knowledge of traffic law . The list was therefore not apt to demonstrate that the applicant indeed specialised in traffic law . The applicant bore the burden of proof in this respect .", "On DATE , ORG refused , without giving any reasons , to admit the applicant ’s constitutional complaint because it was inadmissible .", "Relevant provisions of LAW ( PERSON gegen den unlauteren PERSON ) :", "“ Any person who , in the course of business activity and for purposes of competition , commits acts contrary to honest practices may be enjoined from performing those acts and held liable for damages . ”", "“ Any person who , in the course of business activity and for purposes of competition , makes misleading statements concerning business matters , in particular concerning the nature , the origin , or the manner of manufacture , or the pricing of individual goods or commercial services or of the offer as a whole , concerning price lists , the manner or the source of acquisition of goods , concerning the possession of awards , concerning the occasion or purpose of sale , or concerning the size of the available stock , may be enjoined from making such statements . ”", "According to LAW for ORG ( PERSON für PERSON ) , a lawyer may refer in his professional letterhead to a “ main focus of interest ” ( ORG - schwerpunkt ) if he or she has gathered particular knowledge in a particular field of law through studies , publications or former professional work . If the lawyer has extensively worked in a particular field of law for DATE , he or she may refer to that field as a “ main focus of practice ” ( PERSON ) . Moreover , if a lawyer has special expertise and experience in a particular field of law , he or she may be granted the right to call himself or herself a “ specialised lawyer ” ( GPE ) by the Bar to which he or she belongs ( Section CARDINALc of LAW , GPE ) . According to LAW ) , such special expertise and experience requires inter alia participation in special training courses with exams and DATE of practice with a minimum number of relevant cases .", "On DATE , ORG found in a different case that the decision of ORG for ORG ( Anwaltsgerichtshof ) not to permit a lawyer in GPE to use the term “ specialist in traffic law ” in his letterhead violated that lawyer ’s freedom to choose an occupation ( PERSON ) under LAW ( CARDINAL BvR CARDINAL/CARDINAL ; ORG , pp . CARDINAL et seq . ) . In that case , the lawyer had been working in the field of traffic law in several practical and theoretical functions for DATE and wanted to refer to that expertise in his letter head . ORG took the view that it was doubtful whether the Rules for ORG sufficiently satisfied the interests of both lawyers and their clients . The sequence of “ main focus of interest ” , “ main focus of practice ” and “ specialised lawyer ” could be justified in fields of law that recognised “ specialised lawyers ” . The term “ specialised lawyer in traffic law ” did however not exist under NORP law and could consequently not be confused with the term “ specialist in traffic law ” . The danger of misleading clients would therefore exist only if the lawyer was not in fact a specialist in the general meaning of the word ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lived before his arrest in the GPE region . He is currently serving a prison sentence in a correctional colony in the FAC region .", "The applicant stood trial on charges of robbery and murder before ORG ( “ the ORG ” ) .", "On DATE ORG found the applicant guilty of robbery and aggravated murder , and sentenced him to twenty years’ imprisonment with forfeiture of estate . The applicant ’s co - defendant , PERSON . , was found guilty of conspiring to commit robbery , incitement to commit robbery , aiding and abetting , and concealing evidence of murder .", "Regarding the applicant ’s right to appeal against his conviction , the judgment of DATE stated as follows :", "“ The judgment may be appealed against to ORG of GPE by lodging grounds of appeal with ORG within DATE of the date of the pronouncement of the judgment . Convicted persons held in detention may appeal against the judgment within the same time - limit , which starts to run from DATE when they received a copy of the judgment .", "If an appeal is lodged , the convicted persons are entitled to apply for participation in the examination of their case by the appeal court . ”", "The record of the hearing before the trial court , which was issued on DATE , stated as follows :", "“ The procedure for lodging an appeal against the judgment within DATE of its pronouncement was explained [ to the parties ] , as was the procedure for convicted persons to lodge appeals within the same time - limit , starting to run from the date on which they received a copy of the judgment .", "The right to apply for leave to take part in the examination of the case by the appeal court was also explained ” .", "On DATE a copy of the judgment of DATE was served on the applicant .", "On DATE the applicant ’s co - defendant appealed against the judgment of DATE to ORG of GPE ( “ the ORG ” ) . He submitted that it was him and not the applicant who had committed the murder , but that the trial court had not verified his version of the events .", "The Government submitted that on an unspecified date the applicant had appealed against the judgment of DATE . However , ORG had returned his grounds of appeal to him for correction . In its accompanying letter ORG advised the applicant that his grounds of appeal should comply with the requirements of LAW ( “ the CCrP ” ) . The Government did not provide the ORG with a copy of that letter .", "On DATE the applicant , who was detained in GPE remand prison , submitted a corrected version of his grounds of appeal against the judgment of DATE . He complained , in particular , that he had not committed the impugned crimes and had an alibi which the trial court had refused to verify ; police officers had ill - treated him during the pre - trial investigation to extort a confession from him ; and his conviction had been based on statements by witness P. and his co - defendant , PERSON . , given during the pre - trial investigation under pressure by police officers , and which they had refuted before the trial court . Moreover , PERSON . had confessed before the trial court to having committed the murder himself . The applicant asked the appeal court to quash his conviction . When lodging his appeal , the applicant did not expressly state that he wished to take part in the appeal hearing .", "According to the Government , on DATE ORG informed all the participants of the proceedings , including the applicant and his counsel , that the criminal case had been referred to ORG .", "On DATE the applicant submitted a request to take part in the examination of his appeal by ORG . On DATE the applicant ’s co - defendant also applied for leave to take part in the appeal hearing . According to the Government , ORG received those requests on DATE .", "On DATE the applicant submitted additional grounds of appeal , which were received by ORG on DATE . However , he did not state in his additional grounds of appeal that he wished to take part in the appeal hearing .", "On DATE ORG of GPE ( “ the ORG ” ) , referring to Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the CCrP ( see Relevant domestic law below ) , dismissed the requests submitted by the applicant and his co - defendant to take part in the appeal hearing . ORG held as follows :", "“ ... on DATE PERSON submitted a request to take part in the examination of his criminal case by the appeal court .", "It follows from the materials of the case that the judgment was delivered on DATE and copies of that judgment were served [ on the convicted persons ] on DATE .", "... on DATE PERSON submitted his grounds of appeal , in which he did not express his wish to take part in the appeal hearing .", "On DATE the case , together with grounds of appeal submitted by the convicted persons , was forwarded to ORG [ GPE ] ... The case arrived at ORG on DATE .", "It was not until DATE respectively that the convicted persons [ the applicant and his co - defendant ] submitted requests for participation in the appeal hearing .", "However , their requests should not be granted , since in accordance with LAW [ CCrP ] if a convicted person expresses a wish to take part in the examination of his case by the appeal court , he should indicate this in his grounds of appeal .", "The convicted persons did not indicate in their grounds of appeal their wish to be brought to ORG [ Russian Federation ] . Instead they lodged such requests DATE , when their case had already arrived at ORG ” .", "On DATE ORG examined the appeals lodged by the applicant and his co - defendant against the judgment of DATE in their absence . The applicant was not represented at that hearing . The prosecutor was present at the hearing and supported upholding the applicant ’s conviction . He requested reclassification of the applicant ’s actions in accordance with amendments to LAW .", "Having studied the materials of the case , the appeal court found that the trial court had verified PERSON . ’s version of the events whereby he and not the applicant had committed the murder . However , that version had not been confirmed by the materials of the case . The applicant ’s alibi had been verified and had been disproved by the statements of witness PERSON . , which had also been corroborated by other evidence . Furthermore , the GPE complaints of unlawful pressure by the police were unsubstantiated and refuted by evidence in the case .", "On DATE ORG reclassified the crimes committed by the applicant . In particular , it excluded a number of aggravating circumstances and amended the applicant ’s sentence to exclude forfeiture of his estate . ORG upheld the rest of the judgment .", "Under LAW of GPE , all persons are equal before the law and the court ( LAW ) .", "Any person convicted of a crime has the right to appeal against the verdict to a higher court in accordance with the procedure established by federal law , as well as to request pardon or mitigation of the punishment ( LAW ) .", "A defendant in criminal proceedings is entitled to participate in the examination of the criminal case by the courts of first instance , second instance and supervisory instance , and in the proceedings in which the court examines the measure of restraint to be imposed ( LAW DATE ) .", "The appeal court will verify the legality , validity and fairness of the trial court judgment . The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law relating to a lesser offence , but has no power to impose a more severe penalty or apply the law relating to a more serious offence ( Article CARDINAL ) .", "If a convicted person wishes to take part in the appeal hearing , he must indicate this in his statement of appeal ( LAW ) .", "The parties will be notified of the date , time and place of an appeal hearing DATE in advance . The court will decide whether to summon a convicted person held in custody . If the convicted person held in custody has expressed a wish to be present at the examination of the appeal , he or she is entitled to participate either directly in the court session or by video link . The court will decide the form of participation of the accused person in the court session . A defendant who has appeared before the court will always be entitled to take part in the hearing . If persons who have been given timely notice of the venue and time of the appeal hearing fail to appear , this will not preclude examination of the case ( Article CARDINAL § § DATE ) .", "At the hearing the appeal court will hear the statement of the party who lodged the appeal and the objections of the opposing party . The appeal court will be empowered , if a party so requests , to directly examine evidence and additional materials provided by the parties in an attempt to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party ( LAW ) .", "The appeal court may decide to dismiss the appeal and uphold the judgment , to quash the judgment and terminate the criminal proceedings , to quash the judgment and remit the case for a fresh trial , or to amend the judgment ( Article CARDINAL ) .", "Chapter CARDINAL sets out a procedure for lodging applications and petitions by participants of criminal proceedings . A suspect or defendant , or his or her defence counsel , has the right to lodge applications with the investigator , prosecutor or a court to conduct procedural actions or to take procedural decisions to establish the circumstances that are of importance for the criminal case and also for ensuring the rights and legitimate interests of the person lodging the application or the person he represents ( Article CARDINAL ) . Applications can be lodged at any time in the course of the proceedings in a criminal case ( Article CARDINAL ) .", "Chapter DATE of the Code sets out a procedure for reopening of the criminal case in view of new and newly discovered circumstances . It provides , in particular , that a judgment , a court finding or ruling that has taken legal effect may be reversed , and proceedings in the criminal case may be reopened in the event that ORG has established that in the course of examining the criminal case , a court of GPE , has violated the provisions of LAW ( Article CARDINAL ) . There are no time - limits for reviewing a judgment of conviction in view of new or newly discovered circumstances in favour of the convicted person ( Article CARDINAL ) .", "ORG has examined a number of complaints challenging the compatibility with the LAW of provisions of the old LAW ( in force until DATE ) and the new Code of Criminal Procedure ( in force since DATE ) governing participation of a person convicted of a criminal offence by a first - instance court in the examination of his appeal against conviction by a second - instance court .", "In its leading ruling of DATE on a complaint lodged by PERSON , ORG held as follows :", "“ ... implementation of constitutional guarantees of judicial protection ... implies that a convicted person who has expressed a wish to take part in a court hearing may not be deprived of the opportunity to file objections and lodge petitions , acquaint himself with the position of [ other participants ] expressed in the court hearing and additional materials of the case , if any , and to provide explanations , including in relation to the prosecutor ’s opinion .", "... Those guarantees may be implemented not only by providing the convicted person with an opportunity to participate in the court hearing in person , but also in other ways . In particular , a convicted person may entrust his defence to a lawyer of his own choosing , and provide written replies to the arguments contained in the grounds of appeals , protests and submissions to the appeal court by other participants in the proceedings . What is significant in the constitutional context is that in the interests of justice a convicted person who has expressed a wish to take part in the court hearing should be provided with an effective opportunity to state his position regarding all aspects of the case and bring it to the attention of the court .", "... The challenged provision of the [ old ] CCrP ... does not prevent the appeal court , which is under an obligation to verify the lawfulness and validity of the judgment , from finding that the participation of a convicted person in the court hearing is indispensable and taking measures to ensure his presence at the hearing . The court may also examine the case in the absence of the convicted person if he has not expressed the wish to take part in the court hearing .", "At the same time , those provisions allow the appeal court to dismiss the convicted person ’s request to participate in the hearing and to take a final decision in the case without providing him with any other legal means for implementation of his rights ... This results in a deviation from the principle of equality of all persons before the law and the court and in the limitation of the constitutional rights to judicial protection , examination of the case by a tribunal established by law , and review of the judgment by a higher court ... Moreover , this breaches LAW , which guarantees that court proceedings will be adversarial and will respect equality of arms . Those guarantees imply that the prosecution and the defence should be provided with equal procedural opportunities to state their position during the examination of the case by the appeal court ... ”", "Taking the above considerations into account , ORG held that the challenged provisions of the old CCrP were incompatible with the LAW in so far as they allowed the appeal court , if it dismissed a convicted person ’s request to take part in the hearing , to take a final decision in the case without providing that person with an opportunity to acquaint himself with the materials of the court hearing and to state his position on the questions examined by the court .", "In its further decisions on the complaints challenging the compatibility of the new ORG with the LAW , in particular of LAW § CARDINAL of that Code , ORG further developed its position regarding the participation of convicted persons in the examination of their case by the appeal court .", "On DATE ORG refused to examine on the merits a complaint lodged by Mr S. challenging the compatibility with LAW CARDINAL § CARDINAL of the new CCrP in so far as that provision allowed the appeal court to examine his grounds of appeal in his absence , since he had applied to participate in the examination of his criminal case by the appeal court not in his initial grounds of appeal but in additional grounds of appeal which were submitted later . ORG held as follows :", "“ In accordance with the legal position expressed by ORG in its rulings of DATE , no . CARDINAL , DATE , no . CARDINAL and DATE , no . CARDINAL-П , and decisions of DATE , no . CARDINAL-О , DATE , no . CARDINAL and DATE , no . CARDINAL-О , providing the parties with an effective opportunity to state their position regarding all aspects of the case is a necessary requirement of judicial protection and a fair trial . Depriving the convicted person of an opportunity to familiarise himself with all the materials of the case and to bring to the attention of the court arguments refuting the conclusions of the trial court , either by way of his personal presence at the appeal court hearing or by way of video link or any other way , would breach his right to judicial protection and the principle of equality of arms .", "LAW of the [ new ] ORG provides a convicted person with the right to apply for participation in the examination of his criminal case by the appeal court by indicating his wish to attend in his grounds of appeal . The provision ’s aim is to provide him with an opportunity to state his position on the case before the appeal court and shall not be regarded as limiting his right to judicial protection and other rights guaranteed by LAW . In addition , the provision does not deprive the convicted person of the right to apply for participation in the appeal hearing if he makes such a request not in his grounds of appeal , but in accordance with the procedure provided for by LAW of the [ new ] CCrP of GPE , which places an obligation on the court to take a lawful , reasoned and duly motivated decision on such a request ... ”", "The Constitutional Court confirmed its interpretation of LAW of the [ new ] CCrP in its decision of DATE , by which it refused to examine on the merits a complaint lodged by Mr T. challenging the compatibility of that provision with the LAW . Citing its decision of DATE , ORG held as follows :", "“ ... a different interpretation of LAW of the [ new ] ORG would not only be contrary to Articles CARDINAL , DATE and CARDINAL of the LAW of GPE and the above - cited legal position of ORG of GPE , but also , contrary to the general principle of equality guaranteed by LAW , it would unreasonably worsen the situation of convicted persons held in custody compared to that of the other participants of the criminal proceedings , including convicted persons who have not been deprived of their liberty , whose right to take part in the appeal court hearing is not limited ( under LAW [ new ] CCrP a convicted person or a person acquitted of all charges who appears before the court will always be entitled to take part in the hearing ) .", "Therefore , LAW of the [ new ] ORG , taken together with the provisions of LAW of that Code , does not prevent a convicted person from applying for participation in the examination of his criminal case by the appeal court after submitting his grounds of appeal . This implies that the court has an obligation to take a lawful , reasoned and duly motivated decision on such a request ... ” ." ]

[ "6" ]

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

[ "6-3-c" ]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE . He was living in GPE at the time of the alleged events giving rise to this application . The facts of the case are in dispute between the parties and may be summarised as follows .", "Until DATE the applicant lived in GPE , a village of LOC in GPE province , at that time a state - of - emergency region of GPE . In DATE , terrorist activity was a major concern in this area . Since DATE a violent conflict had been going on in the region between the security forces and sections of the NORP population in favour of NORP autonomy , in particular members of the ORG ( ORG of Kurdistan ) . The inhabitants of the applicant 's village were under pressure by ORG security forces to agree to become village guards .", "On DATE soldiers , accompanied by persons wearing masks , raided GPE . They assembled the inhabitants in the village square and threatened them with the burning of their houses if they did not agree to serve the ORG as village guards . They beat up CARDINAL young men . The soldiers then chose QUANTITY houses and set them on fire after throwing a white powder on them . The houses of the applicant 's brother and cousin completely burned down .", "NORP Following this event , the villagers lived in fear for their security . Some of them left the village , and the rest , including the applicant , preferred to stay . The security forces visited the village CARDINAL times a week in order to force the inhabitants to agree to become village guards .", "NORP In DATE the heads of CARDINAL families agreed under pressure to become village guards . However , these newly recruited village guards , protected by the ORG , also burned down CARDINAL or QUANTITY houses per day . The applicant 's house was also burned down , which forced the applicant and his family to leave the village and settle in LOC . In the meantime , the village guards cultivated the applicant 's lands , used the remainder of the materials left from his house and chopped and sold his poplar trees . Since the applicant could not overcome the economic difficulties to sustain his living he moved to GPE to find a job .", "On DATE , the applicant lodged a petition with the Malazgirt District Governor 's office and asked for permission to return to his village . He explained that he was unable to sustain the living of his family in the city and that he wanted to cultivate his lands in the village . The District Governor transmitted the applicant 's request to ORG and also advised him to apply to ORG . The applicant went to see the commander of the aforementioned station and told him that he had been advised to address him by the District Commander . The latter refused the applicant 's request to re - settle in the village and ordered a gendarme to remove the applicant from the LOC .", "The applicant left GPE village of his own free will and not under any pressure by the ORG security forces or village guards .", "On DATE the applicant petitioned ORG office complaining that the village guards from GPE had been using his property without his consent . The applicant alleged that he had moved out of his village on account of terrorism in DATE . Subsequent to his departure the village guards had demolished his house and had removed its wooden parts and the stones . They had also cut down CARDINAL poplar trees in his field . The applicant therefore asked the Prosecutor to initiate criminal proceedings against the village guards and to ensure that the damage resulting from the alleged events be compensated .", "On DATE ORG took statements from PERSON , who transported the applicant 's household property in his vehicle . He stated that in DATE he transported the applicant 's belongings from GPE to ORG district and that the applicant 's house was intact .", "On DATE the applicant filed another petition with ORG office complaining that ORG , who was CARDINAL of the village guards in GPE , had been illegally cultivating his father 's land .", "On DATE ORG issued a decision of non - jurisdiction and referred the case - file to ORG in accordance with ORG . An investigation was carried out by an inspector , appointed by ORG , into the applicant 's allegations . In this regard , CARDINAL village guards , including GPE , were questioned by the inspector .", "On DATE , ORG dismissed a request for leave to initiate criminal proceedings against the CARDINAL village guards from GPE .", "By a decision of CARDINAL DATE ORG set aside ORG decision and authorised the institution of criminal proceedings against the village guards for alleged destruction of the applicant 's property , which offence was prescribed in LAW .", "On DATE the ORG heard evidence from the accused village guards . The latter denied the charges and claimed that the applicant had slandered them . They alleged that the applicant was a member of the mountain squad of the ORG and that therefore he was hostile to them because they were village guards . They also noted that the applicant did not own QUANTITY trees and CARDINAL dönüm land in the village . The trees belonged to the applicant 's brother who had cut and sold them and then moved to GPE .", "On DATE CARDINAL gendarme officers took statements from CARDINAL persons , namely ORG , PERSON and GPE , from GPE . The villagers stated that they had seen the applicant when he moved from GPE to ORG and that the village guards had not forced him to move out of the village . They also submitted that the applicant 's house had not been burned down by the village guards but had been demolished as a result of bad weather conditions and lack of care . They also noted that the applicant possessed CARDINAL or QUANTITY of land which could not contain QUANTITY poplar trees .", "On DATE , the gendarme officers carried out an on - site inspection on the premises of the applicant 's house in GPE . They drew up a report in which they observed that there was no evidence that the house had been burned down . It appeared that the house had been demolished as a result of natural forces and lack of care . It was also noted that the applicant owned land measuring QUANTITY which could not contain the number of trees allegedly owned by the applicant . They further observed that the applicant had already cut CARDINAL of his trees before moving to ORG . The gendarme officers also drew up a sketch - map of the village .", "On DATE ORG decided to defer the criminal proceedings against the village guards for DATE in accordance with LAW . DATE on Conditional Release , Deferral of Criminal Proceedings and Sentences . In the absence of any appeal , this judgment became final . However , this judgment did not grant amnesty to the accused because the criminal proceedings will be reopened if they commit a new offence within DATE time .", "On DATE gendarme officers took statements from the applicant and CARDINAL inhabitants of GPE in relation to the allegations made by the applicant in his application lodged with ORG .", "The applicant stated that in DATE he had moved out of GPE due to the intimidation by the village guards and that , DATE or DATE after his departure , his house had been burned down by some of the villagers whose identity he did not know nor why they did so . In response to a question whether the ORG authorities forced him to agree to become a village guard , the applicant stated that no one had exerted pressure on him or his family . The applicant further stated that the allegation that the houses of those who did not agree to become village guards were burned down was untrue . When asked about the number of trees he owned , the applicant claimed that he owned - together with his brother and cousin - CARDINAL poplar trees , and not CARDINAL . The applicant also stated that he possessed land measuring CARDINAL dönüm together with his brother and cousin and that he had not cultivated this land since DATE . In reply to a question whether he and his family had been affected by the terrorism in the region , the applicant stated that his son PERSON had been an active member of the ORG , that he had served a DATE prison sentence following his arrest and conviction and that therefore the ORG had not intimidated his family . Given that his wife 's father had worked at the same time as a village guard , the ORG security forces had not intimidated his family either . The applicant finally noted that he had lived in GPE DATE and that , since DATE , he had been living in PERSON hamlet , cultivating his lands .", "The applicant 's fellow villagers , GPE , GPE and GPE stated that the authorities had not forced the villagers to agree to become village guards but , on the contrary , the villagers themselves had wished to become village guards since they would receive salaries from the ORG . However , some of the villagers , including the applicant and his family , had left the village on account of economic difficulties . In their opinion , the applicant had left the village because his son had joined the ORG and his brother had also moved out of the village earlier . The allegation that the applicant 's house had been burned down by the village guards was untrue since the applicant 's father - in - law was one of the village guards and he would not set his daughter 's house on fire . The applicant 's house had been demolished as a result of bad weather conditions and lack of care . The applicant could not own CARDINAL poplar trees given that the total number of trees in the village did not equal this number . The applicant possessed CARDINAL dönüm of land together with his brothers . In DATE he had settled in Taşlıçeşme hamlet and since then he had been cultivating his lands . Nobody had forced the applicant to leave the village . In the opinion of these witnesses , the applicant and a few other villagers had made such allegations in the hope that they would obtain some money .", "Finally the Government pointed out that on DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .", "In that connection , Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .", "The number of persons applying to these commissions had already reached CARDINAL . Many villagers had already been awarded compensation for the damage they had sustained .", "A full description of the relevant domestic law may be found in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) , PERSON v. GPE ( no . GPE , § § DATE , DATE ) and PERSON and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and ORG , § § CARDINAL , ORG CARDINAL- ... ) ." ]

[]

[]

[]

[ "13", "14", "3", "8", "P1" ]

[ "P1-1" ]

[]

[ "On DATE security forces from the Şırnak central gendarmerie command apprehended the applicants . An arrest protocol of the same day stated that the applicants had been arrested on the grounds that they were wanted for the offences of aiding and sheltering members of the ORG ( Workers’ ORG ) terrorist organisation and acting as couriers in the organisation as well as supplying logistic support to the organisation . The applicants were then placed in custody .", "On DATE CARDINAL officers interrogated the applicants at the Şırnak central gendarmerie command . During their interrogation the applicants both confessed that they had been involved in the ORG since DATE and that they had supplied food and money to ORG militants . The applicant PERSON stated that he had placed his son , PERSON , at the disposal of the ORG rather than paying them a levy . The applicant PERSON told the officers that he had been carrying provisions on mules to ORG militants and that he had last carried a battery for them in DATE .", "The applicants were then confronted with a witness , PERSON , who had been arrested on charges of aiding and sheltering members of the ORG DATE . PERSON identified the applicants and stated that they had been supplying food and clothes to members of the ORG when he was in the organisation .", "On DATE the Şırnak public prosecutor questioned the applicants in relation to their activities in the ORG . He first informed the applicants of the nature and cause of the accusations against them and then read out the statements they had made to the officers during their detention in custody . The applicants denied the accuracy of the statements read out by the public prosecutor . They alleged that they had no connection with the ORG and that they had never supplied provisions to members of the organisation . PERSON asserted that his son , PERSON , had been abducted by the ORG and had been forced to join the organisation , contrary to what was written down by the gendarme officers during his questioning at the PERSON gendarmerie command .", "On DATE , DATE , the applicants were brought before ORG ( sulh ceza mahkemesi ) . Before the court the applicants denied their involvement in the ORG and claimed that they were innocent of the charges . The court ordered the applicants’ detention on remand .", "On DATE the Şırnak public prosecutor issued a decision of non - jurisdiction and sent the investigation file to ORG at ORG .", "On DATE ORG filed an indictment with ORG accusing the applicants of having assisted and given shelter to members of the ORG DATE . The public prosecutor alleged that the applicants had supplied food to members of the armed gang in a rural area . He further asserted that the applicant PERSON had stored food in his shop for members of the gang and that he had helped and sheltered them by means of his contacts with his son , currently an active militant in the gang . The public prosecutor relied on the applicants’ confessions at the Şırnak central gendarmerie command and the evidence given by the witness ORG , as well as the documents contained in the investigation file .", "The public prosecutor requested that the applicants be punished in accordance with LAW and LAW ( Law no . CARDINAL of DATE , “ the DATE LAW ; see paragraph DATE below ) .", "In the proceedings before ORG the applicants denied the statements they had made during their detention in custody . They both alleged that the gendarme officers had prepared those statements and that they had signed without reading them .", "The applicants further maintained that they did not know of İkram ORG , with whom they had allegedly been confronted , since they had been kept blindfolded during their questioning while in custody . They asked the court to rule that they were innocent of the charges .", "On DATE ORG convicted the applicants on account of their assistance to the ORG in DATE and DATE , sentenced them to DATE and QUANTITY months’ imprisonment and debarred them from public service for DATE . In assessing the penalty to be imposed , the court first found that a sentence of CARDINAL PERSON imprisonment would be appropriate under LAW ; it then applied LAW , according to which this sentence had to be increased by CARDINAL , that is , to DATE and CARDINAL months’ imprisonment ; finally the court applied LAW , thereby reducing the sentence by CARDINAL and thus decreasing the overall length to DATE and QUANTITY months’ imprisonment . The court held , in particular :", "“ Offence : Aiding and sheltering members of the illegal ORG organisation", "Date of the offence : DATE and DATE", "...", "Assessment of the evidence :", "NORP The defendant PERSON", "In his statements to the gendarmes , he said that he had been influenced by the propaganda spread by members of the ORG during their frequent visits to [ his ] village in DATE . Having seen that the organisation worked for them he had begun aiding [ the ORG ] . He had given his relative PERSON to the organisation rather than paying them a levy . He knew some of the members of the organisation with the code names PERSON , NORP , PERSON , PERSON and PERSON . He met them in the NORP region , at the FAC point , at the PERSON stream and on the outskirts of the GPE mountain . He knew a few of the warriors . [ He stated further ] that , on the instructions of the organisation and the instructions he had received from leaders of the groups during his meetings , he had carried provisions to them on his mules . Nobody had helped him to join the organisation . Members of the organisation had spread propaganda [ in favour of the ORG ] in the past , but they did not do it later as everybody knew the organisation . He also stated that some time before he had carried a battery and some provisions to a militant with the code name PERSON at the coalmine across from the PERSON [ gendarmerie ] station .", "In his statements to the public prosecutor , he denied the [ accuracy of ] his statements to the gendarmes ; he claimed that he did not know a person with the code name PERSON , that the latter had not told the truth about him but had slandered him . He [ maintained ] that he had not carried provisions to [ members of ] the organisation . He denied that he had placed PERSON at the disposal of the ORG rather than paying them a levy . He alleged that he did not know of her whereabouts .", "In his statements to ORG , he submitted that he had never supplied aid to the ORG terrorist organisation , that he had never carried provisions to [ ORG militants ] , that he had never met members of the [ ORG ] . [ He claimed ] that he is innocent of the charges .", "In his statements to our court , the defendant denied the charges of aiding and sheltering [ members of ] the ORG . He alleged that he did not know of PERSON who was mentioned in the bill of indictment . He claimed that he is innocent of the charges .", "According to the identification and confrontation protocol contained in dossier no . CARDINAL , when the defendant PERSON was shown to PERSON with the code name PERSON , the latter stated that he knew of PERSON . He submitted that [ PERSON ] used to come to see members of the organisation with the code names PERSON , PERSON and NORP and that he had often brought provisions on QUANTITY to the NORP region , the LOC mountain , the PERSON stream and to the ORG point . [ The witness ] further stated that he had shown [ to security forces ] the places where these provisions were stored . He claimed that the defendant [ PERSON ] was an important militant in the organisation .", "When PERSON gave evidence as a witness before our court , he stated that the defendant had met senior members of the organisation , that he was a permanent member of the organisation and that he had frequently been in contact with [ a militant ] with the code name PERSON . [ He further stated ] that the defendant had supplied provisions such as food , drinks and weapons to the organisation .", "It was established that the defendant had supplied provisions to members of the armed organisation who used to come to his village and that he had further supplied them provisions in rural areas . These acts of the defendant constitute the offence of knowingly aiding and sheltering members of an armed gang , [ namely ] the illegal NORP terrorist organisation . The court therefore concludes that there exist the actus reus and mens rea elements of the offence . His defence in this respect was rejected .", "The defendant ’s good conduct during the hearing was considered to be a mitigating circumstance .", "NORP The defendant PERSON", "In his statements to the gendarmes he said that he had joined the ORG in DATE following the advice given by those in charge of the NORP region with the code names Amid and PERSON during their visit to his village . He first placed his son PERSON at the disposal of the organisation in order to help it . His son is currently an active armed militant in the organisation . He worked as a shopkeeper in the NORP village of the province of PERSON and later on he stopped working . Apart from his son with the code name Amid , he knew [ militants ] with the code names GPE , PERSON and PERSON as well as ORG and ORG . Since he worked as a shopkeeper , he allowed members of the organisation to take as many provisions as they wanted . Sometimes he was given money by members of the organisation with which he bought provisions such as flour , sugar and butter . He kept these provisions in his shop until he delivered them [ to the militants ] . He supplied aid to the organisation on the instructions of an armed militant in the organisation from his village with the code name PERSON . He gave packs of cigarettes to a member of the organisation with the code name PERSON . [ The defendant ] further stated that he had been given money by a member of the organisation with the code name PERSON who wanted him to buy CARDINAL bags of flour . He delivered [ to the organisation ] QUANTITY - loads of provisions such as flour , butter , sugar , lentils , socks and peşmerge clothing .", "In his statements to the public prosecutor , he claimed that he had not helped members of the organisation and that he had not supplied any materials to the organisation . He alleged that he did not know of ORG who had the code name PERSON . He denied the latter ’s allegations and submitted that he had no links with the organisation .", "In his statements to ORG , [ the defendant ] alleged that he had not given aid to the ORG terrorist organisation , that he had not bought provisions for members of the organisation and that he had not bought flour for them either . He denied the charges against him .", "In his oral evidence before our court , [ the defendant ] denied the charges brought against him . He submitted that PERSON , who was mentioned in the bill of indictment , was his son . He had not seen him for DATE . He heard [ through some people ] that his son had died . He claimed that he had not given aid to members of the ORG by means of sheltering them or supplying them with provisions .", "According to the identification and confrontation protocol contained in dossier no . CARDINAL , when the defendant PERSON was shown to PERSON with the code name PERSON , the latter stated that he knew of PERSON and that he had visited him at his home [ while ] he was working as a shopkeeper in the village . The team commander with the code name PERSON gave some money to PERSON and asked him to buy CARDINAL bags of flour . The defendant used a room at the back of his house and opposite his shop as a depot . The defendant supplied provisions to the organisation and brought CARDINAL pairs of shoes with the brand name of GPE . The defendant ’s son with the code name PERSON is an active militant in the organisation whose real name he did not know . PERSON further stated that he had been a team commander and that the defendant had brought them QUANTITY bags of sugar , flour , butter and lentils and QUANTITY - loads of provisions .", "PERSON , in his capacity as a witness before our court , stated that the defendant had supplied provisions such as food , drink and arms to the organisation . He further stated that the defendant was an active militant in the organisation and that he had frequently seen the defendant while he was in the organisation .", "It was established that the defendant had supplied provisions to members of the armed organisation who used to come to his village , the village of GPE , and that he had further supplied them provisions in rural areas . Further , the defendant stored provisions in his shop for members of the gang . He met members of the gang with the help of his son , PERSON , who is currently in the organisation and supplied them with the materials they needed . By these acts , the defendant is guilty of the offence of knowingly aiding and sheltering members of an armed gang , [ namely ] the illegal NORP terrorist organisation . The court therefore concludes that there exist the actus reus and mens rea elements of the offence . His defence in this respect was rejected .", "The defendant ’s good conduct during the hearing was considered to be a mitigating circumstance . ”", "On DATE the applicants lodged an appeal with ORG , challenging the judgment of ORG . In particular , they alleged that ORG had violated the principle of non - retrospective application of the criminal law since it had applied CARDINAL of the DATE Act to increase the basic penalty under LAW by half . The applicants submitted that they had been convicted of acts committed in DATE and DATE as indicated in the bill of indictment . They maintained that the witness , PERSON , who testified against them and who had been apprehended in DATE , had said that DATE and DATE were the dates of the offences . The applicants finally argued that the court should not have admitted the statements made to the gendarmes as evidence since they had retracted them , asserting that they had been extracted under duress .", "On DATE ORG rejected the appeal . It upheld the cogency of ORG reasoning and its assessment of the evidence . ORG did not deal specifically with the ORG complaint relating to the retroactive application of the DATE Act to their case .", "On CARDINAL DATE the applicants applied to ORG at ORG requesting the rectification of the decision of CARDINAL DATE . On DATE their request was dismissed by ORG on the grounds that ORG had examined all the points raised by the applicants and there was no other reason requiring the rectification of the decision .", "Article CARDINAL of LAW provides :", "“ Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not CARDINAL and not more than five years’ imprisonment ... ”", "According to the Government , the act of assisting and giving shelter to members of an illegal organisation has the character of continuity and the offence is a continuing one .", "NORP Under section CARDINAL of the CARDINAL Act , the offence defined in LAW is classified in the category of “ acts committed to further the purposes of terrorism ” .", "Pursuant to section CARDINAL of the CARDINAL Act , the penalty laid down in LAW as punishment for the offence defined in LAW is increased by CARDINAL .", "Article CARDINAL of LAW provides :", "“ The punishment resulting from an investigation and conviction is determined by the crimes set forth in the indictment and can concern only those persons named in the indictment . ”" ]

[ "7" ]

[ "7-1" ]

[]

[]

[]

[]

[ "The applicant is a NORP national , born in DATE , and at the time of the introduction of the application was detained in the GPE penitentiary of GPE ( GPE ) . He is represented by PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "A. Particular circumstances of the present case", "On DATE , the applicant was placed in pre - trial detention on suspicion of having committed CARDINAL armed robberies . By summons of DATE , he was ordered to appear on DATE before ORG ( PERSON in PERSON ) of GPE . On DATE , ORG of GPE handed down its judgment . On DATE , the applicant filed an appeal with ORG ( FAC ) of GPE and GPE . The applicant 's case - file was received at ORG on DATE .", "ORG of Justice started its examination of the applicant 's case on CARDINAL DATE , when it adjourned its examination , as the applicant wished to be represented by a new lawyer who had not studied the case - file . On DATE , a second hearing was held before ORG of Justice . It appeared that yet another lawyer had taken over the applicant 's case . The new lawyer sought an adjournment of the proceedings with a view to hearing a number of witnesses before the court , whose names the lawyer would communicate at some further point in time . ORG of Justice granted this request and adjourned its examination until DATE . By letter of CARDINAL DATE the defence submitted the names of CARDINAL witnesses , including PERSON , whom the defence wished to hear before ORG of Justice .", "On DATE , CARDINAL witnesses appeared and were heard before ORG of Justice . After these CARDINAL witnesses had given evidence , the defence sought a further adjournment in order to hear CARDINAL of the CARDINAL witnesses who had not appeared , namely GPE and GPE , and a further witness ORG granted the request and adjourned its further examination until DATE .", "On DATE , on the basis of an order of ORG , the witness GPE was heard before the investigating judge ( rechter - commissaris ) . Although PERSON had also been summoned to give evidence before the investigating judge , this witness failed to appear before the investigating judge .", "At the hearing of DATE , the President of ORG stated that CARDINAL witnesses had been heard on DATE and that a further witness had been heard before the investigating judge . He further stated that it had been ordered that the witness GPE be forcibly brought ( medebrenging ) before ORG of Justice , but that this witness had not appeared . The defence persisted in its request that PERSON be heard . The prosecution objected to a further stay of the proceedings and argued that the applicant , who had been represented throughout the proceedings , had been provided with ample opportunity to have witnesses heard . After having deliberated , ORG of Justice decided to reject the request by the defence to hear GPE", "In its judgment of DATE , ORG of Justice convicted the applicant of theft involving threat to use violence and use of violence having caused death , extortion and unlawful possession of a fire - arm , and sentenced him to DATE imprisonment with deduction of the time spent in pre - trial detention .", "On DATE , the applicant filed an appeal in cassation with ORG ( PERSON ) , including a complaint of the length of the proceedings . On DATE , the applicant 's case - file was transmitted by ORG to ORG , where it arrived on DATE . ORG examined the applicant 's case for the first time on DATE .", "In his conclusions , the Procurator General ( Procureur - Generaal ) to ORG advised ORG , inter alia , to reject the applicant 's complaint under LAW in respect of the delay between CARDINAL DATE and CARDINAL DATE . He noted that the applicant , who had been represented by a lawyer in the proceedings on appeal , had not raised this complaint in the proceedings before ORG of Justice and considered that this complaint could not be raised for the first time in cassation proceedings before ORG . He further considered that the delay was not of such a nature that ORG of Justice should ex officio have examined the compatibility of this delay with LAW .", "Insofar as the applicant complained of the delay between DATE and the first examination of the applicant 's appeal in cassation , the Procurator General advised ORG to reject this complaint on the basis of a finding that this delay was not so long that the applicant 's right to a hearing within a reasonable time had been violated . The Procurator General further considered that the total length of the proceedings against the applicant , i.e. DATE , had also not exceeded a reasonable time .", "ORG rejected the applicant 's appeal in cassation by judgment of DATE . Referring to LAW ( Wet op de Rechterlijke Organisatie ) , ORG further rejected the applicant 's complaint of the length of proceedings as not prompting a determination of legal issues in the interest of legal unity and development .", "B. Relevant domestic law and practice", "", "Pursuant to LAW , hereinafter referred to as \" former ORG \" ) , as in force at the relevant time , a judgment must contain reasons and express the punishable fact including the circumstances which may lead to a mitigated or aggravated sentence . It must further contain findings on what facts have been found proven or not , the legal qualification of the facts found proven , the question of the accused person 's guilt and the application of the statutory defined punishment . Pursuant to LAW former ORG , a judgment must be signed by the judge , who has decided the case , and the registrar within TIME after its delivery . Although the former ORG contains no explicit obligation that a judgment should contain the means of evidence on which a conviction is based , in practice such means were set out in judgments leading to a conviction .", "However , since DATE pursuant to LAW has to deliver the judgment within DATE following the closure of the trial , it was not unusual at the relevant time that initially an abridged judgment would be drafted in cases where the accused was convicted . Such a judgment does not account for the means of evidence on which the conviction is based . A complete version of the judgment was not prepared unless the convicted person or the public prosecutor lodged an appeal against the judgment . In that case the means of evidence were included in the judgment and the case - file , including the complete judgment , was transmitted to the appeal court .", "In a judgment of DATE ( nr . CARDINAL.CARDINAL A ) , concerning an appeal in cassation against a judgment of DATE of ORG of GPE and GPE in which a complaint was raised that the period of time which had elapsed DATE on which ORG had handed down its judgment and the first examination of the appeal in cassation constituted a delay contrary to the reasonable time requirement under LAW , ORG noted that the appeal in cassation had been filed on DATE , that the pertaining case - file had been received by ORG on DATE and that the appeal in cassation had been examined for the first time on DATE .", "ORG considered that no special circumstances had appeared which could justify DATE that had elapsed DATE and DATE . It concluded that , therefore , the reasonable time requirement under LAW had not been met and that , on this basis , the sentence imposed on the applicant should be mitigated . ORG quashed the determination of the applicant 's sentence and referred the case back to ORG of Justice of GPE and GPE for a new determination of the applicant 's sentence ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and resided before his arrest in the village of GPE , in GPE .", "On DATE the applicant was arrested along with several other village residents and placed in the temporary detention centre of the NORP police station ( ORG , “ the police station ” ) . He was allegedly beaten and pressurised to confess to the murder of a certain Mr NORP in the village of GPE . The applicant remained in detention for DATE ; the legal basis for his detention remains unclear . After DATE of detention he was released .", "On DATE the applicant was again arrested and taken to the police station . On DATE he was questioned by ORG , an investigator at the NORP district prosecutor 's office ( “ the district prosecutor 's office ” ) , ORG , a senior operational officer of ORG , Ya . PERSON , the deputy head of the police station , and GPE , head of the criminal police . According to the applicant , throughout the interview they put pressure on him to confess to NORP 's murder . In particular , PERSON explained to him in detail why he had killed D , saying that the applicant had committed the crime because he had found his daughter and NORP making love . The applicant denied having murdered NORP", "According to the ORG , on DATE Kh . A. formally explained to the applicant the rights of an accused , including the right to free legal assistance , and assigned a certain Ur . to represent him . A copy of the related record produced by the ORG is signed by ORG and does not bear the signature of either the applicant or PERSON .", "On DATE the applicant retained private defence counsel , PERSON , to represent him . It appears that on DATE and on DATE she visited him in the police station .", "On DATE Kh . A. , who was in charge of the investigation into NORP 's murder , authorised the applicant 's detention on remand . The applicant was accused of murdering NORP , a friend of the applicant 's daughter , on TIME DATE .", "NORP In a CARDINAL - page typed and undated attachment to the supervisory review application lodged with ORG of GPE in DATE , the applicant presented the following description of the ill - treatment to which he had allegedly been subjected on CARDINAL - CARDINAL September CARDINAL . His submissions may be summarised as follows .", "At TIME on DATE the applicant was brought to an office in the NORP police station where FAC and Ya . PERSON were already present . Kh . A. was not there . ORG . and Ya . PERSON pressurised the applicant to write a voluntary “ confession statement ” ( явка с повинной ) and promised in exchange to ask the investigator to reclassify the applicant 's offence as involuntary manslaughter in a fit of passion . The applicant did not admit to being guilty and refused to make any statements to that effect .", "Ya . PERSON and PERSON started beating the applicant . They hit his head against the wall , twisted his arms , punched his neck and kicked him in the groin . The beatings alternated with admonitions to him to confess . On CARDINAL occasions the applicant was placed with his hands against the wall , legs wide apart , and ORG hit his ankles so that the applicant 's legs slid apart and the applicant fell . The applicant refused to confess and told the police officers that he would not tell them anything in the absence of his lawyer , which triggered a new series of beatings . The applicant was then taken back to his cell for a respite .", "At TIME . , deputy head of the criminal police , took the applicant from his cell to GPE 's office on the second floor . Officers Ya . PERSON and PERSON were in the room and R.Kh . stayed outside . The applicant was shown a confession statement written by someone else and was ordered to confess too . After he refused , police officers switched on the television and started punching him in the face and kicking his ankles . This lasted for TIME , then ORG , using the remote control unit , set the television to switch on in TIME ; this signalled an TIME - long pause in the beatings . The applicant was handcuffed and taken back to the cell by R.Kh . who had waited outside .", "TIME the applicant was taken back to the office . This time GPE joined ORG and GPE , while R.Kh . stayed outside . The applicant refused to write a confession statement . The officers then turned the applicant to face the wall , took a truncheon out of a cupboard , pulled the applicant 's trousers down and threatened to rape the applicant with the truncheon . Once the applicant lowered his arms to pull his trousers up , he received a series of truncheon blows to his head , back and legs . He fell and broke his lip against the cupboard . After a series of punches and kicks the officers set the timer for TIME and GPE placed the applicant in the cell , having hit his head against the cell door .", "When the applicant was brought back again , the officers were drinking beer and offered one to the applicant . The applicant had a drink and then he was sent back to the cell to “ think about [ his ] confession ” .", "Later on , the applicant was taken out of the cell several times and led to different offices where Ya . PERSON , GPE , ORG . , taking turns , tortured him in various ways . The applicant 's handcuffed hands were twisted so that he strangled himself , and he received strong blows to his left ear . In particular , ORG put his hand on the applicant 's right ear and with another hand started punching him , with force , on the left ear . After the third punch the applicant felt liquid flowing out of his left ear .", "At TIME on DATE police officers escorted the applicant to the investigator 's office in the centre and told him to write down what he had been doing on DATE . It appears that the applicant did something wrong and the officers stuffed the “ spoiled ” sheet of paper in his mouth and twisted his limbs in all directions .", "Finally , the applicant gave in and wrote a confession statement along the lines described to him by ORG during the first interrogation on DATE . The officers read the statement and continued to beat him to get a more detailed account . The applicant wrote that at QUANTITY he had gone out to look for his daughter and discovered her having sex with a man , his daughter lying on the ground under the man . The applicant had taken a log , hit the man on the head and had then sent his daughter back home . The applicant had not been able to hide the body immediately because his scooter had been broken .", "On DATE at TIME the applicant was escorted to the cell . On DATE at TIME Ya . PERSON and PERSON woke the applicant up and told him that he would be transported to a detention facility in GPE . He objected to the trip ; his right ear was blocked and his left ear oozed blood and other fluids . At TIME called the applicant and asked him whether he was ready to testify . The applicant refused to speak without his counsel , PERSON The investigator told the applicant that it was complicated to find the applicant 's lawyer because it was DATE . The applicant was escorted back to the cell .", "On DATE the applicant stayed in the cell .", "On DATE GPE , ORG and the director of the temporary detention centre took the applicant in a private car , a light coloured GPE , to remand centre SI-CARDINAL/CARDINAL of PERSON . The applicant was not examined by a medical officer and was placed directly in cell no . DATE , from which he was transferred to cell no . DATE . He remained there for DATE . DATE he was placed in cell no . CARDINAL . According to the applicant , he was taken to the remand centre in a private car in order to hide his injuries .", "NORP The applicant 's description also gave further details on the layout of the rooms , doors , furniture and objects in the police station where the ill - treatment allegedly took place .", "In his application form to ORG the applicant gave a similar , albeit more concise , description of the treatment allegedly inflicted on him in the police station .", "The copy of the applicant 's medical record produced by the Government reads , in so far as relevant :", "“ ... DATE ] . Complaints about pain in the left acoustic meatus ...", "Cutaneous coverings : clean .", "Underwent delousing .", "State [ of health ] satisfactory .", "Ds[diagnosis ] : acute chronic otitis on the left [ side ] [ обострение хронического отита слева ] ...", "...", "DATE . ... The left ear does not hear from a distance of CARDINAL m[etres ] .", "Ds : deafness in the left ear . ”", "According to forensic report no . CARDINAL dated DATE and issued following investigator PERSON A. 's request for the applicant 's medical examination ( see below ) , on DATE expert PERSON examined the applicant in the presence of TIME with a view to establishing whether the applicant had any injuries . The report , in its relevant part , reads :", "“ ... present during the examination : convoy [ officer ] DATE ..", "Examination started DATE .", "Examination finished DATE .", "...", "Circumstances of the case : ... from the decision ordering the examination it follows that [ the applicant ] submitted that police officers had applied physical force to him .", "Complaints : about pain in the left ear .", "Objectively : at the time of examination no bodily injuries established ....", "Conclusions", "At the time of examination no bodily injuries were established , thus it is impossible to comment on the degree of damage to health ... ”", "On DATE the applicant 's lawyer complained to the district prosecutor 's office that the applicant had not received treatment for pain in his left ear . On the following day the district prosecutor ordered the applicant 's immediate transfer to the NORP town hospital for examination by an otolaryngologist and eventual treatment .", "On DATE the applicant 's lawyer requested the town hospital to provide her with all relevant information and medical records in connection with the treatment of the applicant 's allegedly broken eardrum , with a view to submitting those documents to the court . In particular , she asked the hospital to indicate the exact diagnosis , the treatment received and the consequences of the disease for the applicant 's health .", "In an undated reply the hospital 's head doctor informed the applicant 's lawyer that the applicant had been examined by an otolaryngologist who had diagnosed him with acute suppurative left - side “ tubotympo - palpitis ” [ туботимпопальпит ] and otitis media . The letter further stated that in order to provide further information , in particular , on the duration of the treatment and the consequences of the diseases for the applicant 's health , he needed to be examined by the otolaryngologist in person .", "According to a medical certificate of DATE from the LOC village hospital , the applicant did not apply to the hospital for medical assistance in DATE .", "A certificate from the head of colony UYe-CARDINAL/CARDINAL Mr M. , dated DATE and compiled on the basis of the applicant 's medical file , in so far as relevant , reads :", "“ Upon admission to facility [ ORG in ORG ] on DATE [ the applicant ] was examined by the duty medical officer , PERSON . , to whom the former complained about pain in his left ear ; according to a record in the [ applicant 's ] medical file , he was diagnosed with acute chronic otitis on the left [ side ] ... ; at the time of the examination cutaneous covering were clean and the state of health satisfactory . [ The applicant 's name ] does not appear at the relevant period in the medical records , the log of injuries and the log on accidents and crimes . ”", "The applicant submitted a written statement by ORG , dated DATE , which reads :", "“ ... I , I.R [ ] . , was held in SI-CARDINAL/CARDINAL under investigation , when on DATE [ the applicant ] was placed in my cell . On his face were visible cut lips and a bruise under the left eye ; the left ear was swollen and oozed blood . I asked [ the applicant ] what had happened to him . He answered that officers of the NORP police station had obtained his confession in that way . [ The applicant ] undressed and showed bruises on his body . There were many bruises on his body , on the front and back . In sum , he had been beaten up very severely . From a conversation with [ the applicant ] I understood that he heard almost nothing because his left ear had been damaged .", "Until this moment nobody asked me about those events . However , since [ the applicant ] has asked me now , I consider it my duty to confirm that [ the applicant ] had traces of beatings which were visible to the naked eye . I can confirm this statement afterwards .", "Written in my own hand .", "[ Signature ] ”", "A written statement of DATE by ORG , addressed to ORG of GPE and produced by the applicant , reads :", "“ ... In DATE I , ORG [ ] , was held under investigation in SI-CARDINAL/CARDINAL in cell no . CARDINAL . I remember that on DATE [ the applicant ] was put in our cell . He had been beaten up , which was visible to the naked eye . NORP , who was also present , asked him what had occurred to him . [ The applicant ] answered that this was the way confessions were obtained in the NORP police station . His lip was cut , his left ear oozed matter , he had a bruise under the left eye . Then he showed bruises on his body and his legs .", "Written in my own hand .", "[ Signature ] . ”", "In her complaint to the district prosecutor 's office about the applicant 's alleged ill - treatment , dated DATE ( see paragraph CARDINAL below ) , PERSON submitted :", "“ ... On DATE ... I ... went to remand centre SI-CARDINAL/CARDINAL in PERSON and saw injuries and traces of torture on [ the applicant ] .", "Bodily injuries : abrasions between the right eye and the ear , below the lower lip on the right ; left ear oozes liquid with blood ; a bruise of QUANTITY in the area of the solar plexus ; bruising and swelling to the left foot ; bloody abrasion at the right knee ; marks from handcuffs ; a bruise underneath the right eye ; a lip cut / split on the inside ... ”", "In her complaint to ORG dated DATE ( see CARDINAL below ) the applicant 's lawyer mentioned the following injuries :", "“ ... on DATE I saw abrasions on the [ applicant 's ] face , a cut inside lip , a bruise under the right eye , bruising and swelling on the left foot , a huge bruise in the abdomen area , a bruise on the back in the kidney area , a bloody abrasion on the right knee ; he also complained that his eardrum had been broken , that blood with matter and liquid is flowing constantly , and that all muscles , ligaments and bones hurt because he had been subjected to the so - called “ lastochka ” ( “ swallow ” ) treatment – having placed him on his abdomen , [ they ] pulled his hands and legs towards the spine . ”", "According to a written statement by the applicant 's brother , in DATE he visited the applicant for DATE in colony UYe-CARDINAL/CARDINAL in GPE . The applicant complained to him about recurring pain in his right collarbone , deafness in the left ear , and dull pain in the kidney area . The applicant associated those health problems with his beatings at the NORP police station in DATE . According to the applicant 's brother , he saw a bump of a size of a hazelnut on the applicant 's collarbone . The collarbone frequently ached at TIME and when the weather changed . The applicant could not hear with his left ear and had recurrent purulent discharge from it . He also complained about recurring pain in his kidneys and , according to the applicant 's brother , went to the toilet frequently .", "On DATE the applicant , questioned by ORG in the presence of his lawyer , stated that he had not murdered NORP and that his confession had been obtained from him under duress by officer PERSON , “ a police officer from GPE , “ a police major ” and “ a chubby police officer ” .", "On DATE the applicant 's lawyer complained to the district prosecutor 's office , requesting that a criminal case for torture be opened against GPE , Ya . PERSON and CARDINAL other unidentified police officers . She indicated that on seeing the applicant on DATE she had noticed numerous injuries on his body and described them in detail ( see paragraph CARDINAL above ) . She also submitted that the applicant had been tortured by pulling his hands and feet back towards the spine . She stressed that the police officers had intentionally taken the applicant to remand prison GPE in ORG on DATE to hide his injuries and to hide her client from her and that the investigator in the murder case had colluded with the perpetrators in hindering her access to her client by pretending that on DATE the applicant had been at an “ on - site verification of his statements ” in order to make her believe that he was still in GPE and not in PERSON . Lastly , she requested a medical examination of the applicant .", "On DATE the applicant 's lawyer asked ORG ( “ the ORG ” ) to release the applicant . In her complaint she also referred to his alleged ill - treatment in police custody , reiterating in detail the injuries she had noticed on him on DATE . She emphasised that the police officers had hidden her client from her and on DATE had taken him to SI-CARDINAL in PERSON where no medical officer had examined him upon admission . She submitted that although on DATE prosecutor PERSON had ordered the applicant 's medical examination , she had serious doubts about its outcome because forensic expert PERSON was on holiday and thus the examination would be carried out in PERSON , whilst police officers from the NORP police station had already visited the applicant in the remand prison in PERSON and had threatened him with “ grave complications ” if he “ misbehaved ” .", "On an unspecified date the district prosecutor 's office launched an inquiry into the applicant 's allegations of ill - treatment . In the course of the inquiry the district prosecutor solicited written explanations from officers GPE , Ya . PERSON , R.Kh . and ORG", "In a written explanation to the district prosecutor , dated DATE , Ya . PERSON submitted that on DATE he and “ other officers ” had conducted “ a conversation ” with the applicant at the temporary detention centre . During the conversation the applicant wrote a confession , describing in detail the circumstances of the murder committed by him .", "In his written statement dated DATE GPE submitted that on DATE he and other officers had “ a conversation ” with the applicant in the isolation ward of the police station , in the course of which the applicant had voluntarily written a confession . According to GPE , the police officers had not gone to the isolation ward on DATE and had not “ worked with the applicant ” on that date .", "In an undated written statement to the district prosecutor ORG submitted that on DATE , during a conversation with the applicant in the isolation ward , the latter had written a confession after ORG and other police officers had presented him with “ certain information ” .", "In his written explanation dated DATE R.Kh . submitted that he had not “ worked with the applicant ” and had not taken a confession statement from him . He stated that he had had dealings with the applicant earlier , when the latter had been arrested in connection with an administrative offence .", "All of the police officers denied having used “ unlawful methods ” or torture against the applicant and claimed that his allegations had been libellous .", "By a decision of DATE the deputy district prosecutor refused to institute criminal proceedings against the police officers who had allegedly ill - treated the applicant . The decision read as follows :", "“ On DATE lawyer PERSON complained to the NORP district prosecutor 's office that from TIME on DATE until TIME on DATE her client had been beaten up by police officers in the premises of the NORP police station .", "The inquiry established that [ the applicant ] had , indeed , been held in the NORP police station as an arrestee from DATE . However , it has not been established that physical violence was applied to him . Despite [ the applicant 's ] submission that police officers had severely beaten him on practically all parts of his body , the officers questioned [ in that connection ] submitted that they had not applied any violence to him ; moreover , according to the forensic expert 's report of DATE , no injuries had been found on [ the applicant ] .", "Thus , [ the applicant 's ] allegations about his beating by police officers raise serious doubts as to their truthfulness . ”", "Lastly , it was stated that the decision was to be notified to the applicant and that he was to be informed of his right to appeal against it to a higher - ranking prosecutor or a district court .", "By a letter of CARDINAL DATE the deputy district prosecutor replied to the applicant 's lawyer that he had examined her complaint about the applicant 's alleged ill - treatment and that on DATE he had refused to institute criminal proceedings in that connection . The letter further stated that it was open to the applicant to challenge the refusal before a higher - ranking prosecutor or a district court .", "On an unspecified date the applicant 's lawyer lodged with prosecutor of GPE a further complaint about the applicant 's ill - treatment and the continuing threats to him by officers ORG and GPE", "On DATE the applicant 's lawyer complained to the prosecutor of GPE about various violations of the applicant 's rights at the pre - trial stage , reiterating the ill - treatment complaint . She further claimed that the forensic expert who had failed to discover any physical injuries on the applicant 's body during the examination on DATE had committed a criminal offence because , apart from the obviously visible physical injuries , the applicant 's kidneys and bladder had also been damaged during the beatings . Lastly , she mentioned that although she had asked the district prosecutor for a correct medical examination of the applicant , she had not succeeded in obtaining this .", "According to the applicant 's counsel , on DATE she obtained permission from the head of the NORP police station to visit the applicant . However , after a phone call by TIME , she was refused access to her client . On DATE she complained about that situation to the district prosecutor 's office .", "Following PERSON 's complaint , the district prosecutor 's office questioned convoy officer Zh . PERSON and officer Ya . PERSON The former submitted in an undated written explanation that at TIME on DATE PERSON had come to the temporary detention centre and picked a permission form to visit the applicant . The applicant being with investigator PERSON . PERSON and other convoy officers refused to allow her to visit her client without the investigator 's permission . PERSON then went to see the investigator and did not come back . In his undated written explanation Ya . PERSON denied having refused the applicant 's lawyer access to her client and submitted that since the applicant was under the district prosecutor 's office responsibility , his lawyer should have obtained Kh . A. 's permission to visit her client .", "On DATE the deputy district prosecutor responded to the applicant 's lawyer , stating that he had examined the matter and that no irregularities had been observed .", "In her complaint of DATE to the prosecutor of GPE the applicant 's lawyer claimed that the hindrance of her visit to the applicant had breached his defence rights . In particular , she submitted as follows :", "“ ... On DATE ] I personally went to the prosecutor 's office to find investigator PERSON , because I was not allowed to visit [ the applicant ] without his permission .", "The prosecutor exclaimed that he himself was looking for Kh . A ... I told [ the prosecutor ] that I was not allowed to see my client in the temporary detention centre but no reaction followed . Moreover , the deputy prosecutor who received my related complaint on DATE disregarded it and reacted to it only on DATE . [ In his reply ] it is alleged that I went to the temporary detention centre at TIME and then left . However , I have a record to the effect that head of the police authorised me to visit my client ; at the same time , while I was already in the temporary detention centre , [ convoy officers ] refused to escort [ the applicant ] to me , referring to the lack of permission from investigator ORG A. However , there is a record that the investigator had a “ conversation ” with [ the applicant ] from TIME on DATE . During that period , on TIME DATE , from TIME , [ the applicant ] was severely beaten up by officers Ya . PERSON , GPE , R.Kh . and ORG , an officer of ORG , the latter having applied the most sophisticated methods ” .", "There is no indication that the applicant 's lawyer received any reply to her complaint .", "On an unspecified date the applicant 's case was sent for trial to ORG of GPE ( “ the ORG ” ) .", "According to the hearing transcript , at the first hearing on DATE the applicant 's lawyer complained that the applicant 's confession had been obtained under duress . She further averred that she had been refused access to her client on DATE and that his confession had been obtained in her absence . She requested the court , among other things , to obtain from the prosecutor 's office the case file concerning the inquiry into the applicant 's alleged ill - treatment ; to question the police officers allegedly involved in the applicant 's beatings and the expert who had examined the him on DATE , arguing that it had hardly been possible that he had found no traces of ill - treatment whereas she had seen them on the applicant ; to obtain from the police station the detainees ' interrogation log ; to establish how many times the applicant had been brought for questioning from his cell on DATE , and to obtain from remand centre SI-CARDINAL/CARDINAL documents concerning the applicant 's medical examination upon admission there . The court granted the request in respect of the inquiry file , the questioning of the police officers and the interrogation log and dismissed the remainder .", "At trial the applicant pleaded not guilty . He denied having murdered NORP and claimed that his confession statement had been given as a result of ill - treatment . He submitted that from TIME on DATE to TIME on DATE officers GPE , Ya . PERSON and “ a police officer from GPE had beaten him up and had stuffed his mouth with paper so that his screaming would not be heard . On DATE he had been brought to remand prison GPE in ORG where he had not been examined by a medical officer . On DATE the applicant was brought for a medical examination but the expert had compiled his report on the basis of written documents , without examining him .", "The applicant 's underage daughter also revoked her statements given on DATE in the presence of PERSON , a child - protection inspector of the NORP education department . On DATE she had testified that on TIME they had been sitting together with NORP on a beam . She had been sitting on his nap and they were having sex . When her father had suddenly appeared , she had pretended that she had been simply sitting near NORP Having seen her , her father had chased her home and she left . On DATE her father had been nervous and mentioned to her mother that apparently a corpse had been discovered . At trial PERSON testified before the court that the applicant 's daughter had given her testimony voluntarily , without any pressure from the investigator . Following a court - ordered handwriting examination , the expert confirmed that the signature on the applicant 's daughter 's interview transcripts was hers .", "The court heard CARDINAL persons . Witness N. , who gave a statement opposing the prosecution 's version of the events , in that she stated that she had seen a private car near the crime scene on TIME of the murder , claimed that a “ police officer from LOC had threatened that if she gave statements exculpating the applicant , she would be thrown in jail . PERSON . , who claimed to have seen a group of persons at the crime scene on TIME of the murder , throwing something on the ground , and a car parked nearby , submitted that she had been summoned to the police station and that a certain officer PERSON asked her whether the applicant 's wife had bribed her for her deposition . PERSON . also claimed that she had been offered money if she was silent about what she had seen on TIME of the murder . Officer PERSON confirmed that on DATE , that is on DATE after the discovery of NORP 's corpse , the crime scene had been cleaned on the order of the village administration .", "The court interviewed officers GPE , R.Kh . and ORG PERSON stated that on DATE he had been on leave and had not been present during the applicant 's questioning . PERSON stated as follows :", "“ ... I was not present when [ the applicant ] was questioned ; I only joined the others when they were questioning him ...", "...", "I saw [ the applicant ] ; talked to him about NORP 's murder ...", "...", "I do n't remember whether I visited him in the temporary detention centre . Probably , I did visit him and talk to him ... ”", "It appears that R.Kh . did not deny having questioned the applicant and that the court did not question Ya . PERSON as a witness . All of the police officers flatly denied having used any “ unlawful methods ” on the applicant .", "In her final statement the applicant 's lawyer drew the court 's attention to various discrepancies in the prosecution case . She also stressed that the police officers accused by the applicant of ill - treatment had lied : whilst in court they had claimed that on DATE they had not interviewed the applicant and that there were no records in the relevant logs about them taking him from his cell for questioning , yet in their statements in the course of the prosecutor 's inquiry they had expressly submitted that they had talked to the applicant on CARDINAL September CARDINAL and that he had confessed to them on DATE . She stated that the applicant had not been examined by a medical officer on his transfer to remand prison GPE in ORG , although he had complained about pain in his ear and had had bruises on his face . Furthermore , investigator PERSON . A. and expert PERSON , who had examined the applicant , had previously worked together in PERSON and were friends ; consequently , despite the fact that the latter had seen the injuries , he had compiled his report as indicated to him by PERSON . A.", "By a judgment of DATE ORG found the applicant guilty of NORP 's murder , referring , in the first place , to his confession , which it found to be corroborated by the pre - trial statement of his daughter , statements by witnesses and the forensic evidence . In particular , the court referred to a statement of PERSON , who mentioned having heard the voices of NORP and the applicant 's daughter close to the crime scene on TIME of the murder ; a statement of PERSON , who testified to having seen NORP and the applicant 's daughter kissing on TIME , and the victim 's post mortem report establishing several injuries to his head .", "The court dismissed the applicant 's allegation that his confession had been obtained as a result of ill - treatment , referring to the statements by police officers GPE , Ya . PERSON and PERSON and expert report no . CARDINAL , which had not recorded any injuries on the applicant 's body .", "The trial court did not address the applicant 's argument that his confession had not only been obtained under duress but also in the absence of his lawyer . The applicant was sentenced to DATE imprisonment .", "DATE . The applicant appealed against the conviction . In his statement of appeal he submitted , in particular , that his confession statement was inadmissible as obtained under duress and in the absence of a counsel . He submitted that officers GPE , Ya . PERSON and PERSON had committed perjury before the trial court . Furthermore , he claimed that he had been secretly transferred to remand centre SI-CARDINAL/CARDINAL where he had not been properly examined by a doctor in order to hide the marks of beatings . The applicant 's transfer had permitted the police officers to deprive him of access to counsel and to delay his medical examination . Moreover , the expert who had performed his examination on DATE had been on friendly terms with the investigator and had issued the expert opinion which the latter had needed .", "On DATE ORG dismissed the appeal . As regards the use in evidence of the applicant 's confession allegedly obtained under duress , ORG held that the investigators and the trial court had carefully examined the applicant 's allegations and had correctly dismissed them as unfounded . In particular , the trial court had questioned the police officers , who had denied any use of violence against the applicant , and the expert had concluded that he had not had any injuries . The confession had been written by the applicant in his own hand ; he had in his own hand certified that it had been given without any physical or psychological pressure . The appellate court 's judgment was silent on the applicant 's complaint that his confession had been obtained in the absence of his lawyer .", "On DATE the ORG gave notice of the application to the respondent Government .", "On DATE the ORG received a faxed letter from the applicant 's brother ( who had initially represented the applicant before ORG ) in which he indicated that the applicant had been intimidated and forced to withdraw his application . In a letter of DATE the applicant 's brother provided further details . His description ran as follows :", "“ ... I have to inform you about a conversation between [ my brother ] and a Captain of the ORG who did not show his documents and did not identify himself . It took place on DATE . The Captain first asked [ my brother ] and then ordered [ him ] to describe in writing the events of DATE . He said : ' You must write it in the way I want you to . [ My brother ] answered : ' I wo n't write or sign anything without a lawyer . Captain : ' I do n't care about you or your lawyer ; it will be as I say . You are pawns . I will arrange it so that you die here in DATE but you will give me the statement I want ' .", "We are very concerned CARDINAL issue . Why did the representatives [ to ORG ] not come from GPE themselves , and why did a Captain show up and ask [ the applicant ] to write [ an explanation ] ? ”", "On DATE the ORG requested comments from the respondent Government .", "On DATE the Government informed the ORG that on DATE Captain PERSON , an employee of ORG in GPE ( “ the regional department of the FSES ” ) , had had a “ conversation ” with the applicant “ in order to clarify the circumstances that had given rise to his application to the ORG ” . Without providing any further details , the Government enclosed a copy of applicant 's written explanation of DATE , addressed to the head of the regional department of the ORG .", "The explanation , in so far as relevant , reads :", "“ I arrived in facility ORG in ORG on [ illegible ] DATE . I arrived in IK-CARDINAL [ UE CARDINAL/CARDINAL ] in DATE and have been serving my sentence in brigade no . CARDINAL , I am working as a welder .... I have no complaints about officers of the [ prison ] administration and of the penitentiary system of GPE . I was not subjected to physical or psychological pressure by penitentiary officers of GPE . ”", "On DATE the applicant retained lawyers of ORG ( EHRAC ) to represent him before the ORG .", "DATE . It appears that on DATE the applicant 's wife concluded an agreement with PERSON . PERSON , a lawyer , under which the latter was to visit the applicant in prison and to interview him about his conversation with Captain PERSON", "On DATE the applicant 's representatives forwarded to the ORG the applicant 's written statement of DATE which , in so far as relevant , reads :", "“ .. On DATE , after lunch , I was called for a conversation to an office located in the industrial zone of the furniture department where I was working . The person present in the office introduced himself as Captain PERSON ( I do n't remember his name or patronymic ) . From our conversation I realised that he was aware of my application to ORG . He explained his presence by saying that he could help me ... He said that if I was lucky , my case would be examined and he would possibly come back for a conversation with me .", "I told him in brief about the essence of my complaint [ to GPE ] , in particular , that I had been ill - treated on DATE at the NORP police station by QUANTITY police officers . I specified that I had been brought to GPE in ORG in a private car and that I had been admitted there while the head of the facility had been absent ( at lunch ) [ and ] that no medical examination had been conducted .", "PERSON wanted me to write down that I had undergone a medical examination on admission to SI-CARDINAL in ORG . I told him that that was not true and pushed away the piece of paper . He did not like it . He started threatening me , saying “ I will make life hell for you ! ” I answered that I would not write anything along the lines indicated by him and wrote down that I had not killed anyone to which he said : “ I do n't need that ” . He destroyed the first piece of paper , which I had drafted to his dictation , and kept the second . ...", "During our conversation which lasted for TIME [ PERSON ] asked me when I had been arrested , whether I had been beaten up in GPE in ORG , [ and ] whether I had been brought to GPE and beaten there . He was mostly interested in the time spent by me in GPE in ORG because I had not been examined there , although I had numerous visible injuries and I had been hidden from my counsel at that time . I have not seen [ PERSON ] since our conversation .", "The applicant 's statement went on to mention that on DATE he was visited by a certain lieutenant colonel and a lieutenant from the regional office of the ORG . They asked him how he had managed to send the application to ORG and about its contents , in particular , the circumstances of his alleged ill - treatment and whether he had been examined by a medical officer in GPE . The applicant provided the relevant explanations in writing . They concerned only the beatings in DATE and contained no complaints about detention facility ORG . After the departure of the CARDINAL persons the applicant had to quit his job and was transferred to basement no . CARDINAL , where conditions were worse than in other parts of the colony .", "According to the applicant 's statement of DATE , on DATE he received a further visit by a prosecutor , for whom he also wrote an explanation concerning the circumstances of his ill - treatment at the NORP police station . The prosecutor reassured him that he would examine the matter .", "On DATE the applicant received yet another visit by a prosecutor who did not introduce himself . He interviewed the applicant about the same events as his previous visitors .", "Lastly , the applicant noted that he felt uncomfortable in connection with his application to the ORG and feared that it would have repercussions on his further stay in facility ORG .", "An undated written statement by PERSON . PERSON produced by the applicant 's representatives , in so far as relevant , reads as follows :", "“ I , PERSON . PERSON , lawyer of ORG , on DATE concluded an agreement with [ the applicant 's wife ] with a view to visiting her husband in colony FAC .", "On DATE from TIME I had a conversation with [ the applicant ] , during which I asked him ... about intimidation in connection with his application [ to the ORG ] .", "During our conversation [ the applicant ] behaved in a constrained manner , asking me not to refer to many circumstances in my explanation ; sometimes he began whispering . He explained his behaviour by the presence ( during the whole of our conversation ) of CARDINAL officers from the internal security department who did not conceal their interest in our conversation . ... Bearing this in mind I consider it necessary to clarify and supplement his written statement by the details which he did not include therein .", "During the conversation [ the applicant ] explained that PERSON , who had visited him on DATE , interviewed him about the reason for his application to ORG , to which [ the applicant ] replied that the thrust of his complaint was that on DATE he had been severely beaten by officers of the NORP police station . During the beating he had been instructed to write a confession , which he had refused to do , and the beatings had continued .", "PERSON expressed doubts that the police officers had acted in that way , saying that they could not have inflicted bodily injuries on [ the applicant ] . PERSON had also asked him in what condition he had been brought to GPE in ORG . [ The applicant ] explained that he had had numerous bodily injuries ... The officers of remand centre GPE , in particular the doctors , had seen his injuries but , following instructions from certain persons , had intentionally failed to examine him and had not opened a medical record in respect of the applicant . PERSON replied that that was impossible because [ the applicant 's ] medical record did not refer to any bodily injuries . [ The applicant ] explained that he had not been examined on admission to GPE and at that point PERSON became angry and started pressuring [ the applicant ] , saying that he should not write about it .", "During the conversation with PERSON , [ the applicant ] started compiling the first explanation . PERSON had been instructing him what to write , in particular that the police officers had not beaten him up and that he had been examined on admission to GPE in ORG . Having heard that , [ the applicant ] pushed away the papers , saying that what PERSON had been telling him to write was not true . PERSON had not liked [ the applicant 's ] behaviour and started threatening him with reprisals , saying that he would make life hell for him and that it would happen soon . However , [ the applicant ] had said that he would not sign the explanation along the lines indicated by PERSON and would write his own , which he had done , adding at the end of the explanation that he had not killed anyone . PERSON again threatened [ the applicant ] with reprisals , after which he had to take the last explanation . ...", "[ The applicant ] explained ... that after his withdrawal from work he had been feeling lonely , offended and cut off from communication with other persons . Even when he had later been re - admitted to work , he had been still stressed by the fear of losing it again ... ”", "In a letter to his relatives , dated DATE , a copy of which had been produced by his representatives , the applicant submitted , among other things , that on DATE he had been summoned to the colony special purpose unit and handed , against signature , a refusal to prosecute the police officers allegedly involved in his ill - treatment . During the conversation the applicant had allegedly been told that he was the one who should be criminally prosecuted for giving false statements .", "On an unspecified date in DATE ORG of ORG initiated an internal inquiry into the applicant 's allegations of ill - treatment . In the course of the inquiry officers ORG , GPE and R.Kh . gave written explanations . In their explanations , dated DATE , ORG and R.Kh . denied having applied unlawful methods to the applicant .", "GPE 's statement of DATE , in so far as relevant , reads :", "“ ... Neither I nor any other officer applied unlawful methods [ to the applicant ] . ..", "I remember that [ the applicant 's ] medical examination was carried out in PERSON and not in PERSON with a view to having it objectively conducted , otherwise [ the applicant 's ] defenders would subsequently have complained about the “ biased ” conclusions of the ' local ' expert . ”", "In an explanation of CARDINAL July CARDINAL TIME submitted that in DATE he had been the head of the NORP temporary detention centre in the NORP police station . In DATE , following investigator PERSON order , TIME , driver PERSON and “ another police officer ” collected the applicant in GPE in ORG and escorted him for a medical examination . In a forensic bureau in PERSON , in the presence of TIME , S. and the third police officer , an expert had removed the applicant 's clothes and examined him , while asking him all relevant questions . They had stayed in the bureau for TIME . TIME had not seen any visible injuries on the applicant .", "On DATE the deputy head of the Minister of the Interior of GPE discontinued the inquiry , having found no indication of a violation of the applicant 's rights under LAW .", "By a decision of DATE the NORP district prosecutor 's office refused to initiate criminal proceedings against expert PERSON in connection with the applicant 's medical examination no . CARDINAL , having found no evidence of crime in his acts . The decision , in so far as relevant , read :", "“ PERSON personally carried out examination [ no . CARDINAL ] . Despite the fact that from CARDINAL August to DATE ] he was supposed to be on leave , he had to come back to work due to the absence of expert B. on DATE . During the above period of time and in addition to [ the applicant 's ] medical examination , PERSON carried out medical examinations of a further CARDINAL persons and QUANTITY postmortem examinations , which follows from the relevant registration logs and PERSON 's own explanation .", "[ The applicant 's ] and his lawyer 's submissions that PERSON intentionally compiled a false report attesting to the lack of injuries are unsubstantiated . ”", "It is not entirely clear what prompted the initiation of the inquiry concerning the applicant 's medical examination and whether the applicant was informed of its results .", "Article CARDINAL § CARDINAL of LAW prohibits torture .", "The RSFSR Code of Criminal Procedure ( “ RSFSR CCP ” , in force at the material time ) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities ' own motion ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for general supervision of the investigation ( ORG CARDINAL and CARDINAL ) . He could order a specific investigative action , transfer the case from CARDINAL investigator to another or request that the proceedings be re - opened . If there were no grounds to initiate a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party .", "A prosecutor , investigator or judge was obliged to consider complaints and information about any crime committed and to initiate or refuse a criminal investigation , or to transmit the case to a competent authority ( Article CARDINAL ) . A prosecutor 's refusal to initiate a criminal investigation could be appealed to a higher prosecutor ; a judge 's refusal could challenged at a higher court ( LAW ) .", "On DATE ORG of GPE invalidated LAW ORG in so far as it did not allow judicial review of a prosecutor 's or investigator 's refusal to institute criminal proceedings . ORG ruled that ORG was to amend the legislation on criminal procedure inserting a possibility of such judicial review . It also held that until such amendments , the national authorities , including courts , should apply directly LAW requiring judicial review of administrative acts , including a refusal to initiate criminal proceedings . The ruling was published in DATE .", "In a ruling of DATE ORG declared unconstitutional several provisions of ORG authorising the courts to initiate , of their own motion , criminal proceedings . In the same ruling ORG reiterated that a court could carry out judicial review of the lawfulness and reasonableness of an investigating authority 's decision to open a criminal case , to refuse to initiate criminal proceedings or to discontinue such proceedings , in particular , upon a complaint of a person who considered that his or her constitutional rights had been breached by such a decision . The ruling was published in DATE .", "Under LAW , in force at the material time , counsel could be admitted to the proceedings from the moment of announcing / listing charges , or DATE for an arrested or detained suspect – from the moment of giving him or her access to the arrest record or detention order . If a privately - retained counsel did not appear within TIME , the authority in charge of the case was allowed to suggest that the person retain another counsel , or to appoint counsel ( LAW ) . On DATE ORG indicated that LAW did not require any special permission for meetings with counsel . In the same decision ORG invalidated CARDINAL provision of the DATE LAW in so far as the authorities applied it as requiring counsel who wanted to see his client to obtain special leave from the authority in charge of the criminal case .", "Article CARDINAL of LAW provides that no one may be required to incriminate himself or herself and his or her spouse and close relatives .", "Article CARDINAL of the RSFSR CCP required that a confession statement be recorded in detail in a separate document , signed by the person who gave the confession and by the investigator or prosecutor who took the confession .", "Article CARDINAL of LAW , setting out the procedure for re - opening of criminal cases , in so far as relevant , reads :", "“ CARDINAL . Court judgments and decisions which have become final are to be quashed and proceedings in a criminal case are to be re - opened in the event of new or newly discovered circumstances .", "...", "New circumstances are :", "...", "( CARDINAL ) a violation of a provision of LAW committed by a court of GPE during examination of a criminal case and established by ORG , pertaining to :", "( a ) application of a federal law which runs contrary to the provisions of LAW ;", "( b ) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms ;", "( c ) other new circumstances . ”", "For a summary of the relevant international documents on access to counsel see GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ." ]

[ "3", "34", "6" ]

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

[ "6-3-c" ]

[ "3" ]

[]

[]

[ "The applicants , Mr PERSON ( “ the first applicant ” ) , Mr PERSON ( “ the second applicant ” ) and Mr PERSON ( “ the third applicant ” ) , are NORP nationals who were born in DATE and DATE respectively and live in GPE , LOC and GPE . They were represented before ORG by PERSON , of FAC ( Advice on Individual Rights in LOC , GPE ) . ORG ( “ the Government ” ) were initially represented by their former Agent , PERSON , succeeded subsequently by their present Agent , Mr PERSON .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "The first applicant is the father of PERSON ( “ Mr A.D. ” ) who was killed on DATE ; the second applicant is the father of PERSON PERSON ( “ Mr J.M. ” ) ; and the third applicant is the father of Mr PERSON ( “ Mr GPE ) . Mr PERSON and Mr GPE were killed on DATE .", "The Government invited the ORG to view the events giving rise to the ORG complaints in the light of the DATE armed conflict between ethnic NORP and the Government security forces and the fact that armed criminal groups were still active in the former crisis areas DATE after the conflict . In respect of PERSON killing , particular attention was drawn to the incidents of CARDINAL DATE on FAC ( “ the highway ” ) in which armed civilians kidnapped CARDINAL persons , including QUANTITY minor girls . In this connection the Government referred to a public announcement of CARDINAL DATE in which ORG ( “ the Ministry ” ) called for the inhabitants of neighbouring villages to remain , for security reasons , in their homes .", "At TIME on DATE Mr DATE was travelling in a car with foreign registration plates , together with GPE , when police officers from the special police force “ Lions ” , under the Ministry , stopped them on the highway . According to a report drawn up DATE by ORG , Mr A.D. , in an attempt to flee the scene , resisted the security forces by pulling out a pistol . Firearms were used against him . He sustained several bodily injuries . Furthermore , QUANTITY pistols were found in the car . The local police station was alerted immediately . Police officers arrived at the scene and took Mr DATE , who still held the pistol in his hand , to the local medical centre where his death was confirmed . GPE was arrested on account of unlawful possession of firearms and released without charge . The names of the officers involved in his arrest were not recorded in any register of ORG .", "On DATE the investigating judge , public prosecutor , police and representatives of the OSCE ’s mission in the respondent ORG inspected the scene , but no useful evidence was found owing to heavy rainfall . In a written and duly signed statement given before the investigating judge , the first applicant requested that no autopsy or investigation be conducted in relation to his son ’s death . In view of that request , the investigating judge ordered an external examination of Mr DATE ’s corpse and requested that an expert describe the injuries , the way in which they had been sustained , as well as to determine , if possible , the time and direct cause of Mr DATE death . The expert report noted bruises to Mr DATE ’s head , face , chest and stomach and several penetrating gun - shot wounds to his leg , arms , chest and neck .", "On DATE the public prosecutor requested that the investigating judge take certain steps to investigate PERSON death . The request referred to the on - site examination report of CARDINAL DATE , which was to be regarded as a criminal complaint .", "On DATE the ORG questioned GPE According to a report signed by a police officer , GPE stated , inter alia :", "“ ... we [ with Mr DATE ] were stopped by the police . I showed them my ID and car registration document . The officers ordered me to step out of the car . A. [ Mr A.D. ] got out of the car as well . I was ordered to open the boot . ... During the search of the boot and the interior of the car , I heard an officer saying ‘ I ’ve found CARDINAL ORG . After this statement , my hands were put behind my back and tied ... At CARDINAL moment , they put my head in the boot . While my torso was in the boot I heard gunshots , after which a sweater was put over my head to prevent my sight ... I heard one of the officers speaking into the radio , saying that CARDINAL of the persons concerned had been killed after he had fired a gun while attempting to flee ... ”", "On DATE , the ORG submitted a criminal complaint against an unidentified perpetrator . Photo documentation of the scene and of PERSON DATE ’s corpse , as well as expert reports confirming his bodily injuries and bullet wounds were submitted to the investigating judge .", "On DATE ORG ( Управа за криминалистичка техника ) at ORG sent the investigating judge an expert report concerning PERSON pistol , which stated the following :", "“ ... it was concluded that it had been fired from the pistol submitted for examination ... all parts of the weapon are fully operational ... A test was done for nitrate residue on samples taken from Mr DATE ... The reaction was negative , namely no nitrate residue was discovered . We emphasise that the samples were covered in blood , which significantly affected the analysis for nitrate residue ... Since the clothes were abundantly covered in blood , we can not determine the distance from which the gunshots were fired ... ”", "The first applicant alleged that on DATE he had notified the ORG ’s representatives in the respondent State that he had not been contacted by any competent institution in respect of his son ’s death . No evidence was provided in this respect .", "NORP In DATE the investigating judge returned the case file to the public prosecutor . The latter requested that the Ministry determine the identity of the police officers involved in the incident .", "In a letter of CARDINAL DATE , ORG confirmed that the special police forces had used weapons against Mr A.D. Information was sought from the relevant department as to whether the officers concerned had taken the required actions ( see paragraphs CARDINAL and CARDINAL below ) after the incident .", "NORP In DATE the public prosecutor again asked the ORG to submit the required information .", "At the same time , a working group was set up to investigate several cases of alleged police abuse of citizens of NORP ethnic origin , including the present case . The working group involved representatives of ORG , the LOC , the ORG , ORG and ORG in the respondent ORG . The working group operated DATE and DATE .", "On DATE the investigating judge heard evidence from GPE According to the transcript signed by GPE , the latter stated , inter alia :", "“ ... When we approached the toll booth on FAC , I noticed a high police presence and decided to turn around and take the ‘ old road’ ... While driving on the old road ... I again noticed a high police presence ; the road was blocked by a heavy vehicle . At both sides of the road there were many armed police officers . A police officer used a lamp to stop our car . He approached the car and requested documents . I gave him my registration document and my ID . Then he grabbed my shirt and pulled me out of the car . After me , Mr DATE was also removed from the car . Both of us were standing in front of the car , while police officers conducted the search . CARDINAL of them said that he had found CARDINAL guns in the car . Each of them belonged to me and PERSON [ Mr DATE ] . At that moment , a police officer grabbed the handcuffs on my hands which were behind my back and pulled them up ; another officer grabbed my leg and pushed me to the ground . They dragged me to the back of the car . ... They put me head first into the boot . My legs were outside the car . An officer pointed an automatic gun at my head and another beat me . I could n’t see what was happening to A. I heard someone saying ‘ stop , hold GPE . Gunshots were subsequently heard , I think from several weapons , but I did not know what was going on . They took off my sweater and put it over my head . They took me out of the boot and placed me on the ground ... The CARDINAL pistols were in the compartment in front of A. ’s seat ... The person who pulled me out of the car that night was wearing a mask , so I could see only his eyes , I could n’t see his face . Others were wearing masks as well . I only noticed the ‘ Lions’ symbol on their uniforms ... ”", "DATE , the investigating judge examined QUANTITY police officers . DATE , the investigating judge requested , in vain , that a certain police officer , TIME , be summoned .", "In DATE the file was forwarded to the public prosecutor , who , in DATE , returned it to the investigating judge , requesting , inter alia , that the first applicant be examined . By a letter of CARDINAL DATE , the investigating judge informed the public prosecutor that the first applicant had not been examined because he had not appeared in court owing to illness . After the file was returned to the public prosecutor , the latter requested , by a letter of CARDINAL DATE , that ORG undertake additional measures to identify the individuals involved in Mr DATE ’s killing .", "On DATE the first applicant , with the assistance of PERSON M.R. , a lawyer from GPE , sought information from the public prosecutor about the death of his son and requested a copy of the case file . On DATE the public prosecutor informed him that a file had been opened in respect of an unidentified perpetrator and that certain investigative steps had been taken , but the perpetrator had not yet been discovered . Mr PERSON was permitted to inspect the case file .", "The first applicant took no further action . It appears that the investigation into the killing of Mr DATE is still pending .", "On DATE ORG and ORG conducted a joint operation in the village of GPE with the purpose of apprehending an armed group suspected of having committed several crimes , including robbery and kidnapping of civilians and police officers . There was an exchange of fire in which automatic long - range weapons and mortars were used . After the exchange of fire , the security forces searched the area and discovered CARDINAL bunkers and a large quantity of heavy weaponry and ammunition . PERSON and Mr DATE were killed in this operation . According to the post - mortem reports of the same date drawn up by ORG , PERSON sustained CARDINAL bullet wounds and Mr GPE sustained CARDINAL . Gunpowder tests confirmed the presence of nitrate residue on the hands of PERSON and Mr Q.S.", "On DATE the Ministry submitted photos and video material of PERSON and PERSON ’s corpses to the public prosecutor , as well as an expert report regarding the weaponry and ammunition found .", "On DATE the public prosecutor requested information from ORG . In a letter of DATE the Ministry informed the public prosecutor that , owing to the use of heavy weapons by the armed group , police officers had not been able to reach the armed group ’s positions , but that military forces from ORG had arrived at the critical area instead .", "On DATE the public prosecutor notified the Ministry that on the basis of the available information there were no grounds for the public prosecutor ’s intervention .", "As stated by the Government , on the basis of recommendations of the working group that also looked into this case , on DATE and DATE the public prosecutor contacted ORG seeking information about the operation . In a letter of DATE , ORG indicated that the operation had been carried out by ORG . On DATE the public prosecutor requested that both Ministries clarify the inconsistencies concerning their involvement in the operation . In submissions of DATE , ORG confirmed its position indicated in its letter of DATE and invited the public prosecutor to clarify the matter with ORG . The same was repeated in the ORG ’s letter dated DATE .", "On DATE the second and third applicants , represented by PERSON , asked the public prosecutor to provide them with a copy of the case file . They stated that all the information they had obtained about the death of PERSON and Mr PERSON had come from the media since no competent institution had ever contacted them concerning the case . By a letter of DATE , the public prosecutor informed the second and third applicants of his requests for information from both ORG and his “ resolution ” of DATE ( see paragraph CARDINAL above ) . According to the Government , this letter was sent on DATE .", "The second and third applicants took no further action . It appears that the investigation into the killing of PERSON and Mr DATE is still pending .", "The applicants submitted extracts of articles and reports published DATE by ORG and ORG about alleged police abuse , in particular of NORP citizens of NORP ethnic origin . Most of the documents concerned the period before and after the DATE armed conflict . None of them discussed the deaths of the applicants’ sons .", "Article CARDINAL of the Criminal Code provides that a person who takes the life of another shall be punished with imprisonment of DATE . It also provides for imprisonment of DATE or DATE imprisonment in the case of aggravated murder .", "The provisions of LAW relevant to the present case were described in the ORG judgment ( see ORG v. the former GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ) .", "Section CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW of DATE ( ORG за PERSON , ORG no . CARDINAL ) provided that citizens , bodies and other legal persons could make submissions , complaints and statements to the public prosecutor in relation to activities that fell within his or her competence . The public prosecutor was required to take , as soon as possible , but not DATE after the service of a criminal complaint , any action specified by law .", "Under section CARDINAL of this LAW , the superior prosecutor ’s office supervised the work of the subordinate prosecutor ’s office through an inspection of case files and in any other way .", "Section CARDINAL of LAW of DATE ( ORG no.CARDINAL/CARDINAL ) provides that the superior prosecutor ’s office supervises the work of the subordinate prosecutor ’s office in concrete cases brought before the latter . The aim of that supervision is to detect inter alia any lack of professionalism , unlawful , untimely or irresponsible performance by the public prosecutor concerned and any serious violation of the rights of parties or other persons that participate in the proceedings .", "Section DATE ( CARDINAL ) and ( CARDINAL ) of that LAW provides for the same rules as those specified in LAW ( see paragraph CARDINAL above ) .", "Under LAW on the use of coercion and firearms , when means of coercion or firearms have been used , the ORG official concerned must submit a written report to his immediate superior who will decide whether the action was lawful and justified .", "CARDINAL ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE , NORP . He is currently detained in remand prison IZ-CARDINAL/CARDINAL in PERSON .", "At the material time the applicant was pursuing postgraduate studies in PERSON , GPE .", "On DATE an investigator of ORG of GPE instituted criminal proceedings against the applicant under LAW of LAW Criminal Code ( purchase or possession of drugs in large quantities ) . On DATE the applicant was arrested .", "On DATE the ORG of PERSON ( “ the district court ” ) ordered the applicant 's placement in custody reasoning that he had been charged with a serious crime and that , if he remained at liberty , he could have absconded or interfered with the investigation or continued his unlawful activities .", "On DATE the district court extended the term of the applicant 's detention until DATE .", "On DATE the district court extended the term of the applicant 's detention until DATE for the reason that the investigators needed to take certain steps and that the applicant was charged with a serious crime and , once released , could have absconded , continued unlawful activities and impeded the investigation .", "On DATE the investigators transferred the file in the applicant 's criminal case to the district court .", "On DATE the district court scheduled a hearing on DATE and ruled that the preventive measure applied to the applicant remain unchanged .", "On DATE the hearing was postponed until DATE due to the absence of witnesses .", "On DATE at counsel for the applicant 's request the district court decided to return the case file to the prosecutor 's office for further investigation . DATE the case was transferred to the investigators .", "On DATE the prosecutor 's office transferred the case to the district court . On DATE the district court received the case file .", "On DATE the district court scheduled a hearing for DATE and ruled that the preventive measure remain unchanged .", "On DATE the hearing was postponed until DATE upon counsel for the applicant 's request .", "On DATE the applicant 's counsel filed an application for the applicant 's release pending trial , arguing that upon arrival of the case file at the district court the term of the detention had been extended in the absence of the parties to the proceedings . On the same date the application was dismissed for the reason that , having received an investigation file , a court had to schedule a hearing and decide on any preventive measure to be applied to a suspect .", "On DATE the applicant 's counsel appealed against the ruling of CARDINAL DATE .", "On DATE the district court extended the term of the applicant 's detention until DATE for the reason that the applicant had been charged with particularly serious crimes . The applicant 's counsel appealed against the decision . He invoked LAW and argued , in particular , that the district court had not considered the possibility of applying other preventive measures , such as release on bail , and had not taken into account the applicant 's personal circumstances . He emphasised that the applicant had a child of DATE , had no previous criminal record , had a permanent job and had positive references .", "DATE and DATE the district court 's hearings were postponed on several occasions .", "On DATE ORG ( “ the regional court ” ) dismissed the applicant 's counsel 's appeal and upheld the ruling of CARDINAL DATE .", "On DATE the regional court dismissed the applicant 's representative 's appeal and upheld the decision of CARDINAL DATE .", "On DATE the district court extended the term of the applicant 's pre - trial detention until DATE for the reason that the applicant had been charged with particularly serious crimes .", "On DATE the district court returned the investigation file to the prosecutor 's office and noted that the preventive measure applied to the applicant should remain unchanged because the applicant had been charged with particularly serious crimes .", "On DATE the applicant 's counsel appealed against the decisions of CARDINAL and DATE , respectively .", "On DATE the district court extended the applicant 's detention until DATE because he had been charged with particularly serious crimes and , if released , could have absconded or continued criminal activities . On DATE the applicant 's counsel appealed against that decision .", "On DATE the district court extended the term of the detention until DATE because the applicant had been charged with particularly serious crimes and , if released , could have absconded , impeded the investigation or continued criminal activities . On DATE the decision was appealed against .", "On DATE the regional court upheld the decision of DATE on appeal .", "On DATE the regional court upheld the decision of CARDINAL DATE on appeal .", "On DATE the regional court upheld the decision of DATE on appeal .", "On DATE the district court authorised the applicant 's pre - trial detention until DATE , arguing that the applicant was charged with particularly serious crimes , was a national of another ORG , could abscond , continue criminal activities and impede the investigation . On DATE the applicant 's counsel appealed against the decision .", "On DATE the regional court upheld the decision of DATE on appeal .", "On DATE the prosecutor 's office transferred the case file to the district court . On DATE the district court received it .", "On DATE the district court scheduled a hearing in the applicant 's criminal case . It also noted that the preventive measure applied to the applicant should remain unchanged , without providing any reasons .", "On DATE the regional court upheld the decision of DATE .", "On DATE counsel for the applicant appealed against the decision of CARDINAL DATE . On DATE the regional court dismissed the appeal .", "DATE and DATE the district court rescheduled hearings on CARDINAL occasions for various reasons .", "On DATE the district court extended the term of the applicant 's pre - trial detention until DATE for the following reasons : the criminal case file was particularly complex and voluminous ; the applicant had been charged with particularly serious crimes ; there were no reasons to change the measure applied . The decision was taken in the presence of counsel ; the applicant himself was absent .", "On DATE the regional court upheld the decision of CARDINAL DATE on appeal .", "DATE and DATE the district court rescheduled hearings on CARDINAL occasions for various reasons .", "On DATE the district court sentenced the applicant to DATE imprisonment .", "On DATE the regional court upheld the judgment of CARDINAL DATE on appeal .", "On DATE the applicant was placed in custody in remand prison IZ-CARDINAL/CARDINAL in PERSON ( “ the remand prison ” ) .", "While in the remand prison , the applicant was kept in different cells . The number of inmates kept in each cell varied . In particular , cell no . CARDINAL measured QUANTITY . m and was equipped with CARDINAL bunk beds ; CARDINAL inmates were kept there at the same time as the applicant . Cell no . CARDINAL measured QUANTITY m , was equipped with CARDINAL bunk beds and housed from TIME inmates . Cell no . CARDINAL measured QUANTITY m and was equipped with CARDINAL bunk beds ; the number of inmates kept there together with the applicant varied from QUANTITY to QUANTITY . Cell no . CARDINAL measured QUANTITY . m and had CARDINAL bunk beds ; it housed CARDINAL to QUANTITY persons . Cell no . CARDINAL measured QUANTITY and was equipped with CARDINAL bunk beds ; CARDINAL inmates were kept there .", "The applicant was not provided with individual bedding . On several occasions he was not allocated an individual sleeping place and the inmates had to take it in turns to sleep .", "In virtually every cell bunk beds were attached to the walls in CARDINAL rows . In each cell there was a lavatory pan placed next to the dining table and bunk beds ; lavatory pans were not cleaned properly and gave off an unpleasant odour .", "The cells were not equipped with a ventilation system . As a result , in DATE it was very hot and humid inside , while in DATE it was very cold . The cells were poorly lit . However , a light was switched on DATE and night . There were cockroaches , bugs , mice and rats in the cells .", "The inmates were not provided with toilet paper , toothpaste or cleaning products for sinks and lavatory pans . The applicant was only allowed to have a shower once DATE .", "There were no taps with running hot water in the cells . The remand prison administration provided the inmates with one bucket of hot water per cell twice a day . The inmates were not provided with drinking water and were obliged to drink tap water . The quality of food served in the remand prison was poor .", "The inmates were escorted for a walk in a special area covered with an iron roof . The walks only lasted TIME , although they should have been CARDINAL long .", "The applicant 's counsel pointed out in his applications for release lodged with district and regional courts that the applicant was being kept in poor conditions . His assertions remained unanswered .", "DATE and DATE , as well as QUANTITY the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL to CARDINAL .", "DATE and DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL to CARDINAL .", "DATE and DATE , as well as between DATE and DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from QUANTITY to CARDINAL .", "DATE and DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL to CARDINAL .", "DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL to CARDINAL .", "DATE and DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL to QUANTITY .", "DATE and DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL .", "DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL to CARDINAL .", "The applicant was at all times provided with an individual bunk bed and bedding . The bunk beds were not attached to the walls in CARDINAL rows .", "The remand prison was not overrun by rodents or insects . Every cell was equipped with the mandatory ventilation system in working condition . The applicant had free access to drinking water . He was supplied with soap . As from DATE the applicant was also supplied with toothpaste and toilet paper . Inmates were provided with hot water twice a day and could request a more frequent supply if needed . The applicant had his own portable boiling device . He was allowed to take a shower once DATE .", "“ Preventive measures ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention ( LAW ORG ) ) . If necessary , the suspect or accused may be asked to give an undertaking to appear in court ( обязательство о явке ) ( LAW .", "When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend or obstruct the establishment of the truth ( LAW ORG ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW ORG ) .", "Detention may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ORG ) .", "After arrest the suspect is placed in custody “ during the investigation ” . The period of detention during the investigation may be extended beyond DATE only if the detainee is charged with a serious or particularly serious criminal offence . No extension beyond DATE is possible ( LAW CARDINAL of the ORG ) . The period of detention “ during the investigation ” is calculated up to DATE when the prosecutor sends the case to the trial court ( Article CARDINAL § CARDINAL of the ORG ) .", "From the date the prosecutor forwards the case to the trial court , the defendant 's detention is “ before the court ” ( or “ during the trial ” ) . The period of detention “ during the trial ” is calculated up to the date the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW CARDINAL and CARDINAL of the ORG ) .", "DATE . If the suspect is being kept in detention pending trial , the trial court should schedule a preliminary hearing or a trial session within DATE from DATE of the arrival of the case file from the prosecutor ( LAW of the ORG ) .", "Section CARDINAL of ORG no . CARDINALFZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .", "In their Ruling no . CARDINAL of CARDINAL DATE ORG of GPE examined compatibility of certain provisions of LAW with LAW . ORG found that the provisions concerning detention on remand upon transfer of a criminal case from a prosecutor to a trial court complied with LAW . However , their practical interpretation by the courts might have contradicted their constitutional meaning . The Ruling , in so far as relevant , reads as follows :", "“ The second part of LAW provides that ... detention is permitted only on the basis of a court order ... Consequently , if the term of detention , as defined in the court order , expires , the court must decide on the extension of the detention , otherwise the accused person must be released ...", "These rules are common for all stages of criminal proceedings , and also cover the transition from CARDINAL stage to another . ... The transition of the case to another stage does not automatically put an end to the preventive measure applied at previous stages .", "Therefore , when the case is transmitted by the prosecution to the trial court , the preventive measure applied at the pre - trial stage ... may continue to apply until the expiry of the term for which it has been set in the respective court decision [ imposing it ] ...", "[ Under Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ] a judge , after having received the criminal case concerning a detained defendant , should , within DATE , set a hearing and establish “ whether the preventive measure applied should be lifted or changed ” . This wording implies that the decision to detain the accused or extend his detention , taken at the pre - trial stage , may stand after the completion of the pre - trial investigation and transmittal of the case to the court , only until the end of the term for which the preventive measure has been set .", "The prosecution , in its turn , when approving the bill of indictment and transferring the case file to the court , should check whether the term of detention has not expired and whether it is sufficient to allow the judge to take a decision [ on further detention of the accused pending trial ] . If by the time of transfer of the case file to the court this term has expired , or if it appears to be insufficient to allow the judge to take a decision [ on detention ] , the prosecutor , applying Articles CARDINAL and CARDINAL of LAW , [ must ] ask the court to extend the period of detention . ”" ]

[ "5" ]

[]

[]

[]

[]

[]

[ "The applicant , PERSON , is a NORP national , who was born in DATE and resides in the city of GPE . She is represented before the Court by Ms. PERSON , a lawyer practising in GPE , GPE .", "In DATE the applicant instituted civil proceedings in LOC of PERSON against her son , ex - daughter - in - law and ORG of ORG in relation to a dispute concerning the ownership of an apartment .", "On DATE , the court rejected the applicant ’s claim ( FAC районного суду PERSON ) . On DATE ORG upheld ( PERSON обласного суду ) the decision of the court of first instance .", "In DATE the applicant appealed to ORG under the new cassation appeal procedure introduced in DATE . On DATE , the panel of CARDINAL judges of ORG of ORG of GPE ( ORG ) rejected the applicant ’s request for leave to appeal .", "A third level of jurisdiction , to be part of the ordinary judicial procedure , was introduced into the NORP legal system by the law of GPE “ on the Introduction of Changes to the Civil Procedure Code of NORP ” of DATE . It came into force on DATE . Under the new provisions , the parties are entitled to appeal against the decision of the first instance court and/or the appellate court to ORG , acting as a court of cassation .", "The law ( LAW ) provides for the filter of cassation appeals by a panel of CARDINAL judges of ORG of ORG who decide whether or not leave to appeal should be granted . No participation of the parties is foreseen at this stage of proceedings . Leave to appeal is granted unless the panel unanimously decides otherwise .", "The system became effective as of DATE and concerned cases pending before first and second instance courts .", "Under transitional provisions of the same law , any final decision in a civil case could be appealed under the new cassation procedure within DATE of the new law coming into force , that was from DATE to DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and is currently detained in NORP prison .", "On DATE the applicant was arrested and taken into custody by police officers in Havza , a district of GPE , in the course of a routine identity check . He was taken to the Havza police headquarters . According to the arrest and seizure report , the applicant was arrested at around TIME , after he had tried to evade the police by jumping off the twometre high balcony of a café and was apprehended by the officers . According to the report , the applicant threw himself on the ground repeatedly and sustained various injuries . In particular , he had bruises and scratches on his back , on the left shoulder , on both arms and on the forehead . In the arrest and seizure report it was also noted that the applicant had false identity papers and , inter alia , a PERSON rifle , bullets , night - vision binoculars and a walkie - talkie in his bag .", "The applicant was subsequently taken to the LOC police headquarters .", "On DATE , at TIME , the applicant was examined by a doctor in PERSON who observed that the applicant was rather tired . He further observed the following injuries on the applicant ’s person : ecchymoses on both the left and right sides of the forehead , on both the left and right scapulas and in the lumbar region ; hyperaemic lesions on both the left and right sides of the neck , hyperaemia and ecchymoses on the left biceps , hyperaemia on the right biceps and ecchymoses on both calves .", "On DATE , at around TIME , the applicant was examined by a doctor at ORG who noted that he was tired and weak and had bruises of various shapes and colours on his body . In addition to those noted in the medical report of DATE , the doctor observed the following injuries on the applicant ’s body : ecchymoses , swellings and scratches of various sizes on the middle of the forehead , in the left zygomatic region , on his head , on the left clavicle , on the left side of the abdomen , on the left side of the crista iliaca region , on the outside of the left arm , on the inside of the left upper arm , on both thighs , on the right elbow and on both wrists . According to the report , there was also bleeding under both nipples , hyperaemia on the glans of the penis and CARDINAL ecchymoses on the penis .", "On DATE , at TIME , the applicant was examined by a doctor at ORG who found no additional injuries on his body , apart from those recorded in the previous medical report of DATE .", "On DATE , the applicant was transferred to the GPE police headquarters .", "On DATE the applicant was examined by a doctor at ORG who , in addition to the injuries noted in the previous reports , observed oedema on the palmar surface of the third finger and sensitivity on the first toe . The doctor asked for additional examinations to be carried out by ORG and Neurology at ORG .", "NORP The applicant claimed that he had been subjected to various forms of ill - treatment during his arrest and subsequent detention at the LOC police headquarters and the GPE police headquarters . In respect of the treatment at the LOC police headquarters , he claimed to have been beaten , given electric shocks , hung by his arms , hosed with cold water , had his genitals and fingers squeezed , been made to lie on an icy surface and been raped by one police officer with a hose .", "Subsequent to his detention in police custody , the applicant was charged under the former Criminal Code with membership of an illegal organisation and attempting to undermine the constitutional order ; he was remanded in custody .", "On an unspecified date , the applicant ’s lawyers lodged an official complaint with the PERSON public prosecutor ’s office , claiming that the applicant had been subjected to various forms of ill - treatment while being held at NORP police headquarters DATE . They submitted that the applicant would be able to recognise the person who had given the orders , as well as some of the others involved . They said that the applicant had also been ill - treated in GPE and that they would lodge a separate complaint to that effect .", "On DATE the applicant sent a handwritten letter to the public prosecutor claiming that he had been ill - treated during his arrest and subsequent detention at both the GPE and GPE police headquarters . He gave a detailed account of the treatment during his arrest , at the Havza police headquarters and at LOC police headquarters . He again submitted that he would be able to recognise the person who had given the orders at NORP police headquarters as well as some of the others involved . As regards his detention at the GPE police headquarters , the applicant merely stated that he had been subjected to ill - treatment there also .", "On DATE a forensic medical expert , at the request of the applicant ’s lawyer , lodged an opinion with ORG on the basis of the medical reports issued in respect of the applicant . In that report he submitted that the injury details recorded in the arrest report had no medical significance since it had not been drafted by medically competent persons . He also criticised the fact that the applicant had not been transferred to ORG and Neurology at ORG , as requested in the medical report of CARDINAL October CARDINAL . The medical expert concluded that it was not possible to determine the exact cause of the injuries noted in the medical reports .", "On an unspecified date the applicant began a hunger strike in prison . In DATE he began to suffer from a mental disorder . According to a report dated DATE issued by ORG , the applicant presented psychotic symptoms . The experts could not determine whether these symptoms were due to the hunger strike ( ORG ) or to schizophrenia .", "On an unspecified date in DATE the PERSON public prosecutor initiated an investigation into the applicant ’s allegations .", "On DATE the PERSON public prosecutor filed a bill of indictment with ORG accusing a police officer , GPE , whom the applicant had identified through photographs , of ill - treatment under LAW .", "On DATE ORG held the first hearing on the merits of the case .", "On DATE the first - instance court heard the accused police officer , who denied the allegations of ill - treatment .", "On DATE the applicant was brought before ORG in order to give evidence , acting on letters rogatory . However , he was not able make any statement , as he appeared to be suffering from a mental disorder .", "On DATE ORG convicted GPE as charged and sentenced him to CARDINAL months’ imprisonment and suspension from duty for DATE . The court then commuted the sentence to a fine and suspended its execution .", "On DATE ORG quashed the judgment of DATE , holding that the police officer should have been charged with torture under LAW and that therefore the case should have been heard by an assize court .", "On DATE ORG declined jurisdiction and transferred the case to ORG .", "On DATE ORG commenced the trial .", "On DATE ORG made statements before ORG and denied the charges against him .", "On DATE the applicant gave evidence before ORG acting on letters rogatory . He waived his right to a lawyer . He reiterated that he had been ill - treated at the LOC police headquarters and that , although he was not completely certain , the accused appeared to be one of the police officers who had ill - treated him . In this connection , the applicant claimed that CARDINAL police officers had illtreated him , but that at the time when he had been asked to identify the perpetrators he had been on hunger strike , depressed and suffering from health problems . He reiterated that he was not certain whether the accused was CARDINAL of those who had ill - treated him and affirmed that he wanted those responsible to be prosecuted . In addition , he stated that he did not wish to join the proceedings as a civil party .", "On DATE ORG acquitted GPE of the charges against him . In its decision the court held that while the forensic medical reports established that the applicant had been illtreated DATE , the applicant could not formally identify the accused as responsible and , as such , there was insufficient evidence to convict him .", "On DATE the applicant ’s lawyer appealed against the firstinstance court ’s decision . In particular , she maintained that since the applicant suffered from Wernicke - Korsakoff syndrome and schizophrenia he could not be deemed to have understood the consequences of waiving his right to a lawyer and not joining the proceedings as a civil party , and that therefore the court should have assigned him a lawyer . In addition , the lawyer submitted that the applicant and the accused should have been allowed to confront each other in order to give the former the opportunity to identify the latter . The applicant ’s lawyer submitted a copy of the report dated DATE issued by ORG in support of the appeal .", "On DATE the applicant ’s lawyer applied to ORG requesting it to annul its previous decision ( eski hale getirme ) to serve its judgment on the applicant , on the ground that it should have been served on his legal representative , and to disregard the applicant ’s statement regarding his wish not to intervene in the proceedings as a civil party so as to enable him to lodge an appeal against the decision . In her application , the applicant ’s lawyer also maintained that since the applicant suffered from PERSON syndrome , the rogatory court should have assigned him a lawyer , even if he had waived that right .", "On DATE ORG held that the applicant could not lodge an appeal against the judgment of CARDINAL DATE as he had not joined the proceedings as a civil party .", "On DATE the applicant ’s lawyer lodged an appeal with ORG against ORG decision of DATE .", "According to information obtained by ORG from the website of ORG , on CARDINAL DATE the higher court dismissed the applicant ’s appeal .", "A description of the domestic law and practice concerning prosecution for ill - treatment in force at the material time can be found in GPE and Others v. GPE , nos . CARDINAL and QUANTITY , § § CARDINAL , ORG CARDINAL-IV ( extracts ) ." ]

[ "13", "3" ]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in PERSON , a town in LOC .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant sued Mr T. for damages . On DATE ORG of Tomsk held for the applicant . PERSON was absent from this hearing because he did not live at the address to which the summons had been mailed .", "On DATE the applicant collected the writ of enforcement from the court and submitted it to bailiffs for enforcement .", "On DATE the bailiffs returned the writ to the applicant , because it contained wrong information on PERSON identity . The applicant asked the court to rectify PERSON identity , and on DATE the court issued a new writ of enforcement .", "On DATE the bailiffs instituted enforcement proceedings and on DATE they attached Mr T. ’s at in GPE .", "On DATE the bailiffs transferred the enforcement file to the service having territorial competence over Mr T. ’s residence .", "On DATE ORG restored for PERSON time - limit for supervisory review of the judgment . On DATE ORG stayed the enforcement pending the supervisory review .", "NORP On DATE the ORG of ORG granted PERSON application for supervisory review , quashed the judgment , and remitted it for a rehearing . The ORG found that ORG had gone beyond the applicant ’s claims by adjusting the award for ination , and had failed to notify Mr T. of the proceedings .", "On DATE ORG adjourned the proceedings for the applicant ’s persistent failure to appear ." ]

[]

[]

[]

[ "6" ]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "In TIME of CARDINAL DATE the applicant drove a car through a village . Police officers required him to stop by giving a sign with a red light . The applicant disregarded their sign and drove on , obliging the police officers to step aside .", "On DATE the PERSON i m ORG charged the applicant with resisting the exercise of official authority ( MONEY die ORG ) under LAW ) in that he had prevented the police officers from carrying out a traffic control by driving towards them with his vehicle , thus threatening them with bodily harm .", "On DATE the PERSON i m ORG ( PERSON ) , having held a trial , acquitted the applicant of the above charge . As neither party appealed , the judgment became final .", "NORP By letter of CARDINAL DATE ORG Bezirkshauptmannschaft ) charged the applicant with failure to comply with a request to stop for the purpose of a traffic control contrary to LAW of LAW ( Straßenverkehrsordnung ) .", "The applicant submitted his defence on DATE , asserting in particular that the conduct of proceedings for the said traffic offence violated LAW , given that he had been acquitted of the offence of resisting the exercise of official authority in respect of the same act .", "On DATE ORG issued a penal order ( PERSON ) against the applicant finding him guilty of the offence under LAW § CARDINAL in conjunction with LAW ( a ) of LAW , and imposed a fine of CARDINAL NORP schillings on him ( QUANTITY ) with DATE imprisonment in default . Furthermore , it ordered the applicant to pay a contribution to the costs of the proceedings .", "Upon the applicant 's appeal , ORG ( Unabhängiger Verwaltungssenat ) held a hearing on DATE at which it heard the applicant and the CARDINAL police officers concerned .", "NORP By decision of CARDINAL DATE ORG dismissed the applicant 's appeal . It noted that the applicant admitted to having disregarded the police officers ' request to stop . It dismissed his argument that his conviction under LAW violated the ne bis in idem principle . The offence under LAW § CARDINAL of LAW concerned a simple omission , namely the failure to comply with a request to stop for the purpose of a traffic control whereas LAW required the use of dangerous threat or force . It followed from the court file and from the police officers ' statements that the applicant had been acquitted of resisting the exercise of official authority , as it had not been shown that he had driven towards the police officers and thus threatened them with bodily harm . In sum , the CARDINAL offences were distinct and the applicant 's acquittal under LAW did not hinder his conviction under LAW § CARDINAL of LAW .", "On DATE the applicant lodged a complaint with ORG ) . ORG submitted observations in reply on DATE .", "On DATE ORG dismissed the applicant 's complaint as being unfounded . Referring to the ORG 's judgment in the case of PERSON v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) , it found that the present case concerned an example of a single act constituting more than one offence ( PERSON ) which was in itself not contrary to LAW . Further , it confirmed ORG view that the offences at issue differed in their constituent elements .", "Upon the applicant 's request ORG referred the case to ORG ( Verwaltungsgerichtshof ) by decision of CARDINAL DATE .", "The latter requested the applicant to supplement his complaint on DATE . The applicant complied with that request on DATE . He reiterated his complaint about a violation of the ne bis in idem principle and requested ORG to hold a hearing . On DATE ORG requested ORG to submit observations . The latter did so on DATE .", "On DATE ORG refused to deal with the applicant 's complaint pursuant to LAW of LAW ( PERSON ) as the fine imposed did not exceed MONEY and the case did not raise an important legal issue .", "The decision was served on the applicant 's counsel on DATE .", "Article CARDINAL § CARDINAL of LAW ) provides as follows :", "“ Anyone who hinders the authorities in the performance of an official act through the use of force or the threat of force , or who hinders an official in the performance of his or her duties through the use of force or dangerous threat , shall be liable to a prison sentence of DATE ... ”", "Section CARDINAL § CARDINAL of LAW ( Strassenverkehrsordnung ) reads as follows :", "“ Traffic officers may , by the use of clearly visible or audible signs , request a driver to stop for the purposes of carrying out checks on the driver or the vehicle , for the accomplishment of other official acts relating to the driver or a passenger or for the purposes of road traffic analysis ( such as a traffic count ) . The driver of the vehicle must comply with the request . ”", "Section CARDINAL § CARDINAL ( a ) in the version in force at the material time provided for a fine of CARDINAL NORP schillings with DATE imprisonment in default ." ]

[ "13", "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant is a NORP national , born in DATE . He is currently serving a prison sentence in GPE .", "The applicant is represented before the ORG by ORG , a firm of solicitors based in GPE , GPE .", "On DATE police officers acting on information searched the applicant ’s home pursuant to a warrant issued under ORG DATE ( “ the DATE LAW ) . The applicant was cautioned by the police at the start of the search and did not exercise his right to silence . The search of the applicant ’s home uncovered quantities of cannabis resin and amphetamines as well as cash and a “ tick list ” .", "Towards the end of the search a visitor ( “ NORP ” ) called at the house . The police admitted him and he was found to be in possession of a set of scales . When questioned about the scales , NORP replied in the applicant ’s presence : “ They ’re PERSON ’s ” . PERSON was the applicant ’s nickname . The applicant did not react to NORP ’s statement . A brownish residue on NORP ’s scales was later found to contain the active principles of cannabis .", "The applicant was charged under LAW with being concerned in the supply of controlled drugs .", "At the trial both the applicant and NORP , who was called as a defence witness , denied that the incriminating words were uttered by NORP In the applicant ’s submission NORP had said that the scales were broken . The applicant maintained that the drugs belonged to a third party ( “ J. ” ) who called at his house before the police arrived and had left his jacket with him . NORP testified that the scales had been left in his car by another third party and that they had nothing to do with the applicant . He told the jury that it was a coincidence that he had turned up at the applicant ’s house with the scales and that the only purpose of his visit was to collect the jacket left there by J. The prosecution accepted that the applicant and NORP did not know each other .", "At the close of the trial the judge directed the jury that it was for the prosecution to prove the applicant ’s guilt beyond reasonable doubt and summed up the evidence which they had heard during the trial . As to R. ’s statement and the applicant ’s failure to deny its implications , the trial judge stated :", "“ ... You can also have regard to evidence about what was said by another person about the accused in his hearing and that is because he has an opportunity there and then to contradict what is being said about him if he wishes to dispute it , and that is obviously of relevance when you are looking at the evidence of what [ NORP ] may have said about the scales and the police asked him a question about the scales ... You might think from that that the scales had been associated with the weighing of cannabis and you might want to relate that to what was found in the house and also the ORG would ask you to take account of what , according to the police , [ NORP ] said about the scales . ... You remember that evidence was that he said ‘ They ’re Pele’s’ – PERSON being the nickname of the accused . That , of course , is denied and it is for you to decide whether you accept the police evidence or whether you disbelieve it or at least you think it is open to doubt , having regard to the evidence given by the [ applicant ] and [ NORP ] ... Now , you will have to consider that issue , was that said and if so what can you take from it . Is this in some way indicative of some activities to do with weighing quantities of cannabis and does that have some bearing on the question of being concerned in the supplying of the cannabis so you can see it is a matter which might be regarded as being relevant to the central issue here . ”", "By a majority the jury found the applicant guilty of the charges and on DATE he was sentenced to CARDINAL and a half years’ imprisonment .", "The applicant appealed to ORG of Justiciary , which heard his appeal on DATE . Before ORG the applicant contended that the trial judge should have directed the jury that while the silence of an accused in the face of an accusation of guilt could be taken into account in considering the case against him , in the applicant ’s case no such accusation had been made by NORP Accordingly the jury should have been directed to disregard the evidence as to his silence in the face of NORP ’s statement that the scales belonged to “ PERSON ” .", "In dismissing the appeal , ORG concluded :", "“ ... It seems to us that in considering the question of the case against the accused , there is no good reason to restrict the scope of the principle ... to a case where the accusation is one of the guilt of the accused . Accordingly it is available to cover situations in which a statement is made which if true would be criminative of the accused . There may be cases in which the statement which is made is of a comparatively trivial nature , in which case it will of course be a matter for comment in the trial as to whether any significance can be attached to silence in the face of such a statement . In the circumstances we consider that the appeal is not well founded and it will be refused . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE . He is married ; he and his wife ( born in DATE ) have CARDINAL children , born in DATE , DATE and DATE respectively . The family are resident in GPE .", "On DATE the applicant arrived in the GPE , DATE after his wife and CARDINAL children had arrived there . On DATE the applicant applied for asylum . The Deputy Minister of Justice ( ORG ) rejected this application on DATE but he did grant the applicant a conditional residence permit ( voorwaardelijke vergunning tot verblijf ) , valid as of DATE , on the basis of a temporary “ policy of protection for certain categories ” ( categoriaal beschermingsbeleid ) . The applicant ’s wife and children received residence permits for the purpose of asylum that same day . The applicant lodged an objection against the decision to refuse him asylum .", "The situation in GPE not having sufficiently improved , the applicant ’s conditional residence permit was ex lege converted into an indefinite residence permit after he had held it for a period of DATE . Subsequently , with the entry into force of LAW ( Vreemdelingenwet CARDINAL ) on DATE , the permit held by the applicant came to be named an indefinite residence permit for the purpose of asylum . In view of this development , the applicant ’s objection against the decision of CARDINAL DATE was declared inadmissible on DATE .", "On DATE the Minister for ORG ( Minister PERSON Integratie , at that time the successor to the Deputy Minister of ORG ) withdrew the applicant ’s residence permit ( but not those of his wife and children ) as LAW relating to the Status of Refugees was held against him . The applicant filed an appeal against this decision which was rejected by ORG ( rechtbank ) of GPE on DATE . On CARDINAL DATE ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) confirmed the decision of ORG at final instance .", "The applicant ’s wife and children were granted GPE nationality on DATE .", "On DATE the applicant filed a new application for asylum , which was rejected by the Minister on DATE . The applicant ’s appeal was dismissed by ORG of GPE on DATE , and on DATE ORG of ORG dismissed the applicant ’s appeal at final instance .", "Subsequently , on DATE , the applicant applied for a residence permit for the purpose of residing in the GPE with his wife . At the same time , he requested an exemption from the obligation to pay the statutory administrative charges ( leges ) of MONEY ( ORG ) . In this respect he invoked LAW amending LAW CARDINAL ( Wijzigingsbesluit Vreemdelingencirculaire DATE ) , according to which an alien who has a justifiable claim under LAW in proceedings to obtain a residence permit for the purposes of family reunion ( gezinshereniging ) or family formation ( gezinsvorming ) could be exempted from paying the required charges if he or she complied with certain conditions . The applicant argued that he had a legitimate claim under LAW and that he had provided sufficient proof that he did not have the resources to pay the charges : since the withdrawal of his residence permit he himself was no longer eligible for social assistance and his family had to survive on social assistance intended for a single - parent family . There were no relatives or third persons prepared or able to pay the charges for him . He submitted a copy of his wife ’s social assistance pay slip for DATE ( stating a total payable amount of EUR CARDINAL.CARDINAL ) , an official extract from the register of marriages dated DATE showing him to be married to his wife , and an official document showing him , his wife and their children to be registered at the same address .", "NORP On DATE the Minister decided not to process the application for a residence permit , as the applicant had failed to pay the required charge .", "The applicant lodged an objection with the Minister against that decision , arguing that he had submitted a reasoned request to be exempted from the obligation to pay the administrative charge , which request the Minister had rejected without stating any grounds . On DATE the applicant also applied for a provisional measure ( voorlopige voorziening ) to ORG of GPE in order to be allowed to await the outcome of his appeal in the GPE .", "On DATE ORG rejected the request for a provisional measure and at the same time dismissed the objection . It considered that the applicant had failed to submit sufficient proof of his lack of resources to pay the required fees ; it had therefore not been unreasonable for the Minister to decide not to process the applicant ’s request for a residence permit .", "No appeal lay against the judgment of ORG .", "On DATE , in reply to questions put to them pursuant to Rule CARDINAL § CARDINAL ( a ) of ORG , the Government confirmed that , at the time the applicant lodged his request for a residence permit for the purpose of residing with his wife , the latter was in receipt of social assistance benefits for a single - parent family . They further confirmed that the applicant was not in possession of a residence permit entitling him to acquire income by working in the GPE . He had nevertheless not qualified for the exemption from the obligation to pay administrative charges as he had submitted neither the required declaration of income and assets nor evidence relating to efforts made by his wife ( being the residence permit holder with whom the applicant intended to stay ) to obtain the necessary funds .", "In reply to a further question , the Government submitted on DATE that the assessment framework for an objection against the decision not to process an application for a residence permit due to a failure to pay the administrative charges was based on an ex tunc evaluation of whether that decision had been taken on reasonable grounds . Paying the administrative charges or submitting the required evidence subsequently was not an option ; nor would it have any bearing on the decision not to process the application , as an ex nunc assessment was no longer possible .", "On DATE , in response to a further question , the Government confirmed that the applicant could submit a new application for a residence permit , which would be processed once he had paid the administrative charges or obtained an exemption from the obligation to pay them . The examination of the merits of such an application would include an assessment of compliance with LAW .", "Section CARDINAL.CARDINAL.CARDINAL of LAW of LAW DATE ) , as applicable at the relevant time , stated that if an applicant for a residence permit claimed to be unable to pay administrative charges , that inability must be substantiated . The following documents should then be submitted with the application :", "a. a statement of income and assets relating to the residence permit holder with whom the alien intended to stay ;", "b. evidence relating to efforts on the part of the alien and the residence permit holder over DATE to obtain funds ;", "c. documents establishing a plausible case for the fact that neither the alien nor the residence permit holder would be able in the short term to obtain the funds necessary to pay the administrative charges that were owed , and that obtaining the funds from a family member or third party was likewise impossible .", "Day - to - DATE implementation of the Work and Social Assistance Act , including the providing of social assistance and any verification , is the responsibility of the Mayor and Aldermen ( burgemeester en wethouders ) of the municipality ( section CARDINAL ( CARDINAL ) ) .", "An entitlement to social assistance exists for every GPE national and every alien lawfully resident in the GPE if he or she has not the means to meet necessary living expenses ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) . A married couple in such a position are jointly entitled to such social assistance , unless CARDINAL of the parties is not so entitled ( section CARDINAL(CARDINAL ) ) ; in the latter event , the other party is entitled to social assistance in the amount applicable to a single person living alone or a single - parent family as the case may be ( section CARDINAL ) .", "Persons in receipt of social assistance are obliged to make demonstrable efforts to obtain and take up generally accepted employment , and to co - operate with the Mayor and Aldermen in any attempts aimed at finding them such employment ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ; see also PERSON v. the GPE ( dec . ) , no . CARDINAL/CARDINAL , CARDINAL DATE ) .", "Persons seeking or receiving social assistance under this LAW must inform the Mayor and Aldermen , on their own initiative or when so required , of all facts and circumstances that may reasonably be expected to influence inter alia their entitlement to social assistance ; except in so far as such facts and circumstances can be established on the basis of certain authentic or official information ( section CARDINAL(CARDINAL ) ) .", "DATE Social assistance paid in excess of entitlement may be recovered from the recipient ( section CARDINAL(CARDINAL ) ) . In cases where another person is liable to support the recipient financially , the Mayor and PERSON may recover moneys paid by way of social assistance from that person ( sections CARDINAL ) .", "Certain official and private institutions and persons are legally obliged to provide information to the Mayor and Aldermen when so required . These include , among others , the tax authorities ; landlords ; pension funds ; chambers of commerce ; health insurance providers ; heads of police ; suppliers of water and energy ; and the registrars of the courts ( section CARDINAL ( CARDINAL ) and ( CARDINAL ) ) ." ]

[ "13", "8" ]

[ "8-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "As a retired serviceman , the applicant was entitled to a ORG flat . The flat was not provided , and the applicant brought an action against ORG .", "In the course of the proceedings , on DATE , ORG offered the applicant to settle the case by providing him with a “ State housing voucher ” – a registered instrument entitling its owner to a housing subsidy . The applicant rejected this and several subsequent similar offers .", "On DATE the GPE ORG of Kemerovo ordered ORG to", "“ provide the applicant ’s family of CARDINAL with a dwelling by way of , among other means , State housing vouchers valid for acquisition and construction of dwellings and financed by the Federal budget , and also by way of off - budget financial sources . ”", "This judgment became binding on DATE .", "In CARDINAL ORG several times offered the applicant the voucher . The applicant refused these offers and asked ORG to change the mode of enforcement to a cash payment , but on DATE ORG refused this request .", "On DATE a bailiff terminated the enforcement proceedings because the applicant had refused the voucher .", "Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE .", "NORP Under LAW of the ORG “ ORG ” of DATE , a housing voucher is a registered instrument entitling its owner to a housing subsidy . The vouchers are issued and liquidated by ORG . An owner of the voucher may open a blocked account in an authorised bank , and the ORG will credit to this account a subsidy for purchasing property ." ]

[]

[]

[]

[ "6", "P1" ]

[ "P1-1" ]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE criminal proceedings were instituted against the applicant , a college student , on a charge of extortion , which had allegedly been committed DATE . On DATE he was arrested .", "On DATE ORG heard the applicant , explaining that criminal proceedings were being conducted against him and CARDINAL other defendants on suspicion of having participated in the sequestration and beating of a certain PERSON , and of having forced him to sign a false statement of debt , conduct punishable under sections DATE and CARDINAL of LAW .", "DATE and DATE , the defendants were interrogated on several occasions ; moreover , several confrontations took place between the defendants themselves and between them and the victim . In particular , the applicant was interrogated on CARDINAL occasions during this period . Also in the same period , the police heard CARDINAL witnesses and the victim on altogether CARDINAL occasions . Furthermore , experts in toxicology , haemogenetics and dactyloscopy were appointed , along with a forensic medical expert and an expert on physical evidence . The police were collecting evidence from banks , telephone companies , the land registry and the register of passenger cars .", "Meanwhile , on DATE the Pest Central District Court ordered the applicant ’s pre - trial detention , referring to the danger of his absconding , in particular in view of the fact that he had not been living at his registered address for DATE . Additional reference was made to the risk of collusion . On DATE ORG dismissed his appeal .", "The applicant was assisted by defence counsel of his choice and was initially held at FAC . His detention was prolonged on DATE and CARDINAL DATE on the ground of a risk of absconding and collusion . These decisions were confirmed on DATE and DATE , respectively . The courts held that the seriousness of the charges against the applicant alone sufficed to establish the risk of absconding .", "On DATE ORG dismissed the applicant ’s request for release . On DATE that court ’s appellate bench rejected his appeal . His further complaint of DATE was to no avail .", "On DATE the applicant ’s detention was again prolonged , essentially on the ground of a risk of absconding . The court noted that the risk of collusion was diminishing , since the applicant had confessed to his crime .", "Meanwhile , from DATE , the applicant ’s behaviour in detention became more and more erratic ; in particular , on CARDINAL occasion he attacked a fellow inmate . In DATE and DATE as well as DATE , DATE and DATE the applicant was repeatedly committed , for shorter periods , to ORG ( “ ORG ” ) with a view to having his mental status observed by expert psychiatrists . Eventually , it was concluded that he suffered from a psychosis .", "On DATE and CARDINAL DATE , the renewed requests for release of the applicant , who from DATE was detained at ORG , were dismissed .", "On DATE and DATE ORG prolonged the applicant ’s detention on the basis of the risk of his absconding .", "Given his increasingly disturbed state of mind , on DATE the applicant ’s case was disjoined from that against his accomplices .", "On DATE ORG ordered the applicant ’s release on bail . On DATE ORG overruled this decision , making reference to the danger of the applicant ’s absconding , given the seriousness of the charges against him .", "On DATE the investigation against the applicant was closed . The case - file , communicated to the applicant on DATE , consisted of CARDINAL pages .", "From DATE , the pre - trial detention of the applicant , by then diagnosed with chronic paranoid schizophrenia , was effected in the ORG for the treatment of his condition . In response to complaints filed by the applicant ’s father , ORG of the Attorney ORG specified that the applicant had been committed to the ORG on medical grounds , since he had shown psychotic symptoms at ORG ; that , after examinations , the ORG were of the opinion that his further treatment was necessary ; and that forensic experts had repeatedly examined him . On DATE ORG confirmed the applicant ’s committal to the ORG .", "On DATE and DATE , the applicant ’s detention was again prolonged by ORG on the ground of a risk of absconding , given the seriousness of the charges against him . These decisions were upheld on DATE and DATE by ORG .", "On DATE a bill of indictment was preferred . The applicant was charged with complicity in kidnapping and severe bodily assault , offences punishable under sections CARDINAL and CARDINAL of LAW , as modified by Act no . DATE .", "On DATE another expert psychiatrist was appointed . On DATE the expert informed ORG that the applicant ’s prolonged observation was warranted .", "On DATE ORG dismissed the applicant ’s renewed request for release on bail . On DATE ORG dismissed his appeal .", "On DATE the ORG presented its observations on the applicant ’s mental state . On DATE the forensic psychiatrist submitted his opinion .", "NORP The applicant was eventually released from the ORG on DATE . His pre - trial detention having been lifted , the applicant was ordered not to leave town .", "ORG ordered further psychiatric examinations of the applicant . Since he did not appear at an examination scheduled in DATE , it had to be rescheduled for DATE .", "Relying on the findings of the forensic psychiatrists , on DATE ORG suspended the proceedings in view of the fact that the applicant was not mentally capable of standing trial ." ]

[ "5" ]

[ "5-3" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in LOC .", "On DATE the applicant was arrested on charges of arson and uttering threats . On an unknown later date he was indicted before ORG .", "The applicant was detained on remand for a total period of DATE and DATE .", "On DATE ORG acquitted the applicant of some of the charges and convicted him of uttering threats and attempted arson . and", "On DATE the applicant appealed against his conviction .", "On DATE ORG quashed the judgment and remitted the case .", "DATE and DATE ORG held CARDINAL hearings . On several occasions the applicant who was duly summoned , refused to appear at hearings . However , the court proceeded with the trial in his absence .", "On DATE the ORG convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment .", "On DATE ORG again quashed the judgment and remitted the case .", "On DATE the ORG acquitted the applicant of all arson charges and convicted him of uttering threats .", "On DATE the applicant filed his appeal against this judgment . The proceedings were terminated by the judgment of ORG of DATE .", "On DATE and CARDINAL DATE the applicant lodged complaints with ORG under LAW 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 ” ) . The applicant sought a ruling that the length of the proceedings before ORG had been excessive and an award of just satisfaction .", "On DATE ORG gave a decision and dismissed the applicant ’s complaint .", "On DATE ORG dismissed yet another complaint under LAW lodged by the applicant . The court considered that there had been no significant delays in the proceedings .", "The applicant was also involved in several other sets of criminal and civil proceedings in particular , proceedings concerning assault of a judge and contempt of court . The proceedings were terminated respectively on DATE and DATE by ORG .", "NORP The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE , GPE .", "The applicant and his wife , PERSON , who was of NORP origin , had CARDINAL children , a boy T. born on DATE and a girl A. born on DATE . The family lived together in GPE until DATE when PERSON took the children to GPE where she took up residence with L. as her female partner .", "On DATE , PERSON applied for divorce and for custody of the children .", "On DATE the parents reached an interim agreement whereby the children would stay in GPE with their mother for the moment and the applicant have the right to CARDINAL supervised visits .", "The applicant states that on DATE he became aware that the children ’s maternal grandmother had made a complaint to the social services against B. ’s female partner , PERSON , alleging that she had sexually abused A. There is some indication in the documents that the applicant may also have lodged a complaint on this ground . The criminal charges lodged against PERSON were later dismissed by the courts .", "Meanwhile , it appears that the applicant took proceedings with a view to having the children returned to GPE under LAW . However , by decisions of ORG dated DATE and by ORG dated DATE , the applicant ’s application for return was refused , principally on the ground that he had voluntarily entered into an interim agreement that the children remain in GPE with their mother .", "On DATE , ORG awarded sole custody of the children to the mother , finding that the children had lived with their mother in GPE since DATE and that it was in their best interests to remain with her . On DATE , ORG upheld this decision , as did ORG on DATE .", "The applicant was however granted visiting rights . It appears that the children visited him in GPE during GPE and DATE and met with him in GPE in DATE ( twice ) and DATE ( CARDINAL times ) .", "On DATE , B. , the mother , died . The children were then aged DATE respectively .", "The applicant returned immediately to GPE . On DATE , he lodged a request that the children , still living with L. , be placed in a foster home and that he be accorded visiting rights .", "Applications for custody of the children were lodged by both PERSON and by the applicant . During DATE , the children were interviewed twice by a team consisting of a child psychiatrist and CARDINAL psychologists . They expressed their wish to stay with L. because they felt safe and were used to living with her . A. was reported as stating that she would like to meet the applicant occasionally but only when she wished , while PERSON was reported as stating that the applicant was not part of his family and that he neither wanted to meet him or live in GPE .", "The applicant saw the children CARDINAL times during DATE in supervised contact visits . There was another meeting outside the social workers’ LOC .", "In a ORG report dated DATE , it was stated that , following the mother ’s death , PERSON ’s influence on the children had increased and the children turned to her for support . It was noted that the children were not able to act against ORG will , because they were dependent on her at that time . Consequently , the children were in a state of conflict , as they were not allowed to like the applicant . The report considered that the lack of contact with their close relatives endangered the development of their identity .", "On DATE , after oral hearings at which the applicant , PERSON and another CARDINAL witnesses , including a number of social workers involved in the case , were heard , ORG awarded custody to the applicant . It observed inter alia , that according to the evidence , PERSON had been involved in bringing up the children since their return to GPE . According to a number of social workers involved in the case , the applicant was considered fit to be a custodial parent as , for example , in dealing with conflicts he had always put the children ’s best interests first . The meetings between the children had also gone well . It concluded that in fact both PERSON and the applicant were fit as custodians .", "As regarded the views of the children , ORG recalled that according to a statement of DATE given by a social worker during previous proceedings , ORG ’s wishes were not entirely his own ; he had been influenced by PERSON , his mother . His wishes were in contradiction with what he had told the social worker about the meetings with the applicant which had taken place . The social worker had noted that the fact that PERSON did not want PERSON to travel to see the applicant was significant and pointed out that it would be very important for the children ’s psychological development that they develop a more constructive view of the applicant . It recalled the evidence of a friend of PERSON and PERSON , who had given evidence before the court , had stated that the children ’s attitude towards the applicant had begun to be more positive from DATE , but that no meetings had taken place as from DATE , apparently due to the fact that the children ’s activities were given priority and the meetings with the applicant tended to be proposed at short notice . T. had told her that it would be alright to meet with the applicant if he could decide when . A. had told her that she would like to meet with the applicant DATE , but not at that time . T. ’s attitude towards meeting the applicant was therefore fairly positive . Following B. ’s death , everything had changed when the applicant came to see his children . As he allegedly had said that the law would make the children move to live in GPE , they did not want to meet with him anymore . According to this witness , the children feared moving to GPE .", "ORG considered that T. ’s attitude during the recent interviews was in contradiction with what had happened during the meetings with the applicant , which had all gone well . It found that none of the persons heard before the court had said that the children feared the applicant and concluded that , as the atmosphere in which the children had been living had obviously affected their wishes and hopes , it was not possible to analyse what their true views really were . Therefore , their expressed wishes could not be decisive when deciding the case . Noting that the case should be decided in accordance with the children ’s best interests , it decided that , given the strained relations between PERSON and the applicant , custody should be awarded to the latter . It was evident that PERSON would not be able to encourage the relationship between the children and the applicant enabling them to stay in contact . Therefore , ORG ordered that custody be awarded to the applicant .", "Pending L. ’s appeal against the decision , the enforcement of the order was suspended by ORG on DATE . According to the evidence of various social workers , the children had reacted to his expressed intention of taking them to GPE by refusing to meet with him unless PERSON was present . The applicant allegedly refused to meet with the children under these terms . The applicant ’s attempts to enforce contact visits also apparently failed due to the children ’s refusal to see him .", "On DATE , ORG overturned the decision concerning the suspension and requested ORG and its NORP counterpart to report on the case . During the period DATE , pursuant to the court ’s request , the children were interviewed CARDINAL times by social workers , CARDINAL times in the presence of ORG and twice alone . The social workers’ efforts to arrange a meeting between the children and the applicant were unsuccessful due to the children ’s opposition . It was reported by the social worker in later oral evidence that the children continued to express their wish to live with PERSON During the interviews , the children had turned to PERSON for support and been dependent on her . The children ’s memories of the applicant were , however , good . Nothing suggested that the children would have had any reason to feel unsafe in the applicant ’s company . According to CARDINAL of the social workers at the meetings , the wishes that the children expressed were more dependent on the wishes of PERSON than their own will . According to the evidence given by other witnesses in ORG , including other social workers , the children expressed their wish to be left alone and that they wanted to stay in GPE every time the applicant was brought up for discussion . They seemed to fear moving to GPE .", "Meanwhile , it appears that the applicant applied to ORG for its original order to be enforced . This request was refused on DATE . His appeal to ORG was later rejected on DATE as meanwhile it had reached a fresh decision in the case . An application by the applicant to have the children placed in a foster home away from PERSON was also dismissed by ORG on DATE and his appeal rejected by ORG on DATE .", "On DATE , after an oral hearing over DATE during DATE and at which the applicant and PERSON were heard as well as QUANTITY other witnesses from the ORG proceedings and CARDINAL new witnesses , ORG upheld ORG judgment . It ordered that the children move to live with the applicant on DATE , after a transitional period during which the children could meet with the applicant DATE and DATE during DATE .", "In its judgment , ORG agreed that both PERSON and the applicant were fit to have custody : nothing suggested that they would not be fit . Given the ages of the children , it considered that their view had to be taken into account , but it was also evident that the strained relationship and litigation between the applicant and PERSON , and later on PERSON , had had influence on their view . It considered that the negative attitude towards meeting with the applicant was based on the fear of having to move to GPE . Nothing suggested that the children feared the applicant as such . Although the children were as mature as other children their age , they could not however be given the absolute right to decide on their future , particularly in light of their extremely difficult situation at that time . Notwithstanding the law on enforcement , the court did not consider that in deciding on custody it was bound to follow the opinion even of a child aged DATE or more . Concluding that the decision should be based on what was in their best interests , it found that the relationship between the children and the applicant was very important for a well - balanced development . It furthermore found that the fact that the applicant had said that he would allow the children to keep in touch with PERSON was in the best interests of the children . While it was true that the children appeared closer to PERSON and their environment ( including their home , school , hobbies and close personal relations ) would stay the same if custody was awarded to PERSON , ORG concluded , nonetheless , that the children ’s views did not correspond to their best interests . A situation which would lead the children and the applicant drift further apart was not in their best interests . Accordingly , it ordered that the applicant be awarded custody from DATE after a transitional period of increased contact with the children .", "The applicant visited GPE in DATE , DATE and DATE , requesting visits with his children . On DATE , the applicant arrived in GPE and requested to see the children DATE . The social worker contacted PERSON to inform her of this and reported that the children refused . They allegedly wanted PERSON or another person to be present whereas the applicant refused any third party involvement . On CARDINAL occasion , in DATE , did a visit take place when it was agreed between the parties that the children see the applicant at their maternal grandmother ’s . However , only T. appeared , accompanied by a friend and CARDINAL of L. ’s lawyers . On this occasion , an incident occurred , the accounts of which vary but to which the police were called . T. subsequently informed his social worker that he was afraid of his father , who had tried , T. alleged , to keep him in the grandmother ’s apartment by force and stated that he did not wish to see him again . The children did not appear at the next meeting in DATE . They had already informed him that it would serve no purpose for him to come to GPE as they did not wish to see him . The social workers had several meetings with the children during this period and also made contact with their school seeking to persuade the children to attend therapy sessions . The children were recorded as stating that the applicant only made critical comments and demands and held strong views that they did not wish to live their friends and the environment they knew and that they did not trust their father . T. stated that he feared that his father would attempt to force them to leave GPE .", "L. applied for leave to appeal . On DATE , ORG granted PERSON leave to appeal and suspended the enforcement of ORG order . PERSON applied for an oral hearing , requesting that the parties , and possibly also the children , be heard . In his submissions to ORG in reply , the applicant applied for interim visiting rights and for the current psychological state of the children to be examined . He also requested that if PERSON ’s request for an oral hearing was granted ORG should rehear the evidence presented before the lower courts .", "On DATE , ORG gave judgment on the outstanding issues ( ORG Reports CARDINAL:CARDINAL ) . It re - iterated that it had rejected the request for an interim order as being purposeless and the request for a psychological examination as being unnecessary . It also rejected the request for an oral hearing as unnecessary in the circumstances and for the reasons set out in its judgment .", "ORG recalled that , according to LAW , the issue of custody had to be decided with regard to the child ’s best interests and that if the custodial parent of the children died , custody could be given either to the other parent or to another person , depending on where the best interests of the child lay . It agreed with both the lower courts that the applicant and PERSON were both fit to act as custodians . Both children however had said that they wanted to stay in the environment which they knew and with L. Their views had been thoroughly examined before both ORG and ORG and although the conflict between the adults had apparently disturbed the relationship between the children and the applicant , there was nothing to suggest that their wish to remain with PERSON was not their own independent opinion , in particular given their age and maturity .", "ORG referred to section CARDINAL of the Act on the Enforcement of Decisions concerning Custody and Access Rights and recalling that T. was DATE was DATE , found that a custody decision which required the children to move would not be possible to enforce . Having regard to the purpose of awarding custody , it would not be in the children ’s best interests to issue a custody order to a parent to whom they could not be transferred against their will . As the relations between the applicant and L. were bad , there was no reason to consider that it would be possible for the applicant to have custody while they continued to live with L. as that would render it impossible to take practical decisions concerning the children ’s lives . In the circumstances of this case , it was therefore not in the best interests of the children to transfer custody to the applicant against their will but custody should be awarded instead to the person with whom they were currently living .", "ORG went on to remark that future contact visits could be carried out under agreement or court order but that given the age of the children it would be dependent on their willingness to see the applicant . It underlined that according to LAW , the custodian of children was under an obligation to co - operate in order to promote and maintain relationships between children and a parent . It did not make any order on the point . The applicant had not made any application in that regard .", "ORG therefore overturned the decisions of the lower courts and awarded custody to L.", "On DATE , ORG dismissed the applicant ’s renewed request for the children to be placed in a foster home .", "Custody of children is governed by LAW and Right of Access with regard to Children ( laki CARDINAL lapsen huollosta ja tapaamisoikeudesta , lag CARDINAL/CARDINAL ang . vårdnad om barn och umgängesrätt – “ the DATE LAW ) . LAW provides that the aim of such custody is to ensure the child ’s balanced development and well - being , regard being had to the latter ’s special needs and wishes , as well as to encourage a close relationship between the child and the parents .", "The court may order that custody of a child be entrusted to CARDINAL or more persons together with , or instead of , the parents ( section CARDINAL § CARDINAL ) . It may transfer custody from the parents to other persons only if , from the child ’s point of view , there are particularly strong reasons for doing so ( section QUANTITY ) . It is also empowered to decide on access ( section CARDINAL ) . The aim of access is to secure a child ’s right to maintain contacts with a parent with whom he or she is not living ( section CARDINAL ) .", "NORP In deciding on matters of custody and access the competent court must take into account the wishes and interests of the child in accordance with the following considerations : primary emphasis must be placed on the interests of the child and particular regard should be had to the most effective means of implementing custody and access rights in the future ( section CARDINAL § DATE and section CARDINAL § CARDINAL ) ; the child ’s views and wishes must , if possible and depending on its age and maturity , be obtained if the parents are unable to agree on the matter or if the child is being cared for by a person other than its custodian or if it is deemed necessary in the latter ’s interests ; the consultation must be carried out in a tactful manner , taking into account the child ’s maturity and without causing harm to its relations with the parents ( section CARDINAL ) .", "Section CARDINAL of the Act on the Enforcement of Decisions concerning Custody and Access Rights ( laki CARDINAL lapsen huoltoa ja tapaamisoikeutta koskevan päätöksen täytäntöönpanosta , lag CARDINAL om verkställighet av beslut beträffande vårdnad om barn och umgängesrätt ) , which entered into force on DATE , provides that if a child has reached DATE , enforcement must not take place against the child ’s will . Enforcement must not take place against the will of a younger child , if the child is sufficiently mature for its wish to be taken into account ." ]

[ "8" ]

[]

[]

[ "8" ]

[]

[]

[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mrs F. Karakaş Doğan , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested , together with CARDINAL other persons , by police officers from ORG of ORG on suspicion of membership of the ORG ( ORG , an illegal organisation , and was taken into custody .", "On DATE , the applicant underwent medical examination at ORG . He told the doctor that he had not been subjected to any form of ill - treatment . Having examined the applicant , the doctor stated the following :", "“ On the bottom external part of the right gluteus ( buttock ) there is an ecchymosis of QUANTITY . The person stated that this ecchymosis had occurred when he had fallen down DATE .", "There is also an old incision scar on the right inguinal area . The person stated that he had undergone an appendix operation DATE . There is hernia in the operated area . ”", "On DATE , upon the request of the anti - terrorist police , ORG at ORG extended the custody period for DATE .", "The applicant was allegedly beaten and kicked by police officers during that custody . LOC and dirty water was poured on him several times . He was insulted and sworn at and made to stand up for DATE without sleep . The officers allegedly stamped on his scar from a previous operation which left him in great pain . They also allegedly gave the applicant a medication which made him more exhausted .", "On DATE the applicant was taken to ORG , where he was examined by a doctor . The applicant told the doctor that he had been beaten by the police . However , the medical report drafted on that occasion indicated that there were no signs of physical violence on the applicant ’s body .", "DATE , the applicant was brought before the public prosecutor and then the investigating judge at ORG . Before both he denied the statement he had made to the police . He further alleged that he had been ill - treated and had signed the statement under pressure without reading it . The investigating judge remanded him in custody DATE . He was put in FAC .", "On CARDINAL DATE , he was examined by a doctor at FAC . The applicant ’s medical report of DATE noted a bruise of QUANTITY on his right buttock and an old scar from an appendix operation .", "On an unspecified date , the PERSON public prosecutor launched an investigation into the applicant ’s allegation of ill - treatment . In due course , on DATE he took a statement from the applicant , in which the latter repeated the above - mentioned account of the facts with regard to the alleged illtreatment .", "On various dates DATE , the prosecutor took statements from the police officers who had allegedly participated in the questioning of the applicant . CARDINAL police officers stated that they had been present when a statement was taken from the applicant . However , they claimed that they had not treated him badly . They also submitted that the applicant had been medically examined upon arrest and before being taken into their custody . They maintained that the medical report prepared on DATE showed that the injuries found on his body were DATE and had occurred because of a fall . They further stated that the report of DATE given by ORG after the end of the police custody noted no signs of ill - treatment .", "On DATE the ORG decided not to prosecute the police officers in question , for a lack of sufficient evidence . In his decision , the public prosecutor relied on the accused police ORG statements and the medical report dated DATE indicating the absence of any sign of ill - treatment on the applicant ’s body .", "On DATE the applicant ’s lawyer challenged this decision before ORG . Referring to the applicant ’s medical report dated DATE , she maintained that there was sufficient evidence for prosecution of the police officers .", "On DATE , having regard to reasons given by ORG office and the content of the investigation file , ORG dismissed the applicant ’s objection and upheld the decision .", "A full description of the domestic law and practice at the relevant time may be found in GPE and Others v. GPE ( nos . PERSON and CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINAL-IV ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and is serving a prison sentence in LOC .", "On an unspecified date the prosecution authorities opened an investigation into the activities of an organised criminal gang that had committed a series of murders and other crimes . The applicant was CARDINAL of the suspects .", "On DATE ORG , authorised a search of the applicant ’s flat . According to the applicant , he unsuccessfully complained about the court ’s search order to the town prosecutor on DATE .", "On DATE the applicant was arrested and informed of the court order of DATE . His flat was searched on DATE .", "On DATE the prosecutor ’s office appointed counsel PERSON to represent the applicant . On DATE ORG authorised the applicant ’s detention pending investigation . In particular , the court noted as follows :", "“ [ The applicant ] is suspected of involvement in serious crimes which present a heightened danger to public order and entail a custodial sentence exceeding DATE ...", "The court considers that , if released , [ the applicant ] , who does not have a permanent place of residence in ORG and who knows where the witnesses reside , might abscond or otherwise interfere with the establishment of the truth . ”", "On DATE ORG extended the applicant ’s detention until DATE . The court refused to release the applicant pending investigation , noting as follows :", "“ The investigator requests that the [ applicant ’s ] detention be extended . ... If released , [ the applicant ] might abscond , continue criminal activities , put pressure on witnesses or otherwise interfere with the administration of justice .", "Having heard the defendant and his lawyer , who asked the court to dismiss the request , and the prosecutor who considered that it should be granted , and having studied the materials of the case , the court finds that the investigator ’s request is substantiated and should be granted . ”", "On DATE ORG upheld the decision of DATE on appeal .", "On DATE counsel PERSON replaced counsel PERSON , who had asked to be withdrawn .", "On DATE ORG extended the applicant ’s detention until DATE . The court held as follows :", "“ ... [ the applicant ] is charged with very serious offences which present a heightened danger to public order and entail a custodial sentence exceeding DATE . This criminal case is of extreme complexity . The reasons justifying the [ applicant ’s ] remand in custody have not ceased to exist . The time - limit for the preliminary investigation has been extended until DATE . A number of investigative activities involving [ the applicant ] are pending . [ The applicant ] might abscond or commit new crimes [ if released ] . ”", "On DATE ORG upheld the court order of CARDINAL DATE on appeal .", "On DATE ORG further extended the applicant ’s detention until DATE . The court reiterated verbatim the reasoning of CARDINAL DATE .", "On DATE ORG extended the applicant ’s detention until DATE , noting as follows :", "“ [ The applicant ] is charged with a number of serious offences . His involvement in the crimes he has been charged with is supported by the materials submitted . The circumstances underlying the [ applicant ’s ] remand in custody have not ceased to exist . ”", "On DATE ORG extended the applicant ’s detention until DATE , referring to the gravity of the charges against the applicant and the risk that he might abscond or re - offend . On DATE ORG upheld the decision of CARDINAL DATE on appeal .", "On DATE the applicant started reading the case file , which comprised CARDINAL volumes and concerned CARDINAL defendants . On DATE ORG held that the applicant could not be released pending study of the case file , noting that he might abscond , put pressure on the parties to the criminal proceedings against him or re - offend , and extended the applicant ’s detention until DATE . On DATE ORG upheld the decision of DATE on appeal .", "The applicant ’s detention pending study of the case file was further extended on DATE until DATE . Referring to the reasons indicated earlier to justify the applicant ’s detention , the court held that he could not be released . It appears that on an unspecified date the decision of DATE was quashed by ORG of GPE on appeal . The matter was remitted for fresh consideration and on DATE ORG extended the applicant ’s detention pending study of the case file until DATE . The applicant communicated with the court via video link .", "On DATE the applicant started studying CARDINAL additional volumes of the case . He was provided with a photocopying machine and a digital camera . On DATE the prosecutor ’s office asked ORG to set a time - limit for the applicant to study the case file . The applicant asserted that he would need DATE to complete the study . The court granted him DATE .", "On DATE ORG of GPE quashed the decision of DATE on appeal . The court noted that the applicant should have been granted time to study the request lodged by the investigator asking for an extension of the applicant ’s detention . The court further indicated that the applicant should remain in custody pending consideration of the matter by the lower court . It appears that on CARDINAL DATE ORG authorised the applicant ’s detention pending study of the case file until DATE . On DATE ORG upheld the decision of CARDINAL DATE on appeal .", "On an unspecified date the prosecutor ’s office completed the investigation and forwarded the case file to ORG . Counsel PERSON was appointed to represent the applicant . On DATE ORG fixed the preliminary hearing of the matter and ordered that the applicant remain in custody pending trial . On DATE ORG upheld the decision of DATE on appeal , after having heard the applicant , his counsel and the judge rapporteur .", "On DATE ORG opened a jury trial against the applicant and CARDINAL other defendants .", "On DATE the jury delivered a guilty verdict in respect of the applicant on charges of membership of a criminal gang , illegal possessions of firearms , infliction of bodily injuries , kidnapping and murder .", "On DATE ORG authorised an extension of the applicant ’s detention until DATE pending sentencing . On DATE ORG upheld the decision of DATE on appeal .", "On DATE ORG sentenced the applicant to sixteen years’ imprisonment .", "On DATE ORG upheld the applicant ’s conviction on appeal .", "On DATE the Presidium of ORG of GPE quashed the appeal judgment of DATE by way of a supervisory review for the appeal court ’s failure to ensure the presence of the applicant ’s lawyer at the appeal hearing and remitted the matter for a new appeal hearing . The parties did not inform the Court of the outcome of the proceedings .", "Following his arrest on DATE , the applicant was placed in detention in a remand prison . On numerous occasions DATE the applicant was transferred to and detained in the ORG temporary detention unit in connection with the investigation and trial .", "According to the ORG , the applicant was detained at the temporary detention centre during the following periods :", "- from DATE ;", "- from CARDINAL and from DATE ;", "- from DATE ;", "- from DATE ;", "- from CARDINAL to DATE ;", "- from DATE to CARDINAL DATE ;", "- from DATE ;", "- from CARDINAL to CARDINAL and from DATE ;", "- from DATE ;", "- from DATE to DATE ;", "- from DATE to DATE ;", "- from CARDINAL and from DATE ;", "- from DATE ;", "- from DATE to DATE ;", "- from DATE ;", "- from CARDINAL and from CARDINAL to CARDINAL DATE ;", "- from DATE to DATE ;", "- from DATE ;", "- from DATE to DATE ;", "- from CARDINAL to CARDINAL and from DATE ;", "- from DATE ;", "- from CARDINAL to CARDINAL and from DATE ;", "- from DATE ;", "- from DATE ;", "- from DATE .", "The Government were unable to indicate the exact numbers of the cells in which the applicant had been detained . Nor could they submit information on the population of the temporary detention centre at the time of the applicant ’s detention . They provided the following overview of all the cells in the temporary detention centre :", "There were no individual beds in the cells . The inmates had to share sleeping platforms . All the cells were equipped with a functioning ventilation system . All the cells had CARDINAL windows , except for cells CARDINAL . CARDINAL and DATE , which had CARDINAL window . Each window was covered with CARDINAL metal grilles which did not prevent access to daylight . The cells were lit with CARDINAL electric bulbs . The toilet in each cell was located QUANTITY away from the dining table and the nearest sleeping place . It was separated from the living area of the cell by a CARDINAL.CARDINAL-metre high brick wall .", "The cells were disinfected once DATE . Inmates received CARDINAL meals a day . The applicant did not have the opportunity to take DATE outdoor exercise . He spent a certain amount of time outside the cell participating in investigative activities , taking showers , visiting doctors and meeting with his lawyer . He consulted a medical practitioner CARDINAL times .", "In DATE the temporary detention centre was completely refurbished . The electrical wiring and other equipment , toilets , water supply , ventilation and sewerage systems were replaced . The sleeping platforms were replaced with individual beds . The brick walls separating the toilets from the living areas of the cells were removed and new metal cabins were installed . New window frames were also installed .", "According to the applicant , he was always detained in overcrowded cells . In particular , CARDINAL inmates were detained in cells CARDINAL . CARDINAL , CARDINAL , DATE and DATE , and CARDINAL were detained in cells CARDINAL . CARDINAL , DATE and CARDINAL .", "There was no ventilation or access to daylight . The electric lighting was constantly on . Each cell was lit with a CARDINAL-watt electric bulb .", "The distance between the toilet and the nearest sleeping places was CARDINAL . The wall separating the toilet from the living area of the cell was PERSON high and offered no privacy to the person using the toilet .", "The applicant was never taken out of the cell to participate in investigative activities . Meals were provided once DATE . The food rations were insufficient ; no meat , fish , fruit or vegetables were served . The applicant was not given bed sheets .", "On DATE the deputy town prosecutor dismissed the applicant ’s complaint about the conditions of his detention in the temporary detention centre , noting as follows :", "“ In the course of the inquiry [ the head of the temporary detention centre ] submitted that , in order to bring the premises of the temporary detention centre into compliance with the federal legislation , it should be subjected to reconstruction and refurbishment . The maximum capacity is QUANTITY persons . However , following the amendments to LAW requiring that suspects and defendants be present at court hearings , the average DATE population has drastically increased to CARDINAL persons . ... Every day the police book in CARDINAL new inmates . Accordingly it is impossible to provide every detainee with an individual sleeping place . Furthermore , on CARDINAL DATE ... DATE newly arrived inmates were booked in . As a result , the population of the temporary detention centre rose to CARDINAL persons . There were CARDINAL inmates detained in cell no . CARDINAL ... . This number does not exceed the capacity of the cell . ”", "On DATE ORG replied to a complaint lodged by the applicant about the conditions of his detention in the temporary detention centre . In particular , the letter read as follows :", "“ ... the complaints about the conditions of detention communicated by [ the applicant ] at the hearing of the [ ORG ] on DATE should be considered substantiated in part . However , the allegation that there was an intent on the part of [ the head of the temporary detention centre ] to deliberately create such conditions of detention has not been substantiated .", "I would also inform you that in DATE it is planned to allocate monetary funds for capital refurbishment and reconstruction of the temporary detention centre that would bring the conditions of detention in the temporary detention centre into compliance with the applicable legislation of GPE . ”", "On DATE the applicant and CARDINAL other inmates detained in cell no . CARDINAL of the temporary detention centre complained to the town prosecutor about overcrowding in the cell where they were detained . The applicant did not inform ORG prosecutor ’s response to the complaint , if any .", "The Federal Law on Detention of Suspects and Defendants charged with Criminal Offences ( “ ORG ” ) ( as amended ) , in force since DATE , provides that suspects and defendants detained pending investigation and trial are held in remand prisons ( section CARDINAL) . They may be transferred to temporary detention facilities if so required for the purposes of investigation or trial and if transportation between a remand prison and a police station or court - house is not feasible because of the distance between them . Such detention in a temporary detention facility may not exceed DATE a month ( section CARDINAL ) . Temporary detention facilities in police stations are designated for the detention of persons arrested on suspicion of a criminal offence ( section CARDINAL ) .", "Under paragraph CARDINAL of LAW , approved by LAW . CARDINAL of ORG of GPE on DATE , as amended ( in force at the time of the applicant ’s detention ) , the living space per detainee should be QUANTITY . Paragraph CARDINAL.CARDINAL made provision for cells in temporary detention facilities to be equipped with a table , a toilet , running water , a shelf for toiletries , a drinking water tank , a radio and a rubbish bin . Furthermore , paragraphs CARDINAL , CARDINAL , and CARDINAL of the regulations made provision for detainees to have outdoor exercise for TIME a day in a designated exercise area .", "The relevant extract from the CARDINALnd ORG of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) ( ORG ( CARDINAL ) CARDINAL ) reads as follows :", "“ DATE . Custody by the police is in principle of relatively short duration ... However , certain elementary material requirements should be met .", "All police cells should be of a reasonable size for the number of persons they are used to accommodate , and have adequate lighting ( i.e. sufficient to read by , sleeping periods excluded ) and ventilation ; preferably , cells should enjoy natural light . Further , cells should be equipped with a means of rest ( e.g. a fixed chair or bench ) , and persons obliged to stay TIME in custody should be provided with a clean mattress and blankets .", "Persons in custody should be allowed to comply with the needs of nature when necessary , in clean and decent conditions , and be offered adequate washing facilities . They should be given food at appropriate times , including CARDINAL full meal ( i.e. something more substantial than a sandwich ) DATE .", "The issue of what is a reasonable size for a police cell ( or any other type of detainee / prisoner accommodation ) is a difficult question . Many factors have to be taken into account when making such an assessment . However , ORG delegations felt the need for a rough guideline in this area . The following criterion ( seen as a desirable level rather than a minimum standard ) is currently being used when assessing police cells intended for single occupancy for stays in excess of TIME : in the order of QUANTITY , QUANTITY or more between walls , QUANTITY between floor and ceiling . ”", "The ORG reiterated the above conclusions in DATE ORG ( ORG ( DATE ) CARDINAL , § MONEY ) ." ]

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

[ "5-3" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "Starting from DATE the applicant made various deposits in NORP roubles with the NORP branch of ORG . These included :", "( a ) sums of money deposited on CARDINAL deposit accounts ( ժամկետային ավանդ ) opened in DATE amounting to a total of MONEY as of DATE , sums of money deposited on PERCENT offset accounts ( PERCENT փոխհատուցման հաշիվ ) opened in DATE amounting to a total of MONEY as of DATE , and sums of money deposited on CARDINAL on - demand accounts ( ցպահանջ հաշիվ ) opened in DATE , DATE and DATE , the latter in the name of the applicant 's grand - daughter , amounting to a total of MONEY as of DATE ;", "( b ) CARDINAL State internal premium bonds of DATE ( DATE թ. պետական ներքին շահող փոխառության պարտատոմսեր ) , each worth MONEY ;", "( c ) CARDINAL special - purpose ORG interest - free bonds of DATE ( DATE թ. պետական նպատակային անտոկոս փոխառության պարտատոմսեր ) : CARDINAL worth MONEY entitling the applicant to receive a video recorder , CARDINAL worth MONEY entitling her to receive a television set , and CARDINAL others each worth MONEY entitling her to receive CARDINAL sewing machines ;", "( d ) CARDINAL certificates of ORG obtained in DATE ( ORG խնայբանկի սերտիֆիկատ ) , each worth MONEY .", "On DATE the Government decided to restructure the NORP branch of ORG into ORG of GPE ( hereafter , ORG ) . DATE the NORP rouble was withdrawn from circulation .", "On DATE the NORP currency , the dram , was introduced , at a rate of MONEY to CARDINAL dram .", "On DATE the Convention and Protocol No . CARDINAL entered into force in respect of GPE .", "On DATE the applicant applied to ORG seeking to recover her deposits .", "By a letter of DATE the ORG informed the applicant that :", "“ ... the question of compensation for deposits made with ORG in former GPE roubles prior to DATE is currently at the centre of attention of ORG and the Government of GPE . The Decision no . CARDINAL of the Government of GPE of DATE , which states that ' ... GPE assumes responsibility for the future possible indexation of deposits made by citizens with ORG in former GPE roubles prior to the currency conversion of DATE ' , serves as proof of this .", "As to your inquiry concerning the former ORG internal premium bonds of DATE and the certificates , we would inform you that all operations in their respect were stopped by the decision of ORG of GPE of DATE , until a final decision is adopted concerning their repayment by the ORG member GPE . However , no decision or directive was adopted thereafter .", "As to the redemption of the former GPE special - purpose interest - free bonds given to the NORP population in DATE , which were planned to be converted into household and domestic goods starting from DATE , this was found not to be feasible by Decree no . CARDINAL of the Government of GPE of DATE .", "For purposes of compensation the Government of GPE , in its Decree no . CARDINAL of CARDINAL DATE , decided to index the nominal value of the above [ special - purpose interest - free ] bonds by PERCENT and to open a deposit account or to make payments by DATE , which you failed to do within the said period .", "As you see , in the above circumstances ORG has no obligation to make payments in respect of the deposits and securities .", "ORG will be able to serve citizens only after a decision is taken by the Government of GPE concerning the choice of possible compensation alternatives for the deposits and the above securities and their payment . ”", "On DATE the applicant lodged a claim with the GPE and ORG of GPE against the Government , seeking to recover her deposits and securities made with ORG . She requested , in particular , that her savings be returned to her in the currency in which the deposits were made .", "On DATE the GPE and ORG of GPE refused to admit the applicant 's claim on the ground that :", "“ ... the dispute is not subject to court examination , since ORG and the Government of GPE have not yet adopted relevant laws and decrees concerning the procedure for returning to citizens their deposits made with ORG . ”", "On DATE the applicant lodged an appeal on points of law , arguing that the reasons for the refusal to admit her claim were groundless and seeking to reverse the decision of ORG .", "On DATE ORG decided to dismiss the applicant 's appeal . In doing so , ORG referred to the grounds for the refusal to admit the applicant 's claim and found ORG decision to be well - founded .", "Pursuant to this Decree the Government decided that , since the redemption of these bonds was not feasible due to the lack of goods , the repurchased bonds would be converted into deposit accounts .", "Under LAW was allowed to restructure the NORP branch of ORG into ORG of GPE .", "Under LAW GPE guaranteed the preservation and the repayment of deposits and other values made with ORG .", "Under Paragraph CARDINAL the Government was asked to come up with proposals on indexation of savings and other values made with the NORP branch of ORG within DATE .", "According to Paragraph CARDINAL , all transactions in respect of DATE ORG internal premium bonds and ORG certificates were to be stopped until a final decision was taken on them by the member states of ORG .", "Under Paragraph CARDINAL the NORP branch of the former ORG was restructured into ORG of GPE . ORG was the legal successor of the NORP branch of the former ORG .", "Under LAW the Government guaranteed the preservation and the repayment of the deposits and other values made with ORG .", "Under LAW the following types of savings were indexed : ( a ) the amounts left in ORG deposit accounts as of DATE by PERCENT ; ( b ) the amounts left in ORG special deposit accounts as of DATE by PERCENT ; ( c ) the nominal value of the DATE special - purpose ORG interest - free bonds by PERCENT ; and ( d ) treasury bonds owned by the population by PERCENT .", "Pursuant to this Decree the Savings Bank of GPE was sold to CARDINAL private companies . ORG was instructed to conclude a privatisation agreement with the buyers , which was to contain guarantees on behalf of GPE . In particular , GPE was to assume responsibility for the future possible indexation of deposits made by citizens with ORG in former GPE roubles prior to the currency conversion of DATE .", "Section CARDINAL approved the DATE annual programme for compensation of monetary deposits made with the NORP branch of ORG before DATE , which featured as an ORG to this LAW .", "Section CARDINAL prescribed that the compensation activities of monetary deposits made with the NORP branch of ORG before DATE shall be organised by ORG . The compensation of the said deposits was to be implemented on the basis of a ORG mid - term expenditure programme approved by ORG , within the limits of the budgetary allocations envisaged for that purpose as a separate budget line in each DATE 's ORG budget . ORG , based on the above - mentioned DATE annual programme , was to develop the procedure for such compensation and to specify the lists of individuals enjoying a priority right to receive such compensation .", "Pursuant to Paragraph CARDINAL , those depositors , who are members of families which have been receiving family allowance continuously from DATE until DATE , are entitled to receive compensation for their deposits .", "Pursuant to LAW and DATE , persons mentioned in Paragraph CARDINAL were to submit an application in order to receive compensation . The deadline for submitting applications could not be later than DATE and was to expire on DATE .", "Pursuant to Paragraph CARDINAL , the depositors ' right to claim compensation from GPE arises in such budgetary DATE ( a ) in respect of which an expenditure programme for payment of compensation prescribed by this procedure is envisaged by LAW ; and ( b ) the depositor in question is included in the payment schedule for DATE in question .", "According to LAW ( CARDINAL ) and DATE , the judge refuses to admit a claim if , inter alia , the dispute is not subject to court examination . The decision refusing to admit a claim can be contested through cassation proceedings within DATE from the date of its receipt .", "According to LAW , as in force at the material time , a judicial act could be reviewed on the ground of newly discovered circumstances which have vital importance for the case and which the parties were not and could not be aware of .", "According to Article CARDINAL , as in force at the material time , the decision of ORG entered into force from the moment of its delivery and was not subject to appeal ." ]

[]

[]

[]

[ "6" ]

[]

[]

[ "Mr PERSON , a NORP national born in DATE , was at the material time a bank employee . He lives in ORG .", "ORG On DATE the car he was driving , in which Mr PERSON was a passenger , was in collision with another vehicle , belonging to Mr PERSON dos PERSON and driven by Mr PERSON .", "As a result of his injuries Mr PERSON remained in hospital until DATE . He underwent several operations , including CARDINAL in GPE in DATE . Since the accident he has CARDINAL leg QUANTITY shorter than the other and suffers from a PERCENT permanent disability , which has made it impossible for him to return to work .", "ORG at ORG was notified of the accident by the local police and instituted criminal proceedings against both drivers for unintentionally causing physical injury . The file on the case was closed in DATE following an amnesty under a legislative decree .", "ORG On DATE Mr PERSON and Mr PERSON ( \" the plaintiffs \" ) brought a civil action in ORG against PERSON , PERSON dos PERSON , the ORG company , on whose behalf the journey was made , and the insurance company \" Imperio \" , whose liability was contractually limited to CARDINAL escudos , ( \" the defendants \" ) . The applicant sought compensation of QUANTITY , together with various amounts to be calculated during the enforcement proceedings ( liquidação em execução de sentença ) in respect of future expenses stemming from the accident .", "Pursuant to LAW , the action fell to be heard under a summary procedure , which entailed shorter time - limits ( Articles CARDINAL to CARDINAL of LAW and see the GPE v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , para . CARDINAL ) .", "ORG On the conclusion of the preliminary proceedings and the hearing ( for a detailed description of the proceedings see the PERSON v. GPE judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , paras . CARDINAL - CARDINAL ) , ORG gave judgment on DATE . It declared the action brought by Mr PERSON and Mr PERSON well - founded in part and ordered the defendants , jointly and severally , to pay the applicant compensation of CARDINAL escudos - CARDINAL for pecuniary damage , taking into account inflation , and CARDINAL for non - pecuniary damage .", "The court reserved for the subsequent enforcement proceedings , in accordance with LAW para . CARDINAL of the Code of Civil Procedure ( see paragraph CARDINAL below ) , the question of the transport costs incurred by the plaintiffs to enable them to receive treatment after the accident .", "ORG On DATE the applicant and Mr PERSON appealed from that judgment to ORG . They did not dispute the facts as established by the first - instance court , but they complained that the sums awarded were inadequate .", "ORG Their appeals and that of the ORG company were declared admissible on DATE . On CARDINAL DATE ORG dismissed PERSON appeal , whereas it increased the sum awarded to his co - plaintiff .", "ORG On DATE the defendant company , ORG , appealed on points of law to ORG ( Supremo Tribunal de Justiça ) . The plaintiffs lodged a \" secondary \" appeal ( \" recurso subordinado \" ) with the same court on DATE .", "ORG gave judgment on DATE . Taking into account the permanent disability from which the plaintiffs suffered after the accident , it found in their favour on this point and awarded them additional compensation , to be determined in the enforcement proceedings , for the damage flowing from their reduced capacity to work and diminished ability to move , damage which it had not been possible to assess at first instance . Its judgment was notified to the applicant on DATE .", "ORG On DATE , since the defendants refused to make a payment of their own accord , the applicant and Mr PERSON asked the ORG court to enforce payment of the part of the damages that had already been calculated , \" without prejudice to the remainder once the details necessary for its calculation have been established ( LAW ) \" ( \" sem prejuizo de logo que recolhidos os necessários elementos , deduzirem liquidação da restante ( arto CARDINALo do ORG ) \" ) . They listed the attachable assets of the ORG company . However , a writ issued for service in GPE ordering the attachment of the goods in question proved impossible to execute ; on DATE the court found that the company was subject to insolvency proceedings .", "ORG On DATE the applicant indicated to the judge at the ORG court the attachable assets of PERSON dos PERSON and asked him to make a formal request to ORG court for the seizure of assets situated within its jurisdiction .", "On DATE the same judge ordered the seizure of movable goods and a building situated within the jurisdiction of the ORG court ; this took place on DATE and CARDINAL DATE . He also made the formal request to ORG court .", "ORG On DATE PERSON , whose marriage was subject to the rules on community of property ( comunhão geral PERSON ) , requested the judge , in accordance with Article CARDINAL para . CARDINAL of the Code of Civil Procedure ( see paragraph CARDINAL below ) , to order the separation of her assets from those of her husband . She further sought to have the proceedings stayed until the couple ’s property had been divided up .", "ORG The process of dividing up the property continued until DATE , on which date the applicant and Mr PERSON concluded an out - of - court settlement with the defendants , pursuant to which Mr dos PERSON paid to them QUANTITY as full compensation .", "ORG A translation of the main provisions of LAW referred to in this case is set out below :", "( Correspondence between the right and the action )", "\" For each right , except as provided otherwise , there is a corresponding action whose purpose is to secure judicial recognition of the right in question or to enforce it , accompanied by measures to ensure the effectiveness of the action . \"", "( Classification of actions according to their purpose )", "\" CARDINAL . There are CARDINAL types of actions : declaratory actions ( declarativas ) and enforcement actions ( executivas ) .", "Declaratory actions may have as their purpose ( a ) a mere assessment , ( b ) an order or ( c ) the creation of a right ( constitutivas ) . They seek to obtain respectively :", "( a ) ORG a mere declaration as to whether a right or fact exists ;", "( b ) ORG an order , presupposing or aimed at preventing the violation of a right , for the handing over of an article or the accomplishment of an act ;", "( c ) ORG the authorisation for a modification of an existing legal situation .", "Enforcement actions are those by which the plaintiff seeks adequate measures to secure effective reparation for the right infringed . \"", "( Limits of the action for an order )", "\" CARDINAL . ...", "If insufficient information is available to determine the nature or the amount [ of the reparation ] , the court shall make its order in respect of a sum to be fixed in subsequent enforcement proceedings , without prejudice to its power to make an immediate order in respect of the part of the award already calculated . \"", "Article CARDINAL", "( Calculation by the court )", "\" CARDINAL . Where the damages have not been calculated and their calculation is not merely a matter of simple arithmetic , the plaintiff must mention in his application instituting the enforcement proceedings the sums which he considers to be included in the damages owed and submit a final claim for a specific amount .", "... \"", "( Rules applicable where part of the damages has been calculated and the rest not )", "\" CARDINAL . If part of the damages awarded has not been calculated , but the rest has , the order in respect of the calculated damages shall be immediately enforceable .", "Where the enforcement proceedings concern solely the part of the award which has been calculated , the payment of the remaining damages , if it is sought while the enforcement proceedings are in progress , shall be requested by an interlocutory application ; where an appeal is lodged , a certified copy of the enforcement decision must be attached together with , if the enforcement is founded on a judgment , the memorials and submissions of the parties . \"", "( Attachment of half the assets of a couple )", "\" CARDINAL . ...", "... the common property may be attached immediately provided that the creditor has included the goods in question in the list of attachable assets and has asked that the debtor ’s spouse be summoned so that he or she may , if they wish , seek the division of the assets .", "Within DATE of being summoned , the spouse must request the division of the property or submit a certificate proving that such division has already been requested in connection with other proceedings pending , failing which the attachment order shall be enforced in respect of the goods in question .", "Once that request has been made or the relevant certificate lodged , enforcement shall be suspended until the division of the property has been effected ... \"" ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicants , Mr PERSON , Mr PERSON and Mr PERSON are NORP nationals who live in GPE . They were represented before the ORG by PERSON , a lawyer practising in ORG .", ", may be summarised as follows .", "On DATE the DATE newspaper “ GPE ” of which the first applicant was editor - in - chief , published an article entitled “ Holidays with an agent ” ( “ PERSON z agentem ” ) , written by the second and third applicants . The authors made an allegation that the then President of GPE elected in DATE , PERSON , had spent DATE in DATE , before he had been elected to office , in the same hotel as a NORP spy resident in GPE at that time , a certain PERSON , and had had extensive contacts with him . He had at that time been a member of ORG ( PERSON ) and represented the ORG of the NORP Left ( ORG “ the SLD ” ) .", "The opening text under the heading read :", "“ There were no accidental visitors to the PERSON [ a hotel in Władysławowo ] . The élite of the NORP post - communists and business had been spending their holidays there for a long time . And , as it happens , an agent of the NORP intelligence services , PERSON , also stayed there . And they formed , as the employees of the hotel say , ' a particularly close - knit company ' .", "The article read :", "“ PERSON [ the President ] often spent his holidays in FAC in GPE ] . In DATE he arrived there with his family and took a room in the Rybitwa . Subsequently , PERSON took a room in the same building . The PERSON should not be confused with the main building of FAC . The latter can house up to CARDINAL people , while the LOC , situated only a short distance away in a secluded place contains CARDINAL apartments .", "As the employees of the ORG say , visitors to the PERSON are most certainly not there by chance . Most often they are friends of PERSON , the ORG 's director , a former official of the NORP ORG ( PZPR ) . NORP officials often visited the ORG , and later also officials of the SLD . When wellknown public figures visited the hotel it was kept under special surveillance by security agents . The PERSON visited PERSON from DATE to CARDINAL DATE . They got the best apartment , on the third floor . On CARDINAL DATE , in TIME , PERSON arrived at the LOC and remained there also until DATE . He was introduced to the employees by the deputy director of the ORG as a “ special guest of director PERSON .", "This colonel of the NORP intelligence was given apartment no . CARDINAL , just beside the main entrance to the hotel and close to the reception room . Neither A. nor PERSON was listed in the official list of the hotel 's guests , even though it was mandatory . Nonetheless , thanks to the efforts of some of the former employees of the Centre , we managed to obtain copies of invoices by which they had both paid for their stay in the PERSON .", "After we announced on DATE the publication of the present article , at DATE 's press conference the journalists asked PERSON whether he had ever had contacts with A. ' I have never met him ' said the President firmly . Nevertheless , having conducted some investigations , we have found persons who tell us of meetings which A. and PERSON held at FAC . We have talked with CARDINAL employees of the LOC , past and current . Most of them are afraid to talk about what was going on in the LOC . Some of them remember , however , that its visitors were good chums . They often had drinking parties . On CARDINAL such occasion A. and PERSON were seen together .", "CARDINAL former employee remembers another meeting between PERSON and GPE This time , it was a tête - à - tête .", "' They met in the socalled lower dining room in the main building of ORG says the employee , who was serving at their table .", "' Apart from PERSON and the NORP , nobody else was present . I remember that they spoke in NORP , but some NORP words were thrown in from time to time . '", "After a while , having looked at a photo , this employee recognised A. and remembered that it was he who had had lunch with PERSON .", "A. served in the ORG from DATE . DATE he worked in GPE embassy in GPE . DATE he was First Secretary of the embassy responsible for political affairs , and at the same time deputy to the Head of the ORG in GPE , General PERSON .", "A. formally left the service in DATE . After that he worked as a socalled secondline officer , which meant that he carried on his spying activities , posing as a businessman and a civilian without any links to the NORP State apparatus . He became known in GPE after it became publicly known that he had been a longtime friend of the then Prime Minister , PERSON . Minister [ of ORG ] PERSON accused PERSON of being a spy . However , the investigation was discontinued as the prosecution authorities found that there was insufficient evidence to put PERSON on trial .", "During his stays in GPE A. was , as far back as DATE , kept under surveillance by ORG ( ORG ) . In the White Paper , a compilation of documents published by ORG and relating to the PERSON case , we find information that during DATE the NORP was in ORG . However , we find no information there about his activities or contacts during that time – despite the fact that there is a wealth of information concerning his movements before and after his stay in ORG .", "In DATE ORG warned PERSON that he should sever his ties with A. The then Director of the Office , PERSON , stated later that it had been found that ORG had been particularly active during the holidays , the better part of which he , like PERSON , spent at the PERSON .", "The newspaper also published CARDINAL portrait photographs , CARDINAL of the plaintiff and CARDINAL of A. , with the following caption :", "Friends from the beach – President PERSON and GPE , NORP and NORP intelligence officer .", "The article was accompanied by copies of invoices paid by the President and PERSON for their stay at the LOC .", "In the same issue of “ GPE ” an article entitled “ The Biggest Scandal of GPE ” was published . It summarised the affair in which in DATE TIME , the then Minister of the ORG , declared in ORG that the then Prime Minister PERSON , a member of the same political party to which the President had belonged before his election in DATE , had been a NORP spy recruited by PERSON", "The President lodged a civil action with ORG against the applicant and the publishing house which published “ GPE ” , claiming that the defendants should publish apologies for the text , which he qualified as deliberately misleading given that he had never met PERSON He also requested that the applicants pay , jointly , MONEY ( ORG ) to ORG .", "During the proceedings the court heard evidence from CARDINAL witnesses with whom the authors had spoken before the article was published and CARDINAL other witnesses whom they had contacted after its publication . The court further heard evidence from CARDINAL witnesses called by the plaintiff . It also had regard to CARDINAL documents submitted by both parties , which all related to the plaintiff 's schedule and private and public activities DATE . The court examined an expert opinion verifying the plaintiff 's signature on attendance lists of various parliamentary bodies during the material period .", "The applicants argued , inter alia , that in publishing the article they had exercised their freedom of expression , and referred to LAW .", "By a judgment of CARDINAL DATE the court partially allowed the plaintiff 's claim . It had regard to CARDINAL documents relating to the essential message of the article , namely that the plaintiff had spent his holidays in Władysławowo in DATE at the same time as A. and had had friendly contacts with him . The court concluded that the evidence before it was insufficient to make a finding that the applicants had shown sufficient diligence in gathering the material for their article . It further observed that the material which they had had at their disposal before publication was insufficient for the conclusion , which they had nevertheless presented in the article , that the plaintiff had indeed spent the period concerned in PERSON , that he had been A 's friend and that they had stayed in the same hotel at the same time .", "It ordered the applicants to publish an apology in their newspaper , worded as follows :", "“ Editor - in - chief of “ Życie ” [ ... ] and [ the second and third applicant ] present their apologies to Mr PERSON for having breached his personal rights by publishing in “ GPE ” of DATE , No . CARDINAL ( CARDINAL ) , in the article “ DATE with an agent ” , untrue information suggesting that in DATE he had spent holidays in hotel “ LOC in FAC in ORG and that he had had close contacts with [ GPE ] ; moreover the [ applicants ] apologise for the manner in which the title of that article was formulated , for publication of the photographs on the first page of the newspaper and for the caption underneath . ”", "The court dismissed the remainder of the claim and ordered each defendant to pay ORG CARDINAL in reimbursement of the court fee paid by the plaintiff . No award regarding the reimbursement of other costs borne by the plaintiff was made .", "The applicants appealed . They argued that the courts had failed to establish the facts of the case correctly and had wrongly assessed the evidence . This failure had had a direct bearing on the court 's conclusion that they had failed to act with diligence when preparing and publishing the article concerned . They further argued that the court had ordered them to publish an apology with a different content from that requested by the plaintiff . The applicants finally referred to the LAW , in so far as it guaranteed freedom of expression and access to information .", "By a judgment of DATE ORG allowed the appeal in so far as the first - instance court had ordered the applicants to apologise for the photographs published on the first page of the newspaper and for the caption underneath , and discontinued the proceedings in the relevant part . The court observed in this connection that the plaintiff 's claim had not related to the photographs and the caption and that the court , consequently , had not been required to rule over and above the claim .", "The court dismissed the appeal in its remainder .", "It observed that the provisions of the LAW adopted in DATE relied on by the applicants could not be applied because they had entered into force after the events concerned . Nonetheless , at the material time freedom of expression had been guaranteed by LAW , ratified by GPE in DATE . The court went on to state :", "“ The caselaw of ORG provides that freedom of expression of the press plays an essential role in a NORP society . Although the press should not overstep certain bounds , in particular in respect of reputation and rights of others , its duty is nevertheless to impart DATE in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest . There is little scope for restrictions on political speech or on debate on questions of public interest . The limits of acceptable criticism are wider with regard to a politician than with regard to a private individual . A politician is entitled , like any other citizen , to legal protection of his or her personal rights and reputation , but the scope of this protection is considerably narrower than in respect of private individuals . Such an interpretation of LAW was made in [ the ORG 's ] cases PERSON v. GPE ( no . CARDINAL ) , CARDINAL DATE , Series A no . CARDINAL ; PERSON v. GPE , CARDINAL DATE , Series A no . CARDINAL ; PERSON v. GPE , DATE , Series A no . CARDINAL ( ... ) All these cases were brought [ to the ORG ] by journalists who had been parties to criminal proceedings on charges of defamation against politicians . Neither the veracity of information which they had published nor their diligence had been challenged by domestic courts . None the less , various criminal sanctions had been imposed on them . The [ NORP ] Court did not criticise the mere fact that the applicants had been found criminally liable ; it found violations of LAW finding that the measures complained of had not been necessary in a democratic society . ”", "The court further noted that the article had attributed to the plaintiff close and friendly contacts with the agent of the ORG , an assertion which in NORP society could not but provoke negative reactions . Hence , the firstinstance court had been right in its finding that the plaintiff 's reputation , protected by LAW as one of his personal rights , could be negatively affected . The defendants ' conduct could only be protected if it was found to be lawful within the meaning of that provision . However , it could not be so qualified . It was true that the defendants had shown diligence and good faith when gathering the material for the article , in that they had talked with many persons who could have known about the plaintiff 's holidays in DATE . Nevertheless , the conclusions which they had drawn on the basis of that material published in their article , were seriously flawed . While there had been sufficient grounds for a finding that the plaintiff and his family had spent some time in the hotel concerned in DATE and DATE , it was also clear that during this period the plaintiff had left Władysławowo from time to time to attend to his political duties . There were no indications , let alone any sound evidence to show that he as much as had ever seen PERSON during this period , let alone been friends with him , as was strongly suggested , or that the CARDINAL men had met in private while at the LOC . While it was true that , on the whole , the article did not contain obvious statements of opinion , it was clearly implied that the plaintiff 's conduct had been reprehensible .", "The court went on to state that the reasoning of the first - instance court as to the admissibility and assessment of the voluminous evidence before it had been correct and logical . The defendants had failed to show that the article 's conclusion that the plaintiff and PERSON had indeed been friends , who in DATE had spent holidays together , had any factual basis . Their conduct when publishing the article presenting such a conclusion regarding facts , based on manifestly flimsy grounds , was open to criticism and the lower court had been right in making such a finding .", "The court further noted that in the same issue another article had been published . It referred to the close contacts between PERSON , one of the leaders of the party to which the plaintiff belonged , and PERSON The tone of the article concerned , seen in that context , clearly suggested to the reader that there might have been close relations also between the plaintiff and the ORG officer in question . This was not sufficiently borne out by the evidence , either that gathered by the plaintiffs prior to the publication or that available to the first - instance court .", "The applicants lodged a cassation appeal with ORG , making essentially complaints similar to those contained in their appeal .", "By a judgment of CARDINAL DATE ORG quashed the judgment of the appellate court in so far as it had dismissed the applicants ' appeal , and remitted the case to be reheard by that court .", "ORG observed :", "Pursuant to section CARDINAL of LAW the press is obliged to safeguard the citizens ' right to obtain reliable information , to ensure transparency of the public life and to exercise public control and supervision of public affairs . This is why the press enjoys the freedom of speech and print , guaranteed by LAW , and when the impugned article was published – by the constitutional provisions as amended in DATE and DATE , and also by LAW . The importance of tasks to be fulfilled by the press and their character taken together with the freedom it should enjoy provide foundations for its crucial role in a democratic society . This is why it is often referred to as “ a fourth power ” .", "The press is obliged to impart an accurate picture of social phenomena which it presents to the public . The significance of this duty flows from the fact that it has been included in LAW . Hence , it is not open to doubt that the press should provide accurate information . However , the obligations incumbent on journalists could not be interpreted as a straightforward obligation to present only “ true ” information to society . Similarly , one can not say that every instance of publishing untrue information amounts to unreliability on the part of the press . It should be borne in mind that the journalists have at their disposal only limited measures , that it is impossible for them to have access to all sources of information and that , as a result , it often is not feasible to give a complete picture of a given situation or event . If the journalists were obliged to write only “ truth ” , it would amount to a serious restriction on the exercise of the freedom of expression guaranteed by LAW .", "ORG referred to the ORG v. GPE judgment of ORG v. GPE [ ORG ] , no . ORG , ORG CARDINALVI ) . However , it noted that journalists were obliged to act with diligence when gathering and verifying information for the purposes of publication . It was a lack of such diligence which could make their conduct unlawful and consequently entail a breach of LAW . It had not been convincingly demonstrated that the defendants ' conduct when preparing and publishing the article concerned had lacked such diligence . Hence , the judgment of the appellate court had to be quashed and the applicants ' appeal reexamined .", "By a judgment of DATE ORG reexamined the applicants ' appeal and dismissed it . As a result , the firstinstance order to publish their apologies for having published the article was upheld . The defendants were also ordered to pay ORG CARDINAL to the defendant to cover his costs incurred in the appellate proceedings .", "The court was of the view that the defendants had failed to show diligence when gathering the material on which they had later based their article . The evidence gathered by them and by the first - instance court had shown that the plaintiff had indeed been in ORG to CARDINAL DATE which , in any event , had not been in dispute . However , on DATE he had travelled from GPE to GPE . Subsequently , he had come back to GPE on DATE and from that date until CARDINAL DATE had attended to his political duties , as confirmed by various witnesses and documents . In the light of the evidence , there had been no grounds on which to accept that he had been in ORG from CARDINAL to DATE , when PERSON had been spending his holidays there . Likewise , there were no grounds for a conclusion that the plaintiff and ORG had been friends or that they had been members of a “ particularly close - knit company ” as alleged in the article .", "The court concluded that in the light of the evidence gathered by the defendants themselves prior to publication of the article and , additionally , other evidence submitted to the first - instance court , the conclusions drawn by the defendants , namely that the president and PERSON had spent DATE in the same hotel as good friends , lacked any factual basis . It was of the view that the defendants had not demonstrated the necessary objectivity and detachment when presenting their conclusions to the public , also because they had omitted to present in reasonable detail the basis on which they had reached those conclusions .", "The applicants lodged a cassation appeal with ORG , raising various procedural complaints to the effect that the courts had failed to establish the facts of the case correctly and had wrongly assessed the evidence .", "By a decision of DATE served on the applicants ' lawyer on CARDINAL DATE , ORG refused to entertain their appeal .", "LAW , adopted in DATE , provides as follows :", "“ GPE shall ensure freedom of the press and other means of social communication . ”", "LAW reads :", "“ CARDINAL . NORP The freedom to express opinions to acquire and to disseminate information shall be secured to everyone .", "Preventive censorship of the means of social communication and licensing of the press shall be forbidden . ORG may require that permits be sought and obtained for the operation of a radio or television station . ”", "LAW , in so far as relevant , provides :", "“ CARDINAL . Each citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions . Such right shall also include the obtaining of information on the activities of self - governing economic or professional organs and other persons or organisational units , relating to the field in which they perform the duties of public authorities and manage municipal assets or property of ORG .", "The right to obtain information shall encompass the right of access to documents and entry to sittings of collective organs of public authority formed by universal suffrage , with the opportunity to make sound and visual recordings .", "Limitations upon the rights referred to in DATE and CARDINAL above may be imposed by statute solely to protect the freedoms and rights of other persons ... public order , security or important economic interests of the ORG . ”", "LAW contains a list of the rights referred to as “ personal ” ( dobra osobiste ) . It reads :", "“ The personal rights of an individual , such as in particular the rights to health , liberty , reputation ( cześć ) , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work [ as well as ] inventions and improvements shall be protected by civil law regardless of the protection enshrined in other legal provisions . ”", "Article CARDINAL of the LAW provides for ways of redressing infringements of personal rights . A person facing the threat of an infringement may demand that the perpetrator desist from the wrongful activity , unless it is lawful . Where an infringement has taken place the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or demand satisfaction from him / her . If the infringement of a personal right causes financial loss , damages may be sought before a civil court .", "A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a final judicial decision of a secondinstance court . Article PERSON of LAW as applicable at the material time listed the grounds on which a cassation appeal could be lodged . It read as follows :", "“ The cassation appeal may be based on the following grounds :", "( CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;", "( CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”", "ORG could , pursuant to LAW , refuse to entertain the cassation appeal if :", "“ ( i ) there [ was ] no appearance of any significant legal issue in the case ;", "( ii ) there [ was ] no need for the interpretation of provisions raising serious doubts or giving rise to discrepancies in the courts ' case - law ;", "( iii ) the appeal [ was ] manifestly ill - founded . ”", "Article CARDINAL continued :", "“ CARDINAL . Paragraph CARDINAL shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE . In or DATE the applicant breached an earlier probation order ( concerning a charge of deception ) and was sentenced to CARDINAL months’ imprisonment . It was her first time in prison .", "Her term of imprisonment began in DATE . She was accorded an unconditional release date of DATE .", "The applicant suffered from cerebral palsy , a disorder of the central nervous system which can inhibit voluntary muscle control . She used a wheelchair and could only walk a few steps with assistance . She did not have voluntary control of her bladder meaning that on occasion she either could not urinate for TIME or she urinated uncontrollably and required medication to restrain this . The condition did not affect her intelligence but rather her ability to process information so that she required explanations in plain language and sufficient time for full comprehension .", "A short medical report from a general practitioner dated DATE noted that the applicant was a patient of the relevant practice and that her condition could have affected her ability to produce a urine sample on demand as voluntary control of the nervous system is always affected by cerebral palsy . While he suggested obtaining a neurologist ’s report on these matters , the applicant stated that she could not afford to obtain one .", "The prison psychotherapist ’s report of DATE noted that the applicant had been referred in DATE given her distress and difficulties in coping with her imprisonment . It noted as follows :", "“ Largely confined to a wheelchair , [ the applicant ] manifests obvious physical symptoms of cerebral palsy as well as somewhat less obvious mental ones . [ The applicant ] possesses an excellent vocabulary and a reasonably well - developed capacity to think logically that places her well in the highest range of mental functioning for those who have the condition from which she suffers . Thus it seems that she often strikes those who meet her as an individual with a normal range of mental functioning but a difficult personality .", "In fact , [ the applicant ] experiences problems dealing with any sort of symbolism in language : she is openly vocal about her distaste for what she calls slang . Any explanation given to her needs to be couched in concrete terms devoid of metaphor or simile . Often it may be advisable or necessary to write down an explanation so that she may study it at her leisure in order to take it in fully and remember it . When this procedure is followed , she proves well able to make use of information or advice .", "From [ the applicant ’s ] standpoint , these features of her mental functioning often make it difficult for her to think things through completely and thus to envision what the consequences of her actions may be . From the view point of those who deal with her , it often may seem that she is being difficult or uncooperative when it is in reality the case that she simply has not fully grasped the nuances of the subject at hand .", "[ The applicant ’s ] life circumstances seem to have been troubled and unhappy . She has felt it necessary to fight ferociously to consolidate and maintain her independence . Thus the stay in < prison > appears to have been a sobering experience for her . It seems rather graphically to have brought home to her the consequences of some of her own actions – actions for which she previously had been unable to envisage consequences .", "It is difficult for [ the applicant ] to trust anyone completely , as she feels herself to have been badly let down by key figures in her life ( including her mother , foster carers et al ) . Yet , in a relationship which [ the applicant ] experiences as one of confidence and caring , she is able to show herself as a warm , even endearing individual . ”", "The applicant was detained in the medical wing of the prison since the normal prison cells were not wheelchair accessible .", "At about CARDINAL.CARDINALam on DATE a female prison officer asked the applicant to leave her education classes . They were then met by CARDINAL other female prison officers . CARDINAL of them asked the applicant if she had heard about PERSON . The applicant replied that she had not and she was informed that it was mandatory drug testing . One of the officers requested the applicant to provide a urine sample immediately . The applicant alleged that she said that she would not be able to produce a sample : the Government did not accept this .", "She was taken to the ORG unit , given a container and asked to provide a specimen . While the applicant claimed that she said again that she could not provide a urine sample , the ORG maintained that she simply refused to provide a sample . She claimed that she began to explain why she could not provide a sample but that her explanation was brushed aside . She was offered a cup of water , which she declined . She maintained that this was because she knew that the water would not assist because the problem was not whether her bladder was full or not but whether she had the motor control to provide a specimen on demand and because she was concerned as to whether the water was fresh .", "The applicant was taken to her cell by the officers and she was told that she could provide her sample there . A female officer remained in the cell with her and the applicant felt distressed by this . She claimed that , at TIME , she reiterated that she could not urinate . She submitted that the prison officer appeared irritated and informed her that she was going to put that down as a refusal which could result in additional days’ detention . The Government claimed that she refused once again to provide a sample .", "She claimed that the officers who dealt with her were brusque and business - like . None of the officers asked her about her condition or whether she would need assistance in providing the urine sample and she was not offered the possibility of speaking confidentially with a medical officer or a structured manner of providing the sample over TIME . She admitted , however , that she did not explain to them that she could not urinate as a result of her disability . She alleged that she did inform the officers that she was menstruating ( the Government disputed this ) but , in any event , she accepted that she did not use her menstruation as an excuse for not providing a urine sample .", "On DATE , at TIME , a male officer came into the applicant ’s cell and read an “ official - sounding ” paper about “ a refusal ” . The applicant was asked to sign it but refused to do so . She maintained that this was because she had just woken up and did not understand what was happening . The paperwork was left in her cell . This paperwork appears to have been a notice of report , which informed the applicant that she had been placed on report for the alleged offence of disobeying a lawful order to provide a urine sample .", "DATE , she was sent to see the Governor when it was explained to her that she was being “ put on report ” . There were CARDINAL officers in the room at the same time . Her account was that , feeling intimidated and not understanding the jargon they were using , she asked if she could have someone with her . The Governor refused , stating that this would only be allowed for someone with severe learning difficulties . The Governor did not ask her if there were any medical reasons why she should be assisted . The Government disputed the applicant ’s account of this meeting .", "The matter was adjourned to DATE , to allow the relevant prison officer to attend to give evidence . In the meantime , the applicant was seen by a medical officer who certified her as fit to take part in the hearing . She did not inform the medical officer either that her disability had prevented her from providing a urine sample , explaining that this was because the medical officer never asked .", "On DATE the applicant appeared again before the Governor . The Government submitted the record of the adjudication hearing which was filled out by the Governor at the hearing . Question CARDINAL on Part CARDINAL of the form enquires : “ Do you want any additional help at this hearing ? ( If yes , explain the possibilities of assistance by a legal friend or legal representative ) ” . The Governor had ticked the box saying “ No ” . The applicant claimed that her request for legal representation was refused .", "The applicant submitted that she was not asked any questions about her disability or whether she had problems urinating . The allegation of a refusal to give a sample was put to her . She claimed that she tried to explain as best she could and that the Governor indicated that most people could provide a sample when asked and he noted that she had refused water . She accepted that she did not inform the Governor during the adjudication hearing that her disability had prevented her from providing a urine sample . The Governor found the charge of disobeying a lawful order to have been proven and sentenced the applicant to CARDINAL additional days’ detention . She was informed that she could appeal .", "With the assistance of the prison chaplain , she obtained and completed on DATE a complaint form . She noted in the form that she had not represented herself as well as she wished and would have benefited from a prepared statement . She indicated that she had bladder problems , exacerbated by the stress of her imprisonment and she disclosed that she had been menstruating . She indicated her willingness to provide a urine sample and requested to be allowed the time for which Rule CARDINAL ) of the Prison Rules DATE had provided . In an attached statement , she made it clear that she had not refused to provide the sample but simply could not due to her disability . She indicated that she had recently gone more than TIME without urinating . She further requested some assistance in order to comply with the prison rules as they had been drafted with able - bodied persons in mind and did not make allowances for those with disabilities . She expressed extreme distress at having to discuss her bodily functions and requested that the DATE additional days’ be withdrawn .", "On DATE the Governor replied that he had spoken to the prison chaplain , read the applicant ’s submissions and discussed the case with the prison service area manager , the latter of whom had read the papers . The area manager agreed that the charge had been proven and that the award of DATE could be reduced to DATE ( with no association with other prisoners for DATE and CARDINAL days’ stoppages in pay ) . She was also to provide a urine sample under the ORG arrangements .", "The applicant sought legal advice . Her legal representatives could not contact her by telephone and were offered a visit after her initial release date . Accordingly , they made written representations by letter dated DATE to the Governor and to the prison service area manager outlining the applicant ’s condition , how that had prevented her providing the sample and her distress and embarrassment . They sought the withdrawal of the CARDINAL additional days’ award , in default of which proceedings under LAW DATE would be pursued .", "NORP The applicant was released on DATE . In his letter of CARDINAL January CARDINAL to the applicant ’s representatives ( confirming a telephone conversation of DATE ) the area manager stated that , while information was received by the Governor after the adjudication causing him to vary the sentence , that information did not cause the Governor or the writer to consider that the finding of guilt was flawed or should be quashed . He was further satisfied that the adjudication was conducted in a fair and proper manner . He noted that the applicant had not explained her difficulties to the officers involved in the test process , nor availed herself of the opportunity subsequently to talk through the issues with the Governor . That letter indicated that a medical officer had informed the Governor that she had been fit to appear and had made no comment to the Governor that she was unable to comply with an order to provide a sample .", "On DATE the applicant ’s representatives complained to the Home Secretary about the prison adjudication matter . They received an acknowledgement dated DATE .", "The ORG refers to its outline of the relevant domestic law and practice in the case of Ezeh and PERSON v. GPE ( [ ORG ] , ORG . CARDINAL and CARDINAL , § § DATE ) .", "MDT is permitted by section DATE ) of LAW ( as amended in DATE ) . Section CARDINAL ) allows the request for a sample of any other description specified in the authorisation , not being an intimate sample , instead of or in addition to a urine sample .", "Rule CARDINAL of the Prison Rules DATE provides as follows :", "“ ( CARDINAL ) This rule applies where an officer , acting under the powers conferred by section CARDINALA of LAW ( power to test prisoners for drugs ) , requires a prisoner to provide a sample for the purpose of ascertaining whether he has any controlled drug in his body .", "( CARDINAL ) In this rule “ sample ” means a sample of urine or any other description of sample specified in the authorisation by the governor for the purposes of section CARDINALA of LAW .", "( CARDINAL ) When requiring a prisoner to provide a sample , an officer shall , so far as is reasonably practicable , inform the prisoner :", "( a ) that he is being required to provide a sample in accordance with section CARDINALA of the Prison Act DATE ; and", "( b ) that a refusal to provide a sample may lead to disciplinary proceedings being brought against him .", "( CARDINAL ) An officer shall require a prisoner to provide a fresh sample , free from any adulteration .", "( CARDINAL ) An officer requiring a sample shall make such arrangements and give the prisoner such instructions for its provision as may be reasonably necessary in order to prevent or detect its adulteration or falsification .", "( CARDINAL ) A prisoner who is required to provide a sample may be kept apart from other prisoners for a period not exceeding one hour to enable arrangements to be made for the provision of the sample .", "( CARDINAL ) A prisoner who is unable to provide a sample of urine when required to do so may be kept apart from other prisoners until he has provided the required sample , save that a prisoner may not be kept apart under this paragraph for a period of TIME .", "( CARDINAL) A prisoner required to provide a sample of urine shall be afforded such degree of privacy for the purposes of providing the sample as may be compatible with the need to prevent or detect any adulteration or falsification of the sample ; in particular a prisoner shall not be required to provide such a sample in the sight of a person of the opposite sex . ”", "Rule CARDINAL(CARDINAL ) of the Prison Rules DATE provides that it is an offence against prison discipline to disobey a lawful order ." ]

[ "6" ]

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

[ "6-3-c" ]

[]

[]

[]

[ "ORG For the facts of the case the ORG refers to the principal judgment ( pp . CARDINAL - CARDINAL , paras . CARDINAL ) and will merely bring it up to date here .", "ORG On DATE Mr PERSON brought an action for damages in FAC of First Instance against Mr PERSON , the defendant in the criminal proceedings for assault whose duration , according to the principal judgment , had exceeded the \" reasonable time \" . On DATE the court held that the applicant ’s right to compensation was statute - barred , and this decision ( despacho saneador ) was upheld by ORG ( tribunal de relação ) on DATE .", "Mr PERSON lodged an appeal ( revista ) and ORG ( Supremo Tribunal de Justiça ) quashed ORG decision on DATE , holding that the said right was not statute - barred and ordering the case to be proceeded with .", "In a letter of CARDINAL DATE the Government informed the Registrar that this decision had not yet become final , as Mr PERSON had applied for a declaration of nullity ( LAW ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant filed an application with ORG ( hereafter “ the Ministry ” ) , for registration of a newspaper entitled Letters to the President ( Письма Президенту ) .", "NORP By letter of DATE , the deputy head of ORG informed the applicant that , judging by its title , the newspaper could be perceived as an official bulletin published by a competent ORG authority . As that was likely to mislead potential readers , the applicant was advised to “ obtain the approval of the competent authorities ” .", "The applicant replied to the deputy head and to the Minister , insisting that either the newspaper be registered or an official refusal be issued .", "On DATE the applicant challenged the ORG 's failure to act before ORG of GPE . He claimed that he had satisfied the legal requirement to be the founder of a newspaper and that the ORG 's procrastination was unlawful .", "On DATE the applicant received the ORG 's official refusal to register the newspaper , based on CARDINAL grounds . First , it was said that the information in the application was “ inconsistent with the real state of affairs ” ( сведения , не соответствующие действительности ) because the newspaper purported to cover a broader range of subjects than its title suggested . Second , the ORG considered that only ORG of GPE could consent to the publication of letters to the President or be a founder of a newspaper with such a title .", "On DATE the applicant amended his claim , seeking to have the ORG 's refusal overturned .", "On DATE the ORG of GPE upheld the refusal on the following grounds :", "“ ... The court considers it possible to agree with the argument [ of the Ministry ] that the title of a newspaper denotes its specialisation which [ in this case ] could be perceived by the readership as an official publication founded by a competent ORG body ... which prepares the President 's direct answers to incoming letters from citizens .", "The court considers that the above fact may give rise to incompatibility of the actual specialisation of the publication under the title Letters to the President with the current legislation . In this connection the court concludes that the ORG 's argument as regards the specialisation of the newspaper in question is a sufficient ground to refuse its registration ... under section CARDINAL(CARDINAL)(CARDINAL ) of LAW , which does not violate [ the applicant 's ] rights to found a newspaper and to choose its title ... ”", "On DATE ORG upheld the judgment of the district court , endorsing the above reasoning . The court also held :", "“ ... the [ first - instance ] court rightly concluded that [ the applicant ] had failed to comply with the time - limit for bringing court proceedings without a valid excuse . Having received on DATE the refusal to register his newspaper , he lodged his claim before a court only on DATE ...", "The expiry of the DATE time - limit for lodging such claim is an independent reason for rejecting the applicant 's claims ( LAW ) . ”", "A newspaper may be founded by an adult who has not been convicted or declared legally incapable ( section CARDINAL ) . The editor 's office may begin functioning upon registration of a newspaper ; an application for registration is to be examined within DATE of being lodged ( section CARDINAL) .", "An application for registration must specify , in particular , the title of the newspaper and an approximate list of subjects and/or specialisation ( section ORG ) and ( CARDINAL ) ) .", "Registration may only be refused on the following grounds : ( CARDINAL ) the application is lodged by an individual who can not be a founder ; ( CARDINAL ) the information in the application is “ inconsistent with the real state of affairs ” ; ( CARDINAL ) the title , range of subjects and/or specialisation represent an abuse of the freedom of mass media as defined in DATE ; ( CARDINAL ) if an existing newspaper with the same title has been registered earlier ( LAW ) .", "Section CARDINAL prohibits using the mass media for the commission of criminal offences , the disclosure of ORG secrets or protected information , for extremist activities , or for the dissemination of pornography or the promotion of violence and cruelty .", "An individual may bring a complaint within DATE when he or she became aware of a violation of his or her rights or freedoms ( LAW ) . The court must examine the reasons for any failure to comply with the DATE period and may reject the complaint on that ground ( LAW ) .", "If the complaint is rejected owing to failure to comply with the time - limit for lodging the complaint before a court without a valid reason , the court 's reasoning must be limited to the indication of the circumstances confirming the above ( LAW ) ." ]

[ "10" ]

[]

[]

[]

[]

[]

[ "The applicants , who are NORP nationals , are PERSON , an GPE , PERSON , a lawyer , PERSON , a judge , PERSON and PERSON , lawyers . Mr. PERSON lives in GPE , the others in GPE .", "All CARDINAL applicants claim that Article CARDINAL para . QUANTITY of LAW ) and a statute enacted in pursuance of that provision , namely LAW DATE on Restrictions on the Secrecy of the Mail , Post and Telecommunications ( Gesetz PERSON Brief- , Post- under PERSON , hereinafter referred to as \" the G CARDINAL \" ) , are contrary to the Convention . They do not dispute that the ORG has the right to have recourse to the surveillance measures contemplated by the legislation ; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event , and in that it excludes any remedy before the courts against the ordering and execution of such measures . Their application is directed against the legislation as modified and interpreted by ORG ( Bundesverfassungsgericht ) .", "Before lodging their application with the ORG , the applicants had in fact appealed to ORG . By judgment of DATE , that ORG held that LAW . CARDINAL , sub - paragraph CARDINAL of the G CARDINAL was void , being incompatible with the second sentence of Article CARDINAL para . CARDINAL of LAW , in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction . ORG dismissed the remaining claims ( Collected Decisions of ORG , PERSON . CARDINAL , pp . CARDINAL et seq . ) .", "Since the operative provisions of the aforementioned judgment have the force of law , the competent authorities are bound to apply the G CARDINAL in the form and subject to the interpretation decided by ORG . Furthermore , the Government of GPE were prompted by this judgment to propose amendments to the G CARDINAL , but the parliamentary proceedings have not yet been completed .", "As regards the applicants’ right to apply to ORG , that ORG held , inter alia :", "\" In order to be able to enter a constitutional application against an LAW , the applicant must claim that the LAW itself , and not merely an implementary measure , constitutes a direct and immediate violation of CARDINAL of his fundamental rights ... These conditions are not fulfilled since , according to the ORG own submissions , it is only by an act on the part of the executive that their fundamental rights would be violated . However , because they are not apprised of the interference with their rights , the persons concerned can not challenge any implementary measure . In such cases , they must be entitled to make a constitutional application against the LAW itself , as in cases where a constitutional application against an implementary measure is impossible for other reasons ... \" ( ibid , pp . DATE ) .", "Although , as a precautionary measure , the applicants claimed before both ORG and the Commission that they were being subjected to surveillance measures , they did not know whether the G CARDINAL had actually been applied to them .", "On this point , the Agent of the Government made the following declaration before the ORG :", "\" To remove all uncertainty as to the facts of the case and to give the ORG a clear basis for its decision , the Federal Minister of the ORG , who has competence in the matter , has , with ORG approval , authorised me to make the following statement :", "At no time have surveillance measures provided for by the LAW enacted in pursuance of LAW been ordered or implemented against the applicants . Neither as persons suspected of CARDINAL or more of the offences specified in the LAW nor as third parties within the meaning of DATE , paragraph CARDINAL , sub - paragraph CARDINAL , of the G CARDINAL have the applicants been subjected to such measures . There is also no question of the applicants’ having been indirectly involved in a surveillance measure directed against another person - at least , not in any fashion which would have permitted their identification . Finally , there is no question of the applicants’ having been subjected to surveillance by mistake - for example through confusion over a telephone number - , since in such cases the person concerned is notified of the surveillance measure . \"", "The contested legislation", "After the end of the Second World War , the surveillance of mail , post and telecommunications in GPE was dealt with by the occupying powers . As regards GPE , neither the entry into force on DATE of LAW nor the foundation of ORG altered this situation which continued even after the termination of the occupation régime in DATE . Article CARDINAL para . CARDINAL of the Convention of CARDINAL DATE on Relations between the CARDINAL Powers ( GPE , GPE and GPE ) and GPE - as amended by LAW of DATE - specified in fact that the CARDINAL Powers temporarily retained \" the rights ... heretofore held or exercised by them , which relate to the protection of the security of armed forces stationed in GPE \" . Under the same provision , these rights were to lapse \" when the appropriate NORP authorities ( had ) obtained similar powers under NORP legislation enabling them to take effective action to protect the security of those forces , including the ability to deal with a serious disturbance of public security and order \" .", "The Government wished to substitute the domestic law for the rights exercised by ORG and to place under legal control interferences with the right , guaranteed by LAW , to respect for correspondence . Furthermore , the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the ORG . Thus , on DATE , the ORG introduced CARDINAL Bills as part of ORG . The first sought primarily to amend LAW para . CARDINAL of LAW ; the second - based on LAW para . CARDINAL so amended - was designed to limit the right to secrecy of the mail , post and telecommunications . The CARDINAL Acts , having been adopted by the federal legislative assemblies , were enacted on DATE and CARDINAL DATE respectively .", "ORG had come to the view on DATE that these CARDINAL texts met the requirements of Article CARDINAL para . CARDINAL of the above - mentioned LAW . Their statements declared :", "\" The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in GPE and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above - mentioned texts , as laws , becomes effective . \"", "In its initial version , LAW guaranteed the secrecy of mail , post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute . As amended by LAW of DATE , it now provides :", "\" ( CARDINAL ) Secrecy of the mail , post and telecommunications shall be inviolable .", "( CARDINAL ) Restrictions may be ordered only pursuant to a statute . Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land , the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people ’s elected representatives . \"", "The G CARDINAL , adopting the solution contemplated by the second sentence of paragraph CARDINAL of the above - quoted LAW ( in LAW . CARDINAL ) the cases in which the competent authorities may impose the restrictions provided for in that paragraph , that is to say , may open and inspect mail and post , read telegraphic messages , listen to and record telephone conversations . Thus , Article CARDINAL para . CARDINAL empowers those authorities so to act in order to protect against \" imminent dangers \" threatening the \" free democratic constitutional order \" , \" the existence or the security of the GPE or of a Land \" , \" the security of the ( allied ) armed forces \" stationed on the territory of the Republic and the security of \" the troops of CARDINAL of ORG stationed in GPE \" . According to LAW , these measures may be taken only where there are factual indications ( tatsächliche PERSON ) for suspecting a person of planning , committing or having committed certain criminal acts punishable under LAW , such as offences against the peace or security of the ORG ( sub - paragraph CARDINAL , no . CARDINAL ) , the democratic order ( sub - paragraph CARDINAL , no . CARDINAL ) , external security ( sub - paragraph CARDINAL , no . CARDINAL ) and the security of the allied armed forces ( sub - paragraph CARDINAL , no . CARDINAL ) .", "Paragraph CARDINAL of LAW further states that the surveillance provided for in paragraph CARDINAL is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult ( aussichtslos oder wesentlich erschwert ) . The surveillance may cover only \" the suspect or such other persons who are , on the basis of clear facts ( bestimmter PERSON ) , to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use \" ( sub - paragraph CARDINAL ) .", "Article CARDINAL para . CARDINAL of the LAW provides that an application for surveillance measures may be made only by the head , or his substitute , of one of the following services : ORG and the Länder ( GPE für GPE ; PERSON ) , ORG ( ORG für ORG ) and ORG ( Bundesnachrichtendienst ) .", "The measures are ordered , on written application giving reasons , either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor . The Chancellor has entrusted these functions to the Ministers of the ORG and of Defence each of whom , in the sphere falling within his competence , must personally take the decision as to the application of the measures ( DATE . CARDINAL , sub - paragraphs CARDINAL and CARDINAL ) .", "Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary ( DATE . CARDINAL , sub - paragraph CARDINAL ) . The measures remain in force for a maximum of DATE and may be renewed only on fresh application ( Article CARDINAL para . CARDINAL , sub - paragraph CARDINAL ) .", "Under the terms of LAW . CARDINAL , sub - paragraph CARDINAL , the person concerned is not to be notified of the restrictions affecting him . However , since ORG judgment of DATE ( see paragraph CARDINAL above ) , the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction . To this end , the Minister concerned considers ex officio , immediately the measures have been discontinued or , if need be , at regular intervals thereafter , whether the person concerned should be notified . The Minister submits his decision for approval to the Commission set up under the G CARDINAL for the purpose of supervising its application ( hereinafter called \" ORG \" ) . ORG may direct the Minister to inform the person concerned that he has been subjected to surveillance measures .", "Implementation of the measures ordered is supervised by an official qualified for judicial office ( Article CARDINAL para . CARDINAL , sub - paragraph CARDINAL ) . This official examines the information obtained in order to decide whether its use would be compatible with the LAW and whether it is relevant to the purpose of the measure . He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered .", "The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose ( LAW . CARDINAL and CARDINAL ) .", "The competent Minister must , at least once DATE , report to a ORG consisting of CARDINAL Members of ORG on the application of the G CARDINAL ; the Members of ORG are appointed by the GPE in proportion to the parliamentary groupings , the opposition being represented on ORG CARDINAL para . CARDINAL , sub - paragraph CARDINAL , of the G CARDINAL and Rule CARDINAL of the Rules of Procedure of the GPE ) . In addition , the Minister is bound DATE to provide ORG with an account of the measures he has ordered ( Article CARDINAL para . CARDINAL ) . In practice and except in urgent cases , the Minister seeks the prior consent of this Commission . The Government , moreover , intend proposing to ORG to amend the G CARDINAL so as to make such prior consent obligatory .", "ORG decides , ex officio or on application by a person believing himself to be under surveillance , on both the legality of and the necessity for the measures ; if it declares any measures to be illegal or unnecessary , the Minister must terminate them immediately ( LAW para . CARDINAL , sub - paragraph CARDINAL ) . Although not required by ORG judgment of DATE , the ORG has , since that judgment , also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him ( see paragraph CARDINAL above ) .", "The ORG consists of CARDINAL members , namely , a Chairman , who must be qualified to hold judicial office , and CARDINAL assessors . The Commission members are appointed for the current term of the GPE by the above - mentioned ORG of ORG after consultation with the Government ; they are completely independent in the exercise of their functions and can not be subject to instructions .", "ORG draws up its own rules of procedure which must be approved by ORG ; before taking this decision , ORG consults the Government .", "For the ORG , their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter . In fact , ORG have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation .", "According to LAW CARDINAL , sub - paragraph CARDINAL , of the G CARDINAL :", "\" ... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures . \"", "The official statement of reasons accompanying the PERSON contains the following passage in this connection :", "\" The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it . For this reason , notification to this person is out of the question . For the same reason , it must be avoided that a person who intends to commit , or who has committed , the offences enumerated in the LAW can , by using a legal remedy , inform himself whether he is under surveillance . Consequently , a legal remedy to impugn the ordering of restrictive measures had to be denied ...", "The PERSON presented during the CARDINALth legislative session ... provided for the ordering ( of such measures ) by an independent judge . ORG abandoned this solution in LAW , introduced as part of ORG , mainly because the Executive , which is responsible before the GPE , should retain the responsibility for such decisions in order to observe a clear separation of powers . The present PERSON therefore grants the power of decision to a Federal Minister or the supreme authority of the Land . For the ( above-)mentioned reasons ... , the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court ; on the other hand , the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens . Thus , the PERSON , in pursuance of LAW ... , prescribes the regular reporting to a ORG and the supervision of the ordering of the restrictive measures by a ORG appointed by ORG ... \" ( GPE document FAC of DATE , p. CARDINAL) .", "Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way , it is still open to a person believing himself to be under surveillance pursuant to the G CARDINAL to seek a constitutional remedy : according to the information supplied by the ORG , a person who has applied to ORG without success retains the right to apply to ORG . The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint , but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual ’s allegations . The authorities are bound to reply to such a request even if the information asked for is secret . It is then for ORG to decide whether the information and documents so obtained can be used ; it may decide by CARDINAL majority that their use is incompatible with State security and dismiss the application on that ground ( Article CARDINAL para . CARDINAL of LAW ) .", "The Agent of the Government admitted that this remedy might be employed only on rare occasions .", "If the person concerned is notified , after the measures have been discontinued , that he has been subject to surveillance , several legal remedies against the interference with his rights become available to him . According to the information supplied by the ORG , the individual may : in an action for a declaration , have reviewed by an administrative court declaration , the legality of the application to him of the G CARDINAL and the conformity with the law of the surveillance measures ordered ; bring an action for damages in a civil court if he has been prejudiced ; bring an action for the destruction or , if appropriate , restitution of documents ; finally , if none of these remedies is successful , apply to ORG for a ruling as to whether there has been a breach of LAW .", "LAW has also amended LAW by inserting therein CARDINAL ORG which authorise measures of surveillance of telephone and telegraphic communications .", "Under LAW ( a ) , these measures may be taken under certain conditions , in particular , when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article . Under LAW ( b ) , such measures may be ordered only by a court and for a maximum of DATE ; they may be renewed . In urgent cases , the decision may be taken by the public prosecutor ’s department but to remain in effect it must be confirmed by a court within DATE . The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation ( LAW para . CARDINAL of the Code of Criminal Procedure ) .", "These provisions are not , however , in issue in the present case ." ]

[]

[]

[]

[ "13", "6", "8" ]

[]

[]

[ "The complaints raised in this application arise out of the NORP military operations in northern GPE in DATE and DATE and the continuing division of the territory of GPE . At the time of the ORG ’s consideration of the merits of the PERSON v. GPE case in DATE , there was a NORP military presence of CARDINAL personnel throughout the whole of the occupied area of northern GPE which was constantly patrolled and had checkpoints on all main lines of communication ( PERSON v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINALVI ) .", "In DATE there was the proclamation of the “ GPE ” ( the “ LOC ” ) and the subsequent enactment of the “ LAW ” on DATE , which was condemned by the international community . On DATE ORG adopted Resolution CARDINAL ( DATE ) declaring the proclamation of the establishment of the “ GPE ” legally invalid and calling upon all GPE not to recognise any ORG other than GPE . In DATE ORG decided that it continued to regard the government of GPE as the sole legitimate government of GPE and called for respect of the sovereignty , independence , territorial integrity and unity of GPE .", "According to the respondent Government , the “ TRNC ” is a democratic and constitutional ORG which is politically independent of all other sovereign GPE including GPE , and the administration in northern GPE has been set up by the NORP - NORP people in the exercise of its right to self - determination and not by GPE . Notwithstanding this view , it is only the NORP government which is recognised internationally as the government of GPE in the context of diplomatic and treaty relations and the working of international organisations .", "ORG peacekeeping forces ( “ UNFICYP ” ) maintain a buffer - zone . A number of political initiatives have been taken at the level of ORG aimed at settling the GPE problem on the basis of institutional arrangements acceptable to both sides .", "Furthermore , and of relevance to the instant application , in DATE ORG on Missing Persons ( “ CMP ” ) was set up to “ look into cases of persons reported missing in the inter - communal fighting as well as in the events of DATE and afterwards ” and “ to draw up comprehensive lists of missing persons of both communities , specifying as appropriate whether they are still alive or dead , and in the latter case approximate times of death ” . The ORG has not yet completed its investigations ( see further below paragraph CARDINAL ) .", "The events of DATE and DATE and their aftermath gave rise to CARDINAL previous applications by the applicant Government against the respondent ORG under former LAW .", "and CARDINAL . NORP The first ( no . CARDINAL ) and second ( no . CARDINAL ) applications were joined by the ORG and led to the adoption on DATE of a report under former LAW ( “ the DATE report ” ) in which the ORG expressed the opinion that the respondent ORG had violated ORG , CARDINAL , DATE , DATE , CARDINAL and CARDINAL of the Convention and LAW No . CARDINAL .", "The third application ( no . CARDINAL/CARDINAL ) lodged by the applicant Government was the subject of a further report under former DATE adopted by ORG on DATE ( “ the DATE report ” ) . In that report the ORG expressed the opinion that the respondent ORG was in breach of its obligations under LAW No . CARDINAL . On DATE ORG CARDINAL ) CARDINAL in respect of the Commission ’s DATE report . In its resolution ORG limited itself to a decision to make the DATE report public and stated that its consideration of the case was thereby completed .", "The fourth application , GPE v. GPE [ ORG ] ( no . CARDINAL/CARDINAL , ORG CARDINALIV ) concerned CARDINAL broad categories of complaints : alleged violations of the rights of NORP - Cypriot missing persons and their relatives ; alleged violations of the home and property rights of displaced persons ; alleged violations of the rights of enclaved NORP in northern GPE ; alleged violations of the rights of NORP and the Gypsy community in northern GPE . As regarded the missing persons and their relatives , the ORG adopted the findings of fact of the Commission bearing in mind the latter ’s careful analysis of all material evidence including the findings reached by it in its DATE and DATE reports ( ORG . ORG , DATE , annexed to the ORG ’s judgment ) . Like the ORG , the ORG did not consider it appropriate to estimate the number of persons who fell into the category of “ missing persons ” . The Commission ’s findings had been summarised as follows ;", "“ CARDINAL . The ORG found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in NORP or NORP - Cypriot custody . In this connection , the Commission had regard to the following : a statement of Mr PERSON , “ President of the NORP ” , broadcast on DATE , in which he admitted that CARDINAL NORP - Cypriot prisoners were handed over to NORP - NORP fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to GPE ; the broadcast statement of Mr PERSON , a former NORP officer who had served in the NORP army at the time and participated in the DATE military operation in GPE , in which he suggested that the NORP army had engaged in widespread killings of , inter alia , civilians in so - called cleaning - up operations ; ORG submitted to ORG in DATE indicating , inter alia , that NORP and NORP - Cypriot soldiers rounded up NORP - Cypriot civilians in the village of PERSON on DATE and took away males over DATE , most of whom were reportedly killed by NORP - NORP fighters ; the written statements of witnesses tending to corroborate the ORG ’s earlier findings that many persons now missing were taken into custody by NORP soldiers or NORP - Cypriot paramilitaries .", "The Commission concluded that , notwithstanding evidence of the killing of NORP - Cypriot prisoners and civilians , there was no proof that any of the missing persons were killed in circumstances for which the respondent ORG could be held responsible ; nor did the ORG find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent ORG . On the other hand , the ORG found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the ORG relatives . ”", "The Court held that there had been no breach of LAW by reason of an alleged violation of a substantive obligation under that Article in respect of any of the missing persons ( paragraph CARDINAL ) ; that there had been a continuing violation of LAW on account of the failure of the authorities of the respondent ORG to conduct an effective investigation into the whereabouts and fate of NORP - Cypriot missing persons who disappeared in life - threatening circumstances ( paragraph CARDINAL ) ; that no breach of LAW had been established ( paragraph CARDINAL ) ; that there had been a continuing violation of LAW by virtue of the failure of the authorities of the respondent ORG to conduct an effective investigation into the whereabouts and fate of the NORP - Cypriot missing persons in respect of whom there was an arguable claim that they were in NORP custody at the time of their disappearance ( paragraph CARDINAL ) ; that no breach of LAW had been established by virtue of the alleged actual detention of NORP - Cypriot missing persons ( paragraph CARDINAL ) ; and that it was not necessary to examine the applicant ORG ’s complaints under LAW , DATE , DATE , DATE , DATE and DATE of the Convention in respect of the NORP - Cypriot missing persons ( paragraph CARDINAL ) ; that there had been a continuing violation of LAW in respect of the relatives of the NORP - Cypriot missing persons ( paragraph CARDINAL ) ; and that it was not necessary to examine whether ORG CARDINAL and CARDINAL of the Convention had been violated in respect of the relatives of the NORP - Cypriot missing persons , having regard to the ORG ’s conclusion under LAW ( paragraph CARDINAL ) .", "The facts are disputed by the parties .", "The first applicant , an ironmonger , was born in DATE ; he has been considered missing since DATE , having been taken into captivity by ORG during their military action in GPE in DATE . His wife , the second applicant , was born in DATE and resided in GPE .", "The applicants were represented by Mr. PERSON , a lawyer practising in GPE , under an authority signed by the second applicant in her own name and on behalf of the first applicant .", "In DATE the first applicant , responding to the declared general mobilisation , enlisted as a reservist in the CARDINAL ORG which had its headquarters in GPE . He continued his service at the outposts of ORG until CARDINAL DATE . On CARDINAL DATE all the reserve soldiers of ORG , among them the applicant , were brought to the area of PERSON ORG and undertook the manning of NORP outposts along the front line with the NORP military forces which extended between PERSON and GPE .", "On TIME CARDINAL DATE , NORP military forces , supported by tanks and having air cover , launched an attack against the NORP area where the applicant and his battalion were serving , in order to capture the area from them . The NORP area line of defence was broken through and the NORP military forces began advancing towards the area of PERSON and as a result the NORP forces began retreating . During the retreat that followed , the NORP forces dispersed in all directions . After a while the area around was captured by the NORP military forces and the applicant was cut off in it . As a result the trace of the applicant was lost and he is today still considered to be missing .", "Mr. Christakis Ioannou of GPE and now of ORG , who had been a prisoner of ORG and/or NORP authorities and was freed , stated that at ORG prison in GPE , where he had been taken on DATE and held , there were another CARDINAL persons in the same room for DATE . Among them was the applicant . After the said period they were split up and ever since then he has not seen the applicant again .", "The first applicant , a student , was born in DATE ; he has been considered missing since DATE , having been taken into captivity by ORG during their military action in GPE in DATE . His father , the second applicant , was born in DATE and resided in GPE .", "The applicants are represented by Dr. PERSON , a lawyer practising in GPE , under an authority signed by the second applicant in his own name and on behalf of the first applicant .", "In DATE the first applicant was serving as a Second Lieutenant in DATE stationed at Xeros , which took part in various operations against the NORP forces . On DATE the battalion moved up to the ORG area in order to support the NORP forces there . The soldiers were split up into various groups and the applicant was in charge of CARDINAL of these . The applicant ’s group , consisting of CARDINAL men in all , including PERSON and PERSON ( both now missing ) , as well as ORG and PERSON , was ordered to take up positions on the ORG heights . During their stay at ORG NORP forces were continuously attacked by the NORP forces from all sides . The NORP forces remained at their posts defending them until DATE .", "On DATE NORP forces launched a strong attack from all sides against the NORP forces’ positions while other NORP troops managed to encircle ORG . Because of NORP superiority in manpower and armour the NORP forces were ordered to retreat towards the centre of the village where the Company base was . The applicant arrived with his comrades at the centre of the village and was informed by the inhabitants that PERSON was surrounded by NORP troops . Then they hid their weapons in an orchard and subsequently put on civilian clothes which they found in various houses . In TIME of CARDINAL DATE the applicant with some comrades attempted to break through the NORP lines and arrive at ORG controlled areas . This attempt was unsuccessful and with the exception of ORG they all returned to ORG again where they spent TIME . At TIME on DATE NORP troops entered PERSON and started extensive searches from house to house . The applicant and all his comrades were warned by the inhabitants of the village about the searches and they dispersed in order to avoid capture . Since then none of the members of the group has seen the applicant again .", "Nicos Th . Tampas of ORG and leader of the first group which was manning the ORG heights at CARDINAL August CARDINAL in a statement mentioned that at TIME on DATE , while he was walking in ORG looking for his comrades , he entered a warehouse . In it he found the applicant looking after PERSON who was wounded in the head . After talking for a little while with the applicant he went away leaving him and PERSON there . That was the last time that he saw the applicant . He was arrested by the NORP on CARDINAL DATE while he was in PERSON . He was detained in various prisons in GPE and GPE and was released on DATE .", "PERSON of GPE , now of GPE , in his statement declared that while he was a prisoner in the PERSON prison he saw and recognised the applicant whom he had known earlier .", "The first applicant , a student , was born in DATE ; he has been considered missing since DATE , having been taken into captivity by ORG during their military action in GPE in DATE . His father , the second applicant , was born in DATE and resided in GPE .", "The applicants are represented by Dr. PERSON under an authority signed by the second applicant in his own name and on behalf of the first applicant .", "In DATE the first applicant enlisted with ORG in order to do his national service . He was posted with ORG which was stationed at the site of the former ORG ( ORG ) in GPE . On DATE , a section of the battalion consisting of CARDINAL men , including the applicant , was sent to ORG on a specific mission in the ORG and ORG area ( GPE district ) . The mission began at TIME and finished at TIME on DATE . After receiving instructions from the group leader the men spent TIME at ORG and intended to complete the mission TIME .", "At TIME on DATE , ORG launched a fullscale attack from all sides in the ORG and ORG area . The applicant ’s group leader ordered his men to split up into CARDINAL groups and to withdraw towards PERSON ( also GPE district ) where they would all meet . The soldiers split up into CARDINAL groups under the respective command of the platoon leaders . The applicant was in CARDINAL of the groups which intended to withdraw following a route along the coast .", "The men first reached the main NicosiaKyrenia road near the \" Airkotissa \" restaurant . While they were having a short rest , they heard shouting and the group leader sent the applicant and another soldier to investigate . As they had not returned after TIME the remainder of the group left for Panagra ( also in the GPE district ) . On their way there , they were ambushed by NORP soldiers and amidst the fighting and confusion that followed , the remaining group dispersed . QUANTITY soldiers from this group , PERSON ( of GPE , now of GPE , GPE ) , PERSON ( of PERSON , GPE ) and PERSON ( of ORG , now of GPE , GPE ) , managed to reach their destination . Until that time when the group dispersed , none of its members including the applicant , had been killed , injured or captured by the NORP .", "PERSON , of GPE , stated that , when he was a prisoner in GPE from DATE until DATE , he met the applicant . They were together in the same prison in GPE and were subsequently transferred to GPE whereupon the said PERSON was released but not the applicant .", "PERSON , of GPE , who was a prisoner in GPE , GPE , stated that he recognised the first applicant from a photograph that was shown him by the second applicant and he had been with him in the same prison .", "Finally , the second applicant mentioned in a signed statement that he identified his missing son in a photograph published in \" Athinaiki \" , a NORP newspaper , on DATE . In this photograph NORP - Cypriot prisoners were shown on a boat en route to GPE .", "The first applicant , a photographer , was born in DATE ; he has been considered missing since DATE , having been taken into captivity by ORG during their military action in GPE in DATE . His mother , the second applicant , was born in DATE and resided in GPE .", "The applicants are represented by Mr. PERSON under an authority signed by the second applicant in her own name and on behalf of the first applicant .", "On DATE the first applicant enlisted as a reservist in GPE . He was posted in DATE commanded by Mr. PERSON . On DATE he telephoned his mother and told her that he was well and that he was going to be moved to the GPE district . Indeed the whole battalion was ordered to move on DATE to the area of PERSON . ORG took up defensive positions at a height called \" Kalambaki \" , near the NORP village of GPE .", "At TIME on DATE the CARDINALst Company came under attack from the NORP villages of PERSON . The NORP military forces that carried out the attack consisted of a paratroops battalion , QUANTITY tanks , as well as highangle guns . They succeeded in breaking through the NORP lines and infiltrated the right flank of ORG in order to encircle it and enclave its men . The commander ordered the Company to regroup at the NORP village of LOC . There they were ordered by their battalion to regroup again at ORG where they arrived at TIME . After a rollcall they found out that CARDINAL soldiers of ORG were absent , including the applicant . The area in which ORG had been initially stationed was captured by the NORP military forces .", "Mr. PERSON of GPE , who was a prisoner at ORG prison ( GPE ) in DATE , stated that DATE , when the prisoners were in the yard , a NORP was calling their names . Among other names , he heard the name of the applicant . He saw the applicant whom he happened to know previously . As the applicant was going back to his cell Mr. PERSON noticed that he was lame in one leg . On DATE Mr. PERSON was taken to Antiyiama prison ( GPE ) and since then he has not seen the applicant again .", "The first applicant , a student , was born in DATE ; he has been considered missing since DATE , having been taken into captivity by ORG during their military action in GPE in DATE . His mother , the second applicant , was born in DATE and resided in GPE .", "The applicants are represented by Dr. PERSON under an authority signed by the second applicant in her own name and on behalf of the first applicant .", "In DATE the first applicant enlisted in ORG to do his military service . He was subsequently promoted to sergeant .", "On DATE the applicant visited his relations at ORG and told them that he would be demobilised on DATE . He returned to his unit on DATE . On DATE he telephoned his father and told him that he would not be released after all because of the coup that had taken place in the meantime . On DATE the applicant ’s father was informed by ORG , a GPE factory owner , that he had seen his son at the company ’s headquarters at GPE and that he was well . On DATE the father of the applicant was informed by PERSON that the applicant had left PERSON with the men of ORG and had gone to PERSON .", "DATE . On DATE PERSON with CARDINAL soldiers , including the applicant and PERSON , set out from PERSON in CARDINAL vehicles to reconnoitre the ground of the ORG area . Among them were PERSON and PERSON . After PERSON had marked the NORP positions on paper , he went at TIME to the headquarters of CARDINAL of the ORG Units in order to relay by telephone the results of the reconnaissance mission . After TIME QUANTITY buses were seen driving on a street from the direction of ORG village . At about the same time a NORP officer by the name of ORG accompanied by CARDINAL other soldiers went near the men of the reconnaissance patrol . The officer ordered CARDINAL soldiers to come down on the street and search the buses . The buses were full of NORP soldiers who started firing at the NORP - Cypriot men as soon as they became aware of their nationality . The applicant was wounded in the right hand and on the left side of his ribs . Mr. PERSON cleaned his wounds with water , loaded his gun and told him to go back , which he did . After that the applicant was not seen again by his unit .", "According to the statement of PERSON , who had been a prisoner of the NORP at ORG and ORG in DATE , he happened to meet the applicant during his captivity . They both stayed with others in Cell No . CARDINAL until DATE . They were chatting together DATE and became friends . On DATE PERSON was brought back to GPE and was released on DATE . The applicant had given him a letter to the applicant ’s father which he forgot in his pocket in the clothes that he changed at ORG in GPE . All those clothes belonging to the prisoners were burned .", "The second applicant in her statement mentioned that she had recognised her son in a photograph that was published in the NORP newspaper \" Athinaiki \" on DATE . The photograph shows NORP prisoners transported to GPE on a NORP destroyer in DATE .", "The first applicant , a car mechanic , was born in DATE ; he has been considered missing since DATE , having been taken into captivity by ORG during their military action in GPE in DATE . His father , the second applicant , was born in DATE and resided in GPE .", "The applicants are represented by Mr. PERSON under an authority signed by the second applicant in his own name and on behalf of the first applicant .", "In DATE , in response to the general mobilisation , the first applicant enlisted as a reserve sergeant in ORG of ORG stationed at LOC , PERSON , with Captain PERSON in charge .", "On TIME NORP military forces , supported by naval units and having air cover , succeeded in landing with their armour . All the men of ORG , including the applicant , were trying during the whole of DATE to prevent the NORP landing which was taking place in the area of \" Pikro Nero \" , PERSON . At TIME on DATE the NORP military forces which had landed , supported by tanks and having air cover , attacked the NORP forces that were defending the area . Owing to the superiority of the NORP military forces in men as well as in weapons ORG was ordered to retreat towards GPE . The applicant was present during the regrouping of the battalion . TIME after the regrouping the commander of the battalion ( who went missing with CARDINAL other soldiers , including the applicant serving as the commander ’s driver ) led his men out of GPE , reaching a ravine between the villages of ORG Georghios and PERSON where they took up battle positions . A number of commandos of ORG arrived in the same ravine . At TIME on DATE , NORP military forces surrounded the NORP forces in the ravine ( between PERSON and PERSON ) and opened fire against them with all their guns . Then the commander ordered a counterattack intending to break through the NORP military forces’ lines and at the same time to retreat towards GPE . During the counterattack and the retreat the applicant ’s trace was lost .", "On DATE the \" Special News Bulletin \" a DATE issue of the NORP administration published a photograph of NORP - Cypriot prisonersofwar under the caption \" GreekCypriot prisonersofwar having their lunch . DATE they were visited by a representative of ORG . He toured all the prisonersofwar camps in the area of the island under the NORP control , in order to ascertain the needs of the prisoners . \" In that photograph CARDINAL of the prisoners were identified . Among them was the first applicant who was identified by the second applicant .", "A former prisoner , Mr. PERSON , of PERSON , now at ORG , in a signed statement to ORG said that during his transportation from GPE to GPE he saw and talked to the first applicant whom he knew very well since they had been together at secondary school .", "All abovementioned prisoners had been taken to ORG prison and since that time the applicant had been missing .", "The first applicant , a bank employee , was born in DATE and lived at Yialousa ; he has been considered missing since DATE , having been taken into captivity by ORG during their military action in GPE in DATE . His wife , the second applicant , was born in DATE and resided in GPE .", "The applicants are represented by Dr. PERSON under an authority signed by the second applicant in her own name and on behalf of the first applicant .", "On DATE CARDINAL saloon cars as well as a bus and CARDINAL tanks , all full of NORP and NORP soldiers turned up at Yialousa and stopped near the police station , along the main road . The soldiers got out of their vehicles and ordered all those who were there to gather at the nearby coffeehouse of PERSON . CARDINAL persons gathered there . Subsequently , a NORP officer told them that from that time they would be under NORP administration and ordered them to make a census of the NORP inhabitants of the village starting from DATE and that he would be back on DATE to collect the lists . On DATE , the same civilian and military vehicles ( tanks ) returned and parked near the police station . A number of NORP got off , marched to PERSON coffeehouse and asked for the lists . Another group of NORP soldiers were carrying out a housetohouse search . They imposed a curfew and , having taken the lists , they took with them for questioning QUANTITY persons , including the first applicant . They put them on a bus and drove them outside the village in the direction of GPE . The said NORP Cypriots were still missing .", "On DATE , the village of GPE was visited by ORG men to whom the arrest of the CARDINAL NORP Cypriots was reported by their covillagers .", "According to the applicants , Representatives of ORG in GPE visited ORG in the Turkishoccupied sector of GPE and on CARDINAL DATE recorded the names of CARDINAL NORP Cypriots held there , including the QUANTITY persons from PERSON ( citing document EZYCARDINALD ) . PERSON , PERSON , PERSON also saw the said detainees at FAC , during the same period that they were detained there ; they were released later .", "On DATE a group of NORP civilians came to GPE looking for PERSON , PERSON , PERSON . Having found them , they led them to ORG in order to search and seal the building . They all entered the building . After having emptied CARDINAL safes they ordered that the third one should be opened , but they were told that the keys were with the applicant . Subsequently they left , after having shut and sealed the outside door . After DATE the same group looked for the same persons and went again to the bank building . They had the CARDINAL keys for the safe which the applicant always carried with him . Loizos NORP opened the safe . The keys were in a leather case which the applicant had , but his personal keys were not included . ORG took the contents of the safe , sealed the gate and left .", "The first applicant , a moulder , was born in DATE ; he has been considered missing since DATE , having been taken into captivity by ORG during their military action in GPE in DATE . His father , the second applicant , was born in DATE and resided in GPE .", "The applicants are represented by Mr. PERSON under an authority signed by the second applicant in his own name and on behalf of the first applicant .", "In DATE the first applicant was doing his national service in ORG stationed at the site of the former ORG ( ORG ) in GPE . On DATE a section of the battalion consisting of CARDINAL men , including the applicant , was sent to ORG on a specific mission in the ORG and ORG area . The mission began at TIME and was completed at TIME DATE . After receiving instructions from the section leader , PERSON , the men spent TIME at ORG and intended to complete their mission TIME . At TIME on DATE the NORP military forces launched a fullscale attack from all sides in the area of PERSON and ORG . The Commander of the ORG ordered his men to split up into CARDINAL groups , withdraw towards GPE and meet there . The CARDINAL groups set off intending to reach the prearranged point . On their way they were ambushed by the NORP military forces . Because of the NORP military forces’ fire and the confusion that followed all the Engineers dispersed . Up to the time of the dispersion no member of the group had been killed , injured or captured by the NORP military forces .", "Later on Mr. PERSON of Omorphita , now of GPE , who was taken as a prisoner to GPE prison in GPE , saw the applicant there on or about CARDINAL DATE , while he was about to return to GPE . They did not speak to each other but waved . Mr. PERSON recognised the applicant since he had known him since they were children .", "The first applicant , a worker , was born in DATE ; he has been considered missing since DATE , having been taken into captivity by ORG during their military action in GPE in DATE . His wife , the second applicant , was born in DATE and resided in GPE .", "The applicants are represented by Mr. PERSON under an authority signed by the second applicant in her own name and on behalf of the first applicant .", "On DATE , following the general mobilisation , the first applicant enlisted as a reservist in FAC ORG stationed at ORG , PERSON . He was put in ORG ) . On DATE the battalion captured the NORP village of GPE . On DATE the battalion moved to the PERSON area to reinforce the NORP forces there and to man the NORP - Cypriot outposts on the front line .", "On TIME CARDINAL DATE NORP military forces , supported by tanks and having air cover , launched a heavy attack against the Greek- NORP forces in the area , where the applicant was with his battalion , intending to occupy the area . Owing to the superiority of the NORP military forces the NORP - Cypriot defence line was broken , the NORP military forces began to advance towards the PERSON Milia area , and the NORP forces began to retreat . The area was , in a short while , occupied by the NORP military forces and the applicant was enclaved in it . His trace was lost .", "The exprisoner of war , Mr. PERSON of ORG , now at ORG , stated that during his detention at Antiyama , GPE , he saw the applicant who was detained in cellblock No . CARDINAL . On DATE all the prisoners at Antiyama were taken to ORG . There they were all lined up in CARDINAL rows . A NORP military officer walked in front of the line and picked out some of the prisoners , who were taken away from the line . From DATE the applicant was picked out and taken away . Since then Mr. PERSON has not seen the applicant ever again and he has been missing until DATE .", "The respondent Government disputed that the applicants had been taken into captivity by the NORP army during the military action in GPE in DATE . They considered that the inevitable conclusion from the information provided in the application forms was that all the alleged \" missing persons \" , except for PERSON , were military personnel who died in action in DATE .", "The Government noted that , since the introduction of these applications , files relating to the same “ missing persons ” had been submitted by ORG to ORG ( CMP ) in GPE during DATE . In these files there were no assertions that these people had been seen in any of the alleged prisons in GPE . The names of the alleged witnesses listed in application nos . CARDINAL ( ORG ) , CARDINAL ( PERSON ) , PERSON ( PERSON ) , CARDINAL/CARDINAL ( PERSON ) , CARDINAL ( PERSON ) , CARDINAL ( Efstathios Selefcou ) , MONEY ( ORG ) and CARDINAL ( PERSON ) were not cited in support . The alleged sightings were therefore without foundation .", "DATE . As regarded PERSON ( no . CARDINAL/CARDINAL ) , who was a civilian , the Government noted that ORG had visited ORG where he had allegedly been held but his name , contrary to the ORG assertion , did not appear in the list of NORP Cypriots held . In any event , it was a transit centre where people were not held for DATE before being released or moved elsewhere . In the file submitted to the ORG , there is only a reference to witnesses seeing the key case which he was alleged to carry continually on his person . The materials of the ICRC who paid regular visits to prisoners and internees in GPE also showed that none of the alleged missing persons had been brought to GPE or detained . All prisoners that had been taken to GPE were repatriated DATE and DATE and lists of those concerned were handed over to the NORP - Cypriot authorities .", "As concerned the alleged identification of the missing persons in photographs , the Government pointed out that a scientific investigation of certain published photographs and documentary film had been carried out by Professor PERSON of ORG at the request of the Third Member of the ORG . This had shown that it was extremely dubious that anyone could be identified from these documents and that any alleged identification by relatives was unreliable given the quality of the material and their emotional feelings .", "The Government of GPE submitted that the first applicants went missing in areas under the control of the NORP forces .", "These CARDINAL applicants had been brought with their units to the area of PERSON to man NORP outposts along the front line . On DATE NORP armed forces launched the attack which gained them control over the whole of northern and eastern GPE by DATE . The attack on PERSON involved ground forces supported by tanks and air cover . When the NORP forces broke through the NORP line of defence and advanced on PERSON , the NORP forces retreated and dispersed in all directions . The NORP forces rapidly controlled the entire surrounding area . Many NORP soldiers , including the CARDINAL applicants , were cut off and completely surrounded . They could not have escaped as the intervening Government would have known of their fate . If they were either killed or wounded in the area under NORP control , the respondent Government was under an obligation to explain what happened to them .", "This first applicant was in charge of soldiers amongst those defending PERSON . After the NORP forces encircled ORG , the NORP - Cypriot forces were ordered to retreat . The applicant ’s group hid their weapons , put on civilian clothing and unsuccessfully tried to break out of the village . When the NORP forces entered the village TIME , the applicant ’s group dispersed to avoid capture . At TIME on DATE , the applicant was seen by PERSON . Tampas in a warehouse tending a soldier injured in the head ( PERSON , also still missing ) . Tampas was later captured and detained . His was the last reported sighting of the first applicant . It was most likely that the first applicant had remained with the injured man and was taken into detention by the NORP forces who were in control of the entire area . Only one man was known to have escaped from the village and he , unlike the first applicant , had local knowledge of the terrain .", "NORP Under attack from the NORP army , the first applicant ’s unit was ordered to split into CARDINAL group ’s and withdraw westwards . The applicant ’s group reached the GPE - GPE road , QUANTITY metres from the Airkotissa restaurant where they had a short rest . The applicant and another man were sent to investigate shouting coming from the restaurant . After TIME when they did not return , the group left for Panagra . They were ambushed en route – six of them managed to escape and the rest were all missing . At the time that the applicant and the other soldier were sent to the restaurant , there were clearly NORP forces in the area . The most plausible explanation for the QUANTITY men not returning , in the absence of any sound of fighting or shooting , was that they had been detained , either to prevent them giving away the NORP positions , for information or as prisoners of war .", "On DATE the first applicant was discovered to be missing from his unit at roll call after they had broken through an encircling manœuvre by NORP forces . The area in which his unit had been stationed was captured by NORP forces . It was not known whether the applicant was injured and detained or injured and died of injuries or killed at once . Whatever happened to him however occurred in an area controlled by the NORP forces . The respondent Government had been under an obligation to notify ORG as to what had happened to him but had not done so .", "This applicant was seen wounded in his right hand and the left side of the ribs after a clash between NORP - Cypriot forces and CARDINAL buses full of NORP soldiers coming from ORG village . His wounds were cleaned by a witness PERSON and he was told to make his way uphill with CARDINAL other men , CARDINAL of whom was also injured , to the monastery where the NORP forces were . The other QUANTITY men were later found by the same man who went to get help . The NORP forces could not however reach them due to the presence of NORP forces . The other QUANTITY men were discovered dead DATE when the NORP forces withdrew . It was clear that the applicant was found either dead by the NORP forces or else found and detained in an injured condition . The latter was more likely . However the respondent Government had not provided information about either the finding of a dead combatant or the detention of a wounded prisoner of war .", "This applicant was amongst those attempting to prevent the invasion of GPE . Some individuals were identified as killed in the operation ; the applicant was not amongst them . The respondent Government had not provided information that the applicant was found dead or otherwise and the intervening Government had no evidence that this applicant was dead . It had to be assumed that the applicant had been detained alive .", "This was further corroborated by the photograph published in the \" Special News Bulletin \" issued DATE by the NORP administration on DATE , of NORP prisoners - of - war having their lunch . CARDINAL prisoners in the photograph had been identified . The first applicant was identified by his father , the second applicant . This identification took place at the time , not with the benefit of hindsight and no other person has suggested that the photograph was of someone else .", "By DATE NORP forces were in control of the northern and eastern GPE including the NORP peninsula where the first applicant worked as general cashier in ORG in GPE . On DATE NORP and NORP soldiers arrived in the village and a NORP officer ordered a census of ORG DATE . DATE , the lists were handed over and NORP soldiers carried out searches . They left , taking with them on a bus , QUANTITY individuals , including the first applicant . This was reported by fellow villagers .", "On DATE , after the applicant had been detained DATE , NORP civilians came to the village asking for CARDINAL named individuals , CARDINAL of whom worked at ORG . They took the CARDINAL men to the bank and searched it . They emptied CARDINAL safes and were told that the applicant had the keys to the third . After DATE ORG returned , looking for the CARDINAL bank employees . They had the CARDINAL keys for the remaining safe which the first applicant had always carried with him : the keys were in a leather case belonging to the applicant although his own personal keys had been removed . ORG took the contents of the safe . It was highly probable that the NORP Cypriots had obtained the keys from those holding the first applicant , showing that he was alive and in detention for DATE . There was some evidence that he was detained after DATE , at least until DATE , at the ORG garage .", "This first applicant withdrew with his section from ORG towards GPE . They were ambushed by NORP military forces and dispersed on account of the fighting and confusion . There has been no news of the applicant since . The NORP forces were in sufficient control of the area to undertake a successful ambush . The intervening Government had no knowledge of the first applicant , which meant that he had not escaped . Nor was there any evidence that he was killed in the ambush . It was overwhelmingly likely that he had been detained by the NORP armed forces .", "NORP In DATE , in the context of the activity of ORG ( see below paragraphs CARDINAL ) human remains were exhumed from a mass grave near the NORP village of GPE in the NORP area . After anthropological and genetic analyses , the remains of applicant , PERSON ( application no . CARDINAL/CARDINAL , see paragraphs DATE , DATE , DATE above ) were identified , along with the remains of the other CARDINAL missing persons from GPE and CARDINAL other missing NORP Cypriots . The bodies of the CARDINAL missing persons from Yialousa were lined up next to each other in the grave , with CARDINAL other bodies on top at a shallower depth . Several bullets from firearms were found in the grave . The medical certificate issued on DATE in regard to PERSON , indicated a bullet wound to the skull , a bullet wound in the right arm and a wound on the right thigh . His family was notified and a religious funeral took place on DATE .", "The following paragraphs are taken from ORG in the interstate case ( paragraphs CARDINAL - CARDINAL ) :", "The ORG was set up in DATE . According to its terms of reference , it “ shall only look into cases of persons reported missing in the intercommunal fighting as well as in the events of DATE and afterwards . ” Its tasks have been circumscribed as follows : “ to draw up comprehensive lists of missing persons of both communities , specifying as appropriate whether they are alive or dead , and in the latter case approximate time of the deaths . ” It was further specified that “ the committee will not attempt to attribute responsibility for the deaths of any missing persons or make findings as to the cause of such deaths ” and that “ no disinterment will take place under the aegis of this committee . The committee may refer requests for disinterment to the ICRC for processing under its customary procedures . ” “ All parties concerned ” are required to co - operate with the committee to ensure access throughout the island for its investigative work . Nothing is provided as regards investigations in mainland GPE or concerning the NORP armed forces in GPE .", "The ORG consists of CARDINAL members , CARDINAL “ humanitarian person ” being appointed by the NORP - Cypriot side and one by the NORP - NORP side and the third member being an “ official selected by the ICRC ... with the agreement of both sides and appointed by the Secretary - General of the ORG ” .", "The ORG has no permanent chairman , the presidency rotating on a DATE basis between all CARDINAL members . Decisions are to be taken by consensus to the extent possible . According to the procedural rules agreed upon in DATE , the procedure is to be conducted as follows :", "\" CARDINAL . Individual or collective cases will be presented to the ORG with all possible information . The ORG will refer each case to the side on whose territory the missing person disappeared ; this side will undertake a complete research and present to the ORG a written report . It is the duty of the ORG members appointed by each side , or their assistants , to follow the enquiries undertaken on the territory of their side ; the third member and/or his assistants will be fully admitted to participate in the enquiries .", "The ORG will make case decisions on the basis of the elements furnished by both sides and by ORG of the ICRC : presumed alive , dead , disappeared without visible or other traceable signs .", "If the ORG is unable to reach a conclusion on the basis of the information presented , a supplementary investigation will be undertaken at the request of a ORG member . The third ORG member and/or his assistants will participate in each supplementary investigation , or , as the case may be , investigators recruited by the ORG with the agreement of both sides . \"", "The DATE rules state as “ guiding principles ” that “ investigations will be conducted in the sole interest of the families concerned and must therefore convince them . Every possible means will be used to trace the fate of the missing persons . ” The families of missing persons may address communications to the committee which will be passed on to its appropriate member . That member will eventually provide the family with \" final information as to the fate of a particular missing person \" , but no interim information must be given by any member of the committee to the family of a missing person during the discussion of a particular case .", "The committee ’s entire proceedings and findings are strictly confidential , but it can issue public statements or reports without prejudice to this rule . According to the DATE procedural rules , a press release will be issued at the close of a meeting or series of meetings and occasional progress reports will also be published . Individual members may make additional statements to the press or the media , provided they comply with the rule of confidentiality , avoid criticism or contradiction to the joint statement and any kind of propaganda .", "Due to the strict confidentiality of the ORG ’s procedure , no detailed information about the progress and results of its work is available . However , from the relevant sections of the regular progress reports on ORG in GPE submitted by the ORG Secretary - General to ORG it appears that the committee ’s work started in DATE with a limited , equal number of cases on both sides ( Doc . S/CARDINAL of CARDINAL , para . CARDINAL ) ; that by DATE an advanced stage had been reached in the investigation of the initial CARDINAL individual cases , supplementary investigations being started in CARDINAL cases in which reports had been submitted ( Doc . S/CARDINAL/Add . CARDINAL , of DATE , para . CARDINAL ) ; and that , while no difficulties were encountered as regards the organisation of interviews or visits in the field , real difficulties then arose by the lapse of time and , even more importantly , lack of cooperation by the witnesses .", "This prompted the committee to issue a lengthy press release on CARDINAL DATE ( ORG . S/CARDINAL/Annex ) . There the committee stated that it considered the co - operation of the witnesses as absolutely fundamental , but that the witnesses were often reluctant , unwilling or unable to give full information as to their knowledge about the disappearance of a missing person . However , the committee could not compel a witness to talk . The explanation of the witnesses’ reluctance to testify was that they were afraid of incriminating themselves or others in disappearances , and this despite the witnesses being told by the committee that the information given would be kept strictly confidential and being reassured that they would “ not be subject to any form of police or judicial prosecution ” . The committee appealed to the parties concerned to encourage the witnesses to give the very fullest information in their knowledge . It further stated :", "\" In order to further allay the fears of the witnesses , the ORG , so as to give the strongest guarantees to the witnesses , is examining measures that could be taken to ensure that they would be immune from possible judicial and/or police proceedings solely in connection with the issue of missing persons and for any statement , written or oral , made for ORG in the pursuit of activities within its mandate . \"", "In the same press release , the committee pointed out that it considered as legitimate the desire of the families to obtain identifiable remains of missing persons . However , despite systematic enquiries on burial places of missing persons , on both sides , it had not been successful in this respect . It recalled that according to its terms of reference it could not itself order disinterments . Moreover , while there was access to all evidence available , the committee had not reached the stage of finding a common denominator for the appreciation of the value of this evidence . Finally , the committee stated that it was considering the possibility of requesting that the CARDINAL sides furnish it with basic information concerning the files of all missing persons , so as to allow it to have a global view of the whole problem .", "In DATE , the ORG Secretary - General wrote a letter to the leaders of both sides observing that so far the committee had been given details on PERCENT of the cases and urging them to submit all cases . He further emphasised the importance of reaching consensus on the criteria that both sides would be ready to apply in their respective investigations . Moreover , the committee should consider modalities for sharing with affected families any meaningful information available ( ORG . S/CARDINAL , of CARDINAL DATE , para . CARDINAL ) . On DATE , in a further letter to the leaders of both communities the ORG Secretary - General noted that no improvement had been made and that the international community would not understand that the committee , DATE after it had become operational , remained unable to function effectively . Only CARDINAL cases had been submitted by the NORP - Cypriot side and CARDINAL by the NORP - NORP side . He again urged both sides to submit all cases without further delay and the committee to reach a consensus on the criteria for concluding its investigations ( Doc . S/CARDINAL , of DATE , paras . PERCENT CARDINAL ) .", "On DATE the ORG Secretary - General , on the basis of a report of the ORG ’s third member and proposals by both sides , put forward compromise proposals on criteria for concluding the investigations ( Doc . PERSON , of DATE , para . CARDINAL ) , which were subsequently accepted by both sides ( Doc . S/CARDINAL/CARDINAL , of DATE , para . CARDINAL ) . By DATE , the NORP side submitted all their case files ( CARDINAL ) . However , the committee ’s third member withdrew in DATE and the ORG Secretary - General made it a condition for appointing a new one that certain outstanding questions , including classification of cases , sequence of investigations , priorities and expeditious collection of information on cases without known witnesses , be settled beforehand ( Doc . S/CARDINAL/CARDINAL , of DATE , para . CARDINAL ) . After being repeatedly urged to resolve these issues ( Doc . S/CARDINAL/CARDINAL , of DATE , paras . CARDINAL -CARDINAL ) , both parties eventually came to an agreement on DATE on the exchange of information on the location of graves of missing persons and return of their remains . They also requested the appointment of a new third member of the CMP ( ORG . ORG , of DATE , paras . CARDINAL and DATE ) . However , by DATE , no progress had been made towards the implementation of this agreement . The ORG Secretary - General noted in this context that the NORP - Cypriot side had claimed that victims of the coup ORG against Archbishop PERSON in DATE were among the persons listed as missing and that this position deviated from the agreement ( Doc . S/CARDINAL/CARDINAL , of DATE , paras . CARDINAL ) .", "A new third member of the ORG had , by the time of the ORG ’s report , been appointed ( ibid . para . CARDINAL ) . The ORG has not completed its investigations and accordingly the families of the missing persons have not been informed of the latter ’s fate .", "In DATE the ORG began a substantial exhumation project on identified burial sites with a view to identifying the remains of bodies and ensuring their return to their families . A special unit to provide information to families had also been set up . CARDINAL sets of bones had been submitted for analysis and identifications of missing persons , including PERSON , had been made and were likely to continue ." ]

[ "2", "3", "5" ]

[ "2-1", "5-1" ]

[]

[]

[]

[]

[ "Mr NORP Di PERSON and PERSON PERSON are surveyors living in PERSON .", "On DATE they instituted proceedings against ORG in ORG ( “ the ORG ” ) , seeking judicial review of a decision of the Ministry assigning them , at the time when they were recruited to permanent posts , to a category of staff and salary scale lower than those to which they considered themselves to be entitled on the basis of the duties they had performed as temporary staff .", "On DATE they applied to the President of the ORG for a date to be fixed for the hearing . On DATE they filed an application for the case to be set down for an urgent hearing .", "On a date which is not specified in the file the ORG set down the case for hearing on DATE .", "According to the information supplied by the applicants , the ORG required ORG , in an interlocutory judgment of DATE , to produce certain documents which have still not been filed . On DATE the applicants asked for a date to be fixed for the hearing ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "The applicant was employed with a private commercial company . The company was associated with PERSON and his son , PERSON , who both held shares in it and were also involved in its management . The company took credits from a bank .", "The applicant provided security for the repayment of the bank credits by pledging in favour of the bank his savings which he had in an account at the bank . In order to secure his potential claims against the company and to provide for his compensation , the applicant and the company concluded CARDINAL contracts in DATE , respectively .", "Mr A. then sold his share in the company to a third individual . The company subsequently failed to meet its payment obligations towards the bank and became insolvent . The bank consequently seized the corresponding amounts from the applicant 's account . The applicant has received no indemnification from the company .", "On DATE the applicant filed a criminal complaint with the public prosecution service accusing GPE and B. of having committed criminal offences of fraud , fraudulent insolvency and usury in connection with the above transaction . At the same time , he requested that his claim for damages be secured under LAW .", "In a letter of CARDINAL DATE ORG informed the applicant inter alia that the possibility of securing an aggrieved party 's claim for damages only existed at the stage of proceedings after a criminal charge had been raised . As by that time no charges had been raised in the present case , the applicant 's claim could not be secured .", "The applicant 's criminal complaint was examined by ORG which dismissed it , on DATE , finding that there was no case to answer . The decision indicated in its reasoning that the applicant had been interviewed and that , in the course of the interview , he had specified the amount of the damage which he had sustained when standing as surety for the above bank credits . The applicant challenged this decision by a complaint ( sťažnosť ) which was determined by ORG on DATE . The prosecutor 's decision contained information about the specific amount of the damage which the applicant had allegedly sustained . The prosecutor quashed the challenged decision as being premature .", "The applicant 's criminal complaint was dismissed again on DATE and , on his further complaints , on DATE and DATE . All these decisions refer inter alia to the applicant 's criminal complaint of CARDINAL DATE .", "NORP The applicant challenged the decision of DATE by numerous further complaints addressed to all levels of the public prosecution service . He alleged in particular that if no charges were brought promptly , there was the risk that the prosecution would become statutebarred .", "On DATE ORG transmitted the complaints that had been submitted to him to ORG who , in turn , transmitted the respective complaints to ORG . The latter was instructed to ensure the commencement of criminal proceedings in the matter because the previous examination of the factual and legal side of the case had not been adequate .", "On DATE ORG issued an instruction to the investigator under LAW ( a ) of LAW directing him to commence a criminal prosecution on the basis of a suspicion that a criminal offence of infringing creditors ' rights within the meaning of LAW ( a ) and LAW of LAW had been committed . The instruction referred to the applicant 's criminal complaints and also indicated that criminal proceedings should be commenced in connection with certain other creditors .", "On DATE ORG formally commenced a criminal prosecution under LAW of LAW against CARDINAL or more unknown persons alleging that they had infringed the applicant 's rights as a creditor .", "On DATE the investigator interviewed the applicant . In response to his enquiry the applicant stated expressly that he wished his claim for damages to be joined to the criminal proceedings pursuant to LAW .", "DATE the investigator interviewed CARDINAL witnesses . DATE and DATE the investigator summoned PERSON and PERSON several times for an interview . As they ignored the summons , the investigator had PERSON brought to the interview by the police ( predvedenie ) and asked that a nationwide search ( pátranie ) be carried out for A. who eventually came of his own accord .", "On DATE and B. were charged with the offences of infringing the right of the applicant as a creditor pursuant to the above decision of DATE . They both appealed against this decision and their appeals were dismissed by ORG on DATE .", "In DATE the investigator invited ORG and all banks in GPE to disclose information concerning the real property and bank accounts of GPE and ORG search in the registry of motor vehicles was subsequently carried out .", "During the proceedings , the applicant submitted , on numerous occasions , new evidence and made other written submissions and suggestions as regards the course of the investigation . He further complained several times about the way in which the proceedings were being conducted and filed unsuccessful complaints and criminal complaints against the investigators , prosecutor and other persons involved in the case .", "NORP The criminal proceedings are still pending .", "In DATE the applicant who was represented by a lawyer lodged a complaint under LAW with ORG ( Ústavný súd ) . He asserted a violation of his right to a hearing “ without unjustified delay ” under LAW and his right to a hearing “ within a reasonable time ” under LAW in the proceedings before ORG in respect of his criminal complaint of CARDINAL DATE . He claimed CARDINAL NORP korunas ( SKK ) by way of compensation in respect of nonpecuniary damage .", "On DATE ORG declared the complaint inadmissible . It observed that the primary aim of criminal proceedings is to detect criminal offences and to punish the perpetrators and not to determine the aggrieved parties ' claims for damages . Aggrieved parties ' claims for damages were of a private law nature and were predominantly claims to be asserted in civil courts . The possibility of claiming damages in criminal proceedings was a privilege which did not make the determination of such claims the central issue of the proceedings and was limited by the above main aim of the proceedings . ORG concluded that aggrieved parties in criminal proceedings did not enjoy the right to have their claims for damages determined without unjustified delay ( LAW ) . In making this conclusion , ORG relied on its previous decisions in cases file nos . LAW . ÚS CARDINAL/CARDINAL , PERSON . ÚS PERSON and PERSON . ÚS CARDINAL/CARDINAL . It later upheld this line of reasoning in the decision in the case file no . PERSON . ÚS CARDINAL/CARDINAL .", "NORP In DATE the applicant turned to ORG again . He argued that ORG decision of DATE was erroneous and reiterated his complaint concerning the length of the proceedings in respect of his criminal complaint of CARDINAL DATE .", "On DATE ORG declared the complaint inadmissible . It held that its decision of DATE was final and subject to no appeal . The matter at hand thus had to be considered res iudicata and could not be reviewed again .", "Article CARDINAL § CARDINAL provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .", "Standing as an aggrieved party ( poškodený ) in criminal proceedings is governed by the seventh Section ( Oddiel ) of the second LAW ) .", "Article QUANTITY provides , inter alia , that a person who has suffered pecuniary or nonpecuniary damage as a result of a criminal offence , may claim compensation from the accused and request the court , when convicting the accused , to order him or her to pay compensation for the damage . The aggrieved party further has the right to adduce evidence and to comment on it , to inspect the court file , to take part in the hearing and to make submissions .", "Article CARDINAL et seq . provide for the possibility of securing the claim of an aggrieved party for damages by impounding the charged person 's property in situations when there is a well - founded suspicion that the payment of the claim would be hindered or frustrated .", "Standing as an aggrieved party is governed by the eighth Section of the second Chapter .", "Persons who have suffered health , property , moral , or other damage ; or whose legally protected rights or freedoms have been violated or jeopardized as a result of a criminal offence are considered aggrieved parties . They have inter alia the right to claim compensation in respect of their damage ; to adduce evidence and to comment on it ; to inspect the court file ; to take part in the hearing ; to make submissions etc . ( LAW ) .", "An aggrieved party , who has a lawful claim against the accused person ( obvinený ) for compensation in respect of a damage resulting from a criminal offence , has the right to propose that a guilty verdict should include an order for compensation . The proposal must be made at latest by the closure of the investigation and must indicate the ground and scope of the claim ( Article CARDINAL § CARDINAL ) .", "Article CARDINAL et seq . provide for the possibility of securing the claim of an aggrieved party for damages in situations when there is a well - founded suspicion that the payment of the claim would be hindered or frustrated .", "Under LAW if proceedings commence in relation to a specific matter , the same matter can not be made the subject of other judicial proceedings . If a claim for damages is duly lodged in criminal proceedings , it is considered a lis pendens from the point of view of LAW ( ORG súdnych rozhodnutí a stanovísk ) , No . CARDINAL ) .", "Under LAW if creditors make and duly pursue a claim in respect of their rights before a court or another authority , the statute of limitations is stayed from DATE the claim is made . This includes the making of a civil - party claim for damages in criminal proceedings including in their pretrial stage ( see , for example , ORG and Standpoints Nos . ORG , ORG and DATE and ORG and Standpoints ( PERSON rozhodnutí a stanovísk ) No . CARDINAL ) ." ]

[ "13", "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in the town of GPE ( GPE ) .", "The respondent Government are represented by PERSON , ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant stood trial for murder . He was a minor at the time of the events which gave rise to the accusation . During the trial the applicant was represented by a lawyer of his own choosing and his father as his statutory representative . On DATE the Yashkinskiy ORG of the Kemerovo Region convicted the applicant of murder and sentenced him to DATE and CARDINAL months’ imprisonment .", "On DATE the applicant ’s lawyer as well as his father lodged appeals before ORG . On DATE the applicant lodged his own brief of appeal against his conviction . He made a special request to ensure his participation in the appeal hearing .", "On DATE ORG granted the applicant ’s request for his participation in the appeal hearing which was set for DATE .", "On DATE and CARDINAL DATE the applicant lodged written requests with ORG to hold the appeal hearing in his absence .", "On DATE ORG held the appeal hearing . The applicant ’s lawyer did not appear . The public prosecutor was present and made his oral submissions . ORG examined the appeals lodged by the applicant and his lawyer , held that the applicant should serve a prison sentence in a colony with less stringent conditions of detention than that indicated in the judgment , and upheld the remainder of the judgment . The father ’s appeal was declared inadmissible because his authority to represent the applicant had expired due to the fact that the latter had reached the age of majority during the trial . It appears that the father was present at the hearing but was not allowed to make submissions on the applicant ’s behalf .", "On DATE ORG of GPE granted an application for the applicant ’s release on probation . On DATE the applicant was released .", "On DATE , on request by the acting Prosecutor of GPE , the Presidium of ORG , by way of supervisory review proceedings , quashed the appeal judgment of DATE and remitted the case for a fresh examination before the appellate court . The ORG found that , in breach of procedural law , the applicant ’s right to legal assistance had been infringed , and that the appeal lodged by his statutory representative ( father ) had not been examined .", "On DATE ORG held a fresh appeal hearing . The statutory representative and a legal - aid defense lawyer participated in the hearing . The applicant did not appear . It follows from TIME of the hearing that he was summonsed but asked the appellate court to examine the case in his absence . The court studied the case file and heard oral submissions made by the defence lawyer , statutory representative and the public prosecutor . The defence , in particular , pointed to numerous procedural violations , and asked to quash the judgment of CARDINAL DATE and to remit the applicant ’s case to the trial court for a fresh examination . By judgment of the same date , the appellate court upheld the applicant ’s conviction and the sentence . According to the TIME of the hearing , the defence raised no objections as regards the conduct of the proceedings ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in the village of GPE , the GPE region , GPE .", "In DATE the applicant instituted proceedings in the GPE ORG against ORG “ PERSON ” ( the “ NORP ” ) , in which the ORG held PERCENT of the share capital . She sought the recovery of salary arrears . On DATE the court awarded her ORG CARDINAL in salary arrears and other payments .", "On DATE the ORG instituted enforcement proceedings in respect of that judgment .", "In DATE the applicant filed an application with the labour disputes commission of the ORG , seeking recovery of salary arrears . On CARDINAL DATE the labour disputes commission allowed the applicant ’s claims and ordered the ORG to pay the applicant ORG in arrears . On DATE the commission issued a certificate in respect of its decision of CARDINAL DATE , which had the same status as a writ of execution issued by a court .", "On DATE the ORG instituted enforcement proceedings in respect of the commission ’s decision .", "NORP In DATE the applicant instituted proceedings in ORG against the ORG , seeking compensation for non - pecuniary damage . On DATE the court found against the applicant . On DATE the same court rejected the applicant ’s request for leave to appeal for failure to comply with procedural formalities . The applicant did not appeal against this decision .", "On DATE ORG informed the applicant that the decisions of DATE and CARDINAL DATE could not be executed due to the large number of enforcement proceedings against the ORG and the fact that the procedure for the forced sale of assets belonging to the debtor company had been suspended because of the moratorium on the forced sale of property belonging to ORG enterprises introduced by the Order of the President of GPE of DATE .", "By CARDINAL decisions of DATE , ORG discontinued the enforcement proceedings on the ground that the decisions had been enforced in full .", "NORP The applicant did not challenge these decisions of ORG before the domestic courts .", "The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in PERSON . He was represented before the Court by PERSON , a lawyer practising in GPE .", "The applicant claims that he was accused of involvement in terrorism while in GPE . He escaped prison in DATE and subsequently fled the country . Thereafter he lived in GPE , GPE and GPE respectively . He requested refugee status from the ORG High Commissioner for Refugees ( “ the ORG ” ) in GPE and his request was rejected . He fled to GPE on DATE .", "On DATE the applicant was arrested in Hatay . He claimed before the ORG that his asylum requests were not taken into account at the time of his arrest . The Government asserted that the applicant had not initially claimed asylum . He had stated before the national authorities that he had left GPE for economic reasons and had paid money to human smugglers to be brought to GPE where he aimed to find work . In support of their observations the Government submitted the applicant 's statement taken on DATE he was arrested . The document is signed , inter alia , by the applicant as well as a translator .", "On DATE the applicant contacted a lawyer who works with the ORG in GPE and stated that he was denied access to the asylum procedure . On DATE he contacted the ORG office in GPE and requested to be recognised as a refugee .", "On DATE the applicant requested an interim measure from the ORG under Rule CARDINAL § CARDINAL of the Rules of Court . He alleged that his deportation to GPE would expose him to the risk of unfair trial and subsequent imprisonment , ill - treatment or even death . In this connection the applicant invoked Articles CARDINAL , CARDINAL , DATE and CARDINAL of the Convention . On DATE the ORG decided to indicate the interim measure until further notice . The Government were asked a number of questions and both parties were requested to submit relevant documents .", "On DATE the ORG interviewed the applicant . The refugee status assessment proceedings are pending before the ORG .", "On DATE and DATE the applicant requested asylum from ORG and the Governorship of GPE , respectively .", "On DATE the authorities notified the applicant through the assistance of a translator that he was granted a temporary residence permit in LOC . It appears from the case file that the applicant 's wife and children who were in GPE joined him in LOC and were issued with asylum seeker certificates by the ORG on DATE . The applicant 's children were registered in local schools ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was a shareholder in a private bank .", "In DATE he had a disagreement with the bank as to the redemption of CARDINAL shares and consequently he brought an action against the bank , seeking compensation of CARDINAL Moldovan Lei ( MDL ) .", "On DATE ORG found in favour of the applicant and awarded him MDL CARDINAL . Both the applicant and the bank appealed against that judgment .", "On DATE ORG dismissed the applicant ’s appeal but upheld the bank ’s appeal . By its judgment it rejected the applicant ’s claim . The applicant lodged an appeal in cassation .", "On DATE ORG upheld the appeal in cassation and by its judgment ordered the bank to pay the applicant MDL CARDINAL ( the equivalent of MONEY ( ORG ) at the time ) . The judgment became final and enforceable on DATE .", "NORP In DATE ORG filed a request for annulment of the judgment of ORG of DATE , and asked ORG to uphold the judgment of ORG of DATE .", "On DATE ORG upheld ORG request for annulment and quashed the final judgment of ORG of DATE . The judgment of ORG of DATE became final .", "On DATE , following a request by ORG , ORG applied to ORG for the revision of its judgment of DATE . The application was based on LAW ( see paragraph CARDINAL below ) .", "On DATE , by a final decision , ORG admitted ORG revision application and quashed its judgment of DATE . It found the Prosecutor General ’s request justified since inter alia the quashing of the final judgment of ORG of DATE constituted a breach of the principle of legal certainty and consequently was in breach of LAW . The judgment of DATE became final again .", "The old Code of Civil Procedure of DATE , repealed on DATE", "Upon request from a party to the proceedings , ORG and his deputies can file a request for annulment with ORG against any final decision of the domestic courts .", "The request for annulment can be filed in the following cases :", "- when the final judgment lacks a legal basis or has been delivered in breach of the law or the law was wrongly applied ;", "- when the issuing court has exceeded its jurisdiction ;", "- when offences has been committed by judges in connection with the final decision .", "There is no time limit for filing a request for annulment .", "The request for annulment has to be made in written form and has to contain the reasons provided for in LAW . The request for annulment has to be filed in as many copies as there are participants to the proceedings . ORG or his deputies can withdraw the request for annulment at any time before the closure of pleadings in the case , by prior notice , stating the reasons for the withdrawal . In such a case , the parties to the proceedings may request the continuation of the proceedings .", "The proceedings related to the request for annulment shall be governed by the rules set forth in LAW of LAW . The presence of ORG at the proceedings is compulsory .", "The new Code of Civil Procedure , entered into force on DATE", "Grounds for revision .", "The revision may be requested :", "j ) When ORG has started a procedure of friendly settlement in a case where ORG is a ORG , and the Government consider that by a final decision of a court a fundamental right guaranteed by LAW or by LAW has been breached ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant , PERSON , is an NORP national who was born in DATE . She was represented before the ORG by Mr Atli Gíslason and PERSON , lawyers practising in PERSON . ORG ( “ the Government ” ) were represented by PERSON as their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant attended a birthday party with some friends and had dinner with her father in PERSON . After dinner she and her father went to a bar in PERSON , where they stayed for some time . Her father bought her a beer , which she left on a table and lost sight of when she was dancing . The applicant submitted that the next thing she could remember was having woken up covered in blood , lying next to an unknown man ( “ J. ” ) in an unknown house . She did not know how she had ended up injured in his bed . She had panicked and had left as soon as she could .", "On TIME , CARDINAL DATE , the applicant went to ORG at ORG , which took blood and urine samples and carried out an examination . The examining medical doctor , PERSON , completed a “ Forensic examination report ” ( file no . CARDINAL ) , dated DATE . This was a detailed form specifically tailored to instances of “ Sexual incident / Sexual assault ” , with boxes to be completed under a number of headings and sub - headings .", "Under the heading “ Description of the Offence ” , it appeared that the “ Scene ” was “ unclear ” , that the “ Attacker ” was “ unknown ” , that the occurrence of “ Threats ” was “ Not known ” , that it was “ Not known ” whether she had been “ Forced to take drugs / alcohol ” and whether “ Violence ” had occurred .", "Thereafter , the following information was rendered under the heading “ ORG ’s account ” :", "“ [ ... ] She remembers little of what happened after going inside [ the bar ] , but remembers being out on the dance floor . She does not remember having met anyone she knows , or anyone else apart from her father . She had drunk CARDINAL bottle of white wine and CARDINAL beers since TIME . Then she remembers nothing until TIME when she woke up in a strange house on [ R ] . She was wearing only a short skirt and a bra . CARDINAL men lived in the house who she said had been very decent towards her . They had wrapped her in a duvet and blanket . They said they had found her lying in her own blood down in town . They had taken her home and attended to her , and were going to contact a doctor . [ ... ] ”", "The report further gave details on “ Evidence taken on examination ” , “ Pelvic examination , Gynaecological examination ” , “ Injuries and other evidence ” ( which described injuries to her vulva , knee and legs , supported by drawings and photographs ) , “ Conditions of clothing ” and Physical examination ” .", "Then , under the title “ Conditions of examination ” , PERSON observed :", "“ A young woman whose face is swollen from crying . She is evidently undergoing great suffering . She remembers very little of TIME , but has given a clear and coherent description of what she does remember . She makes a good impression and is cooperative . She is very credible . She complains of tenderness and pain in her lower body and has difficulty urinating . ”", "Under the heading “ ORG ’s account of events ” was listed a series of questions regarding notably the “ Attacker ’s sexual conduct ” , in respect of which “ Do n’t know ” was marked for each question , “ Yes ” or “ No ” being the other options .", "Under the heading “ Physician ’s conclusion ” , the form set out detailed requirements as to the contents of the assessment .", "The examining doctor concluded :", "“ A girl of DATE who has come to FAC and thinks she was raped TIME . She has blood stains on the inside of her thighs and her lower body is tender . She woke up TIME in a strange house wearing only a bra and a short skirt . She had drunk alcohol of her own free will during TIME . She remembers virtually nothing of what happened during TIME .", "Examination has shown that she has injuries to her genitals . She has haematoma [ QUANTITY ] on the r. labia majora and a long tear [ QUANTITY ] in the labial fold with a flap that has been torn up from the skin . Evidently caused by very rough sexual intercourse . Photographs and drawings are enclosed . Samples were taken from the vulva and vagina for semen tests and a Chlamydia sample was taken , but due to tenderness it was not possible to take more samples .", "She also has grazes on her knees and legs , and scratches ; it is not clear how these were caused . [ ... ] ”", "Under the heading “ Release of physician ’s report to the police ” , it is stated that ORG had received the evidence and the physician ’s report on DATE .", "On DATE the applicant was again examined by PERSON , who completed a report on DATE , entitled “ Follow - up Appointment I ” . It listed a number of questions concerning the “ Emotional state and shock reactions that have become more pronounced or appeared for the first time since the attack ” . It noted , inter alia , a fear of meeting the attacker by chance , concentration problems due to obsession about the incident and sleeplessness .", "The report further noted that she had admitted to having given false information when she first came to the FAC ; she knew the identity of the man in question and said he had been lying beside her , naked , when she woke up on DATE .", "Apparently , this follow - up report of DATE was received together with the initial report of CARDINAL DATE by ORG S.K.R. on DATE .", "In the meantime , on DATE at TIME the applicant lodged a complaint against J. with the police . Interviewed by Detective Inspector PERSON , she stated that at TIME she had gone to the bar and continued :", "“ Dad bought himself a beer and I had a few sips of it . Then he bought me a beer in a glass . I had n’t felt much alcoholic effect before I drank from the beer that PERSON bought me . After that I was dancing on the dance - floor of [ the bar ] . I remember putting my beer down a few times when I went to urinate ; on CARDINAL occasion I put it down by a small bar counter next to the dance - floor . I lost sight of my beer glass a few times . The last thing I remember from TIME is that I was dancing on the dance - floor . I remember PERSON was watching me , and I remember that suddenly it was as if lots of people were on the dance floor , but there had not been many people there while I was dancing at the beginning of the evening . The next thing I remember was that I woke up in a house I did n’t recognise , in a bed I did n’t recognise and beside a man I did n’t recognise . I was wearing only a skirt and a bra . I felt immediately something was wrong . I wrapped the duvet [ ... ] around me and went out of the room ; I saw that the man was naked . I looked at a clock on the bedside table and saw that it was about CARDINAL o’clock . ”", "The applicant further recounted that on her way to the bathroom , she had noticed “ a telephone table with a phone on it ” . When she had found the bathroom she had gone in and discovered that she had blood on her thighs . She had been unable to urinate . She had examined her lower body and seen the injuries to her genitals . Her knees had also been bruised and she had had scratches on and below her knees .", "The applicant stated : “ Then I went into the hallway again and phoned my mother . ” The applicant had started crying and J. had come out of the bedroom . “ He asked me who I was phoning , and I told him and I asked him where I was ; then he asked me if I was leaving and I told him I had to go home to my daughter . ” The applicant had asked her mother to pick her up and she had then gone looking for her clothes . She had asked J. : “ Was n’t I wearing any clothes when I came here ? ” to which J. had replied : “ No . ” The applicant had said : “ Surely I did n’t come here like this ? ” and PERSON had replied “ Yes you did , ” and grinned . The applicant had put on a t - shirt belonging to J. , her jacket and her boots and gone out . She stated : “ I could n’t find my mobile phone , and he offered to phone it . I gave him my phone number , and he phoned [ ... ] ” . At the same time J. had been putting on his outdoor clothes , getting ready to leave along with an older man . They had seemed to be leaving together and J. had told the applicant where he worked .", "The applicant ’s stepfather had picked her up . When she had got home her mother had noticed that something had happened and asked the applicant , who had shown her the injuries . Her mother had telephoned the emergency service and then taken the applicant to ORG .", "The applicant stated that she had not told the doctor during her consultation that she had woken up next to this man . She had been in denial that he could have done this to her . She further stated that she had been in deep shock and afraid of pressing charges . She had been very cold , shivered , cried a lot and had much pain from her physical injuries . The applicant had then pointed out :", "“ [ The applicant ] says she wishes to state that she is absolutely certain that she did not go home with this man of her own free will . She wishes to state that she has only had close relationships with CARDINAL men in her life , CARDINAL of them being the father of her child . She says she has never experienced a ‘ blackout’ when drinking alcohol . She says she has never abused alcohol . She says she considers it likely that something was put in the beer she drank last at [ the bar ] . She says she can tolerate drinking a considerable amount of alcohol before feeling the effects . Also , she does not think it normal that she would not have woken up when suffering her injuries . ”", "The applicant continued by affirming that when she had woken up she had felt as if a heavy weight was pressing down on her and that she was paralysed . She had also had a headache . She intended to press charges and to demand that the perpetrator be punished and she reserved the right to demand compensation at a later stage . Her interview ended at TIME", "The applicant was assisted by an officially appointed lawyer throughout the criminal investigation .", "On DATE at TIME the police questioned PERSON was informed of the charges against him and invited to comment on them . He stated :", "“ I went out alone to enjoy myself DATE TIME . I had drunk CARDINAL cans of beer and felt the strong affect of the alcohol . CARDINAL I went to the bar [ ... ] . There I got talking with a man , an GPE , who was sitting at a table . I sat with him and we started talking about this and that . After I had been sitting there with him for some time a girl came to the table and it turned out that she was this man ’s daughter . I started looking into her eyes and I thought I felt some sort of current between us . The next thing I knew we were inside the women ’s toilet in [ the bar ] and had started kissing . Then we went out onto the dance - floor and danced for a bit . I thought this girl was about as drunk as I was . But I do n’t remember having seen her drink anything alcoholic while we were there . Then we went back together to the women ’s toilet and started kissing again . While we were kissing , a doorman came into the toilet and threw me out of it , and out of [ the bar ] . ”", "J. stated that he had waited outside for a short while and then the applicant had come out and they had taken a taxi to J. ’s house . TIME she had given J. her phone number so he could phone her again . He had tried to phone her the next day when he had found her underpants and her top but no one had answered .", "At this point , at TIME , the questioning stopped for a moment while the police took J. to the technical division where he was photographed and his fingerprints taken . DNA samples were also taken .", "The questioning continued at TIME During this part of the questioning PERSON was asked direct questions and was presented with the applicant ’s testimony .", "J. was asked why he had asked the applicant to go home with him . He replied that he had wanted to have sex with her but that had not happened as he had thought she was menstruating . J. stated that it was not true that she had woken up dressed in a skirt and a bra and he had been naked . She had been naked and he had been wearing his underpants .", "About the applicant ’s statement that she had had “ blood all over her thighs ” , PERSON stated that it could have been so ; he had seen blood on the front of her thighs before going to sleep . When presented with the applicant ’s detailed account of her injuries , bruises and scratches PERSON replied that he knew nothing about it .", "When invited to comment on the applicant ’s rendering of her observations about her clothing and his statements in reply , PERSON stated that he did not remember having said what she indicated .", "J. was told that the applicant had said that she had given him “ her mobile phone number so that [ he ] could phone it there and then and [ sic ] she could hear it ring so that she could find it . ” PERSON stated that she had given him his phone number so that he could phone her later , that he did not remember her phone number but that he had it saved in his phone .", "J. was further asked to comment on the applicant ’s statement that “ she remember[ed ] nothing from CARDINAL past CARDINAL ” in TIME until she had woken up beside him at TIME PERSON stated that he knew nothing about that .", "J. was then asked whether he had given the applicant “ any sort of drug ” , to which he replied : “ Certainly not . ” He was asked whether he had taken drugs recently and he stated that he had not . When asked whether he had “ assault[ed the applicant ] sexually , ” he stated that he had not . When asked whether he had contacted her after TIME of CARDINAL November , he stated that he had tried to phone her the day before the questioning [ DATE ] because he had found her clothes but no one had answered .", "J. further stated that he did not understand the case and that he had no further statements .", "His defence lawyer requested that he be asked whether he had seen the applicant having any contact with other men at the bar , apart from J. and her father . PERSON stated that he had seen her talking to some other men while they had been dancing . He further stated that he had been quite drunk at the time .", "On DATE , at TIME , the police carried out a search of J. ’s home . J. gave them underwear and a T - shirt belonging to the applicant . The police found no further evidence during the search but stated in the search report that the room had appeared to have been recently cleaned . J. ’s grandmother had told the police that she had cleaned the room DATE before and changed the bedclothes . She could recall that there had been bloodstains on the bedclothes that she had taken off from the bed .", "On DATE the police interviewed the applicant ’s father . He stated that he and the applicant had gone to the bar at around TIME He had bought beers for them and they had sat down at a table and talked . The applicant had gone to the dance floor to dance with some people she appeared to know . He had seen a young man putting his arms around the applicant while she had been talking on the phone and he had embraced her . It had appeared as if she had not approved of this and that she had not known the man at all . The applicant ’s father had told the man [ J. ] that he was her father and that this was not “ gentlemanly behaviour ” . The man had taken it well and sat down at the table with him . J. had repeatedly expressed his feelings towards the applicant . J. had invited the applicant to dance and she had gone with him to the dance floor . They had danced for a short time and then J. had come to take his jacket , which he had left by the table . At TIME the applicant ’s father had noticed that she was gone . He had waited for TIME and then he had gone , taking her phone , which she had left on the table , with him .", "On DATE the police interviewed PERSON , the doorman at the bar on the night in question , who had stated :", "“ I was working at [ the bar in question ] on TIME in question ; I work there sometimes as a doorman . I remember that [ x ] , the son of the owner of [ the bar ] , came to me and said that there was a man and a woman in the men ’s toilet having intercourse . This happens quite often , and when it does we doormen put a stop to it . I went into the men ’s toilet and saw straight away that there were CARDINAL people in CARDINAL of the toilet cubicles . I knocked a few times because I could hear that there was CARDINAL person in the toilet cubicle . After a little while I asked if there was CARDINAL person in there . A man then answered me and said ‘ Wait a moment , there ’s been a slight accident.’ Then I knocked again and asked the man to open the door , and I tried to open it myself but I could n’t . Then I told the man again to open it , and after TIME the man opened the door . Then I saw that there was a woman and a man inside ; the woman was DATE , blonde , QUANTITY tall and wearing glasses ; her hair was in a pony - tail and reached down just below her shoulders ; the man was small and stocky . I saw straight away that there was a lot of blood in there , both on the walls and on the toilet itself , that is , on the seat and the cistern . I also saw blood on the floor . I saw that the woman had quite a lot of blood on her hands , but I did n’t see any blood on him .", "I offered to call an ambulance or the police for them , but the man himself turned this down . The woman did not say anything . I then showed her into the women ’s toilet so she could wash herself , and I ordered him out into the hall to begin with . I think it was TIME at this stage . I thought it must have been menstrual blood . Then I went out front and told the doorman , [ Sn ] , about the blood and that something had been going on inside . [ S ] then told the owners of [ the bar ] about it .", "After a short time I then went into the women ’s toilet to see about this girl , but when I went in there she was n’t anywhere near the washbasins . Some girls who were in there indicated to me that there was someone inside one of the toilet cubicles . I went over to the cubicle and knocked , and then I heard that there was CARDINAL person inside the cubicle . This was the largest cubicle in the women ’s toilet . They opened the door to me , and I saw that the man had come to her and she was sitting on the toilet . She still had blood on her hands . I did n’t think the man was very drunk ; I even thought he was completely sober . On the other hand I thought she was very drunk . I had seen her earlier in the evening and noticed that she was rather drunk . I took the man outside and asked the doormen not to let him in again . The man did n’t show any resistance to this . Then I went back into the women ’s toilet , and the woman had come out of the cubicle and was washing her hands . I asked her if she would like to call an ambulance or the police , but she just shook her head .", "I saw that she was in a really bad state , so I went with her out to the door to the street and told her to take a taxi and go home . I did n’t see her again that night . I think this all happened between CARDINAL:CARDINAL and CARDINAL.CARDINAL .", "I remember she went outside several times during TIME to get fresh air . I recognise this woman , as she comes regularly to [ the bar ] . ”", "On different dates DATE the police photographed and analysed the applicant ’s skirt , T - shirt and underwear , in order to identify stains of blood and other organic substances , notably by DNA tests , as well as the bruises on her arms and legs . This information was compiled in a report dated DATE .", "The police requested that tests be carried out on the samples for alcohol and drugs , with specific tests for drugs that could impair judgment . These were samples that had been taken from the applicant when she came to ORG on DATE as described above . ORG issued the results in a report dated DATE :", "“ Ethanol was found to be present in a concentration of CARDINAL in the blood and in a concentration of CARDINAL.CARDINAL‰ in the urine . Amphetamines , benzodiazepine compounds , cannabinoids , cocain and morphine drugs were not present in measurable quantities in the urine . Gamma - hydroxybutyric acid was not present in measurable quantities in the urine . A standard drug scan of the urine did not detect any drugs that can be found using that method .", "The concentrations of ethanol in the blood and urine indicate that the person in question was substantially under the influence of alcohol TIME before the blood sample was taken . ”", "The samples taken from the applicant at FAC were sent to a forensic laboratory for analysis . The assessment from ORG , dated DATE , includes the following statement :", "“ According to the foregoing , no sperm cells were detected , [ ... ] nor was there any indication of the presence of semen in the samples taken from the plaintiff or on her clothing ( underpants and skirt ) . ”", "On different dates DATE and DATE the police interviewed several people , mostly friends of the applicant who had met her on the night in question , and also her mother and J. ’s grandmother , the grandfather having availed himself of his right not to testify . The grandmother stated , inter alia , that when she had removed the bed clothes she had noticed a bloodstain on the duvet cover and that she had not given this any further thought . She asked PERSON whether he had hurt himself and he had replied that he had hurt his finger .", "The police photographed J. ’s home and the bar . The photographs were compiled in reports dated DATE and DATE , respectively .", "On DATE the police again interviewed the applicant . She was asked whether she wished to change or add anything to her previous statement . She stated that she did not .", "She was then confronted with the statement of her father regarding her interactions with J. on the night in question . She stated that she did not remember a man embracing her but she did remember her father standing up while she had been talking on the phone . She had been talking to her friend , PERSON She further stated that she did remember dancing after talking on the phone but that she did not remember dancing with J.", "The applicant was then confronted with the statement of the doorman PERSON regarding , among other things , his dealings with her and J. in the toilet . She stated that she had nothing to say about the statement , she did “ not remember this happening ” and referred to her earlier statement .", "The applicant was further confronted with parts of ORG testimony regarding their contact in the bar . She replied that since she did not remember having seen J. at the bar she could not comment on this , and that she remembered only that the first time she had seen him was when she had woken up beside him in TIME .", "Lastly , she was confronted with the results of the tests of alcohol and drugs in her blood : “ The only thing I have to say about this assessment is that it does not fit with the amount of alcohol I remember drinking . ”", "On DATE Officer ORG , accompanied by Officer PERSON , went to PERSON in GPE , where suspect PERSON lived as a student , in order to question him further .", "Officer ORG informed ORG that the investigation had revealed that he had gone into the toilet in the bar twice with the applicant , first in the men ’s toilet , then in the women ’s toilet . Officer ORG asked him when it was decided that they would go into the toilet , what had happened between them there and confronted him with specific parts of the testimony of doorman PERSON , the applicant ’s mother , and the applicant herself .", "J. said that they had gone into the men ’s toilet together , where they had closed the door and begun kissing . They had had oral sex . J. gave a detailed account of the event from the moment they entered the toilets until they were ordered to leave by the doorman . He said that the applicant had taken her underpants off , possibly before her injuries , but had not put them on again before leaving the toilet ; he had therefore collected them and put them in his pocket . She had already started to bleed between her legs . He said he had then followed the applicant into the women ’s toilet , but nothing had happened between them because the doorman had been so quick to follow them in there and had thrown him out of the bar . He said he had waited outside and that the plaintiff had come out shortly afterwards and had sat down on the steps . He had called a taxi and asked the plaintiff if she was going to come home with him which she had done . In his house they had begun undressing each other , and she had been completely naked . He had seen that there was blood coming from her genitals , and he had thought she was starting her period . He denied having had intercourse with her or having moved his body as if he had been .", "Suspect J. was questioned about how it was possible that there was no blood on the applicant ’s underwear even though she had sustained serious injuries to her genitals . J. said that before he had left the men ’s toilet he had taken her underpants and put them in his pocket .", "When confronted with doorman PERSON ’s statement , J. commented that he could not remember having told the doorman that there had been a slight accident , but he could remember that the applicant was bleeding between her legs , the causes for which he had ignored .", "Officer ORG then asked J. what he had meant when he had said that there had been a slight accident , to which J. responded that he could not remember having said these words when the doorman had told him to open the door .", "Nor could J. remember that the doorman had offered to call an ambulance or the police .", "Officer ORG then informed J. of the applicant ’s injuries and of the assessment made by ORG , where the applicant had been examined immediately after leaving his home , that she had received these injuries from very rough sexual intercourse . In response to this , PERSON denied having had sexual intercourse with the applicant either at the bar or after they had gone to his home . He could not offer an explanation regarding the injuries described to him . He said that he had lain on top of the applicant while kissing her and it was perhaps not impossible that the buttons or the zip on his trousers fly had caused the injuries . He did not remember whether the jeans he was wearing TIME had buttons or a zip .", "On DATE ORG informed the applicant and J. that in view of the state of the evidence , which was insufficient for securing a conviction for rape , the case was closed .", "On DATE , after the applicant ’s lawyer had requested under LAW a written explanation of the reasons , the prosecution services replied :", "“ The plaintiff claims that she has no memory of the events in the case , and considers that this was a consequence of ‘ something having been put in the beer from which she had her last drink in [ the bar],’ and not from her own consumption of alcohol . In the investigation of the case , blood and urine samples were taken from the plaintiff , and it was requested that these be tested for alcohol and for drugs which can affect judgment . No common drugs of this type were found , but the assessment by ORG includes the following statement : ‘ The concentrations of ethanol in the blood and urine indicate that the person in question was substantially under the influence of alcohol TIME before the blood sample was taken.’", "From the description given by the doorman at [ the bar ] , who on CARDINAL occasions had to deal with the plaintiff and the accused , first in the women ’s toilet and then in the men ’s toilet of the bar , the only conclusion to be drawn is that the plaintiff had by then already suffered the injuries to her genitals which you mention in your letter . The plaintiff made no complaints regarding her dealings with the accused when the doorman spoke to her ; this happened on CARDINAL occasions , and amongst other things he offered to call an ambulance or the police , but his offer was rejected . No signs of sperm were found in the samples taken from the plaintiff , which can corroborate the statement by the accused that he did not have sexual intercourse with the plaintiff . On the other hand , he admitted that other sexual acts had taken place between them at the bar , but did not admit to further sexual acts with the plaintiff after they arrived at his home . ”", "The applicant underwent aesthetic surgery in DATE on the injuries sustained to the outside of her genitals . In this connection the surgeon stated that the damage could not be repaired perfectly . He could not ascertain the causes but referred the applicant to the doctor who had examined her immediately after the incident . According to a psychologist ’s statement of DATE , the applicant had many of the symptoms of stress and trauma that were common in victims of sexual violence .", "On DATE , DATE after ORG announced his decision not to prosecute , the applicant ’s new representative requested that the case be reopened . In his request he stated that the investigation had been substantially flawed and that the case had not received priority attention from the police . The request was accompanied by documents testifying to the psychological treatment the applicant had undergone since the incident and certificates regarding the mental and physical consequences of the alleged rape . On DATE the Director of Public Prosecutions rejected the applicant ’s request . In his letter the Director explained the legal conditions for a case to be reopened , namely , that a case could not be reopened unless significant new evidence had come to light or was likely to come to light . He further described the evidence and the facts of the case . After describing the materials accompanying the request , he stated :", "“ The materials accompanying the request for reopening of the case contain , first and foremost , further descriptions of [ H. ’s ] emotional and mental state following the incidents to which the investigation materials of the case refer , as is discussed above .", "[ H. ’s ] emotional and mental suffering , to which the new materials bear witness , are doubtless the consequences of what happened to her in TIME of DATE . On the other hand , these materials are not considered as further illuminating what really happened in the dealings between her and the defendant on the night in question . From this it follows that the conditions for the reopening of the case under the third paragraph of LAW [ in force at the relevant time ] have not been met . ”", "On DATE the applicant ’s representative wrote a letter to the Minister of Justice marked “ Confidential ” in which he criticised the way the authorities had handled the case . He stated that PERSON had entrusted him with lodging an application with ORG the case , but before doing so , he considered it right to give the Minister of Justice the opportunity to examine her case and redress her position .", "On DATE the ORG replied . After describing the events of the case , the letter stated :", "“ The scope available to the Minister of ORG to review decisions by ORG regarding the discontinuance of a case is restricted to the condition that the decision is considered as being at variance with the law , or extraordinary in some other respect ( compare with the second paragraph of LAW [ in force at the relevant time ] ) . This case is not considered to be of such a type as to make it appropriate to apply this provision . ”", "On DATE the applicant ’s representative wrote another letter to ORG in which he explained that the purpose of the previous letter had been twofold : to have the decision of ORG revised and to request ORG to compensate the applicant for the damage she had suffered .", "On DATE the Ministry informed the applicant ’s representative that it had forwarded the claim for compensation to the Attorney - General in Civil Matters who was the competent authority to deal with such claims against the ORG . On DATE the Attorney - General rejected the applicant ’s claim with the following arguments :", "“ In the view of the Attorney - General , no legal grounds exist for granting the aforementioned claims by your client . In this connection , reference may be made to the judgment of ORG in case no . PERSON . The following is taken verbatim from Section II of the judgment :", "‘ Under the second paragraph of LAW no . CARDINAL/CARDINAL [ LAW in force at the relevant time ] , with subsequent amendments , ORG is the supreme authority for exercising the power of prosecution . In exercising it , he is independent of the will of the government authorities and of other parties ; under the first sentence of the first paragraph of LAW , the Minister of Justice monitors the exercise of the power of prosecution .", "The prosecution has an obligation to take measures to ensure that cases are investigated and that they are then brought to a conclusion as quickly as possible and in a manner that can be regarded as normal . Failures to meet this obligation may result in liability on the part of the civil servant involved , in accordance with the legislation and rules applying to civil servants . Actions taken by the prosecution involving specified coercive measures may also entail compensatory liability towards those against whom they are applied in accordance with the provisions of section XXI of Act no . CARDINAL/CARDINAL or the general principles of LAW . This basis for action does not apply to those who suffer injury or damage caused by a criminal offender . The injured party is to have an opportunity to lodge a claim for compensation against the offender in the case , but in other respects no legal relationship exists between the injured party and the prosecution . Neither the injured party nor other parties are expected to influence individual decisions taken by ORG in connection with the exercise of the power of prosecution ; regarding such decisions , ORG is independent in his work , as has been stated above . This applies equally to his assessment of whether any necessity exists that justifies a demand that a suspect or an accused person be subjected to coercive measures . From the foregoing it follows that an injured party can not lodge a compensatory claim against the defendant at DATE based on the assertion that measures , or measures in addition to those that were taken by the authority for exercising the power of prosecution , were needed against the alleged offender . [ ... ] .’", "The Attorney - General considers it beyond doubt that the above case - law of the ORG applies to your client ’s claim for compensation . With reference to this , your client ’s compensation claim is rejected on the grounds that no basis can be found , either in NORP legislation or in case - law , for any right to compensation on the part of your client against ORG . ”", "No judicial appeal was lodged against the Attorney - General ’s above decision .", "At the material time Articles CARDINAL and CARDINAL of the Penal Code provided :", "Article CARDINAL", "“ Any person who has sexual intercourse or other sexual relations with a person by means of using violence or the threat of violence shall be imprisoned for DATE and a maximum of DATE . ‘ ORG here refers to the deprivation of autonomy by means of confinement , drugs or other comparable means . ”", "Article CARDINAL", "“ Any person who exploits a person ’s psychiatric disorder or other mental handicap , or the fact that , for other reasons , he or she is not in a condition to be able to resist the action or to understand its significance , in order to have sexual intercourse or other sexual relations with that person , shall be imprisoned for DATE . ”", "The Code of Criminal Procedure contained the following provisions of relevance :", "Article CARDINAL", "“ After receiving the materials in a case and establishing that the investigation is complete , the prosecutor shall consider whether or not any person is to be prosecuted . If he considers that what has been revealed is not sufficient , or likely , to result in a conviction , he shall take no action ; otherwise , he shall put the case before a court as provided for under LAW . ”", "LAW", "“ If a case is dropped under LAW , or prosecution is discontinued under LAW , the prosecutor who took that decision shall inform the accused person of it and also the victim , where the victim ’s identity is known . Reasons for the decision shall be given if requested . ”", "Article CARDINAL § CARDINAL", "“ If an investigation against an accused person has been discontinued because the case materials are not considered to constitute sufficient evidence for an indictment , the investigation should not then be reopened against that person unless new case materials have come to light or are likely to come to light . ”", "Article CARDINAL § CARDINAL", "“ If the Minister of ORG considers the dropping of a case by ORG to be at variance with the law , or out of the question on other grounds , he may recommend to the President of GPE that the decision by ORG be quashed . In such cases , the Minister of ORG shall appoint a special prosecutor to handle the case . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in PERSON .", "Upon criminal information laid by the applicant 's wife , ORG , on DATE , issued an arrest warrant against the applicant and a search warrant of his house . The applicant was suspected of having bodily assaulted and raped his wife , of having threatened her with a firearm , of having sexually assaulted his minor stepdaughter and of being in possession of child pornographic videos . The arrest warrant pointed out that there were reasons to assume that the applicant would react with “ massive resistance ” upon his arrest and would “ try to escape prosecution ” .", "On DATE at TIME six police officers of the special task force ( PERSON ) of the ORG gendarmerie entered the applicant 's house . The officers were equipped with bullet - proof vests and shields . Further , they wore masks .", "The applicant submits that before the police entered his house , he had observed CARDINAL suspicious persons , namely CARDINAL of the officers , lingering around his parking . He had , therefore , armed himself with a kitchen knife However , when the police entered his house he immediately dropped the knife and held his hands up .", "The police officers forced the applicant to the ground and handcuffed him .", "The applicant submits that he had recognised the police officers on their emblems and had declared at once that he would not do anything and collaborate with the police . An officer allegedly replied to him that he would better do so otherwise he would be “ picked off ” .", "NORP The applicant was subsequently laid on a table where he was stripped naked , searched for arms and dressed again . According to the applicant he was blindfolded during this time . Upon the shock of his arrest the applicant had urinated in his clothes . The police officers , despite the applicant 's repeated requests , refused to let him change his clothes .", "The applicant submits that he was then again forced to the ground where he remained for TIME while some of the police officers searched his house . According to the applicant he was lying face down while a police officer pressed his knee on the back of his neck . This police officer allegedly told the applicant : “ Do n't move , otherwise you are dead . ” He further submits that it was only when he was lifted up that , without giving any further reasons , he was told that he was arrested .", "The applicant was subsequently taken to the LOC police station where he was questioned until about PERSON when he was released and taken back to his house .", "During all of the time of his arrest and detention the applicant remained handcuffed . Upon his request , however , the handcuffs were covered with a garment when leaving the house and were later attached in his front instead behind his back .", "On DATE the applicant was again heard by the gendarmerie . On DATE he prepared a note for the file in which he described the events at issue . He made , however , no reference to the fact that he had been blindfolded while stripped .", "The criminal proceedings against the applicant were discontinued on DATE .", "Meanwhile , on DATE , the applicant complained to ORG ( Unabhängiger Verwaltungs - senat ) that the treatment he had suffered during his arrest and at the police station amounted to inhuman and degrading treatment contrary to LAW . He referred to his stripping by the police officers , the forcing to the ground while an officer pressed his knee against the back of his neck , the threats by the officers and the refusal to let him change his wet clothes . He finally complained that his handcuffing had not been necessary as he had been cooperative and had not shown any sign of resistance during all of the time .", "ORG held CARDINAL hearings on CARDINAL and DATE . It questioned the applicant , the director of ORG ) , the police officer who had headed the mission , another police officer who had assisted the applicant 's arrest and the police officer who had questioned the applicant at the LOC police station . The police officers submitted that the applicant 's wife had informed them that the applicant was violent , regularly consumed alcohol , was in possession of a fire - arm and had attended training for hand - to - hand combat for DATE . He had allegedly received his wife several times with a weapon in his hand when she was entering the house . The applicant 's wife had warned the police that the applicant “ was up to do anything ” .", "The CARDINAL officers who had participated in the applicant 's arrest confirmed that the applicant had been strip - searched . CARDINAL officer explained that this had been done for their and the applicant 's safety and in order to find the weapon . The applicant had been informed about the arrest and search warrant before being undressed . After the strip search the applicant had been seated on a sofa . The other officer stated that after the strip search the applicant had been laid and held on the floor . He denied , however , that somebody had approached the applicant 's neck with his knee . Both officers confirmed that the applicant had not shown any sign of resistance and denied that the applicant had been threatened to “ be picked off ” . The officer who had heard the applicant at the police station submitted that he had not lessened the applicant 's handcuffs because during some of the time he had been alone with the applicant at the police station .", "On DATE ORG rejected the applicant 's complaints . It found that the police officers had acted on the basis of an arrest warrant and had not exceeded the instructions of the investigating judge . The handcuffing of the applicant had been a necessary accompanying measure to the applicant 's arrest because of the applicant 's assumed resistance and escape . Against this background also the stripping of the applicant could not be regarded as excessive , especially as the applicant was suspected to be in the possession of weapons . The applicant 's further complaints about the threatening , the holding down by pressing a knee against the back of his neck and the refusal to let him change his wet clothes were , even assuming that the applicant 's allegations were true , of no relevance for the proceedings at issue as they concerned merely the way of proceeding during an authorised arrest and were attributable to the court . A review of lawfulness did not fall within ORG competence .", "On DATE ORG declined to deal with the applicant 's complaint .", "The applicant filed a complaint with ORG in which he repeated his submissions made before ORG . He further complained about the fact that the intervening officers had been masked .", "On DATE ORG partly granted the applicant 's complaint . It quashed ORG decision insofar as the refusal of the police officers to let the applicant change his clothes was concerned and remitted the case back to the Panel for further examination .", "ORG dismissed the remainder of the applicant 's complaint . It noted that the police officers had been confronted with a person suspected of severe crimes who was allegedly in possession of a firearm and was trained in hand - to - hand combat and who , furthermore , was holding a knife when meeting them . The handcuffing and complete stripping of the applicant and the alleged fixation and threatening by the police officers did not , therefore , exceed the instructions of the investigating judge . The court did not consider the applicant 's detention for TIME and his handcuffing during this period of time as excessive either . It noted in the latter regard that , despite the applicant 's calm and cooperative behaviour , there was reason to believe that the applicant once liberated from his handcuffs would try to escape or use force . ORG finally noted that the applicant had not raised the complaint that the officers had been masked before ORG . This complaint was , however , inadmissible in any way as it did not concern an act of direct administrative authority and coercion ( ORG unmittelbarer verwaltungsbehördlicher Befehls- PERSON ) .", "On DATE ORG found that the police officers ' refusal to let the applicant change his wet clothes had not been covered by the instructions of the investigating judge who had ordered the applicant 's arrest and constituted inhuman or degrading treatment in breach of LAW . The applicant subsequently received compensation in the amount of MONEY .", "Sections CARDINAL to CARDINAL of the Code of Criminal Procedure ( Strafprozeß - ordnung ) concern the search of LOC and persons and the seizure of objects .", "Section CARDINAL § CARDINAL stipulates that a search of a person and his clothes is inter alia admissible when this person is suspected of a crime .", "According to section QUANTITY , a search should in general only be carried out after the person concerned has been heard , and only if the person or objects searched are not voluntarily rendered and if the reasons leading to the search have not been eliminated . It is not required to hear persons of bad reputation , or to have such a hearing where there is danger in delay .", "Section CARDINAL § CARDINAL states , as a rule , that a search may only be carried out on the basis of a reasoned search warrant issued by a judge .", "Section CARDINAL § CARDINAL stipulates that when searches of LOC and persons are carried out any disturbance and harassment of the person concerned which is not strictly necessary has to be avoided . Searches have to be carried out in respect of the rules of decency .", "By virtue of section DATE LAW verfahrensgesetz ) , ORG have jurisdiction , inter alia , to examine complaints from persons alleging a violation of their rights resulting from act of direct administrative compulsion ( ORG unmittelbarer verwaltungsbehördlicher Befehls- PERSON ) . According to relevant jurisprudence and doctrine acts of administrative organs which are based on a court order are not attributable to the administrative authorities , but to the courts . Such an act is , however , attributable to the administrative authorities when the judicial order has been manifestly exceeded ." ]

[ "3" ]

[]

[]

[]

[]

[]

[ "Stichting Mothers of GPE is a foundation ( ORG ) under GPE law . It was created with a view to taking proceedings on behalf of the relatives of persons killed in and around GPE , GPE , in the course of the events of DATE described below .", "NORP The other applicants are individual surviving relatives of persons killed . They also state that they are victims in their own right of violations of their human rights that occurred in the course of the events of DATE . A list of the applicants is set out in the appendix .", "The applicants were represented by PERSON , PERSON M.R. PERSON and Mr J. Staab , lawyers practising in GPE .", "The Socialist GPE ( SFRY ) was made up of CARDINAL republics : GPE , GPE , GPE , GPE , GPE and GPE . GPE and GPE declared their independence from the SFRY on DATE following referenda held earlier . Thereupon the Presidency of the SFRY ordered the JNA ( ORG Armija/Југословенска народна армија , or ORG ) into action with a view to reasserting the control of the federal government .", "Other component GPE of the SFRY followed GPE and GPE in declaring independence . Eventually only GPE and GPE were left to constitute the SFRY ’s successor state , GPE ( FRY ) . Hostilities ensued , largely along ethnic lines , as groups who were ethnic minorities within particular GPE and whose members felt difficulty identifying with the emerging independent GPE sought to unite the territory they inhabited with that of GPE with which they perceived an ethnic bond .", "By Resolution CARDINAL ( DATE ) of DATE , ORG of ORG set up ORG ( UNPROFOR ) intended to be “ an interim arrangement to create the conditions of peace and security required for the negotiation of an overall settlement of the NORP crisis ” . Although PERSON ’s mandate was originally for DATE , it was extended ; PERSON ( later renamed ORG , the name UNPROFOR coming to refer only to the operation in GPE ) continued in operation until DATE . Troop - contributing nations included the GPE .", "GPE and GPE declared independence on DATE as GPE . Thereupon war broke out , the warring factions being defined largely according to the country ’s preexisting ethnic divisions . The main belligerent forces were the ORG ( PERSON i ORG , or ORG of GPE , mostly made up of Bosniacs and loyal to the central authorities of GPE ) , the ORG ( PERSON vijeće obrane , or ORG , mostly made up of NORP ) and the ORG ( PERSON Srpske/Војска PERSON , or ORG of ORG , also called ORG , mostly made up of NORP ) .", "It would appear that CARDINAL people were killed and CARDINAL people were displaced . It is estimated that CARDINAL people went missing ; in DATE , CARDINAL of them were still so listed .", "The conflict came to an end on DATE when ORG for Peace ( “ FAC ” , adopted in GPE , GPE , GPE ) entered into force . CARDINAL of the effects of ORG was the division of GPE into CARDINAL component Entities , ORG and PERSON ( NORP Republic ) .", "Srebrenica is a municipality in eastern GPE . It is delimited to the south by the river PERSON which forms the border between GPE and GPE and GPE . To the north it adjoins the municipality of GPE . Its western neighbours are the municipalities of ORG . It is now part of ORG .", "NORP The municipality of GPE is constituted of a number of towns and villages , among them the town of GPE from which the municipality takes its name . Before the outbreak of the war its population was almost entirely PERSON and NORP , Bosniacs outnumbering NORP by CARDINAL to one .", "Since it constituted an obstacle to the formation of ORG as a continuous territorial entity as long as it remained in the hands of the central government of GPE , PERSON came under ORG attack DATE .", "It appears that the central government of GPE refused to countenance any evacuation of GPE ’s civilian population , since that would amount to the acceptance of “ ethnic cleansing ” and facilitate the surrender of territory to the ORG .", "On DATE ORG of ORG adopted , by a unanimous vote , a resolution ( LAW ( DATE ) ) demanding that “ all parties and others concerned treat [ the eastern NORP town of ] GPE and its surroundings as a safe area which should be free from any armed attack or any other hostile act . ”", "By DATE the GPE “ safe area ” was an enclave surrounded by territory held by the ORG . It contained ORG combatants , most of them disarmed , and civilians . The latter numbered in MONEY , mostly Bosniacs ; these included by then , in addition to the local residents , persons displaced from elsewhere in eastern GPE . There was also an UNPROFOR presence within the enclave , nominally consisting of CARDINAL lightly - armed GPE air - mobile infantry , known as Dutchbat ( from “ NORP ” and “ battalion ” ) , under the command of a lieutenant colonel . In fact , however , Dutchbat was under - strength by this time , as troops returning from leave had been prevented by the ORG from re - joining their unit .", "On DATE ORG of the ORG attacked the LOC “ safe area ” with overwhelming force . The commander of the GPE airmobile battalion asked his ORG superiors for air support . However , no decisive use of air power was made . The ORG overran the area and took control despite the presence of Dutchbat .", "On DATE ORG of ORG adopted , by a unanimous vote , a resolution ( Resolution DATE ) ) demanding an immediate end to the ORG offensive and the withdrawal of ORG forces from the GPE safe area as well as respect for the safety of UNPROFOR personnel and restoration of their freedom of movement .", "In DATE that followed , PERSON men who had fallen into the hands of the ORG were separated from the women and children and killed . Others managed to evade immediate capture and attempted to escape from the enclave . Some succeeded in reaching safety but many were caught and put to death , or died en route of their wounds or were killed by landmines . It is now generally accepted as fact that upwards of CARDINAL , perhaps CARDINAL PERSON men and boys died in this operation at the hands of the ORG and of NORP paramilitary forces .", "The “ GPE massacre ” , as it has come to be known , is widely recognised as an atrocity which is unique in the history of LOC since the end of the Second World War .", "Reports relating to the GPE massacre", "A number of detailed reports in relation to the LOC massacre have been published , of which the following should be mentioned .", "On DATE ORG of ORG adopted a resolution ( LAW ) in which , among other things , it requested the Secretary - General to provide a comprehensive report , including an assessment , on the events dating from the establishment of the safe area of GPE on DATE under ORG resolution CARDINAL ( DATE ) of DATE , which was followed by the establishment of other safe areas , until the endorsement of ORG by ORG on DATE .", "NORP The Secretary - General ’s report was distributed to ORG on DATE . The report runs to CARDINAL pages not including its annexes .", "NORP The report summarises the various peace - making efforts ( including by a “ ORG ” composed of representatives of GPE , GPE , GPE , GPE and GPE ) and decision - making procedures in ORG , ORG and PERSON , as well as the attack and the taking of GPE by the ORG and the massacre that followed .", "The following is taken from the final section of the report , entitled “ ORG . The fall of GPE : an assessment ” :", "“ E. Role of ORG and Member GPE", "...", "NORP The community of nations decided to respond to the war in GPE with an arms embargo , with humanitarian aid and with the deployment of a peacekeeping force . It must be clearly stated that these measures were poor substitutes for more decisive and forceful action to prevent the unfolding horror . The arms embargo did little more than freeze in place the military balance within the former GPE . It left the NORP in a position of overwhelming military dominance and effectively deprived GPE of its right , under LAW , to self - defence . It was not necessarily a mistake to impose an arms embargo , which after all had been done when GPE was not yet a ORG Member of ORG . Once that was done , however , there must surely have been some attendant duty to protect GPE , after it became a Member ORG , from the tragedy that then befell it . Even as the NORP attacks on and strangulation of the ‘ safe ORG continued in DATE and DATE , all widely covered by the media and , presumably , by diplomatic and intelligence reports to their respective ORG , the approach of the members of ORG remained largely constant . The international community still could not find the political will to confront the menace defying it . ... ”", "and", "“ PERSON Lessons for the future", "...", "The international community as a whole must accept its share of responsibility for allowing this tragic course of events by its prolonged refusal to use force in the early stages of the war . This responsibility is shared by ORG , ORG and other ORG which contributed to the delay in the use of force , as well as by ORG and the mission in the field . Clearly the primary and most direct responsibility lies however with the architects and implementers of the attempted genocide in GPE . ... ”", "In DATE ORG commissioned ORG ( Rijksinstituut voor Oorlogsdocumentatie , “ ORG ” ) to investigate “ the events before , during and after DATE of NORP ” . The intention was that the materials thus collated should provide “ insight into the causes and events that had led to the fall of GPE and the dramatic events that followed ” .", "The report was presented on DATE by ORG ’s successor institution , ORG , Holocaust and Genocide Studies ( NIOD Instituut voor Oorlogs- , Holocaust- en GPE , a body born of a merger between ORG ( Nederlands Instituut voor Oorlogsdocumentatie ) and ORG ( ORG voor Holocaust- en Genocide Studies ) . In the original NORP it runs to CARDINAL pages not including appendices . An LANGUAGE - language version ( entitled GPE : Reconstruction , background , consequences and analyses of the fall of a ‘ safe’ area ) exists . It is intended to be a historical account , not to offer political conclusions or judgments .", "The report traces the history of the former GPE from DATE through the Second World War up to the NORP era , in increasing detail , setting out the perspective of the various ethnic groups ( ORG , NORP and NORP in particular ) . It continues with the declarations of independence by GPE , GPE and GPE , the international political events following the outbreak of hostilities , and the political decision - making that led to the participation of the GPE in PERSON and the decision to deploy Dutchbat in the NORP enclave . Events in the LOC area itself following the arrival of Dutchbat , including hostile action by the ORG and the ORG , are described in detail .", "In an epilogue , the report notes that the denial of effective close air support to Dutchbat owed much to NORP response to an air attack carried out in DATE on ORG ammunition dumps in Pale , then the NORP capital ; this had involved taking UNPROFOR personnel hostage and the destruction of an NORP fighter aircraft by ORG air defences in DATE . There had also been a failure on the part of governments in possession of intelligence to share it with others . This went a long way towards explaining the turn events had taken . The Dutchbat leadership had been concerned to ensure the well - being of the civilians entrusted to their care ; for this they had been dependent on the ORG , and therefore vulnerable to NORP manipulation . Finally , the widespread public perception of the Dutchbat operation as a national failure had turned the fall of GPE and its aftermath into a political issue .", "These findings induced the incumbent Government to take political responsibility . On DATE it announced its resignation .", "As GPE had been a major troop contributor to UNPROFOR as well as being a permanent member of ORG of ORG , ORG ( ORG nationale ) decided to conduct a parliamentary inquiry . The report ( ORG under LAW of CARDINAL – NORP législature – no . CARDINAL ) was registered by the chairmanship of ORG on DATE .", "The report charts the political and military developments leading to the creation of the “ safe areas ” in LOC and the ORG attack on GPE .", "The massacre is described , but the report stops short of imputing personal responsibility to individuals , preferring to leave that to the criminal tribunals .", "The DATE ’s resignation led to a debate in ORG of ORG ( ORG ) , which decided to carry out a parliamentary inquiry ( parlementaire enquête ) in order to establish individual political , military and official responsibility .", "NORP The report ( ORG of ORG , DATE , CARDINAL , ORG . CARDINAL ) was presented on DATE . It runs to CARDINAL pages , mostly taken up by summaries and excerpts of evidence taken from participants in the various decision - making processes , both domestic and foreign .", "The report found that the decision to participate in the international intervention in the former GPE had been inspired partly by humanitarian motives and partly by the desire , felt by both the ORG and ORG , for the GPE to play an active role in promoting international peace and security . However , the decision to deploy a lightlyarmed air - mobile infantry battalion to an embattled “ safe area ” had been inspired by wishful thinking rather than by considerations of feasibility .", "NORP Over time self - defence had taken on a greater importance than the fulfilment of PERSON ’s mandate and PERSON ’s power to deter by its presence had been eroded . ORG was primarily to blame for this .", "According to the report , NORP side alone was to blame for the crimes committed . However , although fault was found with the Dutchbat leadership and the GPE government , the report concluded that it was ultimately unlikely that Dutchbat could have prevented the massacre .", "ORG in and around GPE DATE ” was established by a decision of ORG on DATE . The ORG ’s remit was to meet ORG obligations , flowing from ORG Selimović and Others decision ( see paragraphs CARDINAL and CARDINAL below ) , to conduct its own investigations into the fate of the victims named in the applications lodged with ORG .", "NORP The commission ’s report , which was published on DATE , runs to CARDINAL pages not including appendices . It established the following :", "“ ... DATE , CARDINAL of Bosniaks were executed , in a manner that represents severe violations of LAW and that the perpetrators , inter alia , undertook measures to cover up the crime by reallocating the bodies ; ... ”", "In addition , it established the responsibility of organs of ORG in the matter . A database of the known victims was set up and the whereabouts of various mass graves were disclosed .", "On DATE ORG issued a statement apologising for the crimes committed .", "Many important decisions and judgments relating to the GPE massacre have been published , most notably by the following judicial institutions .", "Several individuals have been charged before ORG for the Former GPE ( ORG ) in connection with the GPE massacre , among them ORG , who shortly after DATE of GPE became commander of the ORG ’s ORG . On DATE the ORG ’s ORG delivered a CARDINAL judgment ( IT-CARDINAL - CARDINAL-T ) finding him guilty of genocide , persecutions and murder and sentencing him to DATE imprisonment .", "The Trial Chamber ’s judgment itself gives a detailed description of the events surrounding the fall of GPE to the ORG and the massacre that followed .", "Major General PERSON appealed against his conviction and sentence . He did not challenge ORG description of events , focusing instead on the nature and extent of his criminal responsibility . Ultimately ORG found that , absent proof of genocidal intent , ORG had not been a principal perpetrator of the crimes committed . It did , however , find him guilty of aiding and abetting genocide and crimes against humanity and reduced his sentence to DATE ( judgment of DATE , IT-CARDINAL - CARDINAL-A ) .", "ORG for GPE was a domestic human rights court set up under LAW set out in GPE CARDINAL to ORG . It had CARDINAL judges , called “ Members ” , CARDINAL of whom were nationals of GPE ( CARDINAL Bosniacs , CARDINAL NORP , CARDINAL NORP ) , the remaining CARDINAL being nationals neither of GPE nor of any neighbouring ORG . It existed until DATE .", "On DATE ORG gave a decision on CARDINAL applications ( the LOC and Others decision ) . These applications were taken from among CARDINAL similar applications brought before ORG , all related to the GPE events .", "ORG held that it lacked jurisdiction ratione temporis to consider the events occurring before the entry into force of LAW on DATE . It did , however , find violations of Articles CARDINAL and CARDINAL of the ORG both taken alone and in conjunction with LAW failure to provide information to the applicants about their missing relatives and to conduct any meaningful investigation . It added that “ [ i]n the context of the NORP cases , these violations [ were ] particularly egregious since this event [ had ] resulted in the largest and most horrific mass execution of civilians in LOC in DATE . ... ” . It ordered ORG to disclose all relevant information in its possession , to release any missing captives still alive , and to conduct a “ full , meaningful , thorough , and detailed investigation ” . In addition , it ordered PERSON to pay a total of CARDINAL GPE convertible marks ( BAM ) to ORG and GPE .", "DATE . On DATE the then GPE initiated proceedings in ORG ( ICJ ) against the then GPE alleging , in so far as relevant to the case before the ORG , violations of ORG . After the entry into force of ORG , GPE was succeeded as applicant party by GPE . GPE , after its dissolution , was replaced as respondent party first by GPE and GPE and finally by GPE , albeit that any responsibility for past events determined by the ICJ involved at the relevant time ORG and GPE .", "The ICJ gave judgment on CARDINAL DATE ( Application of the Convention on the Prevention and Punishment of ORG ( GPE and GPE ) , Judgment , PERSON DATE , p. CARDINAL ) . As regards the GPE massacre , it based its findings of fact on those of the ORG in the above - mentioned judgment of ORG in the ORG case , on the ORG ’s judgment in the PERSON case ( IT-CARDINAL - CARDINAL-T , ORG , DATE ) , and on the report of the Secretary - General of ORG ( see paragraph CARDINAL above ) .", "The ICJ held , inter alia , that acts of genocide had been committed by members of the ORG in and around GPE from DATE ( loc . cit . , § § CARDINAL and CARDINAL ) . However , the decision to commit these acts had been made by individual members of the leadership of the ORG ; there was nothing to prove that they had been planned , or committed , by persons for whom the respondent was responsible , or with the knowing complicity of the respondent . The massacre could therefore not be imputed to GPE and GPE ( loc . cit . , § § CARDINAL - CARDINAL and § § CARDINAL - CARDINAL ) .", "The ICJ held , nonetheless , that an obligation to prevent genocide existed , albeit a qualified one . The obligation in question was CARDINAL of conduct and not CARDINAL of result , in the sense that a ORG could not be under an obligation to succeed , whatever the circumstances , in preventing the commission of genocide : the obligation of GPE parties was rather to employ all means reasonably available to them so as to prevent genocide so far as possible . A ORG did not incur responsibility simply because the desired result was not achieved ; responsibility was however incurred if the ORG manifestly failed to take all measures to prevent genocide which were within its power and which might have contributed to preventing the genocide .", "The ICJ went on to find that the authorities of the ORG , and above all its President , Mr PERSON , had been aware of the tensions reigning in the GPE area between the various ethnic groups and thus of the danger that genocide might occur . Although undeniably possessing influence over the ORG by dint of “ political , military and financial links ” with it ( loc . cit . , § CARDINAL ) , they had not brought their influence to bear on the ORG to prevent the genocide from occurring . The international responsibility of GPE was thereby engaged ( loc . cit . , § CARDINAL ) .", "On DATE the applicants summoned ORG and ORG before ORG ( rechtbank ) of GPE . The summons was a CARDINAL document in which the applicants stated that the State of the GPE ( responsible for Dutchbat ) and ORG ( which bore overall responsibility for PERSON ) , despite DATE promises and despite their awareness of the imminence of an attack by the ORG , had failed to act appropriately and effectively to defend the LOC “ safe area ” and , after the enclave had fallen to the ORG , to protect the noncombatants present . They therefore bore responsibility for the maltreatment of members of the civilian population , the rape and ( in some cases ) murder of women , the mass murder of men , and genocide . The applicants based their position both on GPE civil law and on international law .", "ORG The argument under civil law was , firstly , that ORG and ORG had entered into an agreement with the inhabitants of the NORP enclave ( including the applicants ) to protect them inside the LOC “ safe area ” in exchange for the disarmament of the ORG forces present , which agreement ORG and ORG had failed to honour ; and secondly , that GPE , with the connivance of ORG , had committed a tort ( onrechtmatige daad ) against them by sending insufficiently armed , poorly trained and ill - prepared troops to GPE and failing to provide them with the necessary air support .", "The argument under international law , in so far as relevant to the case now before the ORG , was based on ORG on ORG and Draft Articles on ORG , the applicants taking the position that the actions of Dutchbat were attributable to both ORG the GPE and ORG .", "Although recognising that individuals were not subjects of classical international law , the applicants argued that the right of victims to redress under international law had been recognised directly by ORG Basic Principles and Guidelines on the Right to a LAW and LAW , which had direct effect in the GPE by virtue of LAW for GPE .", "Anticipating the likelihood that ORG would invoke its immunity based on LAW , the applicants argued that any immunity which that organisation enjoyed could go no further than was necessary for it to carry out its tasks , and moreover that access to a court was guaranteed by , in particular , LAW .", "It appears that the Minister of ORG did not make use of the possibility provided by section CARDINALa of LAW DATE ( Gerechtsdeurwaarderswet CARDINAL , see below ) to declare to the bailiff that service of the summons would be contrary to the obligations of the ORG under international law .", "ORG did not appear before ORG , having previously indicated to ORG in GPE that it would not .", "GPE , already a defendant in its own right , also asked to intervene on behalf of ORG , or in the alternative to join the proceedings against ORG as a defendant . It submitted that in the light of LAW taken together with LAW , LAW , the GPE courts lacked competence in so far as the proceedings were directed against ORG ; it was for the GPE courts to recognise the immunity of the ORG ex officio unless it was explicitly waived . The ORG had an international legal interest of its own in invoking this immunity , as was reflected particularly in section CARDINAL of LAW DATE .", "The applicants argued that the immunity of ORG was overridden by , in particular , LAW and the prohibition of genocide , the latter being a rule of ius cogens that had found its way into treaty law ( in the form of ORG ) .", "The main proceedings were adjourned pending a final decision in the incident of procedure .", "ORG gave judgment on DATE ( FAC ( National Jurisprudence Number , “ LJN ” ) ORG , LANGUAGE translation PERSON ) . In so far as relevant to the case before the ORG , it found that the failure by the Minister of ORG to make a declaration as provided for by section CARDINALa of LAW DATE did not imply recognition of the jurisdiction of the GPE courts by GPE .", "Conversely , the ORG had an interest of its own in defending the ORG Nations’ immunity from jurisdiction in view of its obligations under LAW . ORG then noted that ORG had indicated its desire to see its immunity respected , as it invariably did , and found that the immunity of ORG was in fact recognised in international legal practice .", "According to ORG , neither ORG nor any other rule of international law , whether defined by treaty , by customary law or by ORG practice , obliged the GPE to enforce the prohibition of genocide through its civil law ; LAW provided only that GPE should ensure that genocide was punished .", "Referring to the case - law of this Court ( PERSON v. the GPE [ ORG ] , no . ORG , ORG CARDINAL-XI ) , ORG found that in principle the sovereign immunity of a ORG was not overridden by the prohibition of torture laid down in LAW . The prohibition of torture being as much a rule of ius cogens as the prohibition of genocide , it could be concluded that , in the current state of international law , immunity from civil suit in a domestic court DATE whether enjoyed by a sovereign ORG or by an international organisation DATE was not overridden by ius cogens .", "DATE . It followed that the ORG Nations’ immunity was not functional , to be weighed in the balance by the domestic courts , but absolute .", "As to LAW , ORG pointed to the decision of ORG in PERSON and PERSON v. GPE and ORG v. GPE , GPE and GPE ( ( dec . ) [ ORG ] , ORG . MONEY and GPE , DATE ) . It had been held in that decision that troop - contributing nations could not be held to account for the actions of forces placed at the disposal of ORG for international peacekeeping operations . From this it followed that DATE could not be invoked in support of an exception to the immunity from suit of ORG itself .", "ORG was aware that the ORG had , in PERSON and PERSON v. GPE ( [ ORG ] , no . CARDINAL , ECHR CARDINAL-I ) , and Beer and PERSON GPE ( [ ORG ] , no . CARDINAL , CARDINAL DATE ) , made statements suggesting that the immunity of an international organisation was compatible with LAW only if the organisation itself offered a reasonable alternative for the protection of Convention rights . However , the creation of ORG predated the entry into force of the Convention . Moreover , ORG was an organisation whose membership was well - nigh universal ; this distinguished it from organisations such as ORG , the organisation in issue in GPE and PERSON and PERSON and PERSON , which had been created only in DATE and whose membership was limited to GPE . Moreover , the ORG itself had recognised the special position of ORG in GPE and PERSON v. GPE and GPE v. GPE , GPE and GPE . At all events , if any State were to exercise jurisdiction over ORG , that ORG should be the one within whose territory the organisation had its seat or the acts complained of had taken place ; in the present case , that excluded the GPE .", "ORG thus declined jurisdiction with regard to ORG without finding it necessary to rule on the request by ORG for permission to intervene or join the proceedings .", "The applicants appealed to ORG ( gerechtshof ) of GPE . Their principal arguments may be summarised as follows .", "In so far as relevant to the case before the ORG , they argued that the ORG ’s reliance on the absolute immunity of ORG went hand in hand with its argument that ORG alone bore responsibility for the failure to prevent the act of genocide constituted by the GPE massacre . To accept that argument would be to deny access to a court to the surviving kin of the victims of the massacre , which was legally , humanly and morally wrong . ORG had overlooked the nature of the ORG ’s argument , which was based not so much on its need to meet its obligations under international law as on its own self - interest , clearly understood ( welbegrepen eigenbelang ) . It was not the purpose of the international legal obligation to allow the ORG to evade its own responsibility .", "ORG had been required by LAW , section CARDINAL of the Convention on the Privileges and Immunities of ORG to institute some form of settlement mechanism for disputes of a private nature to which it was a party , but in DATE of its existence it had failed to do so . There was therefore an urgent need for the GPE domestic courts to assume jurisdiction .", "The PERSON judgment of this Court was not appropriate precedent , since the immunity of an international organisation was different from the immunity of a sovereign State . Moreover , in PERSON the Court had been deeply divided . The majority position in PERSON had been criticised in that it had allowed sovereign immunity to trump a rule of ius cogens , namely the prohibition of torture . It was still more inappropriate to allow the functional immunity of an international organisation to override an even more fundamental rule of ius cogens , namely the prohibition of genocide .", "DATE . In the ORG and ORG cases , both ORG to ORG of ORG and ORG itself had demonstrated a willingness to step in and provide access to a court where ORG itself had failed to do so ( the applicants referred to Joined Cases C-CARDINAL/CARDINAL P and C-CARDINAL/CARDINAL P , PERSON and ORG Council of ORG of ORG , judgment of DATE ) .", "The Court of Appeal gave judgment on DATE ( LJN BLCARDINAL ) . It allowed the ORG to join the proceedings against ORG as a defendant and went on to uphold the judgment of ORG for the remainder .", "It did not accept that the ORG was trying to evade its own liability in civil law by invoking the immunity of ORG . This being an incident of procedure concerning the competence of the GPE domestic courts in relation to ORG , ORG could not anticipate the defence which ORG would put forward as a defendant in its own right in future proceedings on the merits .", "Referring to Article II , section CARDINAL of the Convention on the Privileges and Immunities of ORG , which was to be interpreted “ in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose ” ( DATE of LAW of the Law of Treaties ) , and also in the light of LAW , ORG found that no other construction could be placed on that provision than that “ the most far - reaching immunity [ had ] been granted to ORG , in the sense that ORG [ could ] not be summoned before any domestic court of the countries that [ were ] party to that LAW . It did not follow from the wording of LAW that the immunity of ORG was merely functional , it being obvious from the ORG of the Charter preceding Article CARDINAL that ORG ( including LAW , section QUANTITY thereof ) was intended to specify the “ privileges and immunities ... necessary for the fulfilment of [ the ORG Nations’ ] purposes ” .", "Unlike ORG , ORG was not convinced that the ORG had deviated from PERSON and PERSON and PERSON and PERSON in its decision in PERSON and PERSON v. GPE and GPE v. GPE , GPE and GPE . The latter case had concerned neither ORG as a prospective party nor access to the domestic courts within the meaning of LAW . Nor could it make any difference that ORG had been set up before the ORG entered into force ; such a finding would be incompatible with the fundamental nature of Convention rights . Likewise , it could not be assumed that LAW had been intended simply to set aside customary international law or international treaties , still less to impair the protection of international human rights standards , it being precisely one of the purposes of ORG to promote respect for human rights and fundamental rights . This meant that the criteria by which the immunity from jurisdiction enjoyed by ORG was to be judged were those set out by the ORG in § CARDINAL of Beer and PERSON .", "ORG judgment continued as follows :", "“ CARDINAL . As regards the question whether the immunity from jurisdiction enjoyed by ORG is in this case proportionate to the aim pursued , ORG would observe the following . ORG has a special position among international organisations . ORG may , after all , pursuant to LAW , take such action by air , sea , or land forces as may be necessary to maintain or restore international peace and security . No other international organisation has such far - reaching competences . In connection with these far - reaching competences , by which ORG and the troops placed at the disposal of ORG may get involved in situations of conflict which will frequently involve conflicting interests of a plurality of parties , there is a real risk that if ORG enjoyed only partial immunity from jurisdiction , or none at all , it might be exposed to claims from parties involved in the conflict and be summoned before the domestic courts of the country where the conflict concerned is being acted out . Precisely in view of the sensitive nature of the conflicts in which ORG may become involved , one should also consider situations in which ORG might be summoned solely in order to frustrate action by ORG in whole or in part . One could also imagine that ORG might be summoned in countries in which the judiciary does not meet the standards of LAW . The immunity from jurisdiction granted to ORG is therefore directly connected with the general interest pertaining to the maintenance of peace and security in the world . For that reason it is of great importance that ORG should dispose of as great a degree of immunity as possible , which should be subject to as little discussion as possible . Against this background , ORG is of the opinion that only cogent reasons can lead to the finding that the ORG Nations’ immunity is disproportionate to the aim thereby pursued .", "...", "ORG notes in the first place that it is sensitive to the dreadful events ( vreselijke gebeurtenissen ) to which ORG and their relatives fell victim and to the suffering caused them thereby . The ORG has not contested that genocide was committed at GPE ; indeed , this is common knowledge . It is entirely understandable that the Mothers of Srebrenica should seek satisfaction in law for this . That , however , is not the end of the matter . As noted above , there is also a considerable general interest in ensuring that ORG should not be compelled to appear before a domestic court . In this area of tension there is a need for a balancing act CARDINAL legal principles , each of them extremely important , but CARDINAL of which can be decisive .", "ORG finds in the first place that [ the applicants ] recognise that ORG did not itself commit genocide . ... Nor can it be deduced from the facts as stated by [ the applicants ] that ORG knowingly cooperated in the genocide . [ The applicants ] essentially allege that ORG was negligent ( nalatig ) in failing to prevent the genocide . ORG is of the opinion that although the allegation thus made against ORG is serious , it is not grave ( pregnant ) to the point of overriding the organisation ’s immunity for that reason alone , or to the point that it is for that reason alone unacceptable for ORG to invoke its immunity . In this connection , ORG finds it significant that , as already mentioned , ORG peace operations generally take place in parts of the world where a live conflict ( brandhaard ) has broken out , and that it will generally be possible without great difficulty to blame ORG , not for having itself committed crimes against humanity , but for having failed to take adequate measures against [ such crimes ] , [ a situation which ] may well give rise to abuse . The allegation that ORG did not prevent the genocide in GPE and was negligent in that connection is therefore insufficient in principle to affect its immunity from jurisdiction . Nor is it decisive that it is not stated in the present case that there is no abuse in the sense referred to above . If ORG could successfully invoke its immunity only if in the particular case abuse could be proved , its immunity would be unacceptably diminished ( aangetast ) .", "The next fact relied on by [ the applicants ] is the absence of a procedural remedy attended by adequate safeguards ( een met voldoende waarborgen omklede rechtsgang ) . They have pointed out that ORG has not , as prescribed by LAW , section CARDINAL , opening sentence and ( a ) of FAC , made provision for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private - law character to which ORG is a party . All [ the applicants ] agree that ORG has not done so . The ORG has also failed adequately to dispute [ the applicants’ ] reasoned arguments that the ‘ Agreement on the Status of UNPROFOR’ effectively offers [ the applicants ] no realistic possibility to sue ORG . ORG is however of the opinion that it can not be established that [ the applicants ] have no access to a court at all in relation to what happened in GPE . In the first place , it has not been made clear from the facts as stated by [ the applicants ] why it would not be possible for them to bring the perpetrators of the genocide , and possibly also those who might be considered responsible for those perpetrators , before a court meeting the standards of LAW . In so far as [ the applicants ] have failed to do so because the persons liable can not be found , or offer insufficient prospects of recovery of damages , ORG observes that LAW does not guarantee that persons wishing to bring a civil action will always be able to find a ( solvent ) debtor .", "In the second place , it is open to [ the applicants ] to summon the ORG , which they hold responsible in terms comparable to those applied to ORG , before the GPE courts . [ The applicants ] have in fact made use of this possibility . The ORG can not invoke any immunity from jurisdiction , which means that the GPE courts will have to express themselves on the merits of the claim against the ORG in any case . That does not change if in those proceedings , as [ the applicants ] claim to expect – with some justification ... – the ORG puts up a defence to the effect that its actions in GPE should be attributed ( exclusively ) to ORG . Even if that defence ... is made , the courts will in any case have to consider the merits of [ the applicants’ ] claims and to that extent [ the applicants ] have access to an independent court .", "It follows from the above that it can not be said that for [ the applicants ] the very essence of their right of access to a court would impaired if the ORG Nations’ immunity from jurisdiction were recognised . ORG refers in this connection to [ PERSON v. GPE , DATE , Series A no . CARDINALB ] , from which it is apparent that ORG is prepared to accept even quite far - reaching limitations on access to a court . There is no such far - reaching limitation in the present case , given that [ the applicants ] can sue CARDINAL categories of parties for the damage suffered by ORG , to wit , the perpetrators of the genocide and the ORG . Against this background , ORG does not consider the fact that ORG has not , in accordance with its obligations pursuant to LAW , section CARDINAL , opening sentence and ( a ) of the Convention on the Privileges and Immunities of ORG , created an alternative remedy for claims such as the present – regrettable though that may be – as being of sufficiently decisive importance to affect its immunity from jurisdiction . ”", "The applicants lodged an appeal on points of law ( cassatie ) with ORG ( PERSON ) . In the course of the proceedings they submitted a summons ( dagvaarding ) and an explanatory memorandum ( schriftelijke toelichting ) . Their arguments , in so far as relevant to the case before the ORG , may be summarised as follows :", "In the applicants’ view , the distinction which ORG had made between proceedings against ORG and against ORG lacked justification , in view of the interrelation between the CARDINAL cases . To hold that ORG enjoyed immunity in the present case would enable GPE to argue that its conduct was imputable to , or legitimised by , ORG and thus to evade its responsibility .", "The immunity of ORG under international law was not as extensive as had been held by ORG . In the absence of any alternative procedure accessible to the applicants , ORG had thus placed ORG above the law . The unacceptable nature of such a finding followed from , inter alia , this ORG ’s judgments in PERSON and PERSON and PERSON and PERSON .", "ORG had based its findings on the supposition that the applicants were seeking only monetary compensation , which could be paid by any party which had the necessary funds . In fact their claims were not limited to money : they sought recognition of the responsibility of ORG for failing to prevent the genocide of which their relatives had become victims . A judicial declaration to that effect could be made only with ORG as defendant , not against the GPE or for that matter the NORP perpetrators .", "The immunity of ORG was grounded in a political interest . A court of law , however , should apply the law ; it was the law which formulated the right of access to a court , which therefore overrode a political interest . This applied all the more since the prohibition of genocide was a rule of ius cogens . The applicants further pointed to the size of the majority in LOC ORG ( DATE , the smallest possible ) as evidence of a trend towards recognising that ius cogens – in that case the prohibition of torture – could override immunities hitherto recognised in international law .", "In holding that ORG had not itself perpetrated genocide , ORG had missed the point , which was that ORG had failed in its duty to prevent the genocide . Moreover , Dutchbat had connived in the genocide by cooperating with the ORG in deporting the civilian population from the GPE safe area and in helping to separate the men from the women and children despite indications that their lives were in jeopardy .", "It made no difference for the purposes of the right of access to court , as guaranteed by LAW , whether or not there was a solvent debtor or whether or not ORG could claim immunity from civil suit in its own courts .", "Finally , ORG had failed to go into the question whether ORG ought to have waived its immunity .", "The applicants supplemented the summons with an explanatory memorandum ( schriftelijke toelichting ) , in which they argued at length that the immunity of ORG was always intended to be functional , not diplomatic . This was reflected by the wording of LAW . Although LAW , section QUANTITY of the Convention on the Privileges and Immunities of the ORG suggested otherwise , it was subordinate to the LAW by virtue of LAW . Moreover , it remained possible – and was sometimes a moral , if not a legal obligation – to waive immunity , as in cases of serious human rights violations . This was all the more so since ORG had failed itself to provide for the settlement of disputes to which it might be a party , as it was required to by LAW , section CARDINAL of the Convention on the Privileges and Immunities of ORG .", "An advisory opinion ( conclusie ) was submitted by the Procurator General ( procureur - generaal ) at ORG .", "NORP The Procurator General distinguished between the immunity of GPE , which was based on their sovereign equality in international law , and the immunity of international organisations , which was intended to enable them to function . Citing PERSON and PERSON , he recognised that an international organisation ’s immunity from domestic jurisdiction might need to be set aside if no internal dispute resolution mechanism was available . In the present case , however , there was an internal alternative , provided by paragraph CARDINAL of the Agreement on the status of ORG in GPE .", "For the remainder , the Procurator General expressed the view that ORG had based its judgment on a correct assessment of the competing interests involved . To the extent that the applicants argued otherwise , they had based their argument on misconstructions of ORG judgment .", "ORG gave judgment on DATE ( LJN BWCARDINAL ) . Its reasoning included the following passages :", "“ Basis and scope of the immunity of ORG", "CARDINAL NORP The immunity of ORG , which should be distinguished from the immunity of its functionaries and of experts performing missions for it , is based on LAW and LAW , section QUANTITY , of the Convention [ on the Privileges and Immunities of the United Nations ] . The latter provision , which elaborates on LAW [ of LAW ] , has rightly been construed by ORG – applying LAW on GPE – as granting ORG the most far - reaching immunity from jurisdiction , in the sense that it can not be summoned before any domestic court of the countries that are party to the Convention [ on the Privileges and Immunities of the United Nations ] .", "The basis and scope of this immunity , which is intended to ensure the functioning of ORG in complete independence and which for that reason alone serves a legitimate purpose , are thus different from the immunity from jurisdiction afforded to foreign GPE . As expressed in section CARDINALa of the LAW containing General Provisions on the Legislation of GPE ) , the latter immunity derives from general international law ( par in parem non habet imperium ) , and concerns only actions of a foreign ORG performed by the latter in the exercise of its governmental duty ( acta iure imperii ) .", "Immunity of ORG and access to a court", "CARDINAL.CARDINAL.CARDINAL ORG has ... , applying the criteria formulated by ORG and PERSON v. GPE ( [ ORG ] , no . CARDINAL , CARDINAL DATE ) , and PERSON and PERSON v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALI ) , gone into the question whether invoking the immunity of ORG is compatible with the right to access to a court ( laid down in DATE of LAW ) . The ORG no longer disputes that this right – which is not absolute – is ( also ) a rule of customary international law .", "...", "CARDINAL According to § § CARDINAL - CARDINAL [ of PERSON and PERSON ] , the ORG ’s finding to the effect that honouring the immunity of international organisations such as the ORG [ ORG ] does not constitute a violation of LAW was determined in particular by the fact that LAW ( ‘ the ORG Convention’ ) explicitly provides for an alternative procedure for the settlement of private - law disputes of which claimants can avail themselves . It is observed that § CARDINAL mentions ‘ international organisations’ without further explanation , but that DATE even leaving aside any consideration relating to the interrelation between LAW and CARDINAL of the Charter of ORG – there is no reason to assume that in referring to ‘ international ORG the ORG wished to refer also to ORG , at least not as regards action taken by that organisation within the framework of LAW of LAW with respect to threats to the peace , breaches of the peace , and acts of aggression ) .", "CARDINAL NORP The ( Security Council of the ) ORG has a special place within the international legal community , as has also been expressed in PERSON and PERSON v. GPE and ORG v. GPE , GPE and GPE ( dec . ) [ ORG ] , no . CARDINAL . In that decision , which concerns acts and omissions of ORG Interim PERSON in GPE ( UNMIK ) and ORG ( ORG ) , deployed in GPE pursuant to a ORG resolution , the ORG held , inter alia :", "‘ CARDINAL . The question arises in the present case whether the ORG is competent ratione personae to review the acts of the respondent GPE carried out on behalf of the ORG and , more generally , as to the relationship between the ORG and the ORG acting under LAW .", "NORP ... More generally , it is further recalled , as noted at paragraph CARDINAL above , that the LAW has to be interpreted in the light of any relevant rules and principles of international law applicable in relations between its Contracting Parties . The ORG has therefore had regard to CARDINAL complementary provisions of the LAW , Articles CARDINAL and CARDINAL , as interpreted by the ICJ ( see paragraph CARDINAL [ of the decision ] ) .", "Of even greater significance is the imperative nature of the principal aim of the ORG [ ORG ] and , consequently , of the powers accorded to the ORG [ ORG ] under LAW to fulfil that aim . ... The responsibility of the UNSC in this respect is unique and has evolved as a counterpart to the prohibition , now customary international law , on the unilateral use of force ( see paragraphs CARDINAL - CARDINAL [ of the decision , which trace the development of the prohibition on the unilateral use of force up to the creation of ORG ] ) .", "In the present case , Chapter VII allowed the UNSC to adopt coercive measures in reaction to an identified conflict considered to threaten peace , namely UNSC Resolution CARDINAL establishing UNMIK and ORG .", "Since operations established by ORG under LAW UN Charter are fundamental to the mission of the ORG to secure international peace and security and since they rely for their effectiveness on support from member states , the LAW can not be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by ORG and occur prior to or in the course of such missions to the scrutiny of ORG . To do so would be to interfere with the fulfilment of the ORG ’s key mission in this field including , as argued by certain parties , with the effective conduct of its operations . It would also be tantamount to imposing conditions on the implementation of a ORG which were not provided for in the text of the ORG itself . ... ’", "In paragraph CARDINAL , referred to in this quotation , the ORG finds , among other things , that according to the ICJ Article CARDINAL of the Charter of the ORG means that the obligations incumbent on the Members of ORG in accordance with LAW take precedence over obligations arising from any other treaty that are inconsistent therewith , regardless of whether it was entered into DATE than LAW or concerns merely a regional arrangement . And in § CARDINAL the ORG holds that , in view of the importance to international peace and security of operations that take place pursuant to resolutions of ORG within the framework of Chapter VII of LAW , the LAW can not be construed in the sense that acts and omissions of GPE Parties governed by resolutions of ORG are subject to review by the ORG .", "CARDINAL NORP The interim conclusion has to be that ORG has erred in considering , in the light of the criteria formulated in Beer and PERSON and PERSON and PERSON , whether the immunity invoked on behalf of ORG should be overridden by the right of access to a court as referred to in DATE .", "CARDINAL That immunity is absolute . Its maintenance moreover is among the obligations of the Members of ORG , which , as the ORG noted in PERSON , PERSON and ORG , according to LAW take precedence over obligations pursuant to other international agreements .", "CARDINAL That , however , does not answer the question whether , as [ the applicants ] argue with particular reference to the dissenting opinions appended to PERSON v. GPE ( [ ORG ] , no . ORG , ECHR DATE ) , which relates to ORG immunity , the immunity of ORG should be overridden by the right of access to a court because the claims are based on alleged involvement in genocide and other serious violations of fundamental human rights ( torture , murder and rape ) , in particular by not preventing them . ...", "...", "CARDINAL.CARDINAL.CARDINAL NORP The majority opinion [ finding that it had not yet been accepted in international law that GPE were not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum ORG ] was opposed by , among others , the dissenting opinion of CARDINAL judges of ORG now prayed in aid by [ the applicants ] , which – in consonance with a not inconsiderable proportion at least of the domestic and foreign literature on the subject of ( State ) immunity – includes the following passage :", "‘ CARDINAL . The acceptance therefore of the jus cogens nature of the prohibition of torture entails that a ORG allegedly violating it can not invoke hierarchically lower rules ( in this case , those on ORG immunity ) to avoid the consequences of the illegality of its actions . In the circumstances of this case , GPE can not validly hide behind the rules on ORG immunity to avoid proceedings for a serious claim of torture made before a foreign jurisdiction ; and the courts of that jurisdiction ( GPE ) can not accept a plea of immunity , or invoke it ex officio , to refuse an applicant adjudication of a torture case . Due to the interplay of the jus cogens rule on prohibition of torture and the rules on State immunity , the procedural bar of State immunity is automatically lifted , because those rules , as they conflict with a hierarchically higher rule , do not produce any legal effect . In the same vein , national law which is designed to give domestic effect to the international rules on State immunity can not be invoked as creating a jurisdictional bar , but must be interpreted in accordance with and in the light of the imperative precepts of jus cogens.’", "CARDINAL.CARDINAL.CARDINAL DATE More important even than the fact that this opinion does not , as matters now stand , reflect the opinion accepted by ORG , is the ruling of the ICJ ... in Jurisdictional Immunities of the State ( GPE v. GPE : GPE Intervening ) [ judgment of DATE ] . That case concerned , among other things , the question whether the NORP courts ought to have respected the immunity of GPE in the cases considered by them in which compensation was claimed from GPE for damage resulting from violations of international humanitarian law by NORP troops in World War II . That question was answered in the affirmative by the ICJ .", "...", "CARDINAL.CARDINAL.CARDINAL Although the immunity of ORG can be distinguished from ORG immunity , the difference does not justify making a finding as regards the interrelation between that immunity and the right of access to a court which differs from that made by the ICJ as regards the interrelation between ORG immunity and the right of access to a court . That immunity belongs to the ORG regardless of the seriousness of the allegations on which [ the applicants ] base their claims .", "...", "CARDINAL.CARDINAL.CARDINAL ... [ The further complaints ] – ORG sees no need to ask ORG of ORG for a preliminary ruling ... – do not provide grounds for overturning the ruling of ORG ( kunnen niet tot cassatie leiden ) . Having regard to LAW ( Wet op de rechterlijke organisatie ) , no further reasoning is called for , since the complaint does not make necessary a determination of legal issues in the interest of the unity or development of the law . ”", "After the judgment of ORG the main proceedings were resumed against the ORG only . According to the applicants , the ORG submitted that the acts and omissions “ before , during and after the fall of LOC ” were entirely attributable to ORG and that the GPE bore no responsibility in the matter .", "As far as the ORG is aware , the proceedings are still pending at first instance .", "The provisions of the LAW for GPE ( PERSON voor het FAC ) relevant to the case are the following :", "Article CARDINAL", "“ Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published . ”", "Article CARDINAL", "“ Statutory regulations in force within the GPE shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions . ”", "In its relevant part , the Act containing General Provisions on the Legislation of GPE ) provides as follows :", "Section CARDINALa", "“ The jurisdiction of the courts and the enforceability of judgments and executable official documents ( authentieke akten ) shall be limited by the exceptions recognised in international law . ”", "In its relevant part , LAW ) provides as follows :", "Article CARDINAL", "“ CARDINAL . If in proceedings ( zaken ) that must be introduced by a summons ( dagvaarding ) the GPE court has jurisdiction with respect to CARDINAL of the defendants , then it shall also have jurisdiction with respect to other defendants involved in the same proceedings ( geding ) , provided that there exists a connection between the claims against the various defendants such that reasons of efficiency justify their joint treatment . ... ”", "In so far as relevant to the case before the ORG , ORG ( Wet op de rechterlijke organisatie ) provides as follows :", "Section CARDINAL", "“ If ORG considers that a complaint does not provide ground to overturn the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law , it may , in giving reasons for its decision on such complaint , limit itself to that finding . ”", "As relevant to the case , LAW DATE ( Gerechtsdeurwaarderswet CARDINAL ) provides as follows :", "Section CARDINAL", "“ CARDINAL . A bailiff is a public official charged with the duties entrusted to bailiffs or reserved to them by or pursuant to the law , excluding all others or not as the case may be . In particular , a bailiff shall be charged with :", "a. serving summonses and other official notifications ( het doen van dagvaardingen en andere betekeningen ) instituting judicial proceedings or forming part of the exchange of documents in judicial proceedings ; ... ”", "Section CARDINALa", "“ CARDINAL . A bailiff who receives an instruction for an official act shall , if he ought reasonably to be aware of the possibility that its execution might be contrary to the ORG ’s obligations under international law , inform the Minister [ of ORG ] immediately of that instruction in the manner laid down in the ministerial rules .", "NORP The Minister may issue a declaration to a bailiff informing him that an official act for which he has received , or is to receive , an instruction , or which he has already carried out , is contrary to the ORG ’s obligations under international law .", "...", "NORP If , at the time when the bailiff receives the declaration referred to in the second paragraph , the official act has not yet been carried out , the consequence of the declaration shall be that the bailiff is not competent to carry out that official act . An official act carried out contrary to the first sentence shall be null and void . ... ”", "NORP In DATE an organisation called Udruženje Građana “ PERSON ” ( ORG ” ) , an association based in GPE , GPE , requested ORG of The GPE to order a preliminary hearing of witnesses ( voorlopig getuigenverhoor ) with a view to bringing civil proceedings in tort against GPE .", "On DATE ORG gave a decision ( PERSON ANCARDINAL ) refusing that request . It took the view that , in the absence of relevant established case - law , it was necessary first to settle the question of principle whether , and in what cases , the ORG could be held liable for the actions of a military contingent operating under the command and control of ORG had been . Such a decision could not properly be taken in proceedings for the preliminary hearing of witnesses ; it required proceedings on the merits . In any case , the documentation available , which was very extensive and included the report of ORG , Holocaust and Genocide Studies and the report of the GPE parliamentary inquiry , ought to be sufficient for the association to assess its chances of success , the more so since many of the witnesses whom the association wanted to hear had already been heard in the course of those CARDINAL investigations .", "ORG . CARDINAL civil cases have been brought in the GPE courts against GPE by surviving relatives of men killed in the GPE massacre .", "The claimants in the first case ( GPE v. the ORG of the GPE ) are surviving relatives of an electrician who was a de facto employee of Dutchbat but did not enjoy the status conferred on persons employed by ORG directly . They alleged that on DATE ORG had committed a breach of contract in that the Dutchbat deputy commander had refused to let their relative stay with his family in the compound at PERSON , as a result of which he was made to leave the compound that same day , whereas the Dutchbat leadership ought to have protected him by keeping him inside and evacuating him together with Dutchbat itself . In the alternative , they alleged a tort . The claimant in the second case ( GPE v. the ORG of the GPE ) was himself a de facto employee of Dutchbat , for which he worked as an interpreter but also without the status of ORG employee ; he is the son of CARDINAL man killed in the massacre and the brother of another . He alleged a tort in that the ORG deputy commander had turned the CARDINAL men out of the compound in the afternoon of DATE .", "The CARDINAL cases were considered in parallel , first by ORG of The Hague and then by ORG .", "At first instance , ORG held that the matters complained of were imputable to ORG alone . Dutchbat had been under ORG command and control ; furthermore , the events complained of had taken place in GPE , a sovereign ORG over which neither ORG nor the GPE had jurisdiction .", "NORP The NORP family and PERSON appealed to ORG .", "ORG delivered CARDINAL interlocutory judgments on CARDINAL DATE ( PERSON ( GPE ) and PERSON ( Nuhanović ) ) , which in their relevant parts are identical . It ordered the hearing of witnesses on a point of procedure not relevant to the case before the ORG .", "In CARDINAL essentially identical judgments on the merits delivered on DATE ( LJN BWCARDINAL ( GPE ) and PERSON ( Nuhanović ) ) , ORG overturned the judgments of ORG and held GPE liable in tort for the damage caused to the appellants as a result of the deaths of their relatives .", "The ORG brought appeals on points of law against those judgments before ORG . In his advisory opinion to ORG , presented on DATE , the Advocate General ( advocaat - generaal ) proposed that ORG dismiss them ( PERSON , ORG CARDINAL ) ." ]

[]

[]

[]

[]

[]

[]