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[ "The applicant was a NORP citizen born in DATE who died on DATE . By letter of CARDINAL DATE , the applicant 's widow and children informed the ORG that they wished to pursue the application .", "In DATE the applicant instituted proceedings in ORG of PERSON seeking the recovery of salary arrears against his former employer - the ORG - owned “ GPE ” company which performed construction work at GPE in the zone which had been compulsory evacuated . By a decision of the court of DATE , the applicant was awarded CARDINAL NORP hryvnas ( ORG ) in salary arrears . On DATE and DATE the applicant received ORG CARDINAL and ORG CARDINAL respectively . However , the judgment remains to a large extent unenforced , the outstanding debt being ORG ( the equivalent of MONEY [ “ ORG ” ] ) .", "NORP By letter of CARDINAL January DATE , ORG informed the applicant 's lawyer about the large number of execution writs pending against the debtor company , in the total amount of ORG CARDINAL . Enforcement of the judgments by the attachment of property , however , required a special authorisation from ORG due to the location of the debtor 's property in the GPE area , contaminated by radiation . Such authorisation was not granted .", "By the order of CARDINAL DATE of ORG , the debtor company was liquidated and a liquidation commission established .", "Accordingly , on DATE ORG terminated the enforcement proceedings in the applicant 's case and forwarded the execution writ to the liquidation commission as a creditor 's claim . The liquidation proceedings are still pending .", "A description of the relevant domestic law can be found in GPE and Others v. GPE ( nos . CARDINAL/CARDINAL and following , § § CARDINAL , DATE ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant is a NORP national , born in DATE and living in GPE ) . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .", "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On CARDINAL DATE the applicant was arrested for aggravated theft . He was brought before ORG and applied for bail , which was the only possibility open to him under domestic law for obtaining his release . As he risked incurring a sentence exceeding CARDINAL GPE imprisonment , his application had to be communicated to the Attorney General . When ORG obtained the Attorney General ’s views TIME , it ordered the applicant ’s release .", "On DATE the applicant was acquitted .", "On DATE he instituted proceedings against the police before ORG with a view to obtaining a declaration that his arrest was contrary to LAW and compensation .", "On DATE ORG accepted that the applicant had been arrested although there was “ no reasonable suspicion against him ” within the meaning of LAW ) of the LAW . It awarded the applicant ORG CARDINAL by way of compensation . Moreover , the court ordered the police to pay the applicant ’s legal expenses .", "The police appealed . The applicant entered a cross appeal on the paucity of the amount of compensation . On DATE ORG rejected both appeals specifying that the applicant was entitled to a “ symbolic ” sum by way of compensation . It ordered the police to pay the costs of the principal appeal and the applicant the costs of the cross appeal .", "B. Relevant domestic law", "Section CARDINAL of LAW allows for applications before the domestic courts by persons who allege that their rights under the Convention have been violated . LAW provides the following :", "“ Where an application for redress or any reference to ORG , ORG , made after DATE is made exclusively either under LAW of the LAW or under this section and is still pending before ORG , ORG , or ORG , the court may examine whether or not the facts complained of are in violation of the corresponding LAW , in the first case , or of the corresponding LAW of the Individual enforceable under LAW , in the second case ; and if the court so finds it may order accordingly the redress it may deem appropriate under any of the aforesaid laws . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE ORG and Highways ( hereinafter “ the Directorate ” ) expropriated QUANTITY of the applicant ’s land in GPE . The expropriation decision was communicated to the applicant on DATE . According to the domestic procedure , the applicant had DATE , which began DATE after the decision was communicated to him , to ask for an increase in the amount of compensation .", "On DATE a certain Mr PERSON , who had been authorised by the applicant to appoint a lawyer for him , had a power of attorney drawn up at a notary public , appointing PERSON PERSON as legal counsel to represent the applicant .", "On DATE the applicant , with the assistance of his lawyer PERSON , brought an action before ORG ( hereinafter the “ ORG ” ) , seeking increased compensation . PERSON requested the court to accept the case despite the expiry of the statutory time - limit on DATE , as she had had health problems preventing her lodging the case earlier .", "On DATE ORG asked ORG in GPE to clarify whether PERSON had had health problems at the relevant time and whether those problems had been of a nature to render it impossible for her to come to the court house and lodge the applicant ’s case within the statutory time - limit .", "On DATE the GPE branch of ORG forwarded to ORG a number of medical reports , confirming that PERSON had been ill DATE and DATE and had thus been unable to lodge the case within the statutory time - limit .", "ORG accepted the medical report and began examining the merits of the case . In the course of the proceedings it had regard to the zone plan , the expropriation documentation , CARDINAL principal and CARDINAL additional expert reports , and awarded the applicant additional compensation on DATE . The ORG appealed .", "On DATE ORG quashed the decision , quoting the applicant ’s name , instead of that of his representative , as the person who had been ill . ORG stated that the applicant had given a power of attorney to PERSON so that , even if he had been ill , PERSON could have lodged the claim on his behalf within the statutory time - limit . ORG consequently held that the case had been time - barred on DATE .", "In an application for rectification PERSON argued that it was she who had been ill , not her client . ORG had therefore made a factual error which should be rectified .", "On DATE , ORG held that “ amending the factual error would not affect the outcome ” , and dismissed the rectification request .", "On DATE ORG concurred with ORG decision and dismissed the case . On DATE ORG upheld the final ruling .", "According to sections CARDINAL of the Code of Civil Procedure , if a person or his or her legal representative is unable to comply with a statutory time - limit for reasons outside his or her control , that individual is given an additional DATE period starting on the date when the situation giving rise to the inability to comply has ended ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and is serving a prison sentence in FAC .", "On an unspecified date in DATE the applicant lodged with ORG ( PERSON ) a civil action against ORG and ORG . He sought compensation for the loss of vision in his left eye which , in his view , resulted from the insufficient medical care provided to him in FAC after his accident of CARDINAL DATE and from the inadequate conditions of his detention in that facility .", "On DATE the trial court decided to grant the applicant legal - aid . On DATE a hearing was held . On DATE the court admitted to the case file a report of an expert in ophthalmology .", "On DATE the ORG dismissed the applicant ’s claim . The court held that there was no causal link between the applicant ’s accident , which was a direct cause of his eye - condition , and the fact that he had been held in solitary confinement in FAC without having the assistance of a third person . The court found that , in detention , the applicant had received regular ophthalmological care and treatment since he was already blind in his right eye .", "Throughout the proceedings the applicant was represented by a legal - aid lawyer .", "The applicant appealed , arguing that the first - instance court had not examined his witnesses .", "On DATE ORG ( Sąd Apelacyjny ) upheld that judgment on appeal . The applicant was represented before the appeal court by a new legal - aid lawyer . The judgment was served on the applicant on DATE .", "The applicant asserted that he had not been notified of the date of the appellate hearing , that his lawyer had been changed without his being aware of it and that he had not been granted access to the case file . He also submitted that the trial court had not examined his witnesses .", "On DATE the applicant complained to ORG ( PERSON ) that his lawyer had not met with him before the appeal hearing and that he had collaborated with the respondent .", "By letter of CARDINAL DATE the applicant was informed that his complaint had been considered ill - founded . An internal inquiry revealed that the applicant ’s newly - appointed lawyer had sufficient time and means to study the case file and that he had been well prepared to argue the case . It had not been necessary for him to meet with the plaintiff in person before the trial .", "A cassation appeal was not available in the applicant ’s case .", "On DATE the applicant filed a complaint under LAW .", "On DATE ORG rejected the applicant ’s complaint . The court held that the CARDINAL Act did not apply in the applicant ’s case because the proceedings in question had been terminated prior to the applicant ’s length of proceedings complaint .", "On DATE the applicant lodged a claim for damages under section CARDINAL of the DATE Act read in conjunction with LAW .", "On DATE the ORG dismissed the applicant ’s claim . The court ’s judgment was not accompanied by a reasoned opinion . It appears , however , that the court found that the applicant had failed to prove that the proceedings in his case had been lengthy or that he had incurred any pecuniary damage as a consequence of a breach of the reasonable - time requirement .", "On DATE a copy of the judgment together with instructions on lodging an appeal was served on the applicant .", "The applicant did not appeal and the judgment became final on DATE .", "In DATE the applicant informed the ORG that he had not appealed against the judgment in question because he had considered it pointless in the light of the fact that GPE was a country not subject to the rule of law .", "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 PERSON v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL" ]

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[ "The applicant was born in CARDINAL and lives in ORG .", "On DATE the applicant was arrested by the police .", "On DATE ORG ( FAC ) decided to detain the applicant on remand in view of the reasonable suspicion that he had stolen CARDINAL “ PERSON ” cutting tools worth ORG MONEY from his neighbours , damaged their door frame and a letter box and uttered threats against his neighbour , Mrs. PERSON The court also referred to the fact that the offences with which the applicant had been charged had been committed within DATE of his previous conviction . The applicant was also charged with having robbed an individual of ORG CARDINAL . However , this charge was subsequently dropped by the prosecutor .", "On DATE the applicant 's request to change the preventive measure against him was dismissed .", "On DATE the applicant was indicted before ORG .", "On DATE the ORG prolonged the applicant 's detention . The court relied on the reasonable suspicion against the applicant , on the fact that he had been previously convicted and on the risk that the applicant might try to influence witnesses given the violent nature of the offences with which he had been charged and the fact that the witnesses were known to the applicant and lived in his neighbourhood . The court also considered that there was a risk that a severe sentence would be imposed on the applicant even though the charge of robbery had been dropped . The ORG noted that the applicant was a habitual offender and that there was a risk that he would abscond . The court concluded that only the detention of the applicant would secure the proper conduct of the proceedings and that the conditions for applying police supervision had not been met .", "A hearing scheduled for DATE was cancelled apparently due to the fact that the applicant went on a hunger strike and had to be transferred to a prison hospital .", "On DATE the applicant 's detention was further prolonged . The court essentially repeated the reasons given on DATE and further found that the applicant 's mental and physical health was not incompatible with detention .", "NORP The applicant appealed against this decision , contending that the court 's assessment that he would interfere with the course of the proceedings was unfounded . He pointed out that , for DATE after the proceedings against him had been initiated , he had been living next to the main witness , PERSON , seeing her several times a day , and he had not attempted to influence her to withdraw the charges . He further raised complaints about his health and the inadequate medical care in the detention centre .", "A hearing scheduled for DATE was adjourned as some of the witnesses had failed to appear .", "On DATE ORG ( PERSON ) dismissed the applicant 's appeal . The court considered that the applicant 's argument that since he had not tried to influence witnesses previously he would not do so in the future could not constitute a ground for release . It further dismissed the applicant 's complaints about his state of health as unfounded . The court finally observed that the trial had not yet started because of the applicant 's decision to go on hunger strike .", "On DATE the trial court held the first hearing in the applicant 's case .", "On DATE a further request of the applicant to be released from detention on the grounds of , inter alia , his poor health was dismissed by ORG .", "On DATE the ORG prolonged the applicant 's detention relying solely on the reasonable suspicion that the applicant had committed the offences and on the violent nature of the offences , which made it probable that he would use force against witnesses .", "The applicant appealed against this decision .", "On DATE ORG granted the appeal , quashed the impugned decision and ordered the applicant 's release . It appears that the applicant was released on DATE . The court gave the following reasons for its decision :", "“ We can agree with the first - instance court that the main ground for maintaining preventive measures with respect to [ the applicant ] , that is the high probability that the accused had committed the offences with which he had been charged , is still relevant . However , in the opinion of ORG , at the present stage of the proceedings the particular grounds justifying imposition of the most severe preventive measure are no longer relevant . In this case there is no real and justified risk that [ the applicant ] would attempt to illegally disrupt the proper course of the trial . As it appears from the case file the court had practically finished the taking of evidence and had heard all witnesses called . What remains to be established is the state of health of [ the witness , PERSON ] . In those circumstances it is difficult to argue that there is a continuing risk that the applicant would try to influence the witnesses to make false testimonies .", "On the other hand , what should be underlined is that the accused PERSON has been in pre - trial detention since DATE , which is over DATE . The act of indictment was lodged with the court on DATE . In spite of the fact that the accused is still in detention , the trial only started on DATE , that is after DATE . It would be a truism to reiterate that detention on remand should not be transformed into the serving of a sentence of imprisonment . Such a situation can not be accepted because of the guarantees of the accused 's rights and the nature of detention on remand , which is a lawful but controversial trespassing on the constitutional rights of an individual .", "In the light of the above , the appeal court finds that the appeal should be allowed ...", "Incidentally , ORG would observe ex officio that the first - instance courts instead of upholding detention on remand in cases where it is not absolutely necessary , should more often make use of the regulations contained in LAW [ listing other preventive measures ] . ”", "On DATE the ORG gave a judgment . The court convicted the applicant of the theft of CARDINAL “ PERSON ” tool worth ORG CARDINAL , destruction of property resulting in damage of ORG CARDINAL and uttering treats . He was sentenced to DATE and DATE imprisonment .", "NORP The applicant lodged an appeal and on DATE ORG dismissed it . The applicant did not lodge a cassation appeal and ORG judgment became final .", "The first page of the applicant 's first letter addressed to ORG bears the following stamp : Censored , ORG ( ORG , PERSON ) , a handwritten date : CARDINAL and an illegible signature . CARDINAL side of the envelope in which the letter was delivered to the ORG had been opened and subsequently sealed with adhesive tape .", "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 .", "Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) ( “ the DATE Code ” ) which entered into force on DATE . LAW provides that convicted persons are entitled to uncensored correspondence with ORG . For a more detailed rendition of the relevant domestic law provisions , see the ORG 's judgments in GPE v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE and PERSON v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ." ]

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[ "5-3" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant ’s wife died on DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . On DATE the applicant made a request for reconsideration and on DATE the previous decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .", "The applicant was not in receipt of child benefit at the time of his claim .", "The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "The applicants were born in DATE and DATE , and live in ORG . At the material time the first applicant was a trade - union leader , the second applicant a journalist . They also co - chaired ORG “ Civic Unity ” ( PERSON yedinstvo ) .", "On DATE the Co - ordination ORG adopted at its meeting the draft text of an open letter , entitled “ Media coverage of the reforms of President PERSON in the Penza Region ” ( “ GPE obespecheniy reform ORG v Penzenskoy oblasti ” ) .", "On DATE the text was discussed at a round table attended by the applicants , the editors - in - chief of local newspapers and journalists . The draft was amended and elaborated . The discussion concluded with the adoption of the open letter by the Co - ordination ORG and managers of the independent media in GPE to the President of GPE , ORG of GPE , ORG , the plenipotentiary representative of the President for the Volga LOC , and the Minister for Press and Information of GPE . The open letter was signed by the applicants and CARDINAL editors - in - chief .", "On DATE the ORG birzhevaya gazeta newspaper published the open letter on its front page . The relevant extracts of the letter , translated from NORP , read as follows :", "“ We ( authors of the open letter ) subscribe to various political views but are unanimous in our support of the President 's drive to curb corruption in the country , bring order to the economy , and assert the rule of law and democratic standards in all sectors of society . We have gathered at the round table because of our common concern for the fate of the President 's reforms in GPE . GPE is gradually transforming into a private holding controlled by Governor PERSON and his close circle ... [ emphasis added , see below ]", "DATE we ( the independent media ) embarrass the regional authorities because we openly disagree with the selfish and destructive policy of the governor and his team , we publish materials denouncing bribe - takers and officials who abuse their position ...", "Once again , as in DATE when the [ NORP ] ORG 's nomenclature feared their imminent dismissal , the regional authorities have started reprisals against the independent media . Journalists are subjected to threats and beatings , our publications are prohibited from being printed and distributed in the region ...", "On the other side – the independent media , whose attempts to stand for the rule of law , human rights , to talk about bringing order to the economy and to expose corruption are routinely suppressed by the governor and his acolytes ... ”", "The remainder of the open letter harshly criticised the Governor of GPE personally and contained allegations of serious wrongdoings .", "On DATE CARDINAL members of ORG lodged a civil action with ORG for the protection of their honour , dignity and professional reputation and for compensation for non - pecuniary damage allegedly sustained as a result of the publication of the open letter . They named the applicants and other signatories to the letter , as well as the newspaper that published it , as co - defendants .", "On DATE the original plaintiffs were joined by CARDINAL other members of ORG with identical claims .", "On DATE CARDINAL of the original plaintiffs , Mr NORP , withdrew his claim . Speaking to the GPE birzhevaya gazeta newspaper , he described the proceedings as “ an attempt to bring the media under control ” . In DATE Mr NORP was dismissed from his position in the Government .", "The applicants brought a counterclaim against the plaintiffs , alleging that they had violated civil - service law in that they had used their official position to discredit and adversely affect the functioning of the ORG association . The applicants claimed compensation for non - pecuniary damage allegedly caused by a violation of their rights and freedoms , in particular , the right to freedom of opinion guaranteed by LAW .", "On CARDINAL DATE ORG gave judgment . It carried out at the outset a detailed analysis of federal and regional laws on the structure of ORG and reached the following conclusion on the plaintiffs ' standing in the defamation suit :", "“ ... any ORG official in ORG wields a certain power and authority that is essential to the performance of his functional duties ; hence , he falls into the category of ' regional authority ' . Considering that the ' regional authority ' is made up of individuals , that is , ORG officials , the term ' regional authority ' applies to each plaintiff who is , by virtue of his position , a ORG official in GPE .", "The words ' the close circle of ORG , ' the governor 's acolytes ' , and ' the governor 's team ' used in the impugned publication are DATE in the court 's opinion , and despite the defendants ' and their representatives ' assertions to the contrary – applicable to all ORG officials [ working in ] the executive body of ORG and , therefore , to the plaintiffs . ”", "ORG then examined the truthfulness of the applicants ' statements referring to the “ destructive ” policy of the governor 's team . It found that the applicants had not used any “ scientific methodology for a comprehensive assessment of the social and economic development of the region ” for the preparation of the open letter and that their evaluation had been entirely based on their personal views . The court rejected the statement by Mr NORP on the economic decline in GPE in DATE because he had been dismissed from the ORG and therefore , in the court 's opinion , he was on the defendants ' side . The court concluded that the statements referring to the “ selfish and destructive policy ” were untrue .", "Likewise , ORG found no evidence to support the statements referring to the persecution of journalists in GPE . It pointed out that one of the signatories , the editor - in - chief of a local newspaper , could not prove that an attack on CARDINAL of his journalists had been politically motivated . In the court 's opinion , the fact that certain members of the Government had put pressure on local officials to subscribe to the newspapers controlled by the governor to the detriment of all others was lawful and could not be interpreted as “ prohibition on distribution ” .", "ORG held that the extracts of the open letter bold - faced in the text above were not true and damaged the honour and dignity of the plaintiffs as the members of ORG . It ordered that all the plaintiffs be jointly compensated for non - pecuniary damage : the defendant newspaper was to pay MONEY ( RUR ) and each of the applicants and CARDINAL of their co - defendants was to pay RUR CARDINAL . The court also ordered the defendant newspaper to publish a rectification .", "ORG dismissed the applicants ' counterclaim on the ground that the plaintiffs had exercised their right to a court and , therefore , had not violated any of the applicants ' rights .", "On DATE ORG examined an appeal by the applicants and upheld the judgment of DATE .", "Article CARDINAL guarantees freedom of thought and expression , together with freedom of the mass media .", "Article CARDINAL provides that an individual may apply to a court with a request for the rectification of statements ( svedeniya ) that are damaging to his or her honour , dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness . The aggrieved person may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such statements .", "The ORG ( in force at the material time ) provided that , in order to be considered damaging , statements had to be untrue and contain allegations of a breach of laws or moral principles ( commission of a dishonest act , improper behaviour at the workplace or in everyday life , etc . ) . Dissemination of statements was understood as the publication of statements or their broadcasting ( section CARDINAL ) . The burden of proof was on the defendant to show that the disseminated statements had been true and accurate ( section CARDINAL ) ." ]

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[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently serving a sentence of life imprisonment in PERSON prison , GPE - Palatinate . He was represented before the ORG by PERSON , a lawyer practising in GPE , in cooperation with Mr O. Lagodny , a professor at ORG .", "NORP The applicant was arrested in TIME DATE while trespassing on a residential estate in a GPE suburb where he was suspected of having engaged in voyeuristic activities . The arrest occurred within the scope of police surveillance measures carried out following the killing of QUANTITY women , mother and daughter , in TIME CARDINAL DATE in a nearby housing area in GPE . On TIME DATE before the killings a man had been noticed in the garden of the GPE house at TIME while observing the daughter through her bedroom window . There were thus grounds for suspecting that the QUANTITY women had been killed by the said voyeur .", "NORP In the course of police interrogations carried out during DATE following his arrest , the applicant first confessed having engaged in voyeuristic activities on several occasions in the past , then admitted to having assaulted a girl on CARDINAL occasions in DATE and , finally , he confessed to the killing of the CARDINAL women in TIME CARDINAL DATE . On the occasion of subsequent interrogations and interviews during his pre - trial detention , the applicant - while maintaining his confession that he had engaged in voyeuristic activities in the past - repeatedly withdrew and renewed his confessions regarding the sexual assaults in DATE and the killings in DATE . His description of the order and the way in which the killings had been committed differed from the account given on the occasion of his first confession .", "On CARDINAL DATE the applicant - now represented by counsel - finally revoked all previous confessions regarding the assault and killings and has protested his innocence ever since .", "According to the bill of indictment submitted by ORG to ORG on DATE , it was likely that the applicant had first killed the daughter and subsequently the mother in order to cover up the daughter ’s murder .", "In the course of the applicant ’s subsequent trial it was established that during the period from DATE to DATE the applicant had been active as a voyeur on numerous occasions . He had approached the homes of several girls or young women in the dark in order to observe them from outside . On most occasions he had further tried to draw his GPE attention to himself , asked them to have sexual intercourse and masturbated in front of their windows . His attempts to enter the women ’s homes by force were generally to no avail . However , on CARDINAL occasions in DATE the applicant managed to enter the home of an unsuspecting young woman through an open window and knocked her down when she rejected his sexual advances . As regards the killings of the CARDINAL women in DATE , the court found it established that during the period from DATE to DATE the applicant had repeatedly observed the DATE daughter at TIME through the window of her bedroom in her parent ’s house in GPE . In TIME CARDINAL DATE the applicant broke into the family ’s home with a view to having sexual intercourse with the girl . He first killed the mother who had woken up when he had entered the house with a knife he carried along . He then went to the daughter ’s bedroom . When the latter rejected his sexual advances , the applicant - out of anger and sexual frustration - hit and stabbed the girl in the head and throat with his knife so that she bled to death .", "In its judgment of DATE ( file no . CARDINAL Ks CARDINAL/CARDINAL ) ORG held that the applicant had killed both women out of base motives . ORG based its findings in particular on the applicant ’s detailed description of the crime scene in the course of the preliminary proceedings as well as on his account of the events given on the occasion of his first confession of the killings in DATE .", "Referring to the opinions of CARDINAL psychiatric experts , ORG considered that the applicant was suffering from a sexual deviation that had reached addictive dimensions and could considerably restrict his ability to control his acts in a sexual context . However , his sexual deviation did not amount to a mental illness that would exclude his criminal responsibility . In view of the particular gravity of the offences and the applicant ’s guilt ORG also saw no reason to mitigate the applicant ’s sentence .", "Consequently , ORG found the applicant guilty on CARDINAL counts of murder and sentenced him to life imprisonment in each case in accordance with LAW .", "On DATE ORG , after hearing the applicant and ORG ( ORG ) rejected the applicant ’s appeal on points of law as ill - founded .", "By a decision of CARDINAL DATE , confirmed on appeal , ORG dismissed the applicant ’s request for a reopening of the proceedings as inadmissible .", "On DATE ORG , having heard the applicant , the PERSON prison authorities as well as the GPE public prosecution authorities , concluded that in the case at hand the particular gravity of the applicant ’s guilt justified the continuation of his detention for more than the minimum period of DATE envisaged for murder . However , ORG specified that such finding did as a rule not exclude the suspension of the remainder of a life sentence at a later stage , for instance after a period of CARDINAL , DATE .", "In DATE various psychiatric and psychologist expert opinions were obtained by the PERSON prison authorities on the question whether the applicant could be granted relaxations of his detention ( PERSON ) and whether his future release on probation was conceivable .", "For instance , a psychiatric expert stated in an opinion rendered on DATE that the applicant ’s perversion had developed progressively and had finally escalated in destructive behaviour . The expert further found that the applicant ’s insistence on his innocence had meanwhile reached a pathological quality in itself and prevented him from accepting therapeutic help . It was thus impossible from a psychiatric point of view to assess whether the applicant had actually committed the crimes or to give a reliable criminal prognosis for the future . Having regard to , inter alia , the applicant ’s unobtrusive behaviour during detention , the expert saw no acute risk of recidivism and proposed to test the applicant ’s capacity to cope with life outside prison on the occasion of relaxations of his detention . He nevertheless specified that a theoretical risk that the applicant would commit further crimes could not be excluded .", "In a statement of CARDINAL DATE the resident psychologist at ORG prison pointed out that the applicant still had problems in establishing interpersonal relations and trivialised his voyeurism . Thus , a potential danger that the applicant ’s sexual perversion would resurge in the event of his release on probation could not be excluded .", "NORP However , in a statement of CARDINAL DATE a GPE psychotherapist who had provided regular outpatient psychological treatment to the applicant since DATE found that , having regard to the therapy carried out so far , there was “ no compelling reason to assume ” that the applicant had been intellectually capable of organising and committing the crimes . Consequently , it was also not to be expected that he would be capable of committing similar crimes in the future .", "The applicant was granted first relaxations of his detention from DATE . However these relaxations were later revoked as a consequence of an expert opinion by a professor of ORG rendered in DATE . This expert stated that as a consequence of inappropriate therapy measures during his detention the applicant had taken to insist on his innocence and had become resistant to any further therapy attempts . The expert was of the opinion that irrespective of the fact that relaxations of the applicant ’s detention in the past had not given cause for complaints , there was a high risk that he would reoffend if confronted with conflict situations similar to the one that had been at the origin of the murders . In this expert ’s opinion the danger the applicant posed to society was not lower than at the time he had committed the crimes .", "A further psychiatrist opinion of CARDINAL DATE considered that the applicant had made considerable progress as regards his ability to establish interpersonal relationships and had learned to constructively deal with his sexuality . The expert further pointed out that the applicant had not abused previous relaxations of his detention and had not shown aggressive or sexually deviating behaviour in the course of his meanwhile DATE of detention . He therefore suggested that relaxations of his detention be reinstated with a view to testing whether a conditional suspension of his life sentence could be considered in the future .", "Consequently , in DATE , the applicant was transferred to open prison facilities , allowed to take up employment outside prison and to make his journeys to and back from work without supervision . He was further granted prison leave that he spent in an apartment rented by him for this purpose .", "The same psychiatric expert who had rendered the opinion in DATE addressed the possibility of the applicant ’s conditional release on probation in a further opinion of CARDINAL DATE commissioned by ORG ( GPE ) . The expert noted that the applicant had made further progress with a view to his social integration and that his conduct during relaxations of his detention had been unobjectionable . He therefore confirmed his previous finding that the applicant ’s criminal prognosis was rather positive . He pointed out that , however , the applicant still lacked experience in establishing and maintaining sexual relations . While the risk of recidivism could be further reduced by accompanying therapeutic treatment , it was impossible to assess the likelihood that the applicant would commit further serious crimes if confronted with a situation of conflict in a sexual context .", "In a statement of CARDINAL DATE the GPE psychologist who had attended to the applicant since DATE ( see § CARDINAL above ) expressed the view that as a result of specific therapeutic measures implemented since DATE the applicant had gained in social competence and made progress regarding a possible social integration . He had learned to control his actions and therefore further relaxations of his detention should be considered .", "By a decision of DATE ORG held that the particular gravity of the applicant ’s guilt had been compensated by the execution of his sentence for meanwhile over DATE and thus did no longer require the continued execution of his life sentence . In line with the proposal of the public prosecution authorities , the court , after having heard the applicant on DATE , nevertheless refused the latter ’s first request to suspend his detention on probation on the ground that there remained a risk that he would commit similar offences if released .", "NORP The applicant ’s related appeal was dismissed by ORG on DATE . ORG noted that if , as in the case at hand , the offence at issue qualified as murder , the safety interest of the public was of particular importance . A release on probation could not be considered if there remained an even remote risk that the convict would commit further serious crimes if released . While the findings in the numerous psychological and psychiatric expert opinions established over DATE had been to some extent contradictory , they had nevertheless all confirmed that a risk that the applicant would commit further serious crimes threatening the life of others could not be excluded . The court specified that the statement of the applicant ’s long - time therapist of CARDINAL DATE ( see § DATE above ) which was at variance with the experts’ findings did not lead to a different conclusion since this therapist was lacking the required distance and impartiality .", "On DATE the applicant again requested that he be released on probation and submitted that his continued detention for meanwhile DATE violated his human dignity .", "On DATE ORG commissioned an additional expert opinion on the likelihood that the applicant would commit further serious crimes if released . It was rendered by a deputy medical director ( ORG ) of the GPE psychiatric university clinic on DATE . This expert pointed out that the applicant ’s irreproachable behaviour during the relaxations of his detention over DATE constituted a positive criterion for his criminal prognosis . He nevertheless shared the view of previous experts that the applicant ’s persevering denial of the crimes prevented him from appreciating and analysing the specific circumstances and motives which had led to the murders . It was thus difficult to assess the remaining risk of recidivism and it could not be excluded that the applicant still posed a threat to society .", "By a decision of CARDINAL DATE ORG , after hearing the said psychiatric expert as well as the applicant and referring to written statements from the GPE public prosecution authorities as well as the PERSON prison authorities , again ordered that the execution of the applicant ’s detention be continued . In its decision - making the court took into account that the PERSON prison authorities had given a favourable opinion on the applicant ’s possible release on probation in view of the fact that he had never abused relaxations of his detention which had been implemented for meanwhile DATE . ORG , relying in particular on the assessment by the said psychiatric expert , nevertheless held that the applicant ’s criminal prognosis was still uncertain . This assessment was further supported by the resident psychologist at ORG prison . In a written statement of CARDINAL DATE he had stated that the applicant ’s lack of insight into his deed did not even allow for a positive criminal prognosis in the long term .", "The applicant appealed the decision by written submissions of CARDINAL DATE and DATE . He maintained , inter alia , that contrary to the ORG ’s criminal prognosis , were bound by the statement and assessment of facts as established in ORG judgment of DATE .", "On DATE ORG , endorsing ORG reasoning , dismissed the appeal as ill - founded .", "ORG held that , contrary to the applicant ’s submissions , it had to be assumed that the offences had been committed as established in the first instance judgment of DATE . This finding was in line with the wording of LAW ( see relevant domestic law below ) stipulating that in their assessment whether a life sentence was to be suspended on probation the courts , shall , inter alia , take into account the circumstances of the convict ’s crime . These circumstances of a case could only be established in the proceedings leading to the conviction . It was not the task of the court dealing with issues in relation to the subsequent execution of the convict ’s sentence to reassess the facts . The only appropriate remedy for a convict alleging that new evidence had occurred following his conviction would be a request for a reopening of the proceedings .", "The ORG further noted that it followed from the experts’ opinions that the likelihood that the applicant would commit similar offences if released could not be assessed in a reliable way . Even the opinions established in DATE by the expert who had given a rather positive criminal prognosis for the applicant , based on his unobtrusive conduct during the execution and relaxations of his sentence , had concluded that it was unpredictable how the applicant would react if confronted with a situation of conflict within a sexual context . Subsequent psychological statements and opinions had also come to the conclusion that a risk of his reoffending could not be excluded even if the applicant was to be monitored closely . ORG therefore considered that the applicant was a “ ticking bomb ” and that the risk that he would commit a serious violent crime was not merely theoretical irrespective of his irreproachable conduct during detention . While taking into account the applicant ’s increasing interest to be released in view of his detention for meanwhile DATE , ORG concluded that in view of the gravity of the offences committed , the applicant ’s denial of the deeds and the resulting doubts in respect of a positive criminal prognosis , the safety interest of the public still prevailed over the applicant ’s interest to be released on probation . The continued execution of his life sentence was thus proportionate .", "On DATE the applicant complained about a violation of his right to be heard ( Anhörungsrüge ) and challenged the presiding judge at ORG for bias . He alleged in particular , that ORG had ignored his argument that the facts as stated in ORG judgment of DATE were not binding on the psychological experts . Furthermore , it had not addressed his concerns whether the indefinite execution of a life sentence was in compliance with the German Basic Law ( Grundgesetz ) . His applications were rejected by ORG on DATE and DATE , respectively .", "On DATE the applicant lodged a constitutional complaint against the decisions of ORG of DATE and ORG dated DATE . On DATE , he extended his constitutional complaint to the decisions of ORG dated DATE and DATE .", "On DATE ORG , by a leading decision ( file no . CARDINAL BvR CARDINAL/CARDINAL ) running to some CARDINAL pages , rejected the applicant ’s complaint as ill - founded to the extent he had challenged the refusal of the domestic courts to suspend his detention on probation .", "ORG found that the execution of a life sentence beyond the period warranted by the particular gravity of a convict ’s guilt on the ground that the latter still presented a threat to society did not as such violate his or her constitutionally guaranteed right to respect of human dignity or right to liberty . However , the protection of human dignity and the principle of the rule of law required that a detained person had a concrete and realistically attainable chance to regain his freedom at some later point in time . Such prospect of release was guaranteed by means of a strict scrutiny by the domestic courts whether an ongoing detention was still proportionate . The longer a detention lasted , the stricter the scrutiny of whether it was still proportionate had to be . A detainee ’s ever increasing interest to be released in the course of a lengthy detention on the one hand was restricted by the ORG ’s mandate to protect the rights of others and the safety interest of the public on the other . Where criminal offences such as murder were to be expected in the event of a potential recidivism , the safety interest of the public required particular protection . A release on probation could only be envisaged if the remaining risk for the safety interest of the public was justifiable . However , even in the event a convict had committed serious violent or sexual crimes , a release on probation could not be refused by the domestic courts simply on the ground that there existed a mere theoretical risk of recidivism ( which in view of the limited possibilities of any kind of prognosis could in any event never be excluded ) . It rather had to be based on concrete factual circumstances establishing that such risk was unjustifiable having regard to the safety interest of the public .", "The Federal Constitutional Court further pointed out that a convict ’s interest in being released also had an impact on the procedural requirements to be observed by the courts when deciding on a possible suspension of a sentence of life imprisonment . In view of the indefinite duration of a life sentence , domestic law provided for a judicial examination of a request for a release on probation which could be lodged by the public prosecution authorities as well as the convict at any point in time . Furthermore , the conditions for a possible release had to be assessed by the authorities at an early stage in order to enable them to take appropriate measures to prepare a convict ’s possible release . In this connection relaxations of detention were of particular importance since they offered the judge a broader and sounder basis for an assessment of the detainee ’s criminal prognosis with respect to a life in liberty . When assessing the likelihood that a convict would commit further serious crimes if released , the courts were under an obligation to obtain the best possible clarification of the circumstances of a case and had to base their prognosis on a sufficiently substantiated and recent expert opinion . Finally , any court decisions on the continuation of a lengthy detention had to be carefully reasoned and disclose the basis of the judge ’s assessment . In the event the continued detention was primarily justified by the safety interest of the public , it had to be considered whether the particular burden of a long - lasting deprivation of liberty could be countered by granting the convict certain privileges in DATE prison routine , thus allowing him to retain some quality of life .", "ORG found that the impugned decisions of ORG and ORG had complied with the aforementioned constitutional requirements . The domestic courts had struck a fair balance between the applicant ’s right to be released and the safety interest of the public . ORG , in its appeal decisions of CARDINAL DATE and DATE , had not only taken into consideration the considerable length of the applicant ’s detention of meanwhile DATE but also his good conduct . It had further made a thorough assessment of the various expert opinions on the applicant ’s criminal prognosis and provided arguments why it shared the evaluation of the external expert opinion of DATE confirming that a risk of recidivism could not be excluded . On the basis of the expert ’s assessment ORG had concluded that such risk was not merely theoretical and had demonstrated that under certain conditions the applicant ’s ability to control his actions was reduced to an extent that made it possible that he would commit similar serious offences even if he was to be closely monitored following a possible release . ORG , while noting that a more convincing reasoning of the NORP decisions would have been desirable , conceded that the lack of clarification of the specific circumstances leading to the murders resulted from the applicant ’s failure to reflect on the crimes . Under these circumstances , ORG assessment that the likelihood of the applicant committing further serious crimes such as murder was of a degree that the safety interest of the public had to prevail over his interest to be released , had nevertheless been reasonable .", "Finally , ORG pointed out that in view of the fact that no review of the applicant ’s detention had occurred since the impugned decision of DATE , the public prosecution authorities were under an obligation to investigate ex officio why the applicant had not submitted a related request .", "ORG decision was served on the applicant on DATE .", "Following ORG decision of DATE in the proceedings at issue , the PERSON prison authorities ordered in DATE that the applicant ’s cell and his apartment outside prison be searched . There had further been evidence that in DATE and DATE the applicant had extended his journeys to and back from work on several occasions . On the occasion of the search of his apartment the PERSON prison authorities seized , inter alia , binoculars , numerous magazines , photographs and video cassettes of a pornographic nature , ropes and adhesive tapes , as well as women ’s underwear .", "Consequently , the ORG prison authorities ordered that all relaxations of the applicant ’s detention be removed on the ground that the outcome of the search had shown that there was a risk that he would abuse releases from prison in order to commit further serious crimes .", "The resident psychologist at ORG prison , in a statement of CARDINAL July CARDINAL , pointed out that the applicant had stood the test of previous relaxations of detention and that the removal of his privileges implied the loss of his apartment , employment , personal environment outside prison and of all existing social perspectives . However , while the fact that the applicant had abused his journeys to work and the materials found in his flat did not constitute a clear indication for an acute risk of recidivism , the recent developments had made a reliable positive prognosis for the applicant even more difficult .", "On DATE , ORG rejected the applicant ’s request to have the relaxations of his detention reinstated . The ORG found that the prison authorities’ decision to remove the applicant ’s privileges had been justified for the protection of the safety interest of the public . Considering the expert opinions rendered in the course of the applicant ’s lengthy detention and taking into account that a significant amount of pornographic material had been seized in the applicant ’s flat , the court was of the opinion that there remained a considerable risk that the applicant may reoffend .", "The applicant ’s appeal against ORG decision was rejected by ORG on DATE as inadmissible . On DATE the applicant lodged a constitutional complaint . No further information was submitted to the ORG in relation to the proceedings before ORG in this respect .", "A subsequent request for reinstatement of relaxations of the applicant ’s detention of CARDINAL DATE was rejected by the PERSON prison authorities on DATE . The prison authorities conceded that the applicant ’s conduct since the removal of previous relaxations of his detention in DATE had been irreproachable . He had worked in the prison ’s locksmith ’s shop and maintained extensive contacts with the outside world like , inter alia , with his former employer and colleagues as well as his former therapist . The fact that he had also stood the test of DATE of relaxations of his detention DATE , the long duration of his imprisonment as well as his advanced age also were arguments in favour of granting him the right to unsupervised releases from prison . However , the applicant ’s unaltered denial of his deeds and the fact that he trivialised his sexual deviation prevented any perspective of therapeutic progress . In this context the prison authorities also referred to an expert opinion obtained on CARDINAL DATE stating that in view of the high remaining risk of recidivism relaxations of the applicant ’s detention were only justifiable if combined with continuous and close monitoring . Accordingly , the prison authorities concluded that the protection of the rights at stake outweighed the applicant ’s interest in social reintegration .", "Ever since the applicant was only granted occasional supervised releases from prison .", "By written submissions of CARDINAL DATE the applicant again requested that the remainder of his life sentence be suspended on probation and asked ORG to obtain an expert opinion on the likelihood that he would commit further serious offences if released . In a statement of CARDINAL DATE , the PERSON prison authorities opposed the applicant ’s release on probation since he still did not show any insight into the crimes .", "By a decision of CARDINAL DATE ORG commissioned the expert opinion and appointed an expert proposed by the applicant . The expert opinion was rendered on DATE . The expert pointed out that leading forensic psychiatrists had established that the risk of recidivism following release did not depend on the offender ’s insight into the offence committed . The expert therefore concluded that the fact that the applicant insisted on his innocence could not have a negative impact on his legal prognosis . However , there was nothing to establish that the applicant ’s character had matured since he had committed the crimes or that any therapeutic progress had been made . It therefore remained impossible to assess the potential risk of recidivism , in particular in the long term , and it was unlikely that future expert opinions would come to a different assessment . The expert held that relaxations of the applicant ’s detention , such as unsupervised releases from prison could be reinstated with a view to preparing the applicant ’s placement in supervised accommodation ( PERSON ) . Even if integrated in such supervised accommodation it would be necessary to closely monitor the applicant and provide counselling as regards his sexual behaviour .", "On DATE ORG , after hearing the applicant as well as the expert and having regard to the prison authorities’ statement of DATE , again rejected the applicant ’s request that his life sentence be suspended on probation and held that a further similar request would be inadmissible if made within DATE .", "ORG , referring to the principles set out in ORG decision of DATE with respect to the proportionality of the continued execution of a life sentence , concluded that the applicant ’s continued detention was still justified . In its assessment ORG referred in detail to the various expert opinions rendered over DATE , in particular the expert opinion of DATE . While taking into account the significant duration of the applicant ’s detention for meanwhile DATE and his good conduct on the one hand , the court also considered the particular brutality characterising the crimes and the fact that the applicant did not show any insight into the deeds and his sexual deviation . The court nevertheless pointed out that the principle of proportionality required granting the applicant an opportunity to show that he was able to stand the test of relaxations of his detention and to improve his criminal prognosis . It therefore supported the expert ’s proposal that closely monitored relaxations of the applicant ’s detention be granted and held that prior to a possible placement of the applicant in supervised accommodation he would have to prove during DATE that he was capable of dealing with situations of conflict in a sexual context outside prison with a view to preparing a possible release on probation .", "It appears that since DATE the applicant has been granted the right to unsupervised releases from prison DATE .", "Article CARDINAL § CARDINAL of the German Basic Law ( Grundgesetz ) provides that human dignity shall be inviolable and that to respect and protect it shall be the duty of all ORG authority . LAW stipulates that the freedom of a person shall be inviolable and may be interfered with only on a statutory basis .", "Pursuant to LAW ) , the intentional killing of a person is to be classified as murder if certain aggravating elements are present . A murderer under this provision is any person who kills another person for pleasure , for sexual gratification , out of greed or otherwise base motives , by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence .", "Murder is punishable by life imprisonment . A declaration by the sentencing court that the defendant ’s guilt is of a particular gravity may , inter alia , have a bearing on a subsequent decision regarding suspension of the latter part of the defendant ’s prison sentence on probation .", "Article CARDINAL(a ) § CARDINAL in conjunction with LAW stipulates that the court is to suspend the remainder of a life sentence on probation if the convicted person has served DATE of his sentence , the particular gravity of the defendant ’s guilt does not warrant the continued execution of the sentence and provided that a suspension on probation can be justified while considering the safety interest of the public . In its assessment whether probation shall be ordered the courts shall take into account the personality of the convicted person , his past life , the circumstances of his crime , the extent to which the legal interest would be threatened in the event of recidivism , the conduct of the convicted person while serving his sentence , his living conditions and the expected effects the suspension of the sentence could have on him .", "Following expiry of the minimum term of DATE , the courts decide on the suspension of the remainder of a convict ’s life sentence ex officio . Furthermore they are under an obligation to decide on related requests by the applicant , his counsel or the prosecution authorities which may be lodged at any time in the course of an ongoing detention .", "Article CARDINAL § CARDINAL of LAW ( Strafprozessordnung ) provides that the decision whether execution of the remainder of a prison sentence is to be suspended on probation ( sections CARDINAL of LAW ) , as well as the decision that prior to expiry of a certain time limit an application by the convicted person to this effect shall be inadmissible , shall be given by court order . The public prosecution office , the convicted person and the penal institution shall be heard . According to paragraph CARDINAL of this provision the court shall obtain the opinion of an expert concerning the convicted person if it considers suspending execution of the remainder of a sentence of life imprisonment . The opinion shall , in particular , express a view as to whether there remains a risk that the convicted person is still posing the danger apparent from the offence of which he was convicted ." ]

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[ "The second applicant was born in DATE and lives in GPE .", "NORP The applicant company , which is wholly owned and administered by the second applicant , bought shares in a housing corporation on DATE . Later the applicants found out that the same shares had been given as security by company X. which had been declared bankrupt . They also found out that the whole of the real estate had been placed under an interdiction against sale or dispersal .", "On DATE the applicant company initiated an action for damages in ORG ( käräjäoikeus , tingsrätten ) against the bank and the bank director responsible for selling the shares , claiming compensation for the loss of the shares . On DATE ORG dismissed the claim as premature without considering the merits .", "On DATE the applicant company initiated , together with the other share holders , a new action for damages against the bank as the rules on civil procedure had changed in the meantime . The company claimed that the damage had been caused by a bank manager and that the bank as employer was liable for its employees . Allegedly , the bank manager had given incorrect information , had not acted diligently but in breach of good banking practice and was guilty of criminal conduct . The company claimed that the bank was obliged to compensate , inter alia , by reimbursing the purchase price of the shares , the condominium charges paid to the housing corporation and the company ’s legal expenses incurred in the criminal case .", "The case was postponed pending the outcome of other civil proceedings related to the present case . The final judgment in those proceedings was rendered on DATE .", "After the conclusion of the above - mentioned civil proceedings , the present case was postponed once more pending the outcome of criminal proceedings which had been brought against the representatives of the bank and which concerned the same sale of shares . The ORG judgment in the criminal proceedings was issued on DATE .", "In letters dated DATE and DATE and addressed to ORG , the applicant company requested that , despite the pending appeal against the judgment in the criminal case , the consideration of the present case be resumed .", "On DATE the applicant company also informed ORG that the shares in the housing corporation had been declared part of the bankruptcy estate of company X. pursuant to the above - mentioned final judgment of DATE . The shares were thus worthless since the housing company was de facto bankrupt .", "On DATE the defendant bank requested that the proceedings remain adjourned pending the outcome of criminal proceedings since the proceedings were still pending on appeal .", "On DATE ORG held a preparatory meeting . On DATE it decided to adjourn the proceedings pending the final outcome of the criminal proceedings . According to the court , it was important to await that outcome as the question of criminal liability formed the basis of the civil proceedings and the cases partly overlapped .", "On DATE the applicant company lodged an appeal with ORG ( hovioikeus , hovrätten ) , requesting that the ORG decision of DATE be annulled and that the civil proceedings be immediately resumed . It claimed that , due to the adjournment , the proceedings would necessarily last over DATE and that , as a result , the excessive length of the proceedings would violate its rights under LAW . It requested that the proceedings in ORG be examined urgently .", "On DATE ORG found that the applicant company ’s appeal did not give reason to take any action .", "By an appeal dated DATE the applicant company appealed against this decision to ORG ( korkein oikeus , högsta domstolen ) , which refused leave to appeal on DATE .", "The applicant company filed a written statement dated DATE informing ORG that the criminal proceedings had been terminated by a final judgment given on DATE and requesting the resumption of the civil proceedings .", "On DATE the second applicant lodged a request to intervene in his own name in the proceedings before ORG and claimed compensation . The applicants presented as written evidence a deed of sale with which the second applicant had purchased the said shares of the housing corporation from the applicant company on DATE and with which the claim for compensation had been transferred to the second applicant .", "The court held an oral hearing in the case on CARDINAL and DATE .", "By a judgment of DATE , ORG first rejected the second applicant ’s request to intervene and found that the first applicant was the correct plaintiff . The court rejected the remainder of the complaints and considered that the circumstances of the sale of the shares and the documents relating to it were so obscure that the risk involved in the purchase had been apparent . Moreover , the court found no causal link between the acts of the defendant bank and the damage suffered by the first applicant .", "By an appeal dated DATE , the applicants appealed to ORG , requesting that ORG judgment be quashed . By a letter dated DATE , the applicants asked the appellate court to accelerate the proceedings .", "On DATE ORG found that the rightful owner of the shares was the second applicant and that , consequently , only the second applicant could claim damages . The court noted , however , that the defendant bank had already paid compensation and interest due from DATE onwards . Since the second applicant had claimed damages in his own name only on DATE , he no longer had any claims against the bank . ORG thus rejected the ORG appeal .", "On DATE the defendant bank appealed to ORG , complaining about the partial rejection by ORG of its claim for costs and expenses . On DATE ORG refused leave to appeal ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in GPE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in PERSON .", "In DATE the applicant , a NORP national and therefore , at the time of the events in question , a national of a ORG outside ORG , commenced employment with a GPE company as a lorry driver . The contract was governed by GPE law and the lorry was registered in the GPE . The applicant was in possession of an employment certificate ( PERSON ) issued by ORG ( ORG ) which stated that his employer covered the transport risks and expenses and that the applicant was legally employed . He did not reside in the GPE , worked exclusively outside the GPE and , at the relevant time , had not ( yet ) been issued with a GPE work permit .", "On DATE and DATE , on his way from GPE to GPE and GPE to GPE , he was subjected to checks by the NORP police . After both events criminal proceedings were instituted against the applicant .", "On DATE the NORP ORG convicted him of remaining in the country illegally in both cases and sentenced him to an overall fine of MONEY ( equivalent to MONEY ( EUR ) ) . The decision was based on sections CARDINAL(CARDINAL ) and CARDINAL ) of LAW , see “ Relevant domestic law ” below ) . The court found that the exception to the requirement to hold a residence permit provided for in section CARDINAL , subsection CARDINAL ) of the Order implementing LAW ( Durchführungsverordnung zum Ausländergesetz , see “ Relevant domestic law ” below ) did not apply as the applicant ’s journeys from GPE and GPE to GPE did not have a direct connection with the GPE , the ORG Member State where the company was established . That , however , the court pointed out , was an implicit condition of the provision in question , as demonstrated by its genesis and its aim of preventing bogus companies being set up and as further confirmed in a statement by ORG addressed to the applicant ’s legal counsel on DATE . On that ground the court found that the question whether the applicant was legally employed in the GPE was not decisive . It further established DATE referring also to the fact that information to that effect had been circulated by the authorities – that the applicant at least could have known that his actions were illegal .", "On DATE the GPE employment agency ( Arbeidsvoorziening ) issued the applicant with a work permit ( Tewerkstellingsvergunning ) allowing him to load and unload goods in the GPE . Thereafter the applicant also transported goods from and to the GPE .", "On DATE the ORG , after hearing evidence from the executive director of the company which employed the applicant and obtaining a translation of the documents in NORP , quashed his conviction as regards the first offence on the ground that the applicant could not have known that his stay was illegal given that he had been subjected to checks before without any consequences . However , it upheld his conviction as regards the second offence and reduced the fine to LAW . As regards the second conviction it found that the exception to the requirement to hold a residence permit , provided for in section CARDINAL , subsection CARDINAL ) of the Order implementing LAW , did not apply as at the time of the events in question the applicant had not been in possession of a GPE work permit ( it found that the employment certificate could not be equated with a work permit , as it merely stated that the applicant ’s employer covered the transport risks and expenses and that the applicant was legally employed ) and had been working exclusively outside the GPE . In this latter respect it pointed out , referring also to a statement by ORG , that section CARDINAL , subsection CARDINAL ) of the Order implementing LAW was clearly aimed at benefiting only those employees whose ( legal ) residence and employment were actually in the Community Member State where the company was established and not those who , like the applicant , worked exclusively outside that Member ORG .", "On DATE ORG rejected the applicant ’s appeal on points of law . It upheld the finding that , at the relevant time , the applicant had not been in possession of a GPE work permit . In this respect it also pointed out that only from DATE had he been entitled to work as a lorry driver in the GPE . Furthermore , it found that the applicant ’s case could not be compared to the case of PERSON ( ECJ , see below ) as , unlike Mr PERSON , the applicant was not in possession of a work permit issued by the ORG where the company was established .", "On DATE ORG refused to admit the constitutional complaint , without indicating any reasons .", "Relevant domestic law", "Section CARDINAL(CARDINAL ) of LAW provides :", "“ Any person entering or remaining in GPE must have a residence permit . In order to facilitate the residence of non - nationals in GPE ORG , with the consent of the GPE , shall issue an order providing for exemptions . ”", "Section CARDINAL(CARDINAL ) of LAW reads as follows :", "“ Any person who , contrary to section CARDINAL(CARDINAL ) , remains in GPE without a residence permit ... shall be liable to imprisonment for not more than one year or to payment of a fine . ”", "Section CARDINAL , subsection CARDINAL ) of the Order implementing LAW provides for an exception to the requirement to hold a residence permit if a person employed by a company from another ORG and resident in that ORG does not remain in GPE for DATE in DATE , if he or she :", "“ works in cross - border passenger or goods traffic , if the company employing him or her is established in a Member State of the ORG , if the vehicle is registered in that country and if the employee has the residence and work permits required in that country . ”", "Judgment of the ECJ of DATE , PERSON v. Office des Migrations internationales , Case C-CARDINAL/CARDINAL", "In this judgment the ECJ ruled that under ORG a Member ORG was precluded from requiring undertakings established in another Member ORG , and entering the first Member ORG in order to provide services , to obtain further work permits in the ORG where the services were to be carried out for those employees who were nationals of a non - member country but who had been issued with work permits in the Member ORG where the undertaking was established ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On an unspecified date the GPE police received an anonymous telephone message which concerned the applicant .", "On CARDINAL DATE the GPE police received another phone call from the same person stating that the applicant was in the house of a certain LOC , brother of the applicant ’s fiancée .", "According to the house search and seizure report drafted on DATE at TIME , the LOC police conducted a drug - related operation targeting ORG house , under the supervision of the GPE public prosecutor . The report stated that the applicant had given a false name and resisted the police when the officers showed him their search warrant . According to the report , the applicant physically attacked and injured CARDINAL officers . He then fell and hit his head on the door . CARDINAL officers handcuffed him by pinning him to the floor by the arms and shoulders . During the search , the officers found ecstasy pills in the house . They also found a weapon hidden under a sofa . The report was signed by QUANTITY police officers , the applicant and the applicant ’s fiancée , PERSON The applicant was subsequently arrested and placed in police custody .", "At TIME on DATE the applicant was examined by a doctor at ORG , who observed a QUANTITY - long laceration on the scalp with an oedema around it on the left parietal region , a bruise on the front of his neck ( under the chin ) , a minor erythema on his right cheek , and pain and another slight erythema in the right lumbar region .", "On DATE , QUANTITY police officers from the team that had effected the applicant ’s arrest , were also examined by the same doctor . The doctor observed an erythema in the abdominal region , QUANTITY bruises and erythemas on the right of the back , and erythemas on both arms of A.T.E. ’s body . As regards PERSON , the doctor noted an erythema of QUANTITY on the left arm and a bruise of QUANTITY on the left side of the abdominal region .", "At TIME on DATE A.T.E. and ORG gave statements to police officers in their capacity as complainants and victims . They submitted that the applicant had resisted arrest and had insulted and physically attacked them . According to the officers , the applicant had fallen and hit his head on the door and had then been arrested . At TIME the applicant gave statements to the police and alleged that he had been beaten by police officers and injured during his arrest .", "On DATE the applicant was once again examined by a doctor , who noted a red lesion measuring QUANTITY on his right upper arm and a complaint of intense pain in the right part of his back .", "On DATE the applicant was brought before ORG . The judge informed him that he was charged with insulting and resisting the police officers as well as causing them injuries . The applicant denied the allegation that he had insulted and resisted the police officers . He maintained that he had been hit on the head by police officers with a weapon and beaten with truncheons and guns during the house search . The judge subsequently ordered the applicant ’s pre - trial detention .", "On DATE the GPE public prosecutor filed a bill of indictment with ORG against the applicant charging him with resisting the police , insulting public officials and possession of firearms without a licence .", "During the trial , ORG took statements from the QUANTITY police officers who had affected the applicant ’s arrest , the applicant and other police officers who had arrested him . The police officers maintained before the court that they had been kicked and punched by the applicant , who had resisted arrest , and that they had obtained medical reports in support of their allegations . They further maintained that the applicant had insulted them in NORP and in NORP . The applicant claimed that he had not resisted arrest or insulted the officers and that in any case he had been unable to resist arrest on account of the number of arresting officers .", "On DATE ORG convicted the applicant of the aforementioned offences and sentenced him to a total of DATE and QUANTITY months’ imprisonment . The court found it established DATE on the basis of the arrest and search report , medical reports , the expert assessments of the firearm , and the statements of the complainants , the applicant and witnesses DATE that the applicant had insulted and resisted the police officers and had been in possession of an unlicensed firearm .", "On DATE ORG quashed the judgment of DATE , holding that the first - instance court should have examined whether it was appropriate to suspend the delivery of the judgment ( hükmün açıklanmasının geri bırakılması ) .", "On DATE the first - instance court once again convicted the applicant of the same offences and sentenced him to a total of DATE and QUANTITY months’ imprisonment and a fine of MONEY .", "According to the information obtained by ORG from the website of ORG , on CARDINAL DATE ORG upheld the judgment of DATE .", "In the meantime , on DATE the applicant applied to the LOC public prosecutor ’s office requesting that the police officers who had arrested him be punished for injuring him by using excessive force during his arrest .", "On DATE the GPE public prosecutor issued a decision not to bring criminal proceedings against the arresting police officers as he found it established that the applicant had insulted and physically attacked the officers and resisted arrest . The public prosecutor noted that the applicant , A.T.E. and PERSON had fallen during the struggle and sustained injuries . According to the public prosecutor , the police officers had handcuffed the applicant by using force when he was on the floor . He found that there was no concrete evidence other than the complainant ’s allegations that the members of the security forces had illtreated him . The public prosecutor considered that the force employed by the police had not been excessive and that the officers had acted within the scope of their duties . The public prosecutor did not question the applicant , the accused police officers or any other witnesses before giving his decision .", "On DATE the applicant objected to the decision of CARDINAL DATE .", "On DATE ORG dismissed the objection .", "On an unspecified date , an investigator initiated a disciplinary investigation in respect of A.T.E. and PERSON Within the context of this investigation , DATE and DATE the investigator took statements from the applicant , his fiancée , PERSON , A.T.E. and PERSON and CARDINAL other police officers who had effected the applicant ’s arrest . The applicant and his fiancée stated that the applicant had been beaten by the police officers . The applicant stated that he had not insulted or attacked the arresting officers and that he had been hit with sticks and firearms . The police officers , on the other hand , maintained that the applicant had insulted them , had chanted slogans , had kicked and punched A.T.E. and PERSON and had fallen and hit his head on the door during the struggle .", "On DATE ORG attached to the GPE governor ’s office held that there was no reason to subject A.T.E. and GPE to disciplinary sanctions and considered that they had acted within the scope of their duties during the arrest ." ]

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[ "The applicant , Mr PERSON , is a GPE national , who was born in DATE and is detained in PERSON . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The applicant and a co - accused were charged with conspiracy to rob a post office on DATE . CARDINAL masked men had broken into the post office through the wall of an adjoining , unoccupied shop . When the post office staff arrived for work in TIME , CARDINAL of them had their hands cuffed or taped behind their backs , CARDINAL were also blindfolded , and the Post Master had a knife held against his throat and threats made to himself and his family . The CARDINAL robbers took GBP CARDINAL . CARDINAL of the men was able to escape with the money by car , but the applicant was caught close to the post office by police officers who had chased him from the scene . At the time of his arrest he was wearing clothing seen by officers on CARDINAL of the men running from the post office , and forensic evidence later found particles of rubble from the hole in the wall in his clothes . The co - accused was also arrested shortly after the robbery . When questioned by the police , neither suspect made any comment .", "The applicant and his co - accused were released on bail and granted legal aid . They were arraigned in DATE ; both defendants pleaded not guilty , requested a large number of prosecution witnesses to attend the trial and were again released on bail . The trial was listed to begin on DATE but was adjourned at the request of the defence . DATE each defendant breached his bail conditions by failing to report DATE at his local police station . On the date fixed for the start of the trial , DATE , the applicant and his co - accused did not surrender . A warrant was issued for their arrest and the case was relisted for CARDINAL DATE . They had not been arrested by that date and the judge , Judge PERSON , adjourned for DATE then held a hearing to decide whether the trial should commence in the absence of the defendants .", "Defence counsel informed the judge that the applicant ’s solicitors and those representing the co - accused had withdrawn from the case in the absence of instructions from their client and that , as a matter of professional conduct , he considered that he was unable to continue to represent the applicant . Counsel for the ORG asked the judge to exercise his discretion to allow the trial to proceed in the absence of the defendants . The judge ruled as follows :", "“ There are before me CARDINAL competing positions . Both defendants are still absent and neither their solicitors or their counsel have felt it appropriate for them to remain with this case in the absence of their clients . ...", "So I am faced with a situation DATE where counsel on behalf of the prosecution is inviting me , notwithstanding the absence of the defendants and counsel and solicitors , for this case to proceed primarily because these CARDINAL defendants have quite voluntarily absented themselves for DATE of any contact with the court , knowing full well that they face very serious allegations .", "There are CARDINAL live witnesses due to give evidence DATE , some of whom are civilians who must have experienced a quite terrifying event when they were held up by armed , masked men and this robbery took place . Some of the civilian witnesses have already indicated that they are less than happy to attend on a future occasion . Some of the prosecution witnesses have already been dispensed with because of that concern that they have about continual delay .", "The information I am led to believe suggests , although there is nothing concrete about this , that the CARDINAL men are in GPE . CARDINAL of the men ’s families has also left his normal home . There is no concrete evidence , as I say , to suggest that they are in GPE so that any extradition proceedings could commence , that is just the intelligence that the officers have . ”", "The judge observed that he was not aware of any legal authority which dealt with the question whether it was possible to commence a trial in the absence , from the outset , of the accused , although there were reported cases where trials had been continued when the defendant became unable to attend part of the way through . He continued :", "“ In normal circumstances I am bound to say that my reaction initially to the proposition was that it would seem wrong to pursue any criminal trial , and particularly one as serious as this , in the absence of either a defendant or indeed in the absence of any assistance from counsel or solicitors on their behalf .", "But on the other hand there is another competing interest which seems to me to take precedence over that particular one and that is that there are CARDINAL witnesses outside court who have come here for the second time DATE and who are anxiously awaiting the prospect of having to give evidence and in view of the GPE deliberate absenting of themselves the trauma that some of them experienced during the course of this incident is unlikely to go away until such time as they actually have had this case finally dealt with either with the defendants pleading guilty , which is obviously not their intention , or indeed the trial taking place and a jury coming to a decision .", "Having , as I indicated earlier , given very anxious consideration to what is a novel point in my view and having sought the assistance both from ORG and also from colleagues who have considered the matter with me over lunch I have come to the conclusion that the proper way of exercising my discretion in this most unusual case is for me to allow the case to proceed in the absence of both defendants .", "I am conscious that the consequence of that is likely to be that the defendants are likely to be found guilty by the jury because of the absence of the defendants and the absence of representation but this is a strong case for the prosecution where clearly the defendants have frustrated and deliberately frustrated the authorities in trying to have this case finally concluded .", "I also have to bear in mind the convenience and consideration of a very large number of witnesses , many of whom , as I have indicated , have no doubt anxiously waited for DATE ’s date to come and are frustrated at the prospect that they would have to wait DATE if we were to wait for these defendants to be found somewhere else in the world and brought back to this country . I can not in all conscience feel it is appropriate that those witnesses should be made to wait for what could be DATE , DATE , DATE , DATE or some other period of time well into the future by which time some may not be willing to give evidence , some may have passed on , some may have gone to another part of the world , emigrated , all sorts of problems can arise which would then be to the advantage of these absent defendants .", "At DATE , as I say , I have come after anxious consideration to the decision that this is a case that , unusually , should proceed in the absence of both defendants and their counsel and solicitors .", "I have also given consideration as to what I ought to say to the jury when they come into court and are sworn and realise that there is nobody here , either the defendants themselves or their representatives , and all I can do is to make sure that anything I say in no way prejudices the position of the defendants at all .", "As I have discussed with [ the prosecution counsel ] already , the way in which this case has to proceed is in accordance with the law , irrespective of the fact that the defendants are absent and there is no counsel here to defend either CARDINAL of them .", "Precisely the same process will be gone through and both [ counsel ] and myself will give anxious consideration to any matter that we think that might have had some advantage as far as the defendants are concerned and to make sure that this is highlighted during the currency of the evidence . In that way if there is any material that assists either defendant we will make sure that it is properly put before the jury in a fair manner so that the jury can come to a decision on the facts available to them . ”", "At the close of the prosecution case the judge directed the jury that they should not draw any inference of guilt from the GPE failure to answer police questions or to appear for trial . He also instructed them to consider whether the forensic evidence , which strongly suggested that the accused had made the hole in the ORG wall and/or clambered through it , had been planted by the police or tampered with in any way and pointed out that there was no fingerprint or DNA evidence incriminating the CARDINAL defendants .", "The applicant and the co - accused were convicted and sentenced to DATE imprisonment . The applicant was arrested DATE and sentenced to an additional concurrent term of DATE for breach of bail .", "The applicant , represented by solicitors and counsel , was granted leave to appeal out of time against conviction and sentence . In DATE ORG gave joint judgment in his case with CARDINAL other appellants who had also been convicted in their absence ( NORP v. GPE ; NORP v. PERSON ; NORP v. PERSON [ DATE ] PERSON ) .", "Lord Justice PERSON , giving the judgment of ORG , held that , in the light of domestic and NORP case - law , the principles which should guide the NORP courts in relation to the trial of a defendant in his absence were as follows :", "“ ( CARDINAL ) A defendant has , in general , a right to be present at his trial and a right to be legally represented .", "( CARDINAL ) Those rights can be waived , separately or together , wholly or in part , by the defendant himself . They may be wholly waived if , knowing , or having the means of knowledge as to , when and where his trial is to take place , he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him . They may be waived in part if , being present and represented at the outset , the defendant , during the course of the trial , behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him .", "( CARDINAL ) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives .", "( CARDINAL ) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing , particularly if the defendant is unrepresented .", "( CARDINAL ) If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant , he must ensure that the trial is as fair as the circumstances permit . He must , in particular , take reasonable steps , both during the giving of evidence and ion the summing up , to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits . In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case . ”", "Lord Justice PERSON added that he saw no necessity for a defendant who was released on bail to be expressly warned that , if he absconded , he might be tried in his absence , “ for that has been the LANGUAGE common law for over a century ” .", "He reviewed the facts of the applicant ’s case in the light of the above general principles and concluded that the trial judge had exercised his discretion entirely properly . At the hearing on DATE it had been conceded by the applicant ’s counsel that the applicant ’s failure to surrender for trial had been deliberate and that he had been aware of his obligation to attend and of the possible consequences of his non - attendance . Lord Justice PERSON held that the applicant had clearly and expressly , through his conduct , waived his right to be present and legally represented at trial , and that the trial had been as fair as was possible given that the defendant had waived these rights . Although the defendant had been present and represented during the appeal proceedings , he had made no application to bring fresh evidence and no submission had been made on his behalf to suggest that the forensic evidence linking him to the robbery was unreliable or that , if he had been present and/or represented at trial any innocent explanation could have been brought forward for the contamination of his clothing , his presence in the vicinity of the robbery or fleeing from the police , or that he was unconnected with a walkie - talkie found near the scene . In conclusion , ORG found no reason to hold that the conviction was unsafe or that the trial had been unfair . It did , however , reduce the applicant ’s sentence from DATE imprisonment .", "The applicant appealed for leave to appeal to ORG , and ORG duly certified a question as being one of general public importance , namely : “ Can ORG conduct a trial in the absence , from its commencement , of the defendant ? ” ORG gave judgment on DATE ( NORP v. PERSON ( PERSON ) [ DATE ] ORG CARDINAL ) . Although ORG judges were unanimous in agreeing that the appeal should be dismissed , they gave different reasons for this conclusion .", "Lord PERSON of GPE , with whom ORG and ORG agreed , observed that ORG finding that the applicant had waived his right to trial in his presence had not been challenged and was tenable : while there was no direct evidence to show that the applicant knew what the consequences of his absconding would be , nor was there evidence to suggest a belief on his part that the trial would not go ahead in his absence or that , although absent , he would continue to be represented . The applicant ’s “ decision to abscond in flagrant breach of his bail conditions could reasonably be thought to show such complete indifference to what might happen in his absence as to support the finding of waiver ” . Lord PERSON added , however , that : “ If , contrary to my opinion , ORG were wrong to make the finding of waiver , and I am wrong to accept it , I would none the less hold that the appellant enjoyed his Convention right to a fair trial , for all the reasons given by my noble and learned friend Lord PERSON of NORP ” .", "Lords PERSON and PERSON of PERSON , however , disagreed that the applicant could be said to have waived his rights . In the words of Lord PERSON :", "“ [ The ] facts certainly justify the inference that the appellant knew that he would not be present when his trial was due to take place . That does not , in itself , justify the conclusion that he had waived his right to be present or represented at any trial of the charges against him . Such an inference could be drawn only if one could be satisfied that the appellant not only knew that the trial was due to take place when he would be absent , but also knew that it could take place even though he was not there and even though he was not represented . ... In the circumstances of this case , ... neither inference can readily be drawn .", "So far as the first is concerned , it is sufficient perhaps to notice that the initial reaction of the very experienced judge , Judge PERSON , was that no trial could take place in the absence of the defendants . He had never heard of such a thing and neither had the colleagues with whom he consulted . An official at ORG thought it might be possible - but he could not put his finger on a case . It would , I believe , be rash to attribute to the applicant greater knowledge of the arcana of LANGUAGE legal procedure than Judge PERSON and his colleagues actually possessed . Doubtless , the appellant would have been aware that , if eventually brought to justice , he would be punished for absconding to avoid trial . But I see no proper basis for going further and assuming that he would actually have known that he was liable to be tried and sentenced in his absence . I am accordingly unable to draw the conclusion that the appellant had unequivocally waived his right to be present at any trial .", "The inference that he had waived his right to representation at any trial of the charge against him is even more difficult . One would have to infer that the appellant knew that , if the court decided to proceed to try him in his absence , it would do so in a situation where no counsel or solicitor was there to represent him on the very serious charge of conspiracy to rob . In fact , at the hearing on DATE , the appellant was unrepresented from the outset , while the counsel and solicitor for his co - defendant withdrew from acting at the hearing . We were told that , in certain other cases , when a trial has proceeded in the absence of the defendant counsel have agreed to remain in court and to act , even in a limited way , on behalf of the defendant . ORG ... indeed envisaged that this might happen in future cases and that the presence or absence of representation would be a factor to be considered by the judge in deciding whether the trial should proceed in the absence of the defendant ... . There is nothing in ORG narrative of the facts to show whether the appellant knew that no counsel or solicitor would appear on his behalf at the hearing on DATE or that the trial judge was likely to exercise his discretion by going on with the trial without the appellant being represented . In these circumstances I am again unable to conclude that , merely by deliberately absconding , the appellant had unequivocally waived his right under LAW ) of LAW to be represented by counsel at any trial of the charges against him .", "For these reasons I prefer to deal with the case on the basis that the appellant had not unequivocally waived his right to be present or to be represented under LAW ORG ) . His absence simply meant that he was not in a position to exercise either of these rights when the judge decided to proceed with the trial . The question then comes to be whether there has been a breach of the appellant ’s rights under LAW . As [ counsel for the ORG ] submitted , that question falls to be determined on a consideration of the whole of the proceedings , including those in ORG . ”", "His Lordship then examined the entirety of the proceedings against the applicant . He observed that the exercise of the trial judge ’s discretion to try the applicant in his absence had been exceptional and had taken account of the applicant ’s deliberate decision to abscond and the needs and interests of the victims , witnesses and the wider public , as well as those of the accused . In ORG the applicant had been present , legally aided and represented . The evidence against him had been strong and the applicant had not availed himself of the opportunity open to him during the appeal proceedings to bring fresh evidence to counter the merits of his conviction . The proceedings taken as a whole had therefore been fair .", "Section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW ) , as amended by LAW DATE ( “ the DATE LAW ) , provides a single , composite right of appeal against a criminal conviction . It states that ORG :", "“ ( a ) shall allow an appeal against conviction if they think that the conviction is unsafe ; and", "( b ) shall dismiss an appeal in any other case . ”", "The broad intention behind this provision was summarised by the then Lord Chief Justice , Lord PERSON , in NORP v. PERSON and Others ( [ DATE ] vol . ORG p. CARDINAL [ ORG ] ) , when he said :", "“ This new provision ... is plainly intended to concentrate attention on CARDINAL question : whether , in the light of any arguments raised or evidence adduced on appeal , ORG considers a conviction unsafe . If the ORG is satisfied , despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence , that the conviction is safe , the ORG will dismiss the appeal . But if , for whatever reason , the court concludes that the appellant was wrongly convicted of the offence charged , or is left in doubt whether the appellant was rightly convicted of that offence or not , then it must of necessity consider the conviction unsafe . The ORG is then subject to a binding duty to allow the appeal . ”", "The scope of the “ safety test ” was discussed by Lord PERSON in his judgment in NORP v. ORG , ex parte Pearson [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ( ORG ) ( after the hearing of the applicant ’s appeal ) , where he stated :", "This passage was subsequently cited by ORG in the case of NORP v. PERSON , PERSON and PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL , where Lord Justice PERSON , delivering the judgment of the court , stated that :", "“ The following is not intended to be an exhaustive statement of the principles involved . We simply extract the following . The ORG is concerned with the safety of the conviction . A conviction can never be safe if there is doubt about guilt . However , the converse is not true . A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘ vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the ORG to apply the test ... which , as adapted by [ counsel for the ORG ] , might read :", "‘ Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error , would the only reasonable and proper verdict have been CARDINAL of guilty?’ . ”", "Later in his judgment , Lord Justice PERSON stated that :", "“ We are satisfied that [ the questions of ‘ fairness’ and ‘ ORG ] must be kept separate and apart . The ORG is charged with inquiring into whether there has been a breach of a Convention right . This court is concerned with the safety of the conviction . That the first question may intrude upon the second is obvious . To what extent it does so will depend upon the circumstances of the particular case . We reject , therefore , [ counsel for PERSON ] ’s contention that a finding of a breach of LAW ) by the ORG leads inexorably to the quashing of the conviction . Nor do we think it helpful to deal in presumptions . The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree . ”", "Section CARDINAL of LAW DATE provides , in so far as relevant , as follows :", "“ ( CARDINAL ) For the purposes of this part of this LAW , ORG may , if they think it necessary or expedient in the interests of justice –", "( a ) order the production of documents , exhibits or other thing connected to the proceedings , the production of which appears necessary for the determination of the case ;", "( b ) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the ORG whether or not he was called in active proceedings ; and", "( c ) receive any evidence which was not adduced in the proceedings from which the appeal lies .", "( CARDINAL ) ORG shall , in considering whether to receive any evidence have regard in particular to :", "( a ) whether the evidence appears to the ORG to be capable of belief ;", "( b ) whether it appears to the ORG that the evidence may afford any ground for allowing the appeal ;", "( c ) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal ;", "( d ) whether there is reasonable explanation for the failure to adduce the evidence in these proceedings .", "...", "( CARDINAL ) For the purposes of this part of the LAW , ORG may , if they think it necessary or expedient in the interests of justice , order the examination of any witness where attendance might be required under sub - section CARDINAL(b ) above to be conducted in a manner provided by the rules of the ORG , before any judge or officer of the ORG or other person appointed by ORG for the purpose , and allow the admission of any deposition so taken as evidence before the ORG . ”" ]

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[ "ORG Mr PERSON , a NORP national of NORP origin , is currently in custody at FAC in GPE .", "ORG On DATE , while attempting to escape from ORG , the applicant and a fellow prisoner of NORP nationality , Mr PERSON , knocked out a warder , who died DATE as a result of the blows he had received .", "ORG The CARDINAL prisoners were charged with intentional homicide for the purpose of facilitating , preparing or executing the offences of escape and attempted escape . In a judgment of CARDINAL DATE ORG of ORG committed them for trial at ORG . On DATE ORG dismissed an appeal on points of law that Mr PERSON had lodged against the decision to commit him for trial .", "ORG The trial at ORG took place on CARDINAL , CARDINAL and DATE . On DATE , when the sitting began , the members of the jury and CARDINAL additional jurors were drawn by lot . The defendants challenged CARDINAL of them , the legal maximum , and the prosecution CARDINAL of them . The jury was subsequently finally empanelled and the hearing of witnesses began .", "ORG On DATE , at CARDINAL , as the sitting resumed , counsel for the applicant filed submissions in which they requested the court to take formal note of a remark made by CARDINAL of the jurors on DATE , before the hearing began , which had been overheard by a third person , PERSON , and to append her written statement , together with their submissions , to the record of the trial .", "PERSON statement of DATE read as follows :", "\" I , the undersigned PERSON , declare on my honour that I witnessed the following facts :", "I was at the door of the court at TIME , next to a group of people . From their conversation , I chanced to overhear that they were members of the jury drawn by lot in the Merdji [ and ] PERSON against Pahon case .", "CARDINAL of them then let slip the following remark : ‘ What ’s more , I ’m a racist.’", "I do not know that person ’s name , but I can state that he was on the left of the juror sitting immediately to the left of the judge on the presiding judge ’s left .", "Being unable to attend the hearing to confirm the facts as my daughter has recently gone into hospital , but being at the court ’s disposal if it proves essential to call me as a witness , I have drawn up this statement to be used for the appropriate legal purposes . \"", "ORG The court , composed in this instance solely of the judges , withdrew to deliberate and then delivered the following judgment :", "\" ...", "According to the handwritten statement of a Mrs [ M. ] of DATE , CARDINAL of the members of the jury in the present case said ‘ What ’s more , I ’m a ORG at the door of the court at TIME", "According to this statement and the written submissions , these words were spoken before DATE first hearing in the instant case and not in the presence of the judges of the ORG .", "The ORG is thus not able to take formal note of events alleged to have occurred out of its presence .", "For these reasons ,", "it Refuses the application made to it for formal note to be taken ;", "Holds that the ORG written submissions and the statement of PERSON are to be appended to the record of the trial ;", "... \"", "ORG On DATE ORG sentenced Mr PERSON to life imprisonment and PERSON to a DATE term , for CARDINAL of which he would not be liable to any form of release .", "Mr PERSON appealed on points of law . He argued mainly that ORG had made a mistake of law and had disregarded Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW in holding that it was \" not able to take formal note of events alleged to have occurred out of its presence \" when it had power to do so .", "ORG In a judgment of CARDINAL DATE ORG dismissed the appeal . It gave the following reason in particular :", "\" ORG rightly refused to take formal note of events which , assuming they were established , had taken place outside the hearing , such that it could not have been in a position to note them . \"", "ORG Procedure in ORG is governed by ORG CARDINAL to CARDINAL of LAW ( \" ORG \" ) .", "ORG consists of the court properly speaking - the presiding judge and , normally , CARDINAL other judges - and the jury , composed of citizens who satisfy the conditions of eligibility laid down by law . It tries mainly serious criminal cases sent to it by ORG and related or inseparable lesser offences . No reasons are given in its judgments , which are appealable only on points of law .", "ORG For each case on ORG list a jury is empanelled at the beginning of the trial . It contains CARDINAL jurors , drawn by lot from a session list . This list contains CARDINAL names drawn by lot DATE from an DATE list , itself consisting of a variable number of names drawn by lot from preparatory lists that are compiled in each municipality after an initial drawing of names by lot from the electoral register .", "CARDINAL or more additional jurors are also drawn by lot and attend the trial in order that they may , if necessary , replace any juror who is unable to sit .", "The jury is constituted at the point when the names of CARDINAL jurors who have not been challenged and the names of the additional jurors have all been drawn by lot .", "ORG As the names of the jurors are being drawn , the defendant or defendants are entitled to challenge CARDINAL of them and the prosecution up to CARDINAL . Their grounds for doing so can not be given .", "Article CARDINAL ORG provides :", "\" Any judge may be challenged on any of the following grounds :", "Where the judge or his spouse is a blood relative or a relative by marriage of CARDINAL of the parties or of a party ’s spouse , up to the degree of second cousin inclusive . The challenge may be made against the judge even in the event of divorce from his spouse or the latter ’s death where the spouse was a relative by marriage of CARDINAL of the parties , up to the second degree inclusive ;", "Where the judge or his spouse , or a person in respect of whom either acts as guardian ( tuteur ) , supervisory guardian ( subrogé tuteur ) or court - appointed administrator , or a company or association in whose management or supervision either takes part has an interest in the dispute ;", "Where the judge or his spouse is a blood relative or relative by marriage , to the degree indicated above , of the guardian , supervisory guardian or court - appointed administrator of CARDINAL of the parties or of a director or manager of a company that is a party to the proceedings ;", "Where the judge or his spouse is dependent on CARDINAL of the parties ;", "Where the judge has dealt with the case as a judge , arbitrator or legal adviser , or where he has given evidence as a witness relating to the facts of the case ;", "Where there has been litigation between the judge , his spouse or their lineal blood relatives or relatives by marriage and CARDINAL of the parties , his spouse or his lineal blood relatives or relatives by marriage ;", "Where the judge or his spouse is litigating in a court of which CARDINAL of the parties is a judge ;", "Where the judge or his spouse or their lineal blood relatives or relatives by marriage are in dispute over an issue similar to that between the parties ;", "Where there have been any disagreements between the judge or his spouse and CARDINAL of the parties sufficiently serious to cast doubt on his impartiality . \"", "Article CARDINAL ORG provides :", "\" A charged person , accused or any party to the proceedings who wishes to challenge an investigating judge , a judge of the police court or one or more or all of the judges of ORG , ORG or ORG must , if the challenge is to be valid , make an application to the President of ORG .", "Members of ORG can not be challenged .", "The application must mention by name the judge or judges being challenged and set out the grounds relied on , together with all the supporting evidence .", "A party who has willingly proceeded in a court or before an investigating judge shall be entitled to make a challenge only on grounds of circumstances that have arisen since , where they are such as to constitute a ground for challenge . \"", "In the case of ORG these provisions apply only to the judges and not to the jurors .", "ORG The members of the jury , standing bareheaded , are addressed by the presiding judge as follows :", "\" You swear and promise to consider the charges that will be brought against X ... with the greatest care ; not to betray either the interests of the accused or those of society , which is accusing him / her ; not to communicate with anyone until you have returned your verdict ; not to be swayed by hatred or spitefulness or by fear or affection ; to reach your verdict in the light of the charges and the defence , according to your conscience and your innermost conviction , with the impartiality and firmness that befit a free man of integrity ; and to preserve the secrecy of the deliberations , even after you have discharged your office . \"", "Each of the jurors is individually called upon by the presiding judge and replies , raising his hand : \" I swear . \"", "ORG Where an event likely to infringe the rights of CARDINAL of the parties occurs during the trial , the party concerned may ask ORG - composed in this instance of only the judges - to \" take formal note \" of it . This is the party ’s only means of having it recorded . ORG can not entertain complaints that have been raised if no application was made to ORG to take formal note of them and they were not entered in the record of the trial ( Court of Cassation , ORG , DATE , ORG . crim . ) no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; DATE , PERSON DATE , p. CARDINAL )", "ORG may refuse to take formal note of events that are alleged to have occurred outside the hearing . It also has an unfettered discretion to decide whether evidence should be taken to verify them ( Court of Cassation , Criminal Division , CARDINAL DATE , Bull . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , GPE ; DATE , NORP ) .", "Interlocutory decisions on such matters can be challenged by means of an appeal on points of law , but only at the same time as the judgment on the merits ( LAW .", "ORG Article CARDINAL ORG provides :", "\" In matters within the jurisdiction of ORG , ORG or the police court , ORG may remove a case from any investigating court or judge or any court of trial and transfer it to another court or judge of the same rank , either where the court that would normally have jurisdiction can not be composed as required by law or where justice is otherwise prevented from taking its course or on the ground of reasonable suspicion of bias .", "An application for transfer may be made either by ORG attached to ORG or by the prosecutor attached to the court dealing with the case , or by the person charged , or by a civil party to the proceedings .", "...", "The lodging of an application shall not have any suspensive effect unless ORG orders otherwise .", "... \"", "ORG has unfettered discretion to determine whether such a ground is made out on the alleged facts ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ) . An applicant is required to establish the existence of circumstances sufficiently weighty to justify serious doubts as to the impartiality of the court in question .", "This procedure can be used only in respect of a whole court and not against CARDINAL or more members of a collegiate court ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG . crim . no . CARDINAL ; PERSON criminelle et de droit pénal comparé DATE , p. CARDINAL , comments by PERSON ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , ORG , a.s . , is a joint stock company incorporated under NORP law . It is represented before the ORG by PERSON D. Šachta , a lawyer practising in GPE . The respondent Government are represented by their Agent , Mr PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In a purchase contract concluded in writing on DATE , PERSON and Ms PERSON sold CARDINAL plots of land defined in a geometrical plan to ORG ( Středočeský průmysl masný ) . The contract became valid and effective on DATE . A purchase price amounting to CARDINAL NORP korunas ( PERSON ) was paid to the sellers .", "On DATE Mr PERSON died . In inheritance proceedings concerning his estate , ORG declared , on DATE , that PERSON inherited her late husband ’s estate , including the relevant part of the plots of land concerned .", "On DATE ORG divided ORG . ORG , s.p . , a state - owned enterprise and the applicant company ’s predecessor , emerged as one of its legal successors .", "On DATE the purchase contract of CARDINAL DATE was entered into the land register , on the basis of the geometrical plans of CARDINAL DATE and CARDINAL DATE . On DATE it was registered with the ORG ( středisko geodézie ) . At the date of CARDINAL DATE the land register showed ORG , s. p. as the owner of the plots of land in issue . On DATE certain parts of the state enterprise including the plots of land concerned were transferred to the ORG ( Fond národního majetku ) under a privatisation project ( privatizační projekt ) of DATE and , subsequently , to the applicant company which had been created by ORG for these purposes in DATE . The privatisation project expressly noted that the ownership certificate ( list vlastnictví ) of the plots of land was kept on the name of the former owner , PERSON , and that the new owner upon the purchase contract was not yet entered into the certificate . The purchase contract of DATE was part of the privatisation project . The applicant company came into being on CARDINAL DATE upon its entry into the companies register .", "On DATE PERSON died . In inheritance proceedings concerning her estate , ORG ( okresní soud ) decided , on DATE , that her estate , including the plots of land at issue , was inherited by her daughters , PERSON and PERSON .", "In a judgment of DATE , ORG , upon an action of PERSON filed on DATE , declared the purchase contract of CARDINAL DATE null and void ab initio for lack of factualness and accuracy , as it was not clear what plots of land had been sold . Although their size was specified , a geometrical plan showing the boundaries of the land was not joined to the contract . The court admitted that the DATE time - limit of possession of property in good faith necessary for acquiring ownership of the plots of land by the applicant company by means of positive prescription had lapsed . However , in its view , the company had not acquired ownership , as the amendment to LAW . no . CARDINAL/CARDINAL ) required that possession in good faith existed at the entry into force of the LAW , on DATE . Given that in DATE the predecessor of the applicant company was negotiating with PERSON over the sale of the land , it could not be regarded as being in good faith as the owner of the land since then .", "The applicant company as the defendant in the proceedings did not appeal , and the judgment became final on DATE .", "On DATE ORG issued a declaration that the plots of land at issue were included in the privatisation project and as such transferred to the applicant company in DATE .", "On DATE answering to a letter of the applicant company the ORG noted that in DATE the plots of land had been transferred to the applicant company and that the ORG had considered itself an owner of the land at the time of the transfer based on the then valid purchase contract of DATE . Moreover , the ORG noted that the subsequent decision of the NORP District Court DATE was a new fact and that the applicant company should address ORG for possible compensation .", "In a judgment of DATE ORG dismissed the applicant company ’s action against PERSON and PERSON . seeking to determine its ownership over the plots of land concerned .", "On DATE ORG ( krajský soud ) quashed this judgment for procedural shortcomings and remitted the case to the ORG which , on DATE , again dismissed the applicant company ’s action .", "That judgment was upheld by ORG on DATE , which held that the purchase contract was uncertain and void . As regard the assertion of positive prescription , the court found that no time - limit had ever been triggered by the applicant company which , if acting with reasonable due diligence , must have been aware that land may have been transferred with other dimensions than those recorded in the land register only if the purchase contract embodied a geometrical plan . This was , however , not done here . Any examination of the alleged negotiations between the predecessor of the applicant company and PERSON was thus superfluous .", "On DATE ORG ( PERSON ) rejected an applicant company ’s appeal on points of law ( dovolání ) .", "On DATE ORG ( PERSON ) dismissed a constitutional appeal by the applicant company .", "As the applicant company needed the plots of land at issue for continuing to run its business activities , it concluded with the successors to the former owners , on DATE , a purchase contract on the basis of which it bought the estates against payment of CZK MONEY ( EUR CARDINAL ) .", "On DATE the applicant company brought an action against ORG for payment of CZK MONEY ( EUR CARDINAL ) as compensation corresponding to the purchase price plus CARDINAL separate amounts of CZK MONEY ( ORG CARDINAL ) and CARDINAL ( ORG CARDINAL,CARDINAL ) . Later , the applicant company withdrew its claim of CZK CARDINAL,CARDINAL .", "In a judgment of DATE ORG granted the applicant company ’s action in respect of the original price of the land when it was transferred to the applicant company in DATE ( CZK MONEY ) and dismissed it in respect of the rest .", "On DATE ORG upheld the judgment .", "On DATE ORG dismissed the applicant company ’s appeal on points of law .", "On DATE ORG rejected its constitutional appeal as manifestly ill - founded .", "Article CARDINAL § CARDINAL provides that a legal act must be undertaken freely , seriously , with certainty and comprehensibility .", "Article CARDINAL stipulates that a legal act whose subject - matter or object contravenes or circumvents law , or is contra ORG mores , is null and void .", "LAW provides that a holder who is according to all circumstances in good faith is a rightful holder .", "Under LAW a rightful holder becomes an owner of real estate if he or she retains it in his or her continuous possession for DATE .", "According to LAW the period of time during which a given thing was possessed by a legal predecessor is to be figured into the time - limit stipulated in paragraph CARDINAL thereof ." ]

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[ "ORG Mr PERSON , who was born in GPE in DATE , is an NORP national and at the material time lived in GPE . On DATE ORG extradited him to GPE .", "ORG Following CARDINAL complaints laid by NORP investors , an investigation was opened in GPE in DATE . The persons concerned had been approached by brokers established in GPE and in GPE who had sold them at artificially inflated rates shares issued on the NORP market by sham companies . The sums collected were paid into accounts opened in GPE in the name of foreign companies , but the complainants were never able to realise their shares . Criminal proceedings were instituted against QUANTITY persons , including the applicant . They were all foreign nationals .", "Mr Quinn was arrested on DATE in possession of CARDINAL false NORP passports and was charged on DATE with fraud , offences under the legislation on the issuing of securities and forgery of administrative documents . On the following DATE the investigating judge added to the initial charges the aggravating circumstance of fraud by a person having solicited the public for a savings scheme .", "ORG On DATE of his arrest Mr Quinn had been remanded in custody at the ORG prison in GPE .", "On CARDINAL occasions , DATE , DATE and DATE , the investigating judge extended the detention by DATE at a time . He took the view that detention was the sole means of ensuring the appearance for trial of an accused , who was a foreign national , who had been arrested in possession of false passports and who had several residences outside GPE and a large number of accomplices .", "Mr Quinn appealed to ORG of ORG against the order of DATE extending his detention on remand .", "After holding a hearing on DATE , ORG set aside the contested order by a decision delivered in the applicant ’s absence at TIME on DATE . It directed that he should be \" released forthwith if he [ was ] not detained on other grounds \" and gave the following reasons :", "\" At the present stage in the investigation , which has been conducted with due diligence , and given the evidence against him , detention no longer appears necessary for establishing the truth .", "In view of the reimbursements which have been , or are in the process of being , effected , it is no longer required on grounds of public order .", "Finally , the seizures carried out are such as to ensure that the appellant will appear for trial and in addition he provides guarantees as regards his place of residence and his movements . \"", "This decision was immediately enforceable and no appeal was lodged against it .", "ORG The applicant was not released , however . His release was subject to the decision being notified by the public prosecutor responsible for its execution and to completion of the relevant formalities .", "ORG The applicant appeared before ORG while in detention with a view to extradition ( see paragraphs CARDINAL below ) . On DATE he was found guilty of fraud to the detriment of CARDINAL persons and of organising a campaign to solicit the public in connection with transactions involving foreign securities in GPE , without prior authorisation . He was sentenced to CARDINAL years’ imprisonment and fined MONEY ( ORG ) . The court ordered his detention ( see paragraph CARDINAL below ) .", "ORG The prosecuting authority and PERSON appealed to ORG . In a judgment of DATE that court found that the aggravating circumstance of soliciting the public for a savings scheme was not made out and reduced the sentence to CARDINAL years’ imprisonment , DATE of which was suspended . It ordered that he remain in detention ( see paragraph CARDINAL below ) .", "ORG The applicant , who had been in detention on remand from CARDINAL DATE to CARDINAL DATE and then for the duration of the court proceedings in the domestic case - a total of DATE and DATE - , was extradited to GPE on DATE after having completed his sentence .", "ORG On DATE , towards TIME , a GPE investigating judge sent by fax to the GPE public prosecutor ’s office a request for the applicant ’s provisional arrest with a view to his extradition . The same request was transmitted through the intermediary of ORG ( ORG ) on DATE and through diplomatic channels on DATE . The applicant was described as \" currently detained in the ORG prison in GPE , and DATE released on a provisional basis \" .", "This document headed \" fiche d’accompagnement \" ( covering note ) was marked \" very urgent , to be delivered in person to the addressee [ a deputy public prosecutor ] , who is apprised of the matter \" .", "It was accompanied by the international warrant issued by the NORP judge for Mr PERSON ’s arrest on charges of professional fraud and forging securities . He was accused of having , with his accomplices , sold shares in NORP companies to CARDINAL investors throughout the world , deceiving them as to the value of the shares and using false identities to pay the sums in question into NORP bank accounts . The total prejudice was estimated at MONEY .", "ORG The GPE public prosecutor ordered the applicant ’s provisional arrest . PERSON , who was still detained in the ORG prison , was arrested there . He was questioned by the prosecutor at TIME and placed in detention with a view to extradition .", "ORG On DATE ORG - composed differently to the division that had ruled on the applicant ’s detention - served on the applicant the instrument on the basis of which he had been arrested .", "ORG In the course of the extradition proceedings brought against him , PERSON applied CARDINAL times for his release , relying on each occasion on LAW . He complained of the circumstances in which he had been arrested .", "In its CARDINAL decisions , given on DATE , CARDINAL DATE and DATE , ORG dismissed his CARDINAL applications , finding that the detention had been ordered in conformity with the provisions of LAW . It justified its refusal to release the applicant on the grounds of the risk of his absconding and the lack of guarantees to ensure his presence in connection with the further proceedings . On the question of the length of his detention , it considered that the proceedings had been \" conducted uninterruptedly and without delay \" .", "In response to the applicant ’s complaint concerning the unlawfulness of the manner in which he had been placed in detention with a view to extradition , it observed that \" the complaints in the pleadings on this point [ were ] a matter for NORP domestic law and [ could not ] be examined in extradition proceedings \" .", "ORG The applicant lodged CARDINAL appeals on points of law . In a judgment of DATE dismissing CARDINAL of those appeals , ORG stated as follows :", "\" ... contrary to the claims of PERSON , the judges [ of ORG ] were not under a duty , in order to justify his continued detention , to refer solely to the provisions of LAW [ see paragraph CARDINAL below ] , inasmuch as in extradition proceedings it is not their task to determine the merits of the charges brought against the person sought . \"", "It observed in a judgment delivered on DATE dismissing another appeal that the judges were not concerned with \" the conditions and rules governing the foreign prosecution \" , and that \" the decision of ORG of CARDINAL DATE which ordered [ the applicant ’s ] release in the proceedings brought against him in GPE was entirely without force for the purposes of extradition proceedings \" .", "ORG On DATE the principal public prosecutor interviewed the applicant with a view to formally establishing his identity .", "ORG In a preliminary decision of CARDINAL DATE ORG sought additional information from the requesting ORG .", "The information which it obtained concerning the complainants , the bank accounts and the acts constituting the fraudulent transactions was communicated to the applicant at a hearing held on DATE . He pleaded that there had been an abuse of procedure on the part of ORG . The NORP authorities had sought to prevent the NORP court from exercising its jurisdiction .", "ORG On DATE ORG of ORG ruled in favour of the applicant ’s extradition .", "Expressing its view on the notions of \" urgency \" and \" person sought \" within the meaning of LAW , it stated as follows :", "\" The assessment of the urgency is a matter for that ORG [ GPE ] and that urgency was justified by the fact that ORG release in the NORP proceedings had just been ordered ;", "The NORP authorities can not be criticised for having warned the NORP authorities as this conduct is natural and usual in the context of international judicial co - operation . \"", "ORG On DATE ORG dismissed as inadmissible under LAW of DATE ( see paragraph CARDINAL below ) Mr Quinn ’s appeal on points of law against ORG opinion .", "ORG On DATE the Prime Minister granted the NORP authorities’ request for the applicant ’s extradition . The order was served on him on the following DATE .", "Mr PERSON applied to the PERSON d’Etat for a stay of execution and for review of the order , but his application was dismissed on DATE , on , inter alia , the following ground :", "\" ... the fact that the arrest warrant was issued by a NORP judge on DATE on which ORG of ORG gave its decision on an application for release filed by PERSON , who was facing charges in GPE , does not establish , contrary to the applicant ’s contention , that there was an abuse of procedure . \"", "Mr Quinn , who had been in detention with a view to extradition from CARDINAL DATE to DATE - a period of DATE , DATE - was surrendered to the NORP authorities on DATE ( see paragraph CARDINAL above ) .", "ORG LAW which was signed in GPE on DATE and which came into force on CARDINAL DATE provides as follows :", "\" The Contracting Parties undertake to surrender to each other , subject to the provisions and conditions laid down in this Convention , all persons against whom the competent authorities of the requesting ORG are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order . \"", "\" CARDINAL . The requested ORG may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory .", "... \"", "\" The requested ORG may refuse to extradite the persons claimed if the competent authorities of such ORG are proceeding against him in respect of the offence or offences for which extradition is requested . \"", "\" CARDINAL . In case of urgency the competent authorities of the requesting ORG may request the provisional arrest of the person sought . The competent authorities of the requested ORG shall decide the matter in accordance with its law .", "...", "... The possibility of provisional release at any time is not excluded , but the requested ORG shall take any measures which it considers necessary to prevent the escape of the person sought .", "... \"", "\" ...", "If the [ extradition ] request is agreed to , the requesting ORG shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender .", "... \"", "\" CARDINAL . The requested ORG may , after making its decision on the request for extradition , postpone the surrender of the person claimed in order that he may be proceeded against by that ORG or , if he has already been convicted , in order that he may serve his sentence in the territory of that ORG for an offence other than that for which extradition is requested .", "The requested ORG may , instead of postponing surrender , temporarily surrender the person claimed to the requesting ORG in accordance with conditions to be determined by mutual agreement by the Parties . \"", "ORG The PERSON of DATE on the extradition of aliens provides , inter alia , as follows :", "\" Where there is no treaty , the conditions and the procedure for and the effects of the extradition shall be determined by the provisions of the present PERSON .", "The present PERSON shall also apply to questions which have not been dealt with by the treaties . \"", "\" An extradition request shall not be granted :", "...", "Where the serious or less serious offences ( crimes ou délits ) have been committed in GPE or in the NORP colonial possessions ;", "... \"", "\" Where an alien is prosecuted or convicted in GPE and where ORG is requested to extradite him in connection with a different offence , he shall not be surrendered until the criminal proceedings have been concluded , and , in the event of his conviction , until the sentence has been executed .", "However , this provision shall not preclude the sending on a temporary basis of the alien to appear before the courts of the requesting ORG , subject to the express condition that he be returned as soon as the foreign courts have given judgment .", "... \"", "\" [ If the person concerned does not consent to being surrendered to the authorities of the requesting ORG ] , ORG , in a ruling against which no appeal lies , shall give its reasoned opinion on the extradition request .", "... \"", "\" If ORG reasoned opinion is opposed to granting the extradition request , that opinion shall be final and the request may not be granted . \"", "\" If the division is not opposed , the Minister for ORG shall submit , where appropriate , for the signature of the President of the Republic , an order authorising the extradition . If , within a period of one month of the extradition order being served , the authorities of the requesting ORG have not taken charge of the person to be extradited , he shall be released and his extradition may not be sought on the same grounds . \"", "ORG Under LAW :", "\" ... detention on remand may be ordered or continued :", "Where the detention on remand of the accused is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on the witnesses or the victims , or collusion between the accused and accomplices ;", "Where this detention is necessary to preserve public order from the prejudice caused by the offence or to protect the accused , to put an end to the offence or to prevent its repetition or to ensure that the accused remains at the disposal of the judicial authorities .", "... \"", "Article CARDINAL - CARDINAL of the Code of Criminal Procedure reads as follows :", "\" In cases involving ` less ORG criminal offences ( matière correctionnelle ) detention on remand may not exceed DATE . However , at DATE , the investigating judge may extend the detention by an order giving reasons as indicated in the first paragraph of Article CARDINAL . No extension may be ordered for DATE .", "Where the person charged has not previously been sentenced for a serious or less serious offence ( crime ou délit ) to a non - suspended term of imprisonment exceeding DATE and where the sentence he risks does not exceed DATE , the extension of detention provided for in the preceding paragraph may be ordered only once and for a period not exceeding DATE .", "In other cases , the person charged may not be kept in detention for DATE . However , in exceptional circumstances , the investigating judge may decide at the end of that period to extend the detention , for a period not exceeding DATE , by a reasoned order made in accordance with the provisions of the first and fifth paragraphs of Article CARDINAL , it being possible to renew such an order under the same procedure . Nevertheless the person charged may not be kept in detention for DATE where the sentence he risks does not exceed DATE .", "... \"", "ORG As the execution of judgments is stayed during the periods prescribed for lodging appeals , the courts may order at the trial or appeal hearing that the convicted person remain in detention on remand ( Articles CARDINAL - CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure ) . This period of detention is deducted in full from the sentence imposed ( LAW ) .", "ORG A person detained following a request for extradition from a foreign government is subject to the same rules as a remand prisoner ( LAW of LAW ) .", "ORG The decision of the court which rules on an application for release is immediately enforceable ( LAW , second sub - paragraph ) ; responsibility for its execution lies with the principal public prosecutor ( LAW ) .", "ORG Prior to his release , a remand prisoner facing charges must make a statement giving his address ( Article CARDINAL of LAW ) , before the investigating judge if the latter has had him taken out of prison or otherwise before the governor of the prison . In so far as the governor is required to obtain a declaration of the detainee ’s address before releasing him , the investigating judge must inform him , when transmitting the order for his release , whether the accused has already given an address in his presence .", "On release , each released detainee is issued with a release order ( Article D CARDINAL of LAW ) . Where several detainees are due for release on DATE , precautions are to be taken to ensure that they do not meet each other , but the application of this rule must not have the effect of delaying beyond TIME their release on DATE on which they are to be released ( LAW of LAW ) ." ]

[ "5" ]

[ "5-1" ]

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[ "5-3" ]

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[ "The applicant is a GPE national , born in DATE and currently held in FAC , GPE , ORG .", "He is represented before the ORG by PERSON , a lawyer practising at ORG , in GPE , GPE .", "A.", "Facts as presented by the applicant", "The applicant lived in GPE until DATE . This area was , and is , controlled by the ORG , a NORP terrorist organisation , engaged in an armed struggle for independence .", "DATE until DATE , the applicant was forcibly taken by ORG members , CARDINAL times DATE , for periods of DATE , to mend their radio equipment . In DATE , ORG members came to the applicant 's house to search for his cousin who had escaped from the organisation . When they could not find him , they turned their attention to the applicant . They interrogated him but he was unable to tell them of his cousin 's whereabouts . He was taken to an NORP settlement in GPE , where he was held prisoner for DATE . He was made to repair radio equipment , dig bunkers , cook food and on CARDINAL occasion was beaten when he asked to return home .", "In DATE , the applicant escaped from the ORG settlement . He left GPE with his father , arriving by train in GPE on DATE . On CARDINAL DATE , the applicant was arrested by the NORP army which raided the rented house where they were staying . They suspected him of being an ORG member . When his father tried to intervene , he was forcibly restrained by the soldiers . Following this incident , his father died of a heart attack on DATE .", "After being beaten by the soldiers at the house , he was held in detention until DATE . He was photographed and his measurements taken . He was questioned regularly about his links with the ORG and referred to as being a “ Tiger ” . During that time , he was tortured and ill - treated by the soldiers . He was hit about the head by the soldiers , who also banged his head on the wall . He was whipped with an electric cable and , on CARDINAL occasion , he was strung up by his feet with chains from a bar in the ceiling . While he was hanging , the soles of his feet and lower back were beaten with an S - LON pipe ( a plastic pipe filled with cement ) . While in detention , the applicant developed a skin disease which was diagnosed as psoriasis resulting from the overcrowding and poor hygiene in the prison . The applicant was finally released from detention when his uncle paid a bribe .", "On release , the applicant went to a skin clinic for treatment . This was in an area controlled by the ORG , a pro - ORG group . He was picked up twice by the ORG and taken to their camp for questioning about his involvement with the ORG , being held for DATE and DATE respectively . He was beaten on both occasions .", "Following the explosion of an oil tanker near his home , the applicant was arrested on DATE . He was taken to the police station where he was questioned . He was pulled by the hair , chained to the wall by the arms and beaten with truncheons . A heated iron rod was pressed against his arm which caused him to lose consciousness . He was taken to a different room and questioned by officers of ORG who took turns in questioning him while CARDINAL officers kicked and beat him . He was released on DATE when his uncle bribed a police officer .", "Asylum proceedings", "Shortly after his release , the applicant left GPE . He arrived in GPE on DATE . He claimed asylum on DATE .", "In its decision of DATE , ORG for ORG ( “ the ORG ” ) did not make any findings as to whether the applicant had been tortured as alleged , but considered that this was “ not relevant regarding the right of asylum . These are excesses of isolated executive organs and can not be imputed to ORG . ” In that regard , new Government orders had made clear that such practices were not to be tolerated . It was also found that there was no ground for the applicant to fear persecution as a consequence of his having claimed asylum in GPE .", "The applicant ’s appeal was heard on DATE by ORG , PERSON , and rejected after an oral hearing . ORG noted that the actions of the ORG could not be attributed to the ORG and that the applicant would be sufficiently safe from political persecution if he returned to the south of GPE . It referred to various measures adopted by ORG including the ratification of LAW , which was made domestic law in DATE . While it noted that there was a risk of long term detention for persons suspected before their emigration of membership of the ORG , an actual terrorist should not be granted asylum . Also , though a risk of detention and ill - treatment by the security forces and army existed in respect of persons suspected of supporting the NORP , it concluded that the NORP security forces and army had no reason to suspect the applicant of supporting terrorist activities or NORP military activities . Any arrests made for the purpose of extorting money did not disclose political persecution but were cases of excesses by individual officials . Furthermore it was of the opinion that the entire presentation of the applicant was a completely fabricated tissue of lies . He was not credible having regard , inter alia , to his lack of detail as to his activities as a student in GPE , the way in which he left all his personal papers behind when he emigrated , and the fact that the letter which he presented in court from his mother was contained in an envelope on which the address was written by another person . It further concluded that there was no obstacle to deportation under LAW , in conjunction with LAW , as the pre - condition for this was that there was a threat of individually - specific and serious danger of treatment unconnected with political persecution , which was contrary to human rights or degrading , deriving from ORG organisations , or that such treatment was attributed to ORG organisations .", "The applicant did not apply for leave to appeal against this decision . He states that his lawyer advised him not to appeal as there were clearly no prospects of success .", "On DATE , the applicant left GPE and travelled to GPE . After DATE in GPE , he travelled to GPE hidden on board a trailer where he arrived on DATE and was discovered by immigration officers . On DATE , he claimed asylum .", "On DATE , ORG requested that GPE accept responsibility for the applicant ’s asylum request pursuant to LAW . On DATE , GPE agreed . On DATE , the Secretary of ORG issued a certificate under LAW and directed the applicant ’s removal to GPE . He refused to examine the substance of the applicant ’s asylum claim .", "On DATE , the applicant applied for judicial review . On DATE , Mr Justice PERSON refused leave . On DATE the applicant was released from detention .", "On DATE , the applicant applied to ORG , complaining of the approach of the NORP authorities to the standard of proof and application of LAW . His renewed application was granted by ORG which decided to determine the substantive application . In its judgment given on DATE , ORG held that the Secretary of ORG was entitled to conclude that the NORP authorities do not adopt an approach which was outside the range of responses of a ORG acting in good faith to implement its obligations under LAW . It noted that care had to be taken not to subject the approach adopted in other GPE to an over technical comparison . The higher recognition rate in GPE for GPE asylum - seekers undoubtedly supported the Secretary of ORG 's opinion . Since he had taken reasonable steps to inform himself of the position in GPE by obtaining the opinion of Professor Dr PERSON , a distinguished NORP lawyer who had been legal counsel for ORG in asylum and immigration law and a judge of an administrative appeal court and Director of ORG law on immigration and asylum , no more was required of him .", "On DATE , the applicant ’s application for leave to petition ORG was refused . On DATE , the Secretary of ORG refused to exercise his discretion to grant leave to remain in the applicant ’s favour on compassionate grounds . On DATE , the applicant was again placed in detention .", "On DATE , the Secretary of ORG informed the applicant that he was satisfied that GPE was a safe third country . He noted that it was well - established that the NORP authorities were under a legal obligation to look at any new material placed before them . On DATE , removal directions to GPE were issued .", "On DATE , Dr PERSON of ORG for ORG , GPE , issued a medical report in which he concluded that :", "QUANTITY scars on the right side of the head were consistent the applicant 's account of his head being hit against the wall ;", "Scarring of the right eardrum was consistent with the surgical repair of a traumatic rupture of the eardrum ;", "Psoriatic plaques on his upper back confirmed the diagnosis of psoriasis ( The condition was not infectious but was made worse by stress ) ;", "A linear QUANTITY scar on his right upper arm was consistent with his account of being whipped with electric cable ;", "CARDINAL linear scars inside the left fore - arm , QUANTITY and QUANTITY , were consistent with his account of being burned by a heated metal rod ;", "An irregular scar on the back of the left hand , QUANTITY in diameter , was consistent with his account of a cigarette being pressed against his hand ;", "An irregular scar , QUANTITY long , behind the right heel was consistent with his account of a chain cutting into his ankles when he was suspended .", "Dr Peel concluded that the details given by the applicant of his detention were completely consistent with the descriptions of NORP detention centres given to him by other asylum seekers , that the scars on his body were fully consistent with his story and that he described some psychological symptoms found in persons who have been detained and beaten .", "The applicant made a second application for judicial review , submitting the above medical evidence and challenging the certification of GPE as a safe third country as , inter alia , GPE failed to recognise persons as refugees where the persecution emanated from non - State agents . Leave was refused by Mr Justice PERSON on DATE . Counsel advised that there were no grounds on which to appeal to ORG . Removal directions were set for DATE and then deferred .", "A further medical report was prepared by Dr PERSON of ORG Caring for victims of Torture ) after CARDINAL examinations of the applicant on DATE and DATE . He stated :", "“ My professional view is that particularly in regard to the neck , jaw and burn scars ... that there is a serious possibility and I would go beyond that < to conclude that there is > very little doubt that what has been observed and recorded above results from physical injuries inflicted upon him during periods of detention in the past . ... Though there are symptoms of a physical nature which have been described which persist , I find also that there are psychological ill effects of his past ill treatment which are present and likely to remain for DATE in the future … there can be little doubt , if any doubt , that [ the applicant ’s scars ] have been caused in the way he describes . ”", "On DATE , following the decision of DATE of ORG in the case of PERSON , NORP and PERSON ( see domestic law and practice below ) , the applicant 's representatives requested that the Secretary of ORG reconsider his decision to issue a certificate under section CARDINAL(CARDINAL ) of ORG authorising the removal of the applicant to GPE , and to consider the merits of his claim for asylum . On DATE , the Secretary of ORG stated that he was not willing at this stage to consider the merits of the applicant ’s claim as he was pursuing an appeal to ORG in respect of PERSON and PERSON . He also expressed the view that it would be premature to do so as the applicant ’s application to ORG issues not considered by ORG in the PERSON , PERSON and PERSON case .", "The applicant has submitted material from members of his family supporting his account of events , e.g. a statement from his mother dated DATE , an affidavit from his mother dated DATE , a letter from his uncle dated CARDINAL DATE and a letter from his sister dated DATE . He has also provided the ORG with colour photographs showing various marks on his head , legs , arm and torso .", "PERSON Relevant domestic law and practice", "Applicable international texts", "GPE and GPE are parties to the DATE LAW relating to The Status of Refugees . Article CARDINAL ) provides :", "“ No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion . ”", "LAW ( the Convention determining the ORG responsible for examining applications for asylum lodged in one of GPE of ORG , DATE ) provides for measures to ensure that applicants for asylum have their applications examined by CARDINAL of the Member GPE and that applicants for asylum are not referred successively from CARDINAL Member ORG to another . Articles CARDINAL to CARDINAL set out the criteria for determining the single Member ORG responsible for examining an application for asylum . Pursuant to LAW , the responsibility for examining an application for asylum is incumbent upon the Member ORG responsible for controlling the entry of the alien into the territory of GPE . GPE and GPE are both signatory GPE .", "GPE immigration statutes and rules", "Section CARDINAL of ORG provides :", "“ ( CARDINAL ) ... a person who has claimed asylum [ may be ] removed from GPE if -", "( a ) the Secretary of ORG has certified that , in his opinion , the conditions mentioned in subsection ( CARDINAL ) below are fulfilled ; ...", "( CARDINAL ) The Conditions are :", "( a ) that the person is not a national or citizen of the country or territory to which he is to be sent ;", "( b ) that his life and liberty would not be threatened in that country or territory by reason of his race , religion , nationality , membership of a particular social group or political opinion ; and", "( c ) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the [ LAW . ”", "Paragraph CARDINAL of ORG states :", "“ If the Secretary of ORG is satisfied that there is a safe country to which an asylum applicant can be sent , his application will normally be refused without substantive consideration of his claim to refugee status . A safe country is one in which the life or freedom of the asylum applicant would not be threatened ( within the meaning of LAW of the [ LAW ) and the government of which would not send the applicant elsewhere contrary to the principles of the [ LAW .... ”", "Paragraph CARDINAL of ORG provide :", "“ When an asylum applicant has come to GPE from another country which is party to the [ LAW ...... and which has considered and rejected an application for asylum from him , his application for asylum in GPE may be refused without substantive consideration of his claim for refugee status . He may be removed to that country , or any country meeting the criteria of paragraph CARDINAL , and invited to raise any new circumstances with the authorities of the country which originally considered his application . ”", "The Secretary of ORG has power to grant exceptional leave to enter or remain in cases which do not fall within the LAW or the Rules . His policy is to grant such leave :", "“ ... Where the [ LAW requirements are not met in the individual case but return to the country of origin would result in the applicant being subjected to torture or other cruel , inhuman or degrading treatment , or where the removal would result in an unjustifiable break - up of family life ... A person should never be disqualified from exceptional leave to enter or remain if there are substantial reasons for believing that he or she would be tortured or otherwise subjected to inhuman or degrading treatment if they were to be returned to their country of origin . ”", "A refusal to grant exceptional leave is subject to judicial review . The courts can rule that the particular exercise of the Secretary of ORG ’s discretion is unlawful on the ground that it was tainted with illegality , irrationality or procedural impropriety . The courts could quash a decision if it was established that there was a serious risk of inhuman treatment on the ground that no reasonable Secretary of ORG could take such a decision .", "GPE case - law", "The domestic ORG approach under LAW DATE prior to DATE was summarised as :", "( i ) The Secretary of ORG can not simply rely upon the fact that the third country is a signatory to LAW : he must be satisfied that in practice it complies with its obligations ( Re Musisi [ DATE ] ORG CARDINAL ) .", "( ii ) The issue is whether the third country adopts an approach within the range of responses of a ORG acting in good faith to implement its obligations under LAW ( NORP v. Secretary of ORG for ORG Ex parte Iyadurai [ DATE ] INLR CARDINAL ) .", "( iii ) The Secretary of ORG must be satisfied that there is no real risk that the third country would send the applicant elsewhere in breach of LAW ( NORP v. Secretary of ORG for ORG [ DATE ) .", "In its judgment of DATE in the case of NORP v. Secretary of ORG for ORG ex parte PERSON , PERSON and PERSON , ORG examined as a question of general importance whether the Secretary of ORG was entitled to return asylum seekers to GPE and GPE under LAW ( CARDINAL ) c of ORG , as being countries which did not recognise as refugees those who feared persecution from non - State agents . PERSON was a citizen of GPE who had been refused asylum in GPE prior to her arrival in GPE ; PERSON was a GPE national who claimed asylum in GPE on account of his ill - treatment by both the NORP and the NORP army but whose claims had been rejected by the NORP authorities ; and PERSON was a citizen of GPE whose asylum application had been rejected by NORP authorities . ORG held that LAW extended protection to persons who feared persecution by non - State agents , where , for whatever cause , the ORG was unwilling or unable to offer protection itself . As the NORP and NORP authorities subscribed to the “ accountability theory ” - ie . refugee status was limited to those who feared persecution emanating from ORG or quasi - State authorities or persecution from non - State agents where it was shown that it was tolerated or encouraged by the ORG , or at least that the ORG was unwilling to offer protection - the Secretary of ORG could not as a matter of law certify the claimants for return to these countries as safe third countries because these countries did not give effect to the ORG ’s core values :", "“ If a party to LAW were to take a position which was at a variance with the Convention ’s true interpretation , and act upon it , it could not be regarded as a safe third country ; not merely because the “ real risk ” test is not breached ( though certainly it would be ) but because in the particular case the LAW was not being applied at all . ” ( § DATE )", "The Secretary of ORG has petitioned ORG for leave to appeal against this decision as regards PERSON and PERSON , no separate petition being pursued in respect of PERSON due to the similarity of the issues .", "NORP law concerning asylum - seekers and persons claiming protection", "ORG for ORG considers claims for asylum or whether there are obstacles to the deportation of aliens . Its decisions to issue deportation orders may be reviewed by ORG .", "Pursuant to Article CARDINAL ) of LAW , a person persecuted on political grounds has the right of asylum . Persons entitled to asylum enjoy legal status pursuant to LAW and are issued with an unlimited residence permit ( section CARDINAL of LAW ) .", "Section CARDINAL of LAW prohibits the deportation of aliens to a State where they would face political persecution . Aliens granted protection against deportation under this provision enjoy legal status under LAW but are merely issued with limited residence for exceptional purposes .", "", "According to the constant case - law of ORG , recognition as a political refugee requires a risk of persecution emanating from a ORG or quasi - State like authority . Persecution by private organisations or persons qualifies only if it can be attributed to the ORG in that the ORG supports or passively tolerates the persecution by private groups or exceptionally if the ORG does not provide adequate protection due to its inability to act as a consequence of existing political or social structures . This does not cover situations where a ORG has factually lost control of parts of its territory ( ORG of DATE . CARDINAL , CARDINAL , CARDINAL ) .", "Ill - treatment by a ORG officer considered as an isolated event in excess of his functions and prohibited and sanctioned according to the regular administrative and penal procedures is not attributed to the ORG . A practice of torture by police or prison authorities , either in the form of political persecution or in the context of LAW , is attributable to the ORG . State complicity may be shown where torture is practised as part of the police or military structure of a ORG .", "If an asylum claim for protection against political persecution does not meet the necessary requirements under LAW ) of LAW or section CARDINAL(CARDINAL ) of LAW , ORG is obliged to examine whether an applicant faces a serious risk of treatment contrary to LAW if he were returned . Section CARDINAL(CARDINAL ) of LAW prohibits expulsion in such circumstances .", "In a decision of DATE ( PERSON . ORG , CARDINAL ) , ORG decided that an applicant , in order to meet the requirements of section CARDINAL(CARDINAL ) of LAW , must show a serious risk of inhuman or degrading treatment or punishment by a ORG or a ORG - like authority . It therefore declined to follow the interpretation of LAW adopted by ORG in GPE v. GPE ( judgment of DATE , Reports CARDINAL ) .", "If the preconditions for the application of section CARDINAL(CARDINAL ) are not met , protection may be granted under section CARDINAL(CARDINAL ) of LAW , which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life , personal integrity or liberty of an alien . This applies to concrete individual danger resulting from either ORG or private action . It does not require an intentional act , intervention or ORG measure and covers risks for life resulting from adverse living conditions , lack of necessary medical treatment , etc . ( FAC CARDINAL DATE , InfAusIR DATE , CARDINAL ) . This provision has also been applied to civil war or war situations where the threat derived from a non - State source ( ORG of Baden - Württemberg decision of CARDINAL DATE , CARDINAL CARDINAL/CARDINAL ) . Persons afforded protection under this provision are granted temporary permission to remain for periods of DATE , renewable by the authorities .", "In DATE , section CARDINAL(CARDINAL ) was applied to CARDINAL NORP nationals in respect of serious individual risks of ill - treatment which could not be attributed to GPE . This included the case of a GPE whose scars placed him a real danger of being apprehended by the security forces and submitted to renewed torture as a person suspected of NORP involvement ( ORG decision of CARDINAL DATE , CARDINAL K CARDINAL/CARDINAL )", "Unsuccessful applicants are entitled to have their case re - examined in a new asylum procedure ( follow up application , section CARDINAL of LAW ) subject to section CARDINAL(CARDINAL)-(CARDINAL ) of LAW . This only applies where the factual or legal situation has changed in favour of the applicant , where there is new evidence or there are reasons to resume proceedings analogous to those relevant to LAW ( false evidence , fresh witnesses etc ) . In addition , the applicant must show that such new facts or evidence , which have to be submitted with DATE time - limit , are suitable to support a favourable result and that he / she was unable to deliver such facts or evidence in the previous asylum procedure .", "However , even where these conditions are not met , the competent authorities would be obliged to examine whether the applicant , if removed , was facing a serious individual risk for life and personal integrity , in particular a grave danger within the meaning of ORG jurisprudence relating to section CARDINAL(CARDINAL ) ( see e.g. FAC of DATE , CARDINAL C CARDINAL.CARDINAL ) .", "An applicant filing a follow - up application or claiming protection under section CARDINAL can not be removed immediately upon return to GPE on the basis of the previous rejection of an asylum claim and deportation order . If the applicant does not meet the requirements for a resumption of the procedure or a re - examination of his case , the authorities have to issue a new deportation order , which may be subject to judicial review . Only where an unfounded application ensued within DATE would the original deportation order remain in force . An applicant has DATE to file a complaint against the deportation with ORG . PERSON can not take place pending the court ’s decision . The applicant may ask the court to grant suspensive effect to the appeal .", "Relevant Reports", "In the part of ORG for DATE concerning GPE , it was reported that ‘ no member of the security forces has been brought to justice for committing torture’ . In DATE ORG published a report entitled “ GPE Torture in Custody ” . That report noted :", "“ .. [ T]orture ... continues to be reported almost ( if not ) DATE in the context of the ongoing conflict between the security forces and ORG ( NORP ) fighting for an independent ORG , ORG , in the north and east of the country ...", "The pattern of arrest , detention and torture in GPE is closely linked to the occurrence of NORP attacks in the city , the discovery of materials for such attacks or any major public events in GPE such as Independence Day . High numbers of arrests are reported after explosions , assassinations and arm - finds . ”", "A report by ORG for ORG entitled “ No GPE : NORP , NORP and Sri Lankan Torture Victims in the GPE ” dated DATE stated :", "“ Although the government elected in DATE has established legal and statutory frameworks with the expressed intent to control human rights abuses by security forces , these have not been very successful in curbing human rights violations by army or police , or in bringing perpetrators to justice . NORP , especially young men , are frequently detained by security forces in search of Tiger supporters ... many ... are detained , sometimes for long periods , and ill - treated or tortured ....", "When the security forces detain someone with scarring , they assume the person to be a ORG member and treat them extremely brutally ... ”", "The Report of ORG on extra - judicial and summary executions dated DATE stated in respect of his visit to GPE :", "“ Human rights violations are most frequent in the context of operations carried out by the security forces against the armed insurgency ... the violations have been so numerous , frequent and serious over DATE that they could not be dealt with as if they were just isolated or individual cases of middle and lower - rank officers , without attaching any political responsibility to the civilian and military hierarchy . ”", "ORG for DATE ” dated DATE stated :", "“ Torture remained a serious problem , and prison conditions remained poor . Arbitrary arrests and detentions continued , often accompanied by failure of the security forces to comply with some of the protective provisions of ORG Impunity for those responsible for human rights abuses remained a serious problem .", "No arrests were made in connection with the disappearance and presumed killing of CARDINAL NORP suspects in GPE in DATE and DATE . ”" ]

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[ "The applicants , a married couple of NORP origin , were born in DATE and DATE respectively and live in Västerås . They have CARDINAL children , who are now DATE , DATE and DATE .", "From DATE they rented a flat in GPE , a suburb of GPE . Rule CARDINAL of the special provisions of the tenancy agreement stipulated the following :", "“ The tenant undertakes not to erect , without specific permission , placards , signs , sunblinds , outdoor aerials and such like on the house . ”", "The agreement further stipulated , as a general condition , that the tenants were obliged to take proper care of the flat and to maintain good sanitary conditions , order and good practice in the house .", "It appears that when the applicants moved in , there was a satellite dish mounted on the façade , next to CARDINAL of the windows of the flat . The applicants made use of this in order to receive television programmes in LANGUAGE and LANGUAGE .", "NORP In DATE the applicants ' landlord changed . The new landlord , a real - estate company , demanded that the satellite dish be dismantled . The applicants did not comply and , by letter of DATE , the company gave the applicants notice of termination of the tenancy agreement with effect from DATE .", "Further , in DATE , the landlord initiated proceedings before ORG ( hyresnämnden ) in GPE against the applicants and some other tenants who had installed satellite dishes in the same house . The landlord sought execution of the notice of termination , claiming that the applicants ' satellite installation violated the express ban in LAW of the tenancy agreement and that , by not complying with the instruction to dismantle the dish , they had failed to maintain good sanitary conditions , order and good practice . Stating that it objected only to satellite dishes mounted on or outside the façade of the house , while allowing , for instance , dishes placed on a balcony , the landlord claimed that the ban on such installations was of considerable importance as the installations a ) risked causing injuries to persons and property for which the landlord would be held responsible , b ) damaged the house physically and aesthetically and c ) obstructed rescue workers ' and the landlord 's access to the flat .", "Shortly after having received the notice of termination , the applicants dismantled the satellite dish . However , in its place they installed a new device by placing on the kitchen floor an iron stand from which an arm , on which the satellite dish was mounted , extended through a small open window . The installation could be pulled back into the kitchen when not being used . At the request of ORG , an engineer , Mr S. Tornefelt , examined the installation on DATE . He found that it was very stable but recommended that , for safety reasons , a steel wire be fixed between the dish and the stand . The applicants made the recommended addition .", "The applicants , as well as the other tenants summoned , contested the landlord 's claims before ORG . They stated that , by mounting satellite dishes for the reception of television programmes , some of which were broadcast in their mother tongues , they were exercising their freedom to receive information , as protected by LAW , LAW and ORG law . The landlord 's interests , as provided for in LAW , section CARDINAL of LAW ( Jordabalken ) , had to be balanced against this freedom . The applicants further claimed that they had now complied with the landlord 's demand that the earlier satellite installation be dismantled . The new installation was , they claimed , in conformity with the rules of the tenancy agreement . Referring to PERSON opinion , they further maintained that it was safe and did not damage the house .", "The landlord submitted , in addition to what it had previously stated , that it was working on the possibility of installing broadband and internet access in the house , which would allegedly give access to the desired television channels .", "Following an inspection of the applicants ' satellite installation , ORG gave a decision on DATE finding in their favour . ORG noted in general that the assessment of whether tenants had failed to comply with their obligations by mounting satellite dishes had to involve the balancing of the interests of the landlord – which could be more or less strong depending on how the actual installations had been made DATE and the interests of the tenants in using a satellite dish – which could also vary depending on whether there were alternative means of receiving the television channels in question . In the applicants ' case , ORG found that the fact that the new satellite installation extended through a window did not involve a breach of LAW of the tenancy agreement . With regard to the general obligation to maintain good sanitary conditions , order and good practice in the house , ORG considered that the actual installation did not and could not damage the house . Moreover , the landlord 's liability for damage to persons and property could not reasonably be incurred unless it were able to prevent the mounting and use of the satellite dish , which was not the case if the ORG found that the landlord had no right to such prevention . Moreover , having regard to Mr PERSON 's opinion and its own inspection , ORG considered that the risk of damage caused by the installation was negligible . Nor could it not find any evidence that the installation would obstruct rescue workers ' access to the flat . The only inconvenience for the landlord was the aesthetic aspect . However , the applicants ' interest in being able to watch television programmes that were not accessible by other available means weighed more heavily , and the satellite installation could not therefore be considered as contrary to good sanitary conditions , order and good practice .", "NORP The landlord appealed to ORG ( PERSON hovrätt ) . The court held an oral hearing at which , inter alia , Mr PERSON gave evidence . It also made an inspection of the applicants ' satellite installation . By a final decision of DATE , the court found that the applicants had disregarded their obligations as tenants , under the tenancy agreement and LAW , LAW , to such a degree that the agreement should not be extended , pursuant to LAW , section DATE , subsection CARDINAL(CARDINAL ) of the LAW . They were given a respite until DATE to move from the flat . The court found that the landlord had made a reasonable distinction between acceptable and unacceptable satellite installations and had submitted weighty reasons for prohibiting dishes mounted on the façade or otherwise extending outside of it . It noted that the evidence showed that the applicants ' dish was virtually always positioned outside the kitchen window and thus constituted a permanent installation , and concluded , contrary to the findings of ORG , that its placement breached Rule CARDINAL of the tenancy agreement . In assessing the seriousness of this breach of contract , the court first concluded , with reference to PERSON PERSON 's testimony , that the satellite installation met the reasonable requirements of stability and safety . However , noting that the landlord 's main reason for not allowing the installation was the safety aspect , the court considered that the landlord was entitled to make general risk assessments and should not have to determine whether an individual installation was unsafe or inconvenient . It went on to state that , while the applicants ' interest in receiving the broadcasts of the television channels in question had to be taken into consideration and that it was desirable that technical solutions for such reception be found , the right to freedom of information relied on did not have such a bearing on the case that it could be considered to have any real importance . It noted , finally , that the applicants had been fully aware of the importance that the landlord attached to the issue of the placement of satellite dishes and of the consequences that could follow from a refusal to comply with the landlord 's instructions in this respect . Although their satellite installation did not pose any real safety threat , their interests could not be allowed to override the weighty and reasonable interest of the landlord that order and good custom be upheld .", "NORP The landlord offered the applicants the option of staying in their flat if they agreed to remove the satellite dish . They did not agree to do this , however , and instead moved on DATE . They have stated that , largely because of the scarcity of flats for rent in the GPE area but also due to there being a court eviction order against them , they were forced to move to FAC , QUANTITY west of GPE . As a consequence , the first applicant now had much longer and costlier trips to and from work and the applicants ' CARDINAL children had had to change nursery and school and leave friends .", "The renting of a flat is regulated primarily in LAW of LAW .", "Section CARDINAL provides that a tenancy agreement shall be in writing if the landlord or the tenant so request . In the event that a provision in the agreement is difficult to interpret , it is in practice ultimately interpreted to the disadvantage of the person who formulated the agreement . As it is almost always the landlord who draws up the tenancy agreement , the landlord has to take the responsibility for an agreement that is difficult to interpret . In most cases , landlords use standard agreements , the content of which is the result of negotiations between rental market organisations .", "Section CARDINAL contains provisions for the term and cancellation of tenancies . A tenancy agreement which is applicable for an indefinite period , as in the present case , must be cancelled for it to cease to apply . According to section CARDINAL , an indefinite tenancy agreement can be cancelled and thus cease to apply on DATE following DATE notice . LAW provides that , in a case such as the present , a notice of cancellation shall be in writing and comply with certain rules governing service .", "Section CARDINAL provides , inter alia , that a tenant may not use the flat for a purpose other than that intended . Under section CARDINAL , the tenant is under an obligation to take good care of the flat . In general , he or she shall take care of it in a way that can be reasonably expected of an orderly person . Further , the tenant is liable to make good all damage caused by his or her carelessness or negligence .", "Section CARDINAL contains provisions on disturbances and demands on the tenant for keeping the flat sound , orderly and in good condition . Subsection CARDINAL provides :", "“ When using the flat , the tenant shall ensure that persons living in the vicinity are not subjected to disturbances which may be harmful to their health or otherwise impair their dwelling environment to an extent not reasonably tolerable ... . In his use of the flat , the tenant shall also in other respects do all that is necessary to keep the property sound , orderly and in good condition . ... ”", "Disturbances and failure to meet those requirements may result in the tenancy agreement being forfeited under section DATE .", "Special provisions and regulations can be included in the tenancy agreement . A tenant 's refusal to abide by such provisions and regulations may also constitute a failure to fulfil the requirements for keeping the flat sound , orderly and in good condition .", "It follows from section DATE that if the landlord has given notice of cancellation of the tenancy agreement , the tenant may still be entitled to have the agreement extended . However , subsection CARDINAL of section CARDINAL lists a number of situations in which the tenant loses the right to renewal . The first situation , laid down in subsection DATE ) , is the forfeiture of the tenancy . LAW stipulates the conditions in which a tenancy agreement is deemed to be forfeited , including residential disturbances and failure to keep the flat sound , orderly and in good condition . The second situation , regulated in subsection CARDINAL(CARDINAL ) , was relied on by the landlord and applied by ORG in the present case . It concerns the tenant 's neglect of their obligations . If the obligations are neglected to such an extent that it is not reasonable for the tenancy agreement to be extended , the tenant may lose the right to such renewal .", "The preparatory works to the latter provision state that the requirements of orderliness must be high in order to make it possible for the landlord to maintain the property in good order and condition ( ORG CARDINAL:CARDINAL , pp . CARDINAL ) . The interests of the landlord shall be weighed against the reasonableness of the tenancy being terminated . Distressing personal circumstances may be taken into account . The possibility of another flat in the same area should also be considered ( Government PERSON , LAW , p. CARDINAL ) .", "Examples of negligence are , for example , failure to pay rent , subletting without permission , refusing to grant the landlord access to the flat , depositing rent without valid reasons , residential disturbances , a failure to keep the flat sound , orderly and in good condition , and a breach of clauses in the tenancy agreement .", "A large number of tenancy disputes are examined by the CARDINAL regional rent review boards , whose task it is , under section CARDINAL of ORG ( Lagen om arrendenämnder och hyresnämnder , CARDINAL:CARDINAL ) , to examine disputes concerning , for example , the terms of a tenancy and disputes relating to the renewal of a tenancy agreement . A decision by ORG in a renewal dispute , as in the present case , can be appealed to ORG , in accordance with LAW , LAW , section CARDINAL in conjunction with section CARDINAL . No appeal lies against the court 's decision , as provided for in section CARDINAL of ORG NORP om rättegången i vissa hyresmål i PERSON hovrätt , PERSON ) .", "Chapter CARDINAL , section CARDINAL , subsection CARDINAL of LAW ( PERSON ) states the following :", "“ Subject to any contrary provision of this LAW neither public authorities nor other public bodies shall prohibit or prevent the possession or employment of such technical aids as are necessary to receive radio programmes or to view or hear the content of technical recordings on grounds of the content of a radio programme or technical recording,.The same shall apply to any ban on the construction of landline networks for the transmission of radio programmes . ”", "LAW , section CARDINAL , subsection CARDINAL of ORG ( Regeringsformen ) provides , inter alia , as follows :", "“ Every citizen shall be guaranteed the following rights and freedoms in his relations with the public institutions :", "NORP freedom of expression : that is , the freedom to communicate information and express thoughts , opinions and sentiments , whether orally , pictorially , in writing , or in any other way ;", "NORP freedom of information : that is , the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others ;", "... ”", "Section CARDINAL provides that the enumerated rights and freedoms may be restricted only to satisfy a purpose acceptable in a NORP society . The 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 . Furthermore , no restriction may be imposed solely on grounds of a political , religious , cultural or other such opinion . Under section CARDINAL , freedom of expression and information can only be restricted on grounds of national security , national provision of supplies , public order and safety , the good name of an individual , the sanctity of private life , and the prevention and prosecution of crime . Freedom of expression may also be restricted in commercial activities .", "LAW and ORG apply to the relationship between individuals and public bodies . They do not apply to relationships between individuals ." ]

[ "10" ]

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[ "The applicant is a company based in GPE , GPE .", "Following the institution of bankruptcy proceedings before ORG ( Trgovački sud u GPE ) against ORG , d.d . ORG , on CARDINAL DATE , creditors were invited to lodge their claims against the said bank . Pursuant to that invitation , the applicant company lodged its claim . On DATE a notice was placed on the court ’s public noticeboard informing all interested persons that a list of claims to be examined in the bankruptcy proceedings could be consulted in the court ’s registry . The list included a claim submitted on behalf of ORG for ORG Deposits ( PERSON agencija za osiguranje štednih DATE hereinafter the “ Agency ” ) .", "The applicant company ’s representative was present at an examination hearing ( ispitno ročište ) held on DATE where the bankruptcy administrator assigned to the case ( stečajni upravitelj ) was to accept or reject each of the claims . No objections were raised as to the accepted claims . The relevant parts of the transcript of the hearing read as follows :", "“ It is established that the following PERSON representatives are present at DATE ’s hearing :", "... attorney PERSON for QUANTITY Interfinanz GPE ... PERSON for ORG [ short for PERSON agencija za osiguranje štednih uloga ] ...", "After having announced the subject matter of the case , the president of the bankruptcy panel informs the creditors in attendance that a list of LOC claims available to everyone exists and after that [ the creditors ] agree that there is no need to write down individual claims since the amount of each claim is going to be announced orally by the bankruptcy administrator and the creditors will be able to comment on it .", "...", "After that the claims are examined under sections CARDINAL and CARDINAL of LAW and the bankruptcy administrator presents the amounts of the claims of the creditors in attendance in the order established in the list of claims .", "...", "At the bankruptcy president ’s inquiry whether the creditors wish to contest any of the claims examined DATE no objections are raised .", "...", "The hearing is concluded .", "A decision on the LOC claims examined DATE will be issued in writing . ”", "NORP Immediately afterwards a report hearing was also held ( izvještajno ročište ) , where the applicant company ’s representative was appointed as a representative of all foreign creditors in the board of creditors . The Agency , being the creditor claiming the highest sum , was also included in the board of creditors , a body designed to represent the NORP interests in the bankruptcy proceedings . In the subsequent course of the proceedings CARDINAL meetings of the board of creditors were held , on DATE and DATE respectively , the applicant company ’s representative being present at both .", "A decision concerning the claims examined at the hearing of DATE was subsequently issued where , inter alia , the claim submitted on behalf of the ORG was accepted .", "In its submission of CARDINAL DATE the applicant company opposed the claim filed by the ORG , arguing that although the ORG ’s claim had been listed in the decision of CARDINAL September CARDINAL it had not been subject to examination at the hearing held on DATE as the claim in question had not yet become due . On DATE ORG declared the applicant company ’s submission inadmissible . It held that LOC claims in the context of bankruptcy proceedings could only be opposed at the examination hearing and that the contested claim had been accepted by the bankruptcy administrator as stated in her decision of DATE .", "On DATE the applicant company appealed against the above decision contending that during the examination hearing held on DATE the bankruptcy administrator had not stated whether she accepted or rejected the ORG ’s claim and that therefore it had had no opportunity of contesting that claim .", "On DATE the High Commercial Court ( ORG trgovački sud PERSON ) dismissed the appeal , finding that the contested claim had been accepted in the bankruptcy administrator ’s decision of CARDINAL DATE and that the applicant company could have filed an appeal against that decision . Since the applicant company had failed to file a timely appeal it had no right to oppose the contested claim at a later stage .", "NORP The applicant company then filed a constitutional complaint whereby it argued that the ORG ’s claim had not been subject to examination at the hearing held on DATE as it had not yet become due at that time . Furthermore , it contended that the decision of DATE had not been served on it . On DATE ORG dismissed the applicant ’s complaint , finding that it did not concern the merits of the case .", "The applicant company submitted a letter of ORG of DATE whereby it replied to its enquiry and stated that the decision of DATE had been filed in the court ’s registry the same day and kept there for a further DATE . In their further letter of DATE it was stated that the former bankruptcy administrator in the proceedings had informed the court that a notice had been posted on the court ’s public noticeboard informing all interested parties that the decision of CARDINAL DATE could be consulted in the court ’s registry within DATE . There was no mention of the date when this notice had been posted on the court ’s noticeboard and for how long it had stayed there . The decision itself had not been posted on the noticeboard because it had comprised CARDINAL pages .", "LAW ( Stečajni zakon , ORG nos . CARDINAL , CARDINAL , CARDINAL , QUANTITY , CARDINAL , CARDINAL/CARDINAL and CARDINAL ) in its relevant part provides as follows :", "Section CARDINAL allows for court decisions addressed to a large number of persons to be placed on a court ’s public noticeboard . These decisions are considered as being served on parties DATE after they are posted on the noticeboard . The courts are to maintain registers of documents placed on their public noticeboards , containing , inter alia , the date of the posting of each decision on the noticeboard .", "Sections CARDINAL and CARDINAL impose on commercial courts a duty to furnish supplementary registers , including a list of documents posted on their public noticeboards .", "Section CARDINAL provides for an examination hearing before the competent commercial court at which the bankruptcy administrator shall either accept or reject each of the reported claims . Likewise , a creditor can oppose a claim reported by another creditor .", "Section CARDINAL provides that a claim is deemed to have been accepted if no objection has been raised by either the bankruptcy administrator or another creditor . The commercial court shall prepare a schedule of examined claims on the basis of which it shall issue a decision ( rješenje ) showing which claims were accepted and which were rejected , and setting out the amount and priority of each claim .", "Section CARDINAL(CARDINAL ) provides that a final decision establishing the claim and its priority , or establishing that a claim does not exist , shall be effective against the bankrupt and all its creditors ." ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in the city of GPE , GPE .", "In DATE the applicant became a member of the housing cooperative “ Verstatobudivelnyk-CARDINAL ” ( “ the cooperative ” ) in order to be provided with an apartment in the dwelling house to be constructed by the latter . At the same time he was employed part - time by the cooperative .", "By decisions made at a general meeting of the members of the cooperative on DATE , DATE and CARDINAL DATE the applicant ’s membership of the cooperative was cancelled on the grounds that he had failed to pay his contributions on time . Therefore , the applicant was not provided with the apartment to which he believed he was entitled ( “ the apartment ” ) . Later it was given to another member of the cooperative , PERSON", "NORP In DATE the applicant instituted proceedings against the cooperative in LOC requesting the court to declare the above decisions null and void . He also claimed compensation for non - pecuniary damage .", "Later , the applicant lodged additional claims against ORG of ORG , ORG and PERSON , challenging the latter ’s right to own the apartment , seeking the removal of PERSON family and claiming property rights over the apartment . The applicant also claimed payment of the salary arrears from the cooperative , and alleged that his contributions entitled him to a larger apartment .", "NORP In DATE ORG of Odessa was closed down . On an unspecified date the applicant ’s case was transmitted from that court to FAC of Odessa ( “ the court ” ) .", "In the period from DATE to DATE the domestic courts listed some CARDINAL hearings . QUANTITY hearings were adjourned due to the failure of the representative of the cooperative to appear or at his request . CARDINAL hearings were adjourned since Mr S. failed to appear . The domestic courts took no steps to ensure the defendants’ presence in the court . CARDINAL hearings were adjourned due to the applicant ’s failure to appear or at his request . Most hearings were scheduled at intervals from DATE .", "On DATE the court allowed the applicant ’s claims .", "On DATE the NORP Regional Court of Appeal ( “ the court of appeal ” ) quashed the decision and remitted the case for fresh consideration to the court .", "On DATE the court found against the applicant .", "On DATE the court terminated proceedings concerning payment of the salary arrears and the applicant ’s claim for a larger apartment since the applicant had failed to comply with procedural requirements prescribed by NORP law . The applicant did not appeal against this ruling .", "On DATE the court of appeal quashed the judgment of DATE and remitted the case for fresh consideration to the court .", "On DATE the court dismissed the applicant ’s claims .", "On DATE the court of appeal quashed the judgment of CARDINAL DATE and partly allowed the applicant ’s claims .", "In the period from DATE until DATE the court and the court of appeal listed some CARDINAL hearings . CARDINAL hearing was adjourned because of the judge ’s illness , CARDINAL due to PERSON failure to appear , one at the applicant ’s request . Most hearings were scheduled at intervals from DATE . No hearings were scheduled by the court DATE and DATE .", "The defendants appealed in cassation . On DATE ORG upheld the judgment given by the court of appeal .", "On DATE the judgment of CARDINAL DATE was enforced in full .", "On an unspecified date in DATE Mr S. instituted new proceedings against the applicant claiming his property rights over a part of the apartment on the ground that he had carried out certain repair works ." ]

[ "6" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent 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 was CARDINAL of the CARDINAL founding partners and a holder of PERCENT of the shares of a limited liability company ( “ the company ” ) set up on DATE to run a retail shop . The shop , privatised by those partners in DATE and valued at CARDINAL NORP laris ( GEL ) ( QUANTITY ( ORG ) ) , was designated as the company ’s founding capital .", "In DATE , a certain PERSON brought a court action contesting the lawfulness of the privatisation of the shop and , in a decision of DATE , ORG in GPE declared the privatisation agreement null and void .", "After the decision of DATE became binding , the applicant and another founding partner of the company , Mr N. , entered into friendly settlement negotiations with PERSON On DATE they reached an agreement , according to the written terms of which the applicant and Mr N. were “ to cede ” to Mrs. PERSON , respectively , PERCENT and PERCENT of their company shares . The agreement did not specify PERSON counter - obligations , if any .", "On DATE the ORG of ORG , on the basis of both GPE request , quashed in a supervisory review the decision of DATE and ordered the parties to abide by the conditions of their friendly settlement of CARDINAL DATE ; the company was ordered to amend its registration records in ORG accordingly .", "As disclosed by TIME of the company ORG general meeting on DATE , the applicant considered that PERSON should pay compensation for the agreed cession of the shares , as this had been her pledge during the friendly settlement negotiations . However , since PERSON now insisted on obtaining those shares free of charge , the applicant stated that she would not cede her part . The applicant ’s position was maintained by Mr N. and other partners , and the unanimous decision was not to admit Mrs. PERSON as a new partner .", "On DATE ORG , pursuant to PERSON request , issued a resolution on the redistribution of the company shares in accordance with the decision of CARDINAL DATE and entered the consequent amendments into ORG . Thus , PERSON was designated as a new partner with PERCENT of the company shares , PERCENT of which was transferred from the applicant ’s possession .", "On DATE the applicant brought an action before ORG , requesting that the resolution of CARDINAL DATE be declared null and void , and that the disputed PERCENT of the company shares be returned to her . The applicant , relying on the relevant provisions of LAW of DATE on Entrepreneurship ( “ the Act on Entrepreneurship ” ) , claimed that PERSON lacked the standing to request amendment of the company ’s registration records , and that consequently the resolution of DATE had been unlawful .", "On DATE the Krtsanisi - Mtatsminda District Court , finding the applicant ’s reading of the Act on Entrepreneurship to be erroneous , dismissed her action . That decision , however , was overturned by ORG on DATE in the applicant ’s favour . The appeal court reasoned that the decision of CARDINAL DATE had not rendered PERSON a partner nor transferred any shares to her , but had simply ordered the company to enforce the friendly settlement of DATE . Since the company ’s decision - making body – the ORG general meeting DATE had refused , on DATE , to accept her as a new partner , PERSON should have challenged that decision in adversarial proceedings . The appellate court further reasoned that , by virtue of section CARDINAL § CARDINAL of LAW , consent to a partial cession of the company ’s shares had to be recorded in writing at a general meeting of the partners .", "On DATE ORG , at a hearing attended by the applicant and her advocate , overturned the appellate judgement of DATE and dismissed the applicant ’s action . Acting as the court of cassation it pronounced the operative part of its decision orally that day . A complete , reasoned copy of the judgment of DATE was served on the applicant ’s advocate on CARDINAL DATE .", "ORG stated that since the company had refused to abide by the binding court decision of DATE of its own accord , the resolution of CARDINAL DATE had simply enforced that decision . In any event PERSON could have applied to a bailiff , and the resultant enforcement proceedings would have led to the same result . The court of cassation acknowledged that , as a rule , written approval of the conclusions of the ORG general meeting was required for a partial cession of company shares . However , in the case at hand , the friendly settlement agreement of CARDINAL DATE had implicitly amounted to such an approval , since all the partners of the company had had a genuine interest in the maintenance of the privatised shop . As to the price of the disputed shares , ORG concluded that the company had agreed to cede them not in exchange for monetary compensation , but rather as a quid pro quo for PERSON commitment to abandon her claim for the annulment of the privatisation .", "“ CARDINAL . A company is registered by a court entry in the [ Corporate ] ORG . ”", "“ CARDINAL . An entry in the [ Corporate ] ORG can be requested by a partner of the company ...", "As regards a limited liability company ... , a registration request should contain information about the founding ORG contributions and the number of their respective shares ...", "A change in the circumstances which serves as the basis for the registration of a company under LAW ... must also be entered in the [ Corporate ] Register ... ”", "Section CARDINAL § CARDINAL , CARDINAL and CARDINAL - “ A partner ’s rights and responsibilities [ in a limited liability company ] ”", "“ CARDINAL . A partner has the right to alienate ( gasxviseba ) or to bequeath his or her shares .", "The cession ( PERSON ) of shares by a partner takes place in the form of a notarised agreement . A notarised agreement is also required for the alienation ( gasxviseba ) of shares .", "A partial alienation of shares is only possible with the company ’s approval , [ which document ] must contain information about the identity of the purchaser and the price ... of each share ... ”", "Neither section DATE nor any other provision of the Act accounted for the difference between the notions of “ alienation of shares ” ( wilis gasxviseba ) and “ cession of shares ” ( wilis PERSON ) , if any .", "Article CARDINAL § DATE “ The ORG general meeting [ in a limited liability company ] ”", "“ CARDINAL . If the articles of incorporation do not establish otherwise , the ORG general meeting decides on all issues , including those related to ... the acquisition and handover of shares ... ”" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained in ORG prison .", "On DATE the applicant and a number of suspects were arrested in the context of an operation led by security forces in GPE on suspicion of membership of ORG , an illegal organisation . Prior to being taken into police custody , the applicant was examined by a doctor who observed no sign of illtreatment on his person .", "NORP The applicant alleges that during his questioning by the police he was tortured and compelled to sign incriminating statements in the absence of a lawyer .", "On DATE the applicant was examined by a doctor who found no injuries on his person .", "On DATE the applicant was taken to the public prosecutor and the investigating judge , before whom he alleged that he had been ill - treated while in police custody . He claimed that he had been hung by his arms , given electric shocks and beaten by police officers . Later on the same day , the investigating judge placed the applicant in pre - trial detention .", "On DATE the applicant and CARDINAL co - suspects , arrested in the same security operation conducted against ORG , lodged a complaint with the LOC public prosecutor , alleging that they had been ill - treated in police custody .", "On the applicant ’s request to the prison authorities to obtain another medical examination , on DATE he was examined by a doctor in a public health clinic , who observed bruises on the inner part of the applicant ’s lower arms , between his wrists and elbows .", "NORP The public prosecutor took statements in respect of the allegation of torture from a number of suspected police officers , who denied the accusations . They maintained that the bruises on the applicant ’s arms , which were detected in a medical report obtained later , must have been caused after his release from police custody .", "On CARDINAL DATE the GPE public prosecutor refused to commit the police officers for trial , taking into account the medical reports drafted at the beginning and end of the applicant ’s detention in police custody , which had recorded no injuries on his body . In this regard , the prosecutor found that the applicant ’s allegation of having been ill - treated in police custody was unsubstantiated . This decision was notified to the applicant on DATE .", "In the meantime , on DATE , the public prosecutor at ORG filed a bill of indictment against the applicant and CARDINAL other persons , charging them with the membership of an illegal organisation and involvement in a number of illegal activities on behalf of the organisation , such as murder , assault and arson .", "On DATE the LAW was amended and the military judge sitting on the bench of ORG was replaced by a civilian judge .", "Following the entry into force of Law no . CARDINAL of DATE , the criminal proceedings were transferred to ORG .", "During the proceedings ORG reviewed the lawfulness of the applicant ’s detention on a regular basis in accordance with LAW no . CARDINAL and found that his pre - trial detention should be continued on account of the severity of the offences , the reasonable grounds of suspicion that he had committed those with which he was charged , and the state of the evidence in the case file .", "On the basis of the range of evidence , namely confiscated documents of the illegal organisation , ballistic and autopsy reports , statements taken before the police , public prosecutor and judges , the medical reports drawn up at the beginning and end of police custody , statements taken during the trial from witnesses and other co - accused , on DATE the ORG established that the applicant , as a member of ORG , had been involved in a number of terrorist activities , including the murder of numerous people . Subsequently , the trial court convicted the applicant of attempting to undermine the constitutional order of the ORG , as proscribed by LAW , and sentenced him to life imprisonment .", "On DATE the new Criminal Code entered into force .", "On DATE ORG quashed the judgment , holding that it should be revised in the light of the provisions of the new LAW .", "On DATE the first - instance court once more convicted the applicant under LAW and sentenced him to life imprisonment .", "On DATE ORG upheld that judgment ." ]

[ "13", "5", "6" ]

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

[ "6-3-c" ]

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[ "The applicant , Mr PERSON , who has both NORP and NORP nationality , was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE .", "On DATE the applicant was placed in pre - trial detention on charges of participating in a criminal organisation with intent to commit acts of terrorism ( lidmaatschap van een criminele organisatie met terroristisch oogmerk ) , namely the so - called “ ORG group ” ( GPE ) , from its being based in the town of GPE which is the place of residence of the Queen ( Hofstad , town where the royal residence is located ) .", "During a hearing held on DATE the pre - trial detention was lifted , ORG ( rechtbank ) considering there were no grounds for it to be continued .", "On DATE the public prosecution service ( Openbaar Ministerie ) demanded a sentence of DATE imprisonment based on the charges as described above with deduction of the time spent in pre - trial detention .", "On DATE ORG acquitted the applicant of all charges brought against him , finding that he could not be considered an active participant in the ORG group . In a number of cases of the applicant 's co - defendants similar acquittals were pronounced . The public prosecution service did not appeal against that judgment and on DATE ORG judgment became final .", "Claiming that he had incurred damage as a consequence of DATE he had spent in pre - trial detention , the applicant filed a request for compensation on DATE pursuant to the provisions of LAW of LAW ( Wetboek van Strafvordering – “ ORG ” ) which provides for the possibility of such compensation . LAW provides , in the relevant part and as regards the compensation described in LAW ORG , that “ compensation shall be awarded in each case if and to the extent that the court , taking all circumstances into account , is of the opinion that there are reasons in equity ( gronden van billijkheid ) to do so . ”", "The applicant claimed CARDINAL,CARDINAL.CARDINAL euros ( ORG ) in damages to cover both pecuniary and non - pecuniary damage .", "By decision of DATE ORG granted the applicant 's claim in part , to the amount of EUR CARDINAL,CARDINAL.CARDINAL .", "On DATE the public prosecution service appealed against that decision , arguing that there were no grounds in equity to award any damages . In the alternative , the public prosecution service asserted that the applicant should be awarded less .", "On DATE ORG ( gerechtshof ) of GPE quashed ORG decision .", "ORG noted that the applicant was one of the acquitted suspects in the criminal case against members of the ORG group , and that the members of this group were known to frequent circles close to PERSON , the murderer of film director PERSON : the members of the ORG group and PERSON would gather in what has come to be called the “ living - room meetings ” ( huiskamerbijeenkomsten ) . As regards those meetings , it had been established that they had taken place in a group setting and that all suspects could be counted as members of that group .", "Paraphrasing ORG acquittal of DATE referred to above , ORG observed that ORG had found that all persons suspected of membership of the ORG group had in fact belonged to a structured and durable joint co - operation which had had the intent to commit crimes , to incite ( violence ) and to threaten ( with the commission of acts of terrorism ) and had established that the group 's individual members generally could not have been unaware that the objectives of the group to which they belonged was to commit crimes of this nature .", "It then went on to consider that the reason for the applicant 's acquittal of criminal participation in the group 's activities , despite the above - mentioned finding of fact by ORG , was to be found in the circumstance that ORG had not considered the applicant to have been an “ active ” participant in the organisation . In this connection , ORG quoted parts of ORG judgment of DATE :", "“ Although all suspects are to be deemed members of the [ ORG ] group , not all of them behaved in such a manner that the group in fact benefited from their membership . Some of them merely tagged along . Those members did , for instance , attend meetings where hatred was incited and which were of an incendiary nature , but they did not contribute to any of that themselves . They also received texts and files of a threatening nature , but did not put them to any use . By behaving in such a manner , these members neither directly nor indirectly aided the realisation of the group 's criminal intent . It follows that activities such as attending aforementioned meetings and receiving aforesaid texts can not be deemed as [ criminal ] acts of participation [ in the ORG group 's activities ] ( deelnemingshandelingen ) .", "ORG went on to hold that this admitted of no other conclusion than that the applicant had taken part in the organisation in the above - mentioned passive manner , in full knowledge of the group 's aims , not merely on an incidental basis but moreover without distancing himself from those aims . ”", "Having taken these circumstances into consideration , ORG found that there were no reasons in equity to award the applicant the damages he sought .", "No further appeal lay against this decision ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and resides in the city of PERSON , GPE .", "On DATE the applicant brought a car ( Audi-CARDINAL ) registered in GPE into the customs territory of GPE . When crossing the border he undertook an obligation to re - export the car before DATE .", "On DATE the applicant was arrested on suspicion of murder .", "On DATE the applicant was sentenced to CARDINAL years’ imprisonment for murder .", "On DATE , in the applicant ’s absence , ORG drew up a report on an infringement of customs regulations due to the applicant ’s failure to bring the above car outside the customs territory of GPE ( section CARDINAL of LAW ) . In the report , ORG indicated the applicant ’s place of detention .", "On DATE ORG sent the applicant ’s case to ORG of PERSON . In the covering letter they requested the court to consider the issue of the applicant ’s liability for a violation of section CARDINAL of LAW ( loss of goods placed under customs control ) .", "On DATE the court considered the case in the applicant ’s absence . The court found the applicant guilty of having failed to re - export the car and of having lost it in violation of CARDINAL of LAW . The court ordered the confiscation of the vehicle , but given that the car ’s location was unknown , it replaced the confiscation with payment of ORG CARDINAL,CARDINAL.CARDINAL ( about ORG CARDINAL,CARDINAL.CARDINAL ) which corresponded to the value of the car , in accordance with section QUANTITY of LAW . In its decision , the court also indicated the applicant ’s actual place of detention and noted that the applicant had not expressed a wish to be present at the court ’s hearing , even though a notification about the time and place of the hearing had been sent to him . However , according to an information letter by the Deputy Head of ORG ( PERSON департамент України з питань виконання покарань ) in reply to ORG request , the applicant ’s prison file contained no evidence that the applicant had received any summons to or notification about the above proceedings , while they were pending .", "The applicant was informed about the above court decision by the prison administration , which received a copy of the decision on DATE .", "NORP On DATE the applicant was released on probation .", "The relevant provisions of the LAW read as follows :", "“ The legislation of the GPE and of the NORP SSR on administrative offences consists of ... , this LAW and other legislative acts of the NORP SSR and decrees of ORG NORP SSR on administrative offences ... ”", "“ ( ... ) administrative liability for infringement of customs regulations shall be governed by LAW ... ”", "“ An administrative offence is an unlawful , culpable ( intentional or negligent ) act or omission , which is prejudicial to the ORG or public order , property , ORG rights and freedoms , [ and ] established administrative procedures , and for which the law foresees administrative liability ... ”", "Administrative liability for the offences provided for by this Code arises in circumstances where no grounds to subject a person to criminal liability can be found . ”", "Section CARDINAL . Circumstances that exclude administrative liability", "“ A person who has acted in the case of urgent necessity ... shall not be subject to administrative liability . ”", "Section CARDINAL . Confiscation of an item used to commit an administrative offence or CARDINAL which is the direct subject - matter of such an offence", "“ ... Only an item forming part of the private property of the offender can be confiscated , unless the legislative acts of the GPE provide otherwise ... ”", "Section CARDINAL . Terms for imposing administrative penalties", "“ Administrative penalties ( адміністративні стягнення ) can be imposed not DATE after the offence has been committed , and in the case of a continuous offence – not DATE after the offence has been discovered ... ”", "Section CARDINAL . Rights of a person against whom administrative proceedings have been brought", "“ A person against whom administrative proceedings have been brought shall be entitled to : ... give explanations , present pieces of evidence , make motions ... In the absence of the suspected person , the case can be considered only where there is information that he or she has received timely notification about the place and time of the hearing and if he or she has not requested an adjournment of the case ... ”", "Part VII of the Code defined smuggling and further referred to the criminal law on liability . The provisions pertinent to the present case are contained in Part VIII of the Code and read , in so far as relevant , as follows :", "Part VIII", "Infringement of customs regulations . Proceedings in cases concerning infringement of customs regulations", "LAW", "Infringement of customs regulations and liability for such infringements", "Section CARDINAL", "“ The giving out of the items under the customs control without the permission of the customs body of GPE or the loss thereof shall incur the fine from the citizens in the amount up to a salary minimum , officially established at the date of that infringement , with confiscation of goods in question or without the latter ; and from the officials - in the amount from DATE till CARDINAL minimums officially established at the date of that infringement , with confiscation of goods in question or without the latter . ”", "“ Failure to re - export items brought into the customs territory of GPE on condition of an obligation to re - export them within the established time - limits ... shall result in imposition of a fine ... with confiscation of the items concerned ... ”", "LAW . Proceedings in cases concerning infringement of customs regulations", "“ Proceedings concerning infringement of customs regulations shall be conducted in accordance with the provisions of this LAW or , where not regulated by it , under the relevant legislation ... on administrative offences ( ... ) ”", "Section CARDINAL . Presence of a person against whom administrative proceedings have been brought during consideration of the case concerning infringement of customs regulations .", "“ A case concerning infringement of customs regulations shall be considered in the presence of the person against whom administrative proceedings have been brought .", "In the of the absence of the person against whom administrative proceedings have been brought , the case may be considered only when there is information about the timely notification of this person about the place and time of consideration of the case , but he or she has not submitted any petition for adjournment of the case or if there is information that at the time of consideration of the case the person is outside the territory of GPE , or when the person who committed the infringement of customs regulations has not been established , or in the case of a infringement of customs regulations via the sending of items by international postal correspondence . ”", "Section CARDINAL . Terms for imposing administrative penalties", "“ Administrative penalties ( адміністративні стягнення ) in the form of a warning or fine for infringement of customs regulations may be imposed not DATE after the infringement of customs regulations , and in the case of a continuous infringement not DATE after the infringement has been discovered ...", "Confiscation of items that have been the direct subject - matter of an infringement of customs regulations ... shall be effected regardless of the time of the commission or discovery of the infringement of customs regulations . ”", "LAW . Execution of decisions of the customs authorities and courts concerning the imposition of an administrative penalty", "Section CARDINAL . Execution of the decision of the court ( judge ) concerning confiscation .", "“ ... If the items ... can not be confiscated , the pecuniary equivalent of the value of the said items shall be collected from the persons who have infringed the customs regulations ... ”" ]

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[ "6-1" ]

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[ "The applicant is a foundation existing under the laws of GPE whose purpose is to provide educational facilities at ORG in GPE , GPE . It operates in accordance with the provisions of LAW , which afforded protection to old foundations providing public services for religious minorities . It is one of a number of foundations dating from the NORP era . After the proclamation of the Republic it fell under PERSON no . CARDINAL of DATE , by virtue of which it obtained legal personality . In DATE , in accordance with section CARDINAL of that Act , the applicant foundation filed a declaration indicating its aims and its immovable property .", "On DATE the applicant foundation acquired , by way of donation , title to part of a building situated in GPE . That acquisition was based on a certificate issued on DATE by the Governor of GPE . The relevant part of that certificate read as follows :", "“ ORG is a legal entity authorised to acquire immovable property by virtue of LAW . It is run by an administrative board consisting of ... Further to a request of DATE by ORG , the present document is issued for the purposes of the transaction concerning immovable property located at ... by virtue of CARDINAL of LAW [ Law no . CARDINAL of DATE on ORG see paragraph CARDINAL below ] . ”", "The immovable property in question was subsequently registered at ORG . The applicant foundation duly paid property taxes in respect of its property .", "Similarly , on DATE , the applicant foundation acquired , by purchase , co - ownership of another part of the same building . On DATE the Governor of GPE had issued the certificate required by LAW , again indicating that “ Fener Rum Erkek Lisesi Vakfı [ was ] a legal entity authorised to acquire immovable property by virtue of the LAW ” . The applicant ’s title to that property was accordingly registered at ORG and the relevant property taxes were duly paid .", "On DATE the ORG lodged an application with ORG ( GPE ) seeking the annulment of the applicant foundation ’s title to the above - mentioned immovable property and the registration thereof in the name of the former owners , by virtue of the established case - law of ORG . In support of its application , it argued in particular that the applicant did not have the capacity to acquire immovable property . In addition , given that the property in question was not mentioned in its declaration of DATE , an instrument regarded as the legal foundation constitution ( vakıfname ) of those establishments in accordance with the case - law of ORG , the applicant was not entitled to obtain the relevant title . The ORG therefore requested that the property be re - registered in the name of its former owner .", "On DATE , further to a request from ORG , an expert in cartography and land surveys filed a report on the case . Referring to the case - law of the combined civil divisions of ORG , as established on CARDINAL DATE ( see paragraph CARDINAL below ) , he observed that foundations belonging to religious minorities as defined by LAW which had not indicated in their constitution a capacity to acquire immovable property were precluded from purchasing or accepting gifts of such property . Consequently , the real estate of such foundations was limited to the property indicated in their constitutions , which had become final with the declarations of DATE . In conclusion , the expert considered that the applicant foundation ’s title should be annulled , as it lacked the capacity to acquire immovable property , and that the property in question should be re - registered in the name of its former owners .", "Before ORG , the applicant foundation objected to the characterisation given to the DATE declarations by the ORG . It contended in particular that these declarations had been required by the ORG for the registration of the assets and income of foundations and that they could not be regarded as constitutive instruments . It further argued that such foundations did have the capacity to acquire property , by virtue of LAW .", "In a judgment of DATE granting the request of the ORG , ORG ordered both the annulment of the applicant ’s title and the re - registration of the property in the name of the former owners . It found in particular as follows :", "“ As the ORG stated , the defendant foundation did not indicate in [ its ] declaration of DATE ... its [ disputed ] acquisitions by way of donation and purchase . Thus , as observed in the expert ’s report , those acquisitions are devoid of legal basis and must accordingly be struck out of the land register and re - registered in the name of the former owners . ”", "On DATE the applicant foundation appealed to ORG . It relied in particular on its right to the peaceful enjoyment of its possessions under LAW No . CARDINAL . Its appeal was dismissed on DATE .", "On DATE ORG dismissed an application by the applicant foundation for rectification of the judgment of DATE .", "On DATE the applicant foundation submitted a request to ORG ( the “ Directorate ” ) for the amendment of its constitution . It sought a new constitutive instrument that would grant it the capacity to acquire immovable property . The request was rejected on DATE . In the grounds for its decision , relying on the judgment of the combined civil divisions of ORG CARDINAL DATE , the ORG observed that the DATE declarations by foundations of religious communities were to be regarded as the “ constitutive instruments ” of those establishments and that amendment of those constitutions was impossible for reasons of public policy .", "The Government argued that the striking - out of the applicant ’s title from the land register did not take place until DATE . In this connection they referred to a decision taken by ORG on DATE whereby the applicant foundation , as owner , together with its tenant , had been fined for adding an additional storey onto the building without authorisation .", "Prior to DATE , foundations ( vakıf ) were not recognised as legal entities in the legal system of GPE . Not having legal personality , they used to have their property registered at ORG in the name of a holy person who had died or of a living person in whom they trusted . A PERSON of DATE ORG ( DATE ) , granting foundations the right of ownership , thus recognised their legal personality . Under that PERSON , foundations were entitled to have their property registered at ORG .", "After the Republic was proclaimed in DATE , LAW and LAW no . CARDINAL on the implementation and application of LAW came into force on DATE . LAW no . CARDINAL provided as follows :", "“ A special PERSON will be enacted to govern the operation of foundations established before the entry into force of LAW .", "Establishments founded after the entry into force of the Civil Code shall be governed by the provisions of the said Code . ”", "Law no . CARDINAL was thus enacted on DATE and it recognised the legal personality of foundations set up under GPE . The legal status of foundations established after the entry into force of LAW of DATE was , however , governed by the LAW itself .", "Law no . CARDINAL imposed an obligation for foundations that had been created under GPE to submit a declaration indicating , among other things , the nature and amount of their income . For that purpose it contained the following transitional provision :", "“ ORG ... of foundations which have not registered with ORG ... shall file with it a declaration [ beyanname ] indicating the nature and amount of their income ... for DATE ... , within DATE from the entry into force of the present Act ... ”", "LAW ( Law no . CARDINAL of DATE ) provided in LAW as follows :", "“ Legal entities , in order to register transactions at ORG , shall request the higher authority of the district in which their registered offices , or those of their branches , are located , to issue them with a certificate indicating their capacity to acquire immovable property and the power of the legal entity ’s representative to enter into such transactions . ... ”", "In the case - law established by its judgment of CARDINAL DATE , ORG decided that the declarations of DATE were to be regarded as the constitutive instruments of the vakıf , finalising their constitutions . Unless the declaration included an express provision to such effect , foundations were not entitled to acquire immovable property other than that declared in the said document . ORG appeared to consider that the acquisition by foundations of this type of property , in addition to that which was indicated in their constitution , could constitute a threat to national security . The court stated in particular as follows :", "“ The acquisition of immovable property by legal entities set up by persons who are not NORP is prohibited . It is evident that the ORG would be exposed to various risks if it granted such foundations the capacity to acquire immovable property ...", "The last paragraph of LAW provides that the management of foundations belonging to religious communities and artisans is to be entrusted to the persons and organs appointed by them . A legal status is thus created for them , without prejudice to their legal personality . Under LAW CARDINAL of LAW , the places [ yerler ] indicated in the registers and other similar documents filed with ORG following the enactment of LAW DATE are transmitted , by this means , to the register of foundations . Consequently , it is appropriate to regard the declarations filed under LAW CARDINAL of the above - mentioned LAW by such organisations DATE now foundations – belonging to communities and engaged in charitable , scientific or aesthetical activities , as being their legal foundation constitutions [ vakıfname ] . A foundation is not entitled to acquire property unless it expressly indicated its capacity to do so in its constitution and the same applies to charities . They are not entitled to acquire immovable property , whether directly or by inheritance , if it is not clearly stipulated in their declaration that they can accept gifts ... ”", "Lastly , the legislation governing foundations was changed in DATE . LAW no . CARDINAL of DATE provides as follows :", "“ A. The following paragraphs shall be added at the end of section CARDINAL of LAW of DATE .", "Religious community foundations , whether or not they have a constitution , shall be entitled to acquire or possess immovable property , with the authorisation of ORG , in order to meet their needs for religious , charitable , social , educational , sanitary or cultural purposes .", "If a request is made within DATE from the entry into force of the present Act , immovable property of which any form of possession is recorded in tax registers , leases or other documents shall be registered at ORG in the name of the foundation in order to meet the needs of such foundations for religious , charitable , social , educational , sanitary or cultural purposes . Property that has been donated or bequeathed to the foundation shall be governed by the provisions of the present section . ”", "NORP Moreover , section CARDINAL of Law no . CARDINAL of DATE provides that “ religious community foundations ” are now entitled to acquire and alienate immovable property , whether or not they have a constitutive instrument ." ]

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[ "The applicant was born in DATE and is now serving a prison sentence in the correctional facility USh/CARDINAL/CARDINAL in GPE .", "On DATE , at TIME , the applicant was arrested on suspicion of having murdered PERSON , the mother of his girlfriend , and was brought to the GPE police station in GPE . The arrest record indicated that the applicant had been arrested on suspicion of murder . The applicant countersigned the record , noting that he had been notified of his rights and had understood them . The applicant ’s detention was subsequently extended by prosecutors and courts .", "According to the applicant , upon arrival at the police station on CARDINAL DATE , he was placed in the office of ORG . The latter and another officer started beating him up . They hit and kicked him in the solar plexus , on the head , in the kidney area and the groin with a view to extracting a confession to the murder . After their prolonged beatings the applicant was placed in a cell . After a while Officers PERSON started beating him up again . They hit him on the head , on the body and in the groin , insisting that he confess to the murder . Despite the ill - treatment , he did not confess . Only when they threatened to rape his mother and girlfriend , the applicant ’s psychological resistance was broken and he confessed .", "On DATE , at TIME , the applicant was examined by a forensic medical expert in the presence of the investigator in charge of the criminal case and CARDINAL attesting witnesses . The expert detected and noted in the examination record the following injuries on the applicant ’s body : a pinkish - bluish bruise on the left ear measuring QUANTITY , CARDINAL reddish - purple bruises on the left side of the thorax measuring around QUANTITY and QUANTITY and a cut on the back of the left wrist . According to the record , the persons present at the examination were apprised of their right to make declarations and objections in connection with the examination . The applicant made no observations and countersigned the examination record .", "On DATE the investigator questioned the applicant about the murder but he denied all accusations . Later on DATE he wrote a statement confessing to the murder . He noted that the confession had been made without any “ moral or physical pressure ” and that he had no complaints about police officers .", "On DATE and DATE the investigator questioned the applicant in the presence of his CARDINAL lawyers . The applicant maintained the confession and described in detail how he had committed the murder . He again confirmed the confession while being questioned during a video - recorded inspection of the crime scene where he was also assisted by his lawyers .", "At a questioning on DATE the applicant retracted his previous statements and submitted that his confession of CARDINAL DATE had been extracted from him by force and that he had not murdered PERSON", "On DATE the applicant requested the prosecutor ’s office to institute criminal proceedings against Officer “ NORP ” who had allegedly beaten him up on DATE .", "The applicant submitted a written statement by witness NORP dated DATE which , in its relevant parts , reads as follows :", "“ ... I was detained on DATE ... at the [ applicant ’s ] flat ... together with [ the applicant] .... We have been together since TIME on DATE ... The fact that we had spent that time together can be confirmed by PERSON , NORP , NORP and K .... All those persons who could have confirmed [ the applicant ’s ] alibi ... had been known to the investigation but were never questioned .... Since we were sleeping in the same flat , I saw [ the applicant ’s ] underwear ; there had been no traces of blood on it . Thus , the blood [ stains ] found on the applicant later could have appeared on his clothes only after we had been separated at the police station . [ The applicant ] was clam and reacted adequately . I am convinced in his innocence ... ”", "On DATE an investigator with the PERSON district prosecutor ’s office of GPE launched an inquiry into the applicant ’s allegations of ill - treatment which he had submitted on DATE ( see paragraph CARDINAL above ) . According to the records of interview submitted by the Government , the investigator questioned Officer PERSON . on DATE , Officer PERSON on DATE and Officers L. and ORG . on DATE . The investigator also ordered a forensic expert examination of the applicant ’s injuries . The examination was carried out on DATE .", "By a decision of DATE , the investigator refused to institute criminal proceedings against them for lack of evidence of a criminal offence . The decision was based on the applicant ’s forensic medical examination and the statements of ORG . , PERSON . , PERSON and S. According to the expert ’s report , the bruises to the applicant ’s chest and ear had been caused by a blunt object DATE before his arrest on CARDINAL DATE and the incised wound on his left hand could have been caused on DATE , the date when he had allegedly committed the murder . ORG . , PERSON . , PERSON and PERSON submitted that the applicant had confessed voluntarily and that they had never forced or threatened him . The applicant was given a copy of the decision in the presence of his lawyers on DATE .", "By a decision of DATE , the investigator refused to institute criminal proceedings against Officer “ NORP ” , because no such person had ever served at the GPE police station .", "On DATE and DATE the applicant lodged further complaints with ORG about the alleged beatings .", "On DATE the applicant complained to the ORG of GPE about the prosecutor ’s refusal to establish the persons who could have witnessed the victim on the date of the presumed murder . He also complained about the decisions of DATE and DATE refusing to institute criminal proceedings against the police officers . In particular , the applicant submitted that the colour of his bruises ( rose and blue and not yellow and brown ) had indicated that they were freshly inflicted and that the expert ’s conclusion as to the date of their infliction had thus been wrong . The applicant further claimed that witness A. could have confirmed that he had not had any bruises on his body before his arrest . On DATE the ORG disallowed the complaints for lack of territorial jurisdiction .", "On an unspecified date the applicant lodged similar complaints with ORG .", "On DATE ORG dismissed the complaints , finding that the inquiry case file had , at the applicant ’s own request , been enclosed in the case file in the criminal proceedings against him and that the criminal case had been sent for trial to ORG . Accordingly , the ill - treatment complaint was to be examined by the trial court . The applicant appealed , alleging that he had not been summoned to the hearing on DATE .", "On DATE , ORG heard the applicant ’s counsel and upheld the decision . It found that since the applicant had complained in essence of inadmissibility of evidence in relation to the charge against him , ORG had not been entitled to examine the issue , given that the case had been about to be tried by another court . It further noted that the applicant ’s lawyer had been present at the hearing on DATE and had submitted arguments on his behalf and that the applicant had never asked to be brought to the hearing .", "On an unspecified date the applicant ’s criminal case was transferred for trial to the Babushkinskiy District Court . On court hearing DATE the applicant was allegedly not provided with food .", "On DATE ORG found the applicant guilty of murder and sentenced him to CARDINAL years’ imprisonment . The judgment referred to statements from CARDINAL witnesses , in particular a person who had found and identified the knives with which the applicant had allegedly stabbed the victim ; CARDINAL post - mortem examinations of the victim , several DNA tests establishing a match between the samples of the victim ’s blood and the bloodstains found on the applicant ’s clothes ; statements from experts , and further material evidence . It did not refer to the applicant ’s confession dated DATE . However , it took into account his statements of CARDINAL and CARDINAL DATE and the video record of the crime scene inspection .", "NORP The trial court dismissed as unfounded the applicant ’s allegations of ill - treatment . It noted that Officers PERSON . , PERSON . , , PERSON , when questioned in open court , denied having beaten the applicant up . In the same vein , attesting witnesses present during the crime scene inspection and the applicant ’s medical examination on CARDINAL DATE testified to the court that the applicant had not complained about the alleged ill - treatment in their presence . Furthermore , his submissions were contradicted by statements from independent witnesses NORP and ORG , who had been arrested , brought to the police station and detained there together with the applicant , and who had testified to the court that nobody had beaten him up or threatened him in their presence . According to the forensic examination , the applicant ’s injuries had been sustained DATE before his arrest . Furthermore , the court considered that he had waited for DATE before complaining about the alleged ill - treatment and , when questioned about it by the court , made contradictory statements about the circumstances in which he had sustained the injuries . Thus , he alleged once that he could have sustained the ear injury in a scuffle with skinheads prior to his arrest , on another occasion he claimed that nobody had beaten him up . Moreover , witness ORG testified to the ORG that he had seen the applicant on DATE sleeping under a bench at a subway station in a state of intoxication .", "According to the applicant , from TIME on DATE until TIME on DATE he was held in a cell at the GPE police station . Throughout his detention there he was not given food or drink and had nowhere to sleep because the cell had no sleeping place .", "On an unspecified date an investigator with the PERSON District prosecutor ’s office requested the head of the temporary detention ward of the Losinoostrovskiy police station to provide him with information on , among other things , the date of the applicant ’s admission to the ward . In response , the head of the ward certified that on DATE , at TIME , the applicant had been placed in the GPE police station and that on DATE , at TIME , he had been admitted to the temporary detention facility of the Losinoostrovskiy police station .", "On DATE and DATE the applicant complained to the GPE prosecutor ’s office that from the moment of his arrest on DATE he had been detained for DATE at the GPE police station without food or drink . His complaints were left without reply . Complaints in similar terms were raised by the applicant ’s relatives in their open letter to ORG dated DATE .", "According to the Government , from DATE the applicant was held in the temporary detention facility of the Losinoostrovskiy police station and was brought to the GPE police station for investigative action . On their completion he was brought back to the Losinoostrovskiy police station .", "The applicant was detained in GPE IZ-CARDINAL/CARDINAL remand centre from DATE to DATE .", "For most of the period the applicant was held in cell no . CARDINAL measuring QUANTITY . It had CARDINAL - tier bunks and accommodated QUANTITY inmates . CARDINAL bunks were always occupied by the inmates’ bags , leaving QUANTITY sleeping places for the inmates . Detainees had to sleep in shifts , on the floor , under the bunks and under the table . CARDINAL or more inmates had to share CARDINAL bunk . The cell space per detainee was reduced to QUANTITY . The situation was the same in other cells where the applicant was detained . The administration only once provided him with bedding and even when his relatives brought him bedding the wardens always seized it .", "Cell no . CARDINAL had CARDINAL windows with metal bars and until DATE the windows were covered with metal shutters which barred natural light and airflow . The windows were glazed only in DATE and sometimes detainees had to stuff them with wet linen , which served as a replacement for glass when it was frozen , permitting them to maintain the air temperature at around CARDINAL.CARDINAL ºC. The stuffing was routinely removed by the wardens . The lights and TV were on DATE and night . As there was no ventilation , it was particularly hot in DATE . Allegedly , the administration seized the electric fans provided by the detainees’ relatives and then leased them to the inmates for money .", "The sanitary conditions in the cells were unsatisfactory . The toilet was QUANTITY high . It was separated from the living area by a partition measuring QUANTITY in height and the inmates had to use the bedding supplied by their relatives to secure at least some privacy . The wardens routinely removed their hand - made partitions so that the applicant had to answer the needs of nature in view of other inmates . Moreover , because of the overcrowding the toilet was always occupied and he could not always have access to it in case of need . The toilet was QUANTITY from the table at which the inmates had their meals . The food was of poor quality and had an unpleasant smell . The inmates went on hunger strike several times in protest at the poor quality of the food .", "Detainees were allowed to take showers only once DATE , in a communal shower . CARDINAL inmates were at the same time given TIME for a shower while only CARDINAL to twelve taps were working properly . They could not wash themselves or their clothes properly and had to negotiate with wardens who agreed for money to extend the shower time to TIME .", "The applicant received no medical treatment , in particular in respect of his acute tooth pain . He was first given dental treatment only when he arrived at the correctional colony in DATE .", "Once a day the applicant was allowed to take a TIME walk in a stone courtyard measuring QUANTITY , at the same time as up to CARDINAL others .", "On many occasions the applicant complained about the conditions of detention to the administration of the remand centre but his complaints were left without reply .", "In support of his description of the conditions of detention the applicant produced written statements by PERSON , NORP , PERSON . and PERSON . who had been detained in the same remand centre at the relevant time and confirmed his submissions concerning , in particular , overcrowding , lack of individual sleeping places and bedding and inadequate medical assistance . The applicant also submitted sketched plans and photographs of cell no . CARDINAL and the courtyard . He also furnished an article dated DATE and published on the internet site newsru.com , summarising the results of the checks carried out by ORG office in DATE and concerning conditions of detention at remand centres in GPE . With reference to the results of the check - ups , it was stated that although the overall number of inmates held in the CARDINAL remand centres of GPE had decreased over a DATE period , it was still twice the design capacity . A considerable number of detainees were not provided with individual sleeping places .", "According to the Government , throughout his detention in the remand centre the applicant was held in the following cells :", "- cell no . CARDINAL measuring QUANTITY , having CARDINAL bunks and accommodating CARDINAL inmates ;", "- cell no . CARDINAL measuring QUANTITY , having CARDINAL bunks and accommodating CARDINAL inmates ;", "- cell . No.CARDINAL measuring QUANTITY , having CARDINAL bunks and accommodating CARDINAL inmates ;", "- cell no . CARDINAL measuring QUANTITY , having CARDINAL bunks and accommodating CARDINAL inmates ;", "- cell no . CARDINAL measuring QUANTITY , having CARDINAL bunks and accommodating CARDINAL inmates .", "The cells had central heating , water supply and drainage ; each cell was equipped with a toilet and a wash basin . The toilet was separated from the living area by a brick partition not QUANTITY in height and fully securing the necessary privacy . Depending on their size , the cells had CARDINAL or CARDINAL windows with bars ; the windows were glazed and permitted the inmates to read and work by natural light . The artificial lighting conformed to the relevant standards and at night its brightness was reduced to a level permitting supervision of the detainees . During the applicant ’s detention there had been no artificial ventilation in the cells of the remand centre , but it was introduced subsequently . The air temperature , the humidity level and the quality of water in the applicant ’s cells conformed to the relevant standards .", "NORP The applicant was properly fed and a medical assistant regularly checked the quality of food and the compliance with the requirements in force as regards its storage . The applicant was regularly examined by the medical staff of the facility and received adequate medical assistance .", "The medical unit was equipped with all necessary medications . According to an excerpt of the applicant ’s medical record submitted by the Government , he was examined by a dentist on CARDINAL DATE and his condition was assessed as satisfactory . He was diagnosed with chronic caries of CARDINAL teeth but no need for urgent medical intervention was established . Upon arrival at the correctional colony , the applicant was treated for caries of CARDINAL teeth , which were filled .", "To support their submissions , the Government furnished a number of certificates issued by the head of remand centre IZ-CARDINAL/CARDINAL in DATE and several excerpts from the applicant ’s medical record .", "Section CARDINAL of ORG Federal Law no . CARDINAL-FZ of DATE ) provides that detainees should be kept in conditions which satisfy health and hygiene requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have CARDINAL four square metres of personal space in his or her cell . Detainees should be given free of charge sufficient food to maintain them in good health in line with the standards established by ORG of GPE ( Section CARDINAL ) .", "The DATE LAW ( Federal Law No . CARDINAL - CARDINAL on challenging acts and decisions infringing individual rights and freedoms ) , as amended in DATE , provides for a judicial avenue for claims against public authorities . It states that any act , decision or omission by a state body or official can be challenged before a court if it encroaches on an individual ’s rights or freedoms or unlawfully vests an obligation or liability on an individual . In such proceedings the court is entitled to declare the disputed act , decision or omission unlawful , to order the public authority to act in a certain way vis - à - vis the individual , to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom . If the court finds the disputed act , decision or omission unlawful this gives rise to a civil claim for damages against the ORG .", "The relevant extract from the CARDINALnd ORG of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( 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 ) .", "The part of the ORG to ORG on the visit to GPE carried out by the ORG from DATE ( ORG ( DATE ) CARDINAL ) read , in so far as it concerned the conditions of detention in administrative - detention cells located within police stations , as follows :", "“ CARDINAL . Similar to the situation observed during previous visits , none of the district commands ( RUVD ) and local divisions of ORG visited were equipped with facilities suitable for TIME stays ; despite that , the delegation found evidence that persons were occasionally held TIME at such establishments ... The cells seen by the delegation were totally unacceptable for extended periods of custody : dark , poorly ventilated , dirty and usually devoid of any equipment except a bench . Persons held TIME were not provided with mattresses or blankets . Further , there was no provision for supplying detainees with food and drinking water , and access to a toilet was problematic .", "The ORG reiterates the recommendation made in its report on the DATE visit ( cf . paragraph CARDINAL of document ORG ( DATE ) CARDINAL ) that material conditions in , and the use of , cells for administrative detention at district commands and local divisions of ORG be brought into conformity with ORG CARDINAL/CARDINAL on the general conditions and regulations of detention in administrative detention cells . Cells which do not correspond to the requirements of that Order should be withdrawn from service .", "Further , the ORG reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for TIME . ”" ]

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[ "The applicant , PERSON opatství PERSON , is a religious order founded in DATE . It is represented before the ORG by PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "The applicant is the owner of CARDINAL gothic paintings , known as the “ Collection of the Master of PERSON ” . In DATE the collection was seized by the ORG and subsequently deposited in ORG in GPE .", "On DATE law no . CARDINAL on the adjustment of certain property relations of holy orders and congregations and of the NORP of LAW ( zákon o úpravě některých majetkových vztahů řeholních řádů a kongregací a arcibiskupství olomouckého ) ( hereafter “ LAW ” ) entered into force . It contained an exhaustive list of property and of church entities entitled to acquire it upon the LAW ’s entry into force . Neither the collection nor the applicant was listed therein .", "On DATE ORG recognised the applicant ’s property rights to the paintings , but refused to surrender the collection .", "On DATE the applicant sought to recover the collection by means of a civil action for determination of the ownership of the paintings , brought against ORG .", "In its judgment of CARDINAL DATE the GPE CARDINAL ORG ( obvodní soud ) found that , in general , the ORG had acquired control over the church property in DATE pursuant to law no . CARDINAL . It noted that ORG ( ORG matice ) , a special ORG agency , was founded by decree no . CARDINAL to administer church property . The court granted the applicant ’s action , basing its finding on documentary evidence , including a contract of deposit concluded by ORG and ORG on DATE , according to which the former had deposited the collection of paintings with the latter ; and an offer by ORG of DATE to donate the collection to ORG , under the terms of which the ownership of the paintings was to be transferred to the State on DATE of the acceptance of the offer . The acceptance of the offer by ORG is dated DATE .", "The court held in particular :", "“ The original ownership rights to the collection are not challenged by [ ORG ] . What is disputed is the validity of the contract of donation ...", "It ensues from the evidence taken ... that ORG knew who the real owner of the items was and could not , therefore , be in good faith that it was the owner . The transfer of the ownership of the items [ by the donation ] could not , therefore , have any legal consequences and remained ineffective with regard to [ the applicant ] . Since no legislation or decision provided for the transfer of the ownership from the plaintiff to the ORG or to any other person , [ the applicant ] is the owner ... ”", "The court further stated that the legislation on restitution , in particular the LAW , was not applicable to the present case , as it applied only to situations where ownership of property had been transferred to the ORG , not to situations where such a transfer was not effected . In the latter case , the ORG seized and held property without acquiring ownership of it . The owner of such property was therefore eligible to claim that it be surrendered to him by using general civil - law actions intended to protect ORG rights in respect of any third person interfering with their property rights . The court concluded that the LAW did not preclude the applicant ’s standing to have recourse to this procedure to defend its property rights against ORG .", "On DATE ORG ( městský soud ) upheld this judgment , ruling in particular :", "“ [ R]egard must be had to ORG judgment of CARDINAL DATE no . CARDINAL PERSON ... according to which the church property was ... seized by the ORG using a set of practices typically used to deprive holy orders and congregations of their property ... The [ A]ct applies .... in particular to these practices ... It applies at least in so far as it governs the restitution of church property taken away from its owners by the ORG pursuant to these practices . ... If [ the LAW ] in its enumerative list provided for a remedy for injustices only in respect of certain seized property [ seized in a certain way ] , and not in respect of other property , even if the latter was seized in the same way as the former ( by donation by ORG ) , then – as [ the LAW ] is lex specialis – the logical conclusion is that a person otherwise entitled ( to the property listed therein ) , does not have standing to claim property rights to the property which is not listed there . ... ORG took a similar approach in its decision of CARDINAL DATE no . CARDINAL Cdo CARDINAL/CARDINAL . ”", "The court continued by adopting a different approach , stating :", "“ [ The Municipal ] court dissented with this opinion , e.g. in its judgment of DATE no . CARDINAL Co DATE , in which it found that [ the Act ] is a specific instrument atypical of legislation on restitution , and in so far as it does not interfere with civil law ... , [ for instance in the area of ] invalidity of legal acts and of conditions for claiming it before courts , the general law [ i.e. civil law ] remains unaffected ... ”", "The court concluded that the case - law of the higher courts , to which it referred , would lead to the LAW ’s interpretation impairing the protection of the property rights of those owners who were not in possession of their property . In its view , this would be contrary to the constitutional law .", "ORG filed an appeal on points of law ( dovolání ) with ORG ( PERSON ) which , on DATE , found that the lower courts had not applied the LAW correctly and therefore quashed their judgments . Referring to its case - law , the court reiterated that the LAW had to be interpreted as part of the legislation on restitution which was lex specialis in respect of the civil law and was thus to have precedence over the civil law . It stated :", "“ The court can not accept the position adopted by the appellate court . There is no doubt that the Act forms by its nature a part of the legislation on restitution ....", "It is not acceptable to reduce [ the application of the LAW ] in cases where the property was seized in accordance with the law then in force ... ”", "ORG supported this conclusion by stating that the restitution legislation was drawn up by the ORG to mitigate the injustice caused by communist rule in GPE in the area of property rights . When adopting a suitable legislative technique for the restitution of church property provided for by the LAW , the legislator opted to include an exhaustive list of property to be restored and added an enumerative index of church entities entitled thereto . In the court ’s view , it was therefore irrelevant in terms of the restitution of this property whether the ORG had seized it in accordance with or contrary to the law applicable at the time of seizure .", "In a judgment of DATE ORG , having been bound by ORG opinion , dismissed the applicant ’s action without taking any further evidence .", "On DATE ORG upheld that judgment .", "The applicant appealed on points of law before ORG , which rejected its appeal on DATE .", "On DATE the applicant filed a constitutional appeal ( ústavní stížnost ) contending that the lower courts had failed to protect its property rights and that the principle of equality of arms had not been respected in the proceedings before ORG , as the appeal on points law submitted by ORG had been admitted for examination on the merits while its own appeal had not . It further contested the lack of assessment of the facts by ORG in the proceedings following the judgment of ORG .", "On DATE ORG ( PERSON senát ORG soudu ) rejected the applicant ’s constitutional appeal , finding in particular :", "“ In respect of the [ the applicant ’s ] arguments concerning ... [ the LAW ] , ORG referred to the opinion of its Plenary Session of DATE no . Pl . ÚS – st . CARDINAL/CARDINAL published [ in ORG ] under no . DATE , in which it was found that the Act forms part of the legislation on restitution and constitutes an obstacle to the application of the general law . Thus , ORG , being bound by the cited opinion ... , considered the reasoning of ORG ... challenged by the applicant to be in conformity with the constitutional law . ”", "Under LAW ) , an owner is entitled to seek protection from a person interfering with his property rights ; in particular , the owner is entitled to claim that his / her property be surrendered by a person possessing it contrary to law .", "Code of Civil Procedure ( law no . CARDINAL/CARDINAL )", "Under Article CARDINAL(c ) an individual may bring an action seeking a judicial decision determining the existence or non - existence of a certain right if there is a compelling legal interest in such identification .", "Under LAW ( CARDINAL ) decisions in force adopted by an appellate court may be challenged by an appeal on points of law .", "Law no . CARDINAL on the adjustment of certain property relations of holy orders and congregations and of the NORP of LAW ( “ LAW ” )", "The LAW states that the purpose of the LAW is to provide for the redress of injustices which were caused to holy orders and congregations in DATE , especially by unlawful deprivation of their immovable property .", "Under section CARDINAL(CARDINAL ) immovable property specified in Appendix no . CARDINAL is declared to be the property of the respective holy orders and congregations listed in the Appendixes on DATE of the Act ’s entry into force . LAW ) provides that on DATE , immovable property specified in Appendix no . CARDINAL is declared to be the property of the NORP of LAW . Under section CARDINAL(CARDINAL ) movable property which was on DATE located in immovable property specified in Appendixes no . CARDINAL , CARDINAL and DATE is declared to be , upon the Act ’s entry into force , the property of the respective orders , congregations or the NORP of Olomouc , provided that such property exists and can be located .", "Opinion no . Pl . ÚS CARDINAL/CARDINAL of DATE ( published in ORG under no . CARDINAL )", "In this opinion ORG took the view that the LAW must be considered as a part of the legislation on restitution . Therefore , it bars the application of the general law .", "According to ORG case - law ( for example , judgments no . CARDINAL Cdon DATE CARDINAL DATE , no . CARDINAL Cdon CARDINAL/CARDINAL of DATE , no . CARDINAL Cdon CARDINAL/CARDINAL of DATE , no . CARDINAL PERSON of CARDINAL May CARDINAL ) , an entity entitled , pursuant to the LAW , to the property listed in the annexes thereto does not have a standing to claim property rights to its property seized by the ORG which is not listed in the annexes of that LAW .", "In its judgment of DATE no . CARDINAL Co CARDINAL/CARDINAL - CARDINAL ORG ruled that the LAW is a specific instrument atypical of the restitution legislation , and in so far as it does not interfere with civil law , for instance in the area of the invalidity of legal acts and conditions for its vindication , the general - law ( namely , civil - law ) regulation remains unaffected .", "Relying on LAW No . CARDINAL to the LAW , the applicant complained that the national courts had refused to examine the merits of its action and to uphold its claim after the quashing judgment of ORG , although the national courts establishing the facts of the case had found that it had been , and had never ceased to be , the owner of the paintings . Consequently , the applicant had been in an absurd situation , having been the acknowledged owner of the property in question , but unable to enforce its property rights vis - à - vis ORG .", "The applicant further complained under LAW that , after its quashing judgment , by its binding guidelines ORG had prevented the lower national courts from assessing the facts and from applying the relevant law . The applicant had thus been denied a fair trial .", "The applicant finally complained of an impairment of the principle of equality of arms , as its appeal on points of law had been declared inadmissible by ORG , while the appeal based on the same ground submitted by the defendant had been granted ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE criminal proceedings were instituted on account of a traffic accident DATE which had caused the death of a person . The victim , PERSON , was taking a walk in the street with his friend , PERSON , when he was run over by a car .", "On DATE the applicant , who was the driver of the car in question , was charged under LAW with involuntary manslaughter resulting from a violation of traffic rules .", "A number of witnesses made statements during the investigation , including QUANTITY eyewitnesses PERSON stated that he was taking a walk with PERSON , when he noticed a car driving down the road at a speed of QUANTITY . When the car was QUANTITY away from them , it suddenly made a sharp turn and headed towards them . He managed to dodge , but PERSON was run over . No sound of brakes was heard before the collision . Similar statements were made by witnesses PERSON and O. , although the latter stated that the car was going at a speed of QUANTITY . It appears that a confrontation was supposed to be held between the applicant and witness O. but the latter failed to appear .", "On DATE the indictment was finalised and transmitted to the ORG and ORG of GPE ( ORG քաղաքի ORG և GPE համայնքների առաջին ատյանի դատարան ) .", "On DATE the ORG and ORG of GPE found the applicant guilty as charged and sentenced him to DATE imprisonment . This judgment was based on the statements of witnesses PERSON , the statements of CARDINAL other witnesses , the statements of an auto - technical and medical experts , all of whom were questioned in court , the statement of witness ORG made during the investigation , an auto - technical and medical expert opinions , and the results of examinations of the scene of the accident and of the applicant 's car .", "On an unspecified date the applicant lodged an appeal , in which he apparently raised the issue of non - appearance of witness O.", "On DATE the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ) dismissed the appeal and upheld the judgment of ORG . As regards witness ORG 's non - appearance at the confrontation , ORG found :", "“ [ Witness O. ] has stated ... that he was indeed unable to come to the confrontation but wishes to indicate that [ the applicant ] is a police officer , has connections and is able somehow to hurt his family . On DATE at TIME he noticed [ the applicant ] and a group of men next to the building of the district prosecutor 's office[. R]ealising the reason why they were gathered there , he did not step out of the car and left from [ there ] . He is ready to confirm his statements at a confrontation with [ the applicant ] , including in court , if his security is ensured .", "According to a certificate present in the case file [ ( case page CARDINALa ) ] , the confrontation between [ witness O. ] and [ the applicant ] was not possible . ”", "NORP On DATE the applicant lodged an appeal on points of law against this judgment . In his appeal , he indicated that the court judgment was unlawful since it had been adopted with a substantial violation of procedural law . The applicant requested that the judgment of ORG be quashed and a new judgment be adopted . He also requested that the judgment of ORG be quashed . The applicant added that the main arguments would be presented in an additional appeal following the receipt of a copy of ORG judgment .", "By a letter of CARDINAL DATE a copy of ORG judgment was sent to the applicant .", "According to a certificate issued on DATE by the head of the relevant post office , this letter was received at the post office on DATE and was served on the applicant on DATE .", "On DATE the applicant lodged an appeal on points of law as a supplement to his appeal of DATE , which contained CARDINAL pages of legal arguments . The applicant stated at the outset that a copy of the judgment was received by him on DATE . He went on to complain , inter alia , that the statements of witness ORG made during the investigation had been used as a basis for his conviction . However , he had not been afforded an opportunity to examine that witness at any stage of the proceedings .", "On DATE ORG examined and dismissed the appeal of DATE , finding :", "“ The argument put forward by [ the applicant ] in his appeal that the judgment is unlawful since it has been adopted with a substantial violation of procedural law , therefore ... the judgment of the first instance court must be quashed and a new judgment must be adopted , is unsubstantiated . ... Article CARDINAL of the Code of Criminal Procedure clarifies the notion of a substantial violation of procedural law and paragraph CARDINAL of this Article enumerates those specific grounds on which a judgment is to be quashed in any event . In spite of this , [ the applicant ] did not indicate in his appeal on points of law on which grounds ORG ... should quash the judgment of ORG and remit the case for a fresh examination . Whereas ORG shall review a judgment of ORG , on the basis of [ the applicant 's ] appeal , within the grounds presented in the appeal ... ”", "ORG further stated :", "“ ... as regards the new appeal on points of law filed in supplement to [ the appeal of DATE ] , it was lodged in violation of the time - limit for appeal prescribed by LAW , therefore ORG will not examine that appeal . ”", "According to LAW , violation of traffic rules by a person driving a car , which has caused involuntary manslaughter , shall be punishable by imprisonment for a period not exceeding DATE .", "The relevant provisions of LAW , as in force at the material time , read as follows :", "“ CARDINAL . Procedural actions , which have been performed after the expiry of a time - limit , shall be considered invalid , unless the time - limit is restored .", "NORP The person concerned shall apply with a motion or a request to have the missed time - limit restored to the authority dealing with the case . ...", "A time - limit which has been missed for valid reasons must be restored by a decision of the authority dealing with the case , upon a motion of the person concerned . ... ”", "“ CARDINAL . The investigator is entitled to arrange a confrontation of CARDINAL persons who have been interrogated beforehand and whose statements contain substantial contradictions . The investigator is obliged to arrange a confrontation if there are substantial contradictions between the statements of the accused and some other person . ”", "“ CARDINAL . If CARDINAL of the witnesses , an expert or a specialist who has been summoned to the court hearing does not appear , the court , after hearing the opinion of the parties , shall decide to continue", "“ CARDINAL . Reading out at the trial of witness statements made during the inquest , 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 . A judgment or a decision of ORG shall enter into legal force DATE after the date of its pronouncement .", "A judgment or a decision of ORG shall be served on the convicted or acquitted person , his or her advocates and lawful representatives ... , provided they participated in the examination of the case in ORG , not DATE after the date of its pronouncement . ”", "“ CARDINAL . In cases when an appeal on points of law ... was lodged out of time , it shall be left unexamined by a decision of ORG . ”", "“ CARDINAL . An appeal on points of law against a judgment or a decision of ORG ... can be lodged within DATE from the date of delivery of the judgment or decision .", "...", "Appeals lodged out of time shall not be examined . ”", "“ CARDINAL . ORG shall review ... the judgments and decisions of ORG which have not entered into force within the limits of the grounds raised in the appeal on points of law . ... ”", "According to LAW , the maximum speed limit in urban and rural areas was QUANTITY ." ]

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[ "The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He is represented before the Court by PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "Prior to her death , at DATE , PERSON had lived with the applicant , who was DATE older than her , for DATE .", "PERSON body was discovered early on TIME Wednesday DATE in an alley behind the street where she had lived with the applicant . It was dressed in a blue tracksuit and had been covered in household rubbish and set on fire . Because the body was badly burned it was impossible to identify the exact time or cause of death , but it was possible to rule out shooting , stabbing , beating and strangulation , and forensic experts considered that PERSON might have died through suffocation or drowning . It appeared that PERSON had been dead before her body was burned and that the fire had been built around her . There was nothing in the fire to connect it with the applicant .", "The applicant was charged with murder , which he denied .", "It was the prosecution case that the applicant killed PERSON at home some time TIME DATE and TIME on DATE , and that he moved her body to the alley on TIME . The prosecution evidence included the following matters . On TIME , after decorating at PERSON grandmother 's house DATE , the applicant and PERSON returned home to find that a debt collector had left a card in relation to a GBP CARDINAL bank loan which was overdue . The couple argued , and PERSON decided to stay at home while the applicant went to a public house to meet several members of her family . She spoke to her sister on the telephone at TIME , to say that the argument had been resolved and that she was feeling better . She promised to call her sister again the following day after the debt collector had visited . However , she did not make the call : this was the last any member of her family heard from her . The following day , DATE , at TIME the debt collector called at the applicant 's house . He gave evidence that the applicant , apparently very agitated and wearing shorts and a t - shirt , would not let him into the house but insisted that they talked in the collector 's car . Shortly before TIME the applicant went to a do - it - yourself shop where he bought a decorating item . The prosecution alleged that this was an attempt by him to create an alibi since the purchase was timed and he kept the till receipt . He later visited members of PERSON family , saying that she was missing and that he was looking for her , and thereafter was alone for only very short periods until the body was found . On DATE TIME he returned home , accompanied by PERSON sister and her boyfriend , and was able to tell the sister , within TIME of looking into the wardrobe , that a blue tracksuit , a black jacket and skirt and a pair of black court shoes were missing .", "Early on DATE TIME the applicant reported PERSON disappearance to the police . He was examined by a police doctor on DATE TIME and found to have minor scratch marks on his face and chest which were assessed as being DATE , and not inconsistent with finger nail scratching . The applicant said that these had been caused either by decorating or by playing with his cat on DATE : the police doctor was not able to exclude these causes either . None of the people who met the applicant in the public house on DATE TIME could remember seeing MONEY .", "The applicant 's house was searched on DATE and found to be very tidy ( which was not , apparently , unusual ) . The bath mat and other items had been recently washed .", "The applicant claimed that he and Ms NORP had agreed not to let the debt collector into the house , and that he had last seen her on DATE TIME when he had left to talk with the debt collector ( in the applicant 's account he was wearing jeans , not shorts ) . He believed that PERSON must have been killed by a stranger at some time after TIME on DATE .", "On TIME of DATE of the applicant 's neighbours , PERSON , had told him that her DATE daughter , ORG , had been playing in the street on DATE TIME and had told her that she had seen PERSON . The police interviewed ORG on DATE , when she gave the following answers to their questions :", "“ Q : When do you remember seeing PERSON ? A : DATE . Q : How do you know it was DATE ? A : Because we never went to school and PERSON said we could play out . Q : Do you go to school on DATE ? A : No . Q : How do you know it was n't DATE ? A : Because on DATE we had off and then it was DATE . ... Q : [ ORG ] was asked to stand and imagine she was stood on FAC with her home address behind her ; then asked to point which direction she saw PERSON walking first . A : ORG : Then what happened ? A : She went to the top of the street , turned round and walked the other way . Q : Who was on the street ? A : Just PERSON . ... [ ED ] and [ CARDINAL other children were ] there too . Q : Anybody else ? A : When PERSON walked to the top of the street , when she turned , a man followed her . Q : Where did the man come from ? A : The bottom of the street where PERSON walked to , then turned . Q : Did the man walk on the side of the street where your house is ? A : No where PERSON walked on the number CARDINAL side where [ ED ] lives and the man followed her . ... Q : Where did he go ? A : He went to the top of the street and then I did n't see him . Then PERSON had to go in because he was still in his pyjamas . Q : Did you see where PERSON went to ? A : No . ... Q : So when the man 's gone to the end of your street he 's gone left ? A : Yes . Q : Did you see which way PERSON went at the end of your street ? A : No . ... Q : Can you remember anything unusual happening on DATE when you were in the street ? Did you hear anything ? A : No . Q : What about LOC , did you hear them ? [ Added note : There was a marching band playing in the neighbourhood on TIME ] A : Yes . Q : Did you ? A : Yes . Q : What did you do when you heard them ? A : Standing at the corner ... Q : Which one ? A : Number CARDINAL side . ... Q : What did you see ? A : Nothing because we missed them . ... Q : Can you remember what PERSON was wearing ? A : She had a big black coat on ? Q : Did she have anything on her legs ? A : PAUSE . Q : Did you see her legs or did she have trousers on ? A : Ca n't remember . Q : Can you remember anything else she had with her ? A : A big carrier bag . Q : Anything else ? A : A handbag . Q : What colour was the carrier bag ? A : White . Q : Did it have any writing on it ? A : I ca n't remember . Q : What colour was the handbag ? A : Black . ”", "Another girl , ORG , who was DATE at the time , was also interviewed by the police on DATE and gave a statement saying that she had seen PERSON followed by a stranger in FAC between TIME on DATE .", "Both children were listed as prosecution witnesses and their evidence was served on the defence prior to the trial .", "The applicant 's first trial took place in ORG in DATE . The applicant was represented by experienced leading and junior counsel . It was not until the trial had started that the prosecuting counsel realised that the evidence of ORG and ORG did not support the prosecution case . He therefore decided not to call the QUANTITY girls but instead to tender them for cross - examination .", "The judge , who approved this procedure , was asked by the defence counsel whether , before giving evidence , the girls could be shown the statements they had made to the police in DATE .", "ORG was permitted by the trial judge to refresh her memory by reading her statement before going into the witness box , and she gave evidence consistent with her statement .", "When ORG entered the court room she was very distressed . The judge refused to allow her to read or be reminded of her interview . His reasons for this decision were not clear , but ORG in its judgment of DATE speculated that it might have been because he had , wrongly , received the impression that the interview notes relating to ORG had not been signed by her and were not , therefore , reliable ( in fact the notes had been read to her by the police officer at the time of the interview , and the girl had signed them as being an accurate record ) . In the witness box she was unable to remember being questioned by a police woman or seeing PERSON for the last time .", "In the course of his summing - up the judge said , of ORG 's evidence : “ Of course , it is not suggested by the prosecution that [ ED ] is trying to mislead you about the matter but young children do imagine things , particularly when they have been warned against strangers and cars and so forth , and it is suggested that [ ED ] is at best confused . ”", "The jury retired to consider their verdict at TIME on DATE . The court subsequently adjourned until DATE , when the jury retired again at TIME They returned at TIME , when they informed the judge that they had not reached a verdict , so he allowed them to continue their deliberations until TIME , when he adjourned until TIME on DATE because the jury had still not reached an agreement . Finally , at CARDINAL a.m. on DATE , the jury convicted the applicant of murder , by a majority of CARDINAL to CARDINAL . The judge duly sentenced him to life imprisonment .", "The applicant appealed against conviction . In its judgment of DATE , ORG observed that had the interview notes been put to ORG :", "“ ... it may be that her memory would have been refreshed , and she would have been able to fill in the gaps which her evidence undoubtedly left .", "In so doing , it may well be that she would have provided valuable corroboration for the other little girl , [ ED ] , and it may be that that would then have provided the jury with testimony that would have been worrying , in the light of the crucial finding that the jury had to make as to the time of death . We can do no more than speculate about it .", "We are of the view that when cross - examining , [ counsel for the defence ] was entitled to use the earlier statement that this girl had made , because what she was telling the jury when she indicated that she could not help as to the time and movement of the deceased on TIME was plainly inconsistent with what she had told the police during the course of the interview much more proximate in time to the events of which she was being invited to speak .", "So , for whatever reason ( and we do not seek to ascribe blame ) there was here an unfortunate situation which in our judgment amounted to a material irregularity in the trial process . ”", "ORG therefore quashed the conviction and ordered a retrial , observing :", "“ ... we have come to the conclusion , after very anxious consideration , that this appellant is entitled to have a fresh jury consider the whole of this case . That is very unfortunate indeed , particularly with the passage of time that has occurred . ... ”", "The retrial took place in DATE . The defence team made several attempts to discuss the case with ORG and her parents before the trial started , but the parents were unwilling for ORG to give evidence and did not , therefore , make contact until the child was summonsed to attend as a witness on DATE at ORG . The applicant 's solicitor then outlined the trial procedure to ORG and read her the statement which she had made to the police on DATE . ORG told the solicitor that she had no memory whatsoever of the matters referred to therein , and it was therefore decided that it would not be possible or appropriate to call her as a witness . PERSON was called , however , and again gave testimony consistent with her police statement .", "Once again the trial judge ( not the same judge who had sat in the first trial ) told the jury , in relation to ORG 's testimony , to bear in mind that it could be difficult to know what reliance to place upon the evidence of a child .", "The jury retired at TIME on DATE . Shortly thereafter they sent a note to the judge asking to see PERSON 's statement . In accordance with the rules of evidence the judge was obliged to refuse this request . The jury were unable to reach a verdict that day and the court adjourned TIME . At TIME on DATE the jury convicted the applicant of murder by a majority of CARDINAL .", "The applicant again appealed , claiming that his conviction was unsafe in the light of the information given to the police by ORG in DATE . On DATE a differently constituted ORG rejected the appeal , holding as follows :", "“ In our judgment there is no basis on which this conviction can properly be regarded as unsafe . In his attractive and skilful submissions , [ the applicant 's counsel ] accepted , as we have said , that he could not point to any irregularity or to anything which could be said to have gone wrong in the second trial . The summing - up , he accepts , was meticulous . What was missing from the second trial , as from the first , was any evidence helpful to the defence from [ ORG ] . The absence of any such evidence was , as at the first trial , due to her complete inability to recall any potentially material events and , at the second trial , she was not called at all .", "This being so , we are unable to accept that this ORG should entertain doubt about the safety of the conviction on the basis of material , namely [ ORG 's ] interview by the police , which , being hearsay , was not and could not be before the jury and which is not and can not be evidence before this ORG .", "The retrial ordered by ORG following the irregularity in the first trial was in order to enable [ ORG ] to give evidence after she had refreshed her memory from the contents of the interview , the assumption being that she might , in such circumstances , be able to give evidence helpful to the defence . As it turned out , this proved impossible at the second trial because she had no relevant recollection at all .", "It was certainly not contemplated at the time of the quashing of the first conviction that the terms of [ ORG 's ] interview with the police could be placed before the jury , for that would have been to drive a coach and horses through the rules in relation to hearsay ” .", "The court also commented that there was a “ strong circumstantial case ” against the applicant and that it entertained no doubt about the safety of his conviction .", "On DATE ORG ( “ CCRC ” ) referred the applicant 's conviction back to ORG , because it considered , on the basis of newly discovered evidence , that there was a real possibility that the appeal court would find the conviction unsafe . The new evidence mentioned in the referral concerned the failure by the police to investigate or disclose telephone calls made on DATE and DATE informing them that CARDINAL boys out playing on DATE TIME had seen a human corpse on a junk yard QUANTITY from the street where the applicant and PERSON lived .", "In the Grounds of Appeal prepared on his behalf the applicant also argued that his conviction was unsafe , inter alia , because the jury did not hear the evidence of ORG in support of ORG .", "ORG , again differently constituted , gave judgment for the third time on DATE . Although the issue of ORG 's evidence had not been included in the ORG reference , the court held that , under section PERSON ) of LAW DATE , it had jurisdiction to consider any ground of appeal relating to the conviction . However , it found that this ground raised no new argument that had not already been considered at the second appeal , and it held that , in the absence of new argument or evidence , the proper exercise of its power to depart from its previous reasoning or conclusions should be confined to “ exceptional circumstances ” , for example , an intervening change in case - law or tension between the national statutory criteria for safety of a conviction and standards of fairness imposed by ORG . The court did not find that exceptional circumstances applied , and it therefore rejected this ground of appeal .", "In addition , the court held that the evidence relating to the sighting by the CARDINAL boys of a dead body lacked consistency and reliability , and , in view of the strong circumstantial case against Mr PERSON , did not afford a reason for regarding the conviction as unsafe .", "It is a well established principle of LANGUAGE law that there is no property in a witness . In other words , the parties to civil or criminal proceedings may seek to obtain statements from any person who may be in a position to give material evidence in those proceedings .", "A witness may refer to a document in order to refresh his memory provided that the document ( a ) was made or verified by him contemporaneously with the events in question ; ( b ) is , in certain cases , the original ; and ( c ) can be produced for inspection if called for by the court or the opposing party . Where a witness refers to a memory - refreshing document the evidence remains that which is given orally by the witness .", "The rule against hearsay evidence has been formulated as follows :", "“ Any assertion other than one made by a person giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted ” : ORG and Tapper on Evidence , CARDINALth ed . , p. CARDINAL , approved by ORG in NORP v. ORG , CARDINAL Cr . App . R CARDINAL , CARDINAL .", "The rule covers both assertions made by persons who do not give oral evidence and previous assertions by those who do . It covers oral statements and those contained in documents . If evidence falls within the hearsay rule , it will be inadmissible unless it falls within a statutory or common law exception .", "Historically , the reason why hearsay evidence is inadmissible is because :", "“ It is not the best evidence and it is not delivered on oath . The truthfulness and accuracy of the person whose words are spoken to by another witness can not be tested by cross - examination , and the light which his demeanour would throw on his testimony is lost ” : Teper v R [ DATE ] AC CARDINAL , CARDINAL , per Lord Normands .", "On DATE the Criminal Justice Act DATE received ORG . Part CARDINAL of LAW of the DATE Act makes changes to the rules of evidence relating to the admissibility of hearsay evidence in criminal proceedings , with a view to simplifying the law and providing greater certainty as to the circumstances when hearsay evidence will be admitted . The relevant sections came into force on DATE . LAW provides ( as relevant ) :", "“ ( CARDINAL ) This section applies where a person ( the witness ) is called to give evidence in criminal proceedings .", "( ... )", "( CARDINAL ) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible , if –", "( a ) any of the following CARDINAL conditions is satisfied , and", "( b ) DATE while giving evidence the witness indicates that to the best of his belief he made the statement , and that to the best of his belief it states the truth .", "( CARDINAL ) The first condition is that the statement identifies or describes a person , object or place .", "( CARDINAL ) The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them , and can not reasonably be expected to remember them , well enough to give oral evidence of them in the proceedings .", "( CARDINAL ) The third condition is that –", "( a ) the witness claims to be a person against whom an offence has been committed ,", "( b ) the offence is one to which the proceedings relate ,", "( c ) the statement consists of a complaint made by the witness ( whether to a person in authority or not ) about conduct which would , if proved , constitute the offence or part of the offence ,", "( d ) the complaint was made as soon as could reasonably be expected after the alleged conduct ,", "( e ) the complaint was not made as a result of a threat or a promise , and", "( f ) before the statement is adduced the witness gives oral evidence in connection with its subject matter .", "( CARDINAL) For the purposes of subsection ( CARDINAL ) the fact that the complaint was elicited ( for example , by a leading question ) is irrelevant unless a threat or a promise was involved . ”", "In addition , the court will have a residual discretion to admit a hearsay statement into evidence if satisfied that it is in the interests of justice for it to be admissible ( section LANGUAGE of the CARDINAL Act ) ." ]

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[ "ORG Mr PERSON , a NORP journalist , lives at GPE , in GPE .", "ORG On DATE the applicant and CARDINAL of the associations he runs , ORG , lodged a complaint alleging defamation against ORG , who had written a letter published in the letters column of the newspaper L’Est vaudois under the headline \" PERSON is fooling you \" . The letter contained the following passages :", "\" Like all your readers , no doubt , I recently found in my letter - box another of the begging letters sent out by unscrupulous people when they want to cadge money .", "Everyone is getting really sick of it and I think PERSON would do better to go and knock down the factory chimneys which crowd the skyline of GPE and protect his beloved captive seals in the zoo than to pester us with his initiatives , which he lives on at our expense - in case you did n’t know .", "If PERSON had the courage to show us his tax returns , you would be amazed . But the list of municipal taxpayers is not published and it is easy to hide behind that sort of censorship and live by devious means , sponging off decent people who still believe that these drop - outs have their uses and in so doing demonstrate their distrust of the whole country ’s democratically - and how democratically ! - elected authorities .", "DATE everyone have the courage to tell ORG ( there ’s a fine name to fleece you with ! ) that we have had enough of playing into the hands of people who sponge off us and whose behaviour borders on the criminal .", "... \"", "ORG Interviewed by the investigating judge ( juge informateur ) of the NORP - Lavaux district , ORG acknowledged the virulence of these accusations and attributed it to a nervous breakdown he had suffered at the time . Mr PERSON refused all conciliation . In order to establish the truth of his allegations , ORG then requested Mr PERSON to produce a number of documents relating to his and his associations’ financial position .", "ORG On DATE the investigating judge ordered disclosure of ORG and ORG articles and their accounts for DATE . On DATE , having still not received them , he ordered their sequestration , but on DATE he had to renew the order , as the applicant had not complied .", "In DATE Mr PERSON forwarded ORG accounts in a sealed envelope but not those of the ORG . CARDINAL subsequent sequestration orders were not executed .", "ORG The applicant was dissatisfied with the way in which the investigating judge was proceeding and on CARDINAL DATE he lodged a criminal complaint alleging misuse of official authority and coercion , but the investigating judge of the GPE of GPE refused to take any action , whereupon Mr PERSON challenged ORG .", "R.M. was charged with defamation ( LAW ) and on DATE was committed for trial at the LOC district police court . He appealed against the order committing him for trial , but ORG ( tribunal d’accusation ) dismissed the appeal on CARDINAL DATE .", "ORG On DATE at a press conference in GPE the applicant informed the public that defamation proceedings had been taken against ORG , that orders had been made for the production and then for the sequestration of the associations’ accounts and that these had been handed over under seal . He also stated that he had lodged a challenge and a complaint against the investigating judge . Mr PERSON had already divulged the first CARDINAL items of information at a press conference in GPE on DATE , during which he denounced \" the plot hatched against him by the GPE authorities in order to intimidate him \" .", "ORG On DATE the DATE newspapers ORG , DATE and ORG reported what the applicant had said .", "ORG Under LAW of LAW , the President of ORG of ORG commenced of his own motion a summary investigation for breach of the confidentiality of a judicial investigation . In a letter of CARDINAL DATE he ordered PERSON to provide information within DATE about what exactly he said on DATE .", "The applicant replied on CARDINAL DATE . He denied having given any \" information about the investigation proceedings \" and relied on ORG CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the Convention .", "ORG On DATE the President of ORG imposed a fine of MONEY on him , together with a probationary period of a year for the purposes of deletion of the fine from the cantonal register . He based his decision on the following grounds :", "\" II . CARDINAL . Mr PERSON relied on LAW ) and impugned the procedure provided for in LAW ORG ) , which is the same as the one provided for in LAW , CARDINAL § CARDINAL and CARDINAL ORG . This complaint is irrelevant , as LAW ORG does not apply to the summary investigation proceedings provided for in respect of these breaches of procedure under cantonal law , reserved by LAW , second sub - paragraph , of LAW ( ORG ) , because it is not a question of a ‘ criminal ORG .", "...", "Mr PERSON also submitted that he did not disclose any confidential matters on CARDINAL DATE , since the matters in question had already become public knowledge as a result of his press conference of CARDINAL DATE .", "Since no judicial investigation was commenced following the press conference of CARDINAL DATE and as Mr PERSON did not have any occasion to avail himself of his right to a hearing , there is no need to deal with it in the present proceedings . Furthermore , criminal proceedings will shortly be time - barred ( s. CARDINAL of ORG , s. CARDINAL of LAW , s. QUANTITY ) .", "It is true that as a result of the press conference of CARDINAL DATE the matters dealt with at the press conference of CARDINAL DATE were public knowledge , but that is of no importance as breaching the confidentiality of an investigation means ‘ disclosing’ a matter which ought to be kept confidential . It is therefore of little importance that the matter which was to be kept confidential was known to a limited or indefinite number of people because confidentiality had already been breached by a third party or by the same person .", "The actus reus of the offence punishable under LAW is therefore made out . This offence is punishable even if it has been committed inadvertently ( s. CARDINAL of GPE , s. CARDINAL of LAW ) . In the instant case it is plain that Mr PERSON acted deliberately .", "By disclosing that he had challenged the investigating judge , Mr PERSON revealed that there was an investigation , but it may be doubted whether that was ‘ information about the investigation’ .", "Disclosing that a criminal complaint has been lodged - which may amount to a different offence - is not caught by LAW , more particularly where it has been decided to take no action on the complaint .", "Mr PERSON himself admits that the breach of the confidentiality of the investigation was intentional . His submission based on a kind of necessity is devoid of merit since it was open to him to appeal to ORG against the orders for the sequestration of ORG and ORG accounts , as he in fact did DATE .", "... \"", "ORG On DATE an appeal that Mr PERSON brought against this decision was unanimously dismissed by ORG sitting in private ( under LAW and CARDINAL of LAW ) , on the following grounds :", "\" ...", "In the instant case the disclosure that criminal complaints had been lodged - on DATE against [ ORG ] and on DATE against the investigating judge - is not information about an investigation except in so far as it implies - and discloses - that an investigation has been commenced ... , but it may indeed amount to an offence ( defamation , calumny , on the part of the complainant ) . LAW ORG ) is therefore not applicable to the disclosure that the first complaint had been lodged , because this was punishable as defamation , or to the disclosure that the second complaint had been lodged , because no investigation was commenced . The decision is therefore well - founded on that point .", "The disclosure of the challenge is not information about an investigation . The challenge is not the purpose of the investigation , and the disclosure that such a challenge has been made says nothing about the purpose of the investigation , its content or its results . It remains true , on the other hand , that the existence of such an investigation is disclosed ; but such a disclosure is not punishable under LAW ORG , since it was punishable as defamation .", "The disclosure of the orders for production and sequestration of the accounts in the file does amount to information about an investigation .", "It remains to be considered whether one can talk of disclosure , given that the matters had already been made public at an earlier press conference .", "...", "LAW ORG , which is designed also - and even primarily - to protect the public interest in ensuring that investigations take place in the best possible conditions , prohibits parties from communicating information from the file ; it is therefore sufficient that the matters should be confidential in nature , without necessarily still being confidential ; communication of matters of a confidential nature to someone who knows them already as a result of an earlier indiscretion is therefore a punishable offence . Furthermore , the applicant can not rely on common knowledge when that knowledge is due to an earlier disclosure that he himself has made .", "The appellant was therefore rightly convicted .", "... \"", "Finally , ORG set aside of its own motion the entry of the fine in the cantonal register . It noted that under GPE law and notwithstanding that they were convertible DATE of imprisonment ( arrêts ) , the fines for \" procedural offences \" , such as breaching the confidentiality of a judicial investigation , were disciplinary in nature , since they were designed to ensure that the investigation proceeded normally . On this point cantonal law differed from federal law .", "ORG Mr PERSON lodged a public - law appeal with ORG . He relied on ORG CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the LAW . In his view , LAW ) applied because of the criminal nature of the fine , which under LAW DATE was convertible into a custodial sentence .", "ORG On DATE ORG dismissed the appeal . It noted in particular :", "\" ...", "The applicant ... maintained that LAW ) violates in the abstract , and in the alternative in the specific case , freedom of expression as secured in federal constitutional law and in LAW ) of LAW ( ECHR ) . In so doing , he overlooked that it may be legitimate in the public interest to impose certain restrictions on the exercise of that fundamental right ... LAW ( article LAW ) in fine ORG , moreover , provides expressly that such restrictions are permissible where they are necessary in a NORP society , in particular for maintaining the authority and impartiality of the judiciary . The rule enacted in LAW ORG clearly conforms to these principles . A weighing of the competing interests at stake leads to the same conclusions . While it may indeed be readily appreciated that the applicant had grounds for rebelling against the sometimes unorthodox course taken by the proceedings against him , it must not be forgotten that the usual remedies were open to him ; and , indeed , on a number of occasions he successfully availed himself of them . His interest in expressing his views on this matter in public and the public ’s interest in being informed by this means can not outweigh the interest in ensuring that the judicial system can function as smoothly and impartially as possible . The prohibition against communicating information about an investigation until its completion and the penalties attaching to the offence are undoubtedly consistent with the proportionality principle . Consideration of whether the impugned interference was founded on sufficient reasons which rendered it necessary in a NORP society , having regard to all the public - interest aspects of the case ( ORG , DATE ORG case , Series A no . CARDINAL , paragraphs CARDINAL ) leads inevitably to the conclusion - particularly if the interests at stake in the DATE ORG case previously cited and in the applicant ’s case are compared - that there was no violation of freedom of expression .", "...", "In the instant case the appellant was liable to a fine not exceeding MONEY ( LAW ) and was fined MONEY . Under GPE law , such a penalty typically comes within the sphere of rules of conduct to be observed during proceedings . That is not decisive , however , according to the NORP institutions .", "Such rules are generally directed primarily at barristers , and in that instance their disciplinary nature is not in doubt ; the parties to criminal proceedings , however , may also be subject to certain disciplinary rules . Admittedly , it has to be recognised that the measure taken against the appellant could have been based on a combination of LAW , which lays down that judicial investigations shall be confidential , and LAW ) , which provides that anyone who makes public any proceedings in a judicial investigation or deliberations by an authority which are secret by law shall be punishable with imprisonment or a fine . In that event the application of LAW would have justified an application of LAW ( article DATE ) ORG . This was not the case , however , and it was on the basis of a cantonal rule of procedure that the appellant suffered a penalty whose disciplinary or criminal nature can be determined only by assessing the degree of its severity .", "The appellant showed , aptly enough , that such a fine was convertible into CARDINAL days’ imprisonment under LAW on the recovery of fines and their conversion into imprisonment . That procedure indeed leaves the authorities only a very limited discretion and at all events does not enable them to comply retrospectively with the requirements of LAW . The appellant overlooks , however , that LAW , second sub - paragraph , of LAW ( SCC ) enables the judge to rule out conversion where the person convicted has proved that , through no fault of his own , he is unable to pay the fine . In view of the foregoing , the possibility of a custodial sentence could not make the penalty imposed in the instant case a criminal one .", "Ultimately , while the fine imposed in the instant case was not a negligible one , it nonetheless came into the category of penalties which by their nature , duration or manner of execution are deemed not to be appreciably detrimental . The possibility of conversion into a custodial sentence makes no difference , since conversion is possible only in the event of the appellant ’s refusing to pay the fine out of sheer unwillingness . The safeguards provided for in LAW ( article DATE ) ORG were therefore not applicable in the instant case . \"", "The applicant paid the fine in DATE .", "ORG The confidentiality of judicial investigations is governed by LAW , which provide :", "\" All judicial investigations shall remain confidential until they are finally completed .", "Judges , other members of the national legal service and civil servants shall not communicate any documents or information about an investigation except to experts , other witnesses or an authority where such communication assists the investigation or is justified on administrative or judicial grounds . \"", "\" The parties , their counsel , employees of their counsel and experts and witnesses shall be bound to maintain the confidentiality of an investigation , on pain of a fine of MONEY , unless the breach is punishable under other provisions .", "The punishment provided for in the foregoing paragraph shall be ordered by the President of ORG , of his own motion or acting on an information .", "He shall give his ruling after a summary investigation . \"", "In DATE the applicant was the sponsor of a constitutional initiative entitled \" For a system of criminal justice with a human face \" , CARDINAL of whose aims was to secure the repeal of LAW . This was in line with the approach adopted by those who had drafted the DATE LAW , which does not attach any penalty to the obligation to maintain the confidentiality of an investigation , an obligation from which it even completely exempts witnesses , complainants , accused persons and their lawyers . In a referendum on DATE the people of the GPE of GPE rejected the PERSON initiative by a clear majority .", "ORG Article CARDINAL § CARDINAL of LAW - which was not applied in the instant case ( see paragraph CARDINAL above ) - provides :", "\" Anyone who , without being entitled to do so , makes public all or part of the proceedings of an investigation or of the deliberations of any authority which are confidential by law or in virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine . \"", "ORG The cantonal LAW DATE , which has been supplemented and amended several times since , provides , inter alia :", "\" If the person convicted has neither paid nor redeemed the fine and if it appears that recovery proceedings would be fruitless , the ORG shall convert the fine into a term of imprisonment .", "...", "The ORG may , however , decide against conversion at any time if the person convicted proves that , through no fault of his own , he is unable to pay the fine . \"", "\" The conversion rate shall be DATE imprisonment for MONEY of fine ; fractions of MONEY shall be left out of account ; the length of imprisonment shall not exceed DATE .", "... \"", "\" Within TIME of receiving them , the GPE shall send to the Prefect of the district in which the court that heard the case is situated copies of any judgments and decisions entailing imposition of a fine which have been communicated to it .", "It shall order the ORG to enforce the judgment or decision . \"", "\" If the person convicted has neither paid nor redeemed the fine and if it appears that recovery proceedings would be fruitless , the ORG shall inform the ORG accordingly with a view to converting the fine into a term of imprisonment , unless such conversion was excluded at the outset in the judgment or decision concerned . \"", "\" The presiding judge of the court shall decide whether to convert the fine into a term of imprisonment pursuant to LAW and shall proceed in accordance with LAW of LAW .", "... \"", "\" Articles DATE and CARDINAL shall apply to fines imposed for breaches of provisions of criminal or civil procedure .", "In the case of LAW , the GPE shall report the matter to the appropriate judicial officer , who shall be able to convert the fine into a term of imprisonment , wholly or in part ; he shall inform the ORG of his decision .", "Articles CARDINAL and CARDINAL shall apply to the conversion , save that the judge with jurisdiction to determine the matter shall be :", "( a ) the President of ORG in respect of fines imposed by him or by the court as such ;", "( b ) the presidents of the various sections or divisions of ORG in respect of fines imposed by them or by the section or division ;", "... \"", "ORG When depositing the instrument of ratification of the Convention , ORG made the following reservation :", "\" The rule contained in LAW , paragraph CARDINAL ( article CARDINAL - CARDINAL ) , of the LAW that hearings shall be in public shall not apply to proceedings relating to the determination ... of any criminal charge which , in accordance with cantonal legislation , are heard before an administrative authority .", "The rule that judgment must be pronounced publicly shall not affect the operation of cantonal legislation on civil or criminal procedure providing that judgment shall not be delivered in public but notified to the parties in writing . \"", "ORG The NORP courts have had occasion to give their views on the concept of an \" administrative authority \" . In its judgment of DATE in the PERSON case , for instance , ORG stated :", "\" Moreover , the expression ‘ administrative authority’ ( autorité administrative ) is not to be found in the text of LAW ( ORG ) but appears in GPE ’s reservation in respect of the principle laid down in DATE ( article CARDINAL ) of the LAW that hearings must be public and judgments pronounced publicly . It is therefore not a LAW concept which should be construed according to the principle of reasonable expectation , that is to say in the meaning which the other signatory GPE might and should in good faith give it , or directly under LAW and CARDINAL of LAW of CARDINAL DATE , which GPE has not yet ratified . A reservation made when ratifying a treaty is a unilateral declaration which must in general be interpreted by reference to the domestic law of the ORG which has adopted it , like a provision in a statute or regulation .", "In the case of a reservation , an interpretation in accordance with the will of the declaring ORG makes it possible to take into account the real purpose of the reservation , whose justification lies precisely in the special features of national law ...", "That being so , regard should be had to the meaning which ORG and ORG intended giving to the expression ‘ administrative authority’ . While ORG accepted the reservation without discussion or comment , ORG gave the following particulars in its DATE Communication ( ORG [ ORG ] DATE II p. CARDINAL/CARDINAL ) .", "‘ ... In GPE , as was pointed out above , the administrative authorities may have to determine private - law disputes and impose penalties in the way that a criminal court would . Administrative proceedings , however , are not normally public . The same is true of proceedings in the administrative courts , although they are adversarial . It is , moreover , doubtful whether the principle that proceedings must be public is generally applicable to administrative criminal proceedings.’", "In its communication of CARDINAL DATE ( PERSON I , p. CARDINAL ) , on the other hand , ORG merely stated that proceedings before administrative authorities were not public .", "It is therefore possible to confirm the precedent of NORP and Others of CARDINAL DATE , referred to above . In the light of the CARDINAL Communication it is apparent that GPE meant to exclude application of the principle that hearings and judgments must be public not only before administrative authorities but also in the administrative courts , notwithstanding that proceedings there are adversarial . It would , moreover , be consistent with the principle of good faith to accept that the reservation applies to such - and - such an authority not because of the way the authority is organised but rather because of the functions it discharges , in the instant case administrative functions .", "( cc ) The respondent authority was right in considering that it could apply the reservation made in respect of LAW and in accepting that in GPE ‘ disciplinary regulations come within the domain of administrative law and the authorities which apply them exercise an administrative jurisdiction’ . \"" ]

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[ "The applicant is a NORP national , born in DATE and living in PERSON . .", "A.", "By a decision of DATE ORG ( ORG ) in PERSON found the applicant guilty of a tax offence punishable under LAW committed in that she had made bookkeeping errors in the bookkeeping of a shop owned and run by her client , and imposed on her a pecuniary penalty of CARDINAL ORG , or DATE of imprisonment in default . She was also found guilty of another offence punishable under LAW , committed in that she had incorrectly calculated value of a certain tax subject to deduction from ORG ) , which resulted in a reduction of the taxes paid to the ORG by a sum of CARDINAL PLZ For this offence , the ORG imposed on her a pecuniary penalty of CARDINAL ORG , with CARDINAL days’ imprisonment in default .", "The applicant lodged an appeal against this decision with the Opole Treasury Chamber ( Izba Skarbowa ) , arguing that the first - instance authority had breached a fundamental principle of tax law which provided that only the taxpayer , and not persons keeping books for him or her , was liable under the provisions of LAW . She further submitted that in fact her calculation of the taxes had been correct .", "On DATE the ORG amended in part the decision under appeal by changing the legal qualification of the offence qualified by the lower administrative authority under LAW into an offence against LAW , and upheld the decision in its remainder . ORG considered that the principle referred to by the applicant in her appeal , i.e. the principle of an exclusive responsibility of a taxpayer towards the ORG for his or her taxes , was applicable only on the ground of tax law . However , this principle did not apply to the criminal liability as laid down in LAW . Consequently , it was not excluded that an offence punishable under LAW could be committed not only by a taxpayer himself , but also by any person keeping books for the taxpayer on the basis of a contract .", "On DATE the applicant complained to the Minister of Finance about the decisions in her case , contending that they were unlawful . This complaint remained unanswered .", "B. Relevant domestic law", "Book One of the Fiscal Criminal Act ( LOC karna skarbowa ) is entitled “ ORG ” . Book CARDINAL is divided into CARDINAL Parts , ORG , the latter specifying acts punishable under LAW and setting out penalties imposable on perpetrators . Part CARDINAL is divided in CARDINAL Chapters , the first LAW pertaining to fiscal crimes and the second one to fiscal offences .", "Under LAW , a wrongful act punishable under the provisions of the said LAW by imprisonment , limitation of liberty or a fine constitutes a fiscal crime . A fine can not be lower than CARDINAL PLZ and can not exceed CARDINAL PLZ . Article CARDINAL provides for additional sanctions for fiscal crimes such as : deprivation of civil rights , prohibition to exercise certain activities , confiscation of an object , and publication of the court judgment by which the offender was convicted .", "Under LAW , a wrongful act punishable under the provisions of the said LAW by the imposition of a pecuniary penalty constitutes a fiscal offence . According to LAW , a pecuniary penalty can reach from CARDINAL PLZ to CARDINAL ORG . Under LAW , the additional sanction of confiscation of an object can be imposed if the LAW expressly provides therefor .", "Under LAW , certain provisions of LAW , defining certain general notions of criminal responsibility , are applicable in the proceedings concerning fiscal offences . The provisions in question concern , inter alia , the definition of a punishable act , the prohibition of retroactivity , the definition of intentional and non - intentional offence , the age limit for liability , the attempted offence , the aiding and abetting , the circumstances justifying the exclusion of criminal liability , and the principles governing the determination of criminal sanctions .", "Pursuant to LAW , the courts are competent to entertain cases concerning responsibility for the commission of fiscal crimes punishable by imprisonment or limitation of liberty . Under LAW , cases concerning fiscal crimes in which only fines can be imposed , and cases concerning fiscal offences , are examined by fiscal administrative boards .", "Article CARDINAL of the Act states that decisions given in the proceedings concerning fiscal crimes and offences can be appealed against if the law so provides . The remedies are the following : an appeal , a demand that the case be examined by a court , and an appeal against interlocutory decisions .", "Under LAW , in cases concerning fiscal crimes , a party to the proceedings is entitled either to lodge an appeal against a first - instance decision of an administrative authority with a higher administrative authority , or to demand that the case be examined by a court . An option to use CARDINAL remedy bars the use of the other . In the proceedings concerning fiscal offences , only an appeal to a higher administrative authority can be lodged ." ]

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[ "The applicant was born in DATE and lives in GPE .", "In DATE he was prosecuted for his alleged membership of an illegal organisation , namely ORG ( “ NORP Youth ” ) but was acquitted on DATE . Another set of criminal proceedings brought against him under LAW for membership of another illegal organisation , namely PERSON ( “ FAC ” ) , were discontinued in DATE following the repeal of that provision .", "On DATE the applicant was on his way to a demonstration in GPE , organised by ORG . He was arrested by the police , who allegedly beat him up . He was taken to a police station . A police report drawn up DATE stated that the applicant had a previous record for terrorist related activity in DATE .", "On DATE the GPE prosecutor filed an indictment , accusing the applicant and CARDINAL other persons of contravening LAW , and charged them with the offences of damaging State property and resisting arrest by using force .", "While the criminal proceedings were pending before ORG ( hereinafter “ the GPE court ” ) , a police report entitled “ information form on additional offences ” ( ORG ) was submitted to the GPE court . In the report , under the heading “ Records of Guilt ” ( PERSON ) , were CARDINAL entries concerning the applicant which read as follows :", "“ CARDINAL- Member of PERSON , DATE , Political Offences Branch [ of the Police ] , ORG ;", "CARDINAL- Member of Revolutionary Youth , DATE , ORG [ of the Police ] , CARDINAL ” .", "The report , which also included the applicant ’s fingerprints , address and birth registry details , had been drawn up in accordance with LAW , which empowered the police to keep such details on persons accused or convicted of certain offences .", "On DATE the applicant submitted a complaint to the prosecutor and brought to the prosecutor ’s attention his acquittal in DATE of the offence of membership of the illegal organisation Dev - Genç , and the discontinuation in DATE of the criminal proceedings concerning his alleged membership of Dev - Yol . The applicant drew attention to the fact that LAW also required the police to include in their records any acquittals or discontinuations of criminal proceedings . He asked the prosecutor to prosecute the police officers who had neglected their duties by failing to comply with the Regulations .", "NORP In his complaint the applicant further argued that the police report as it stood infringed his right to the presumption of innocence protected by LAW . He was a sociologist and the author of a number of publications . He drew the attention of the prosecutor to the national press which had reported that “ one of the persons arrested [ in the demonstration ] was a member of ORG ” . He submitted that he was now regarded as a member of illegal organisations and this had adverse effects on his professional life and was detrimental to his psychological integrity .", "On DATE the prosecutor dismissed the applicant ’s request for the police officers to be prosecuted . The prosecutor considered that the officers had not attempted to mislead anyone ; all they had done was to forward to a criminal court official records of past incidents concerning the applicant .", "The applicant lodged an objection against the prosecutor ’s decision and argued that the prosecutor had not examined or even mentioned in his decision the Regulations in question before deciding not to prosecute the police officers . He further complained that his rights under LAW , in particular his rights to a fair trial and to respect for his private and family life , had been breached .", "The applicant ’s objection was rejected by ORG on DATE .", "On DATE the applicant was acquitted in the criminal proceedings which had been brought against him on DATE ( see paragraph CARDINAL above ) .", "According to LAW in force at the time of the events , it was an offence for a public servant to delay in carrying out or to omit to carry out his or her duties .", "Moreover , according to LAW , all decisions relating to the accusations mentioned in police reports – such as decisions rendered by prosecutors not to prosecute , court decisions on acquittals , and decisions to discontinue criminal proceedings – should also be included in the reports and a certified copy of such decisions should be attached to them . Competent authorities requiring information on the person in question should be provided with the reports as well as with the decisions relating to the accusations mentioned in them .", "ORG has examined questions of data protection and concluded LAW DATE for ORG with regard to ORG . It came into force on DATE and its purpose is “ to secure ... for every individual ... respect for his rights and fundamental freedoms , and in particular his right to privacy with regard to automatic processing of personal data relating to him ” ( Article CARDINAL ) , such personal data being defined in DATE as “ any information relating to an identified or identifiable individual ” ." ]

[ "8" ]

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[ "The applicant was born in DATE and lives in the village of PERSON , in the GPE municipality , in a house owned by him and his former wife . His parents also live in that house . His daughter , from whose mother the applicant is divorced , stays with him DATE in DATE . The applicant 's house is situated QUANTITY from the tailings pond ( хвостохранилище ) and the flotation plant ( обогатителна фабрика ) of a former copperore mine . The applicant cultivates agricultural land located QUANTITY from the pond . On DATE the applicant 's father donated to him more agricultural land in GPE ; the applicant did not specify its exact location .", "The pond , whose surface area is CARDINAL.CARDINAL ha , was in operation until DATE . The mine continued to be worked until DATE . After decommissioning , measures for the conservation and reclamation of the pond were taken . In DATE a scheme , drawn up in DATE , was subjected to an environmental impact assessment ( “ ORG ” ) . The conclusion was positive . In DATE the ORG was submitted for public discussion by the inhabitants of PERSON and modified in line with their comments . The scheme was approved by ORG of ORG in DATE and began to be implemented in DATE . It consisted in laying earth and soil and planting vegetation on the pond . Its implementation was stopped in DATE .", "In DATE Mr PERSON , operating as a sole trader under the business name “ ET PERSON ” , proposed to ORG a new solution for the reclamation of the tailings pond . It consisted in the temporary capping of the pond 's surface and slopes with soil cement , to prevent the spreading of dust , and in the use of sludge from a waste - water treatment plant in GPE for biological reclamation .", "On DATE ORG gave a negative opinion on the new scheme . It expressed doubts as to the sustainability and the stability in acidic environments of the soil cement intended to be used for capping the pond . The proposed technology would provide a provisional solution for containing the dust spread from the pond , but would not lead to the pond 's full reclamation . Moreover , ORG had not specified the chemical composition of the sludge from the GPE waste - water treatment plant . It appeared to contain heavy metals , as the plant treated not only domestic , but also industrial waste water . According to the relevant classifier , sludge resulting from the treatment of the latter was hazardous waste .", "On DATE PERSON 's mayor also expressed a negative opinion on the new scheme . He noted , among other things , that the previous scheme had been fully approved and had begun to be implemented . In addition , the composition of the sludge from the GPE plant was unclear , as it treated not only domestic , but also industrial waste water . This meant that the sludge might contain heavy metals .", "NORP However , on DATE ORG approved ET PERSON 's proposal and allowed him to submit a new scheme .", "In a letter of DATE to ORG , the regional governor said that the new reclamation scheme was not technologically superior to the previous one and should not be approved .", "On DATE the Minister of Industry transferred the tailings pond from the assets of the ORG - owned company ORG to those of a specially formed ORG - owned company , PERSON ORG .", "On DATE ET PERSON presented its scheme to ORG . At about the same time ORG , which had been implementing the initial reclamation scheme ( see paragraph CARDINAL above ) , presented ORG with an update to the initial scheme .", "The ORG appointed a specialist board of experts to assess the CARDINAL schemes . The board comprised experts from ORG , of ORG , and from ORG , as well as from ORG and ORG . It held a meeting on DATE to discuss the relative merits of the CARDINAL schemes . It noted that both lacked checks on the stability of the pond . However , according to an expert 's report , neither of them would impair the pond 's stability . Both lacked climatological and hydrological descriptions of the area and data on the expected consolidation of the sludge after the reclamation had ended . The problems relating to the neutralisation of the acid water were partially addressed in ORG scheme and not addressed in ORG 's scheme . According to an expert 's report , it was possible to use stabilised waste - water sludge from the GPE treatment plant . The area around the pond did not have enough humus for the biological reclamation envisaged by ORG 's scheme ; it would thus be necessary to enrich the existing soil artificially . ET PERSON scheme envisaged finishing the reclamation in DATE and resolving the dust - spread problem even before that . PERSON ORG 's scheme also had an eighteenmonth timeline , but it was unrealistic . ET PERSON scheme provided for the restoration of the productive qualities of CARDINAL ha of polluted soil outside the tailings pond and its use for the production of specialised grass . According to accounts submitted by the CARDINAL firms , ORG scheme would cost MONEY ( ORG ) and ORG scheme ORG CARDINAL,CARDINAL,CARDINAL . On that basis , the board recommended that ORG approve ORG scheme . CARDINAL experts representing ORG disagreed , saying that this scheme did not meet various regulatory requirements . In particular , wastewater sludge was not appropriate for reclamation ; humus was much better suited for that task . It was also unclear whether the use of sludge would yield stable and safe results . According to the relevant classifier , the sludge from the GPE plant was hazardous waste , because it came not only from domestic but also from industrial waste water . The documents relating to the scheme did not specify the exact toxic - substance content of the sludge . Lastly , the scheme 's scope and potential effects on the environment warranted an ORG . The updated initial scheme suffered from none of these drawbacks , but , on the contrary , would provide a sustainable solution .", "ORG , comprising representatives from several ministries , considered the CARDINAL schemes on DATE . It examined the findings of the specialist board of experts , as well as the opinions of ORG , of GPE 's mayor , and of the regional governor . It also heard PERSON explanations . Following a discussion , which touched upon , among other matters , the alleged heavymetal content in the sludge from the GPE plant , the ORG unanimously resolved to approve ORG scheme . The resolution was later approved by the Minister for Industry .", "In a newspaper interview published on DATE the Minister for the Environment said that the new reclamation scheme was controversial and that she intended to challenge it . In her view , a fresh method of reclamation was to be sought , if need be with the help of university scientists .", "The new scheme began to be implemented in DATE . PERSON was the investor and ORG the contractor .", "On DATE ORG found that the company carrying sludge from the GPE plant to the pond was doing so without the licence required under section CARDINAL ) the DATE Limitation of the Adverse Impact of Waste on LAW ( see paragraph CARDINAL below ) , which corresponded to an administrative offence . On DATE it fined the company .", "Consequently , ET PERSON applied for such a licence , which was granted by the Minister for ORG on DATE . In her decision the Minister allowed ORG to process up to QUANTITY of domestic wastewater sludge a day . In particular , it could carry stabilised sludge from the GPE treatment plant to the pond , store it in pits or other openair containers and use it for fertilising soils or improving the environment . The sludge was to be carried in lorries , with CARDINAL from the GPE plant to the pond per day . It was to be laid on the pond in keeping with the technology approved by ORG and with certain other precautionary measures . The laying of sludge had to be finished before DATE . In the meantime , ORG had to present DATE chemical analyses of the sludge to ORG and ORG .", "After finding out about the above licence , on DATE the applicant applied to ORG ( NORP административен съд ) for judicial review of the Minister 's decision to grant it . He started by contending that he had a sufficient legal interest to contest the decision , because it impacted on his right under LAW ( see paragraph QUANTITY in limine below ) to live in a “ healthy and favourable environment corresponding to the established standards and norms ” . He pointed out that he lived in PERSON , close to the place where the licence allowed sludge to be laid , and that the sludge could have adverse effects on the environment and human health . He also referred to Article CARDINAL § CARDINAL of the LAW ( see paragraph CARDINAL in fine below ) . He further argued that the decision was null and void , as its implementation was impossible . The decision allowed ORG to carry and process domestic waste - water sludge . However , this could not be done , because the waste water treated in the GPE plant came from both domestic and industrial sources . It was unfeasible to separate the domestic from the industrial sludge and for this reason it was impossible to carry and process solely domestic sludge . The applicant further argued that the Minister 's decision unlawfully classified the sludge as industrial waste , as under the relevant rules it was hazardous waste ; this was also evident from various analyses . Furthermore , the Minister had taken the decision in breach of the rules of procedure , as no ORG had been drawn up .", "In his application the applicant also requested the court to stay , as an interim measure , the enforcement of the impugned decision , as failure to do so could frustrate the purpose of the proceedings and cause irreparable harm to the environment , thus infringing the right of PERSON 's inhabitants to a safe and healthy environment . As the court did not rule on that request , on DATE the applicant renewed it . He argued that the continuing implementation of the decision could lead to irreparable harm for the environment , as the spreading of sludge was still going on at a regular pace .", "On DATE ( опр. № DATE от CARDINAL март DATE г. по адм. д. № CARDINAL/CARDINAL , ORG , ORG отд. ) a threemember panel of ORG declared the application inadmissible . It found that the applicant had not been party to the administrative proceedings and therefore had no standing to seek review of the Minister 's decision . His interests could not be adversely affected by the decision , but solely by the potential unlawful actions of those whom the decision authorised to carry and process waste .", "On an appeal by the applicant , on DATE a fivemember panel of ORG quashed the threemember panel 's ruling and remitted the case for an examination on the merits ( опр. № CARDINAL от DATE г. по адм. д. № CARDINAL/CARDINAL , PERSON , петчленен състав ) . It held that in view of the aim of the environmental protection legislation – to prevent or at least reduce the adverse effects of waste on the environment and human health – all individuals living in an area at risk of pollution due to wastetreatment operations could be considered as interested parties . The applicant , as well as all persons living near the tailings pond , had an interest in preventing activities , such as those allowed by the impugned ministerial decision , which could pollute their environment and thus possibly impair their health .", "On DATE the applicant reminded the court once more of his request for a stay of execution of the decision . On DATE the CARDINAL - member panel turned down the request , saying that the materials in the file did not point to any danger for the applicant 's interests .", "A hearing listed for DATE did not take place , as ORG had not been properly summoned . It took place on DATE . The court heard the parties ' arguments . A public prosecutor participating in the proceedings ex officio submitted that the application should be allowed .", "In a decision of DATE ( опр. № CARDINAL от DATE г. по адм. дело № DATE , ORG , ORG отд. ) the CARDINAL - member panel discontinued the proceedings , holding that the case had become devoid of object as the licence granted to ORG had expired on DATE .", "The applicant appealed , arguing , among other things , that he had a continuing legal interest in seeking judicial review of the decision , because it had allowed waste disposal near his home , which could lead to problems for his health . The annulment of the decision was in addition a prerequisite for successfully prosecuting a claim in respect of the harm occasioned by the unlawful waste disposal . The decision 's effects had not ended on DATE , as the negative results of the activities which it had made possible could persist for DATE to come .", "On DATE a fivemember panel of ORG upheld the discontinuance ( опр. № DATE от DATE г. по адм. д. № DATE , ORG , петчленен състав ) . It noted that the subsistence of a legal interest in seeking the annulment of an administrative decision was mandatory throughout the proceedings . The threemember panel had had regard to a fresh development – the expiry of the licence DATE which had come to pass while the proceedings were pending . The allegation that the applicant had suffered damage at the time when the licence had still been in force was not sufficient to establish the existence of a continuing legal interest , as reparation for such damage could be sought in civil proceedings .", "The new reclamation scheme drew widespread disapproval from PERSON 's inhabitants . On CARDINAL and DATE Mr GPE , member of ORG , sent letters to ORG and to ORG ( a subdivision of ORG ) . He asked them to give their expert opinion on the question whether the implementation of the scheme could put at risk the health of the people living near the pond .", "The ORG replied on DATE . It said that there was a risk of heavy - metal contamination impacting on the population 's health within a tenkilometre perimeter around the pond . The reclamation scheme lacked a suitable system for monitoring the underground water , where the migration of such metals could be expected , as the polymer cover was not stable in the long term . According to an expert in the ORG 's toxicology laboratory , the heavy - metal content of the sludge spread on the pond was above the regulatory maximum , as shown by the chemical analysis of samples . The high levels of copper , zinc , cadmium , nickel , cobalt and chrome led to a pollution risk and a risk to the population 's health . So did the presence in the sludge of lead and manganese . Those metals could have a negative impact on the nerve , respiratory and cardiovascular systems , the kidneys , the liver and the production of blood . Some of them were allergens , mutagens and carcinogens . The scheme 's implementation would thus lead to a risk of dust from the sludge spreading in the atmosphere . There was also a risk that those metals would migrate through the surface and underground water , because of the acid pH of the water in the pond . The methodology for reclaiming old polluted areas classified the area situated QUANTITY from the source of the pollution as being at risk .", "Having received the ORG 's opinion , on CARDINAL DATE Mr GPE asked the Chief Sanitary Inspector to stop the operation of the site . He did not receive a reply . Mr PERSON also alerted the mayor of GPE .", "On DATE GPE 's mayor appointed a commission to take samples from the place where the sludge was being spread and to submit it to a laboratory for an analysis of its heavy - metal content . Such samples were taken and sent to ORG . In a letter of DATE , accompanied by the expert opinion of a researcher in its toxicology laboratory , the ORG said that the lead , cadmium , copper , zinc , chrome and nickel content of the sample was well above the maximum permitted levels . Copper and zinc had a negative effect on agricultural crops and livestock . Lead , cadmium , chrome and nickel were systematically toxic for mammals and humans : they could harm the peripheral and central nervous systems , the production of blood , the liver and the kidneys . Those metals also had mutagenic and carcinogenic effects . In addition , chrome , cadmium and nickel were strong allergens . The underlying soil cement cover would provide some protection for the underground water in the region , but it was unclear how it would prevent the migration of heavy metals to the surface water .", "On DATE GPE 's mayor and the regional governor wrote to the Deputy Prime Minister . They urged him to halt the scheme 's implementation and noted that its continuation could lead to civil unrest in PERSON . Apparently no reply was received .", "On DATE ORG granted PERSON ORG a permit to discharge waste water , setting certain limits on the content of heavy metals and other toxic substances in it , and requiring the company to report to the competent authorities on a DATE basis .", "On DATE the works on the pond were accepted by the authorities .", "On DATE PERSON 's mayor asked the environmental inspection authorities in GPE to provide him with information about PERSON ORG 's DATE selfmonitoring reports . On DATE those authorities replied that they did not have such reports on file and that they were pressuring the company to comply with its reporting obligations .", "On DATE , as a result of pressure from inhabitants of PERSON , the Minister for ORG ordered PERSON ORG to commission an ORG . In an additional decision of DATE she specified that the ORG was to be ready by DATE .", "As a result of a hunger strike by CARDINAL members of a public committee opposed to the scheme and of a visit by the Minister for ORG , on DATE ORG , noting that no ORG had been drawn up , ordered that the implementation of the scheme be stopped pending completion of the assessment . However , by that time CARDINAL ha of the CARDINAL.CARDINAL ha of the pond had been covered with sludge . It seems that the total amount deposited was QUANTITY .", "The ORG was ready in DATE or DATE . It was submitted for a public discussion , at which CARDINAL experts from ORG faculty of geology and geography expressed their misgivings about the scheme .", "On DATE the Minister for ORG decided not to accept the ORG and sent it back for revision . She noted some serious omissions in its estimation of the health risk to the population arising from the reclamation scheme , the lack of information about the hazardous substances involved in the scheme , and the fact that the team which had drawn it up did not include an expert on the health and hygienerelated aspects of the environment . The Minister instructed the experts to revise the ORG and , in particular , to make a comparative study of the existing analyses and make an additional chemical analysis of the sludge laid on the pond . It was to be specifically checked for heavy metals and mercury content . The taking of samples for that analysis had to be done in the presence of the persons concerned . The experts were also to indicate the tailings ' permeability , before and after the pond 's capping with soil cement , as well as the permeability of the underlying rocks and the stability and the permeability of the soil cement after DATE of use . The revised ORG was to analyse all aspects of the scheme with reference to their effect on the health of the inhabitants of the villages surrounding the pond , and to propose concrete measures to tackle the problem . The analysis had to focus specifically on the penetration of heavy metals in the food chain .", "In DATE PERSON ORG and the company which it had hired to draw up the ORG submitted additional documents to the ORG . In a letter of CARDINAL DATE the Minister said that those documents did not contain the information requested in her decision of DATE . It was thus impossible to draw any reliable conclusions as to the effect of the reclamation scheme on the people and the environment . However , under the regulations in force , it was not necessary to pursue the matter further and finalise the ORG . As the works on the site had already been completed , it was sufficient for ORG to produce a self - monitoring report on the scheme 's impact .", "Following pressure from PERSON 's inhabitants and the local authorities , on DATE the Minister of Health ordered ORG to carry out an assessment of the environment and the impact of the reclamation scheme on the local population 's health . In a letter of DATE the ORG informed the Ministry that its experts were ready to complete the task , but that it could come up with QUANTITY of the necessary funding , amounting to ORG CARDINAL,CARDINAL . In DATE , DATE and DATE the applicant asked the municipality of GPE to cover the remaining MONEY of the amount , but the municipality made no provision for such an outlay in its budget . At the time of the latest information from the applicant on that point ( DATE ) the money had not been found and the assessment had not been completed .", "The first selfmonitoring report by PERSON ORG was drawn up in DATE and covered the period DATE and DATE . It gave an account of , among other things , the heavymetal content of water coming out of the pond and of grass near it . These measurements were based on CARDINAL water samples and CARDINAL grass samples . CARDINAL of the water samples did not show a heavymetal content above the regulatory maximum levels , whereas the other did , leading the report to conclude that the pond 's drainage water was heavily polluted . According to the report , the polluting content of the grass samples was below the regulatory maximum level , but the applicant submitted that its authors had used the wrong comparators , using the regulatory maximum levels for soil , not grass , which were considerably lower . The report said that the pond should continue to be monitored , but at a decreasing pace , with sampletaking once a year for grass and twice a year for water . Further reporting was envisaged in DATE .", "In its report on the state of the environment in DATE ORG noted , on page CARDINAL , that the GPE waste water treatment plant had generated QUANTITY of dangerous waste . In its DATE report for DATE ORG ( ORG агенция по околната среда ) noted , on page CARDINAL , that out of QUANTITY of sludge monitored by its GPE branch , QUANTITY could be classified as dangerous . In its reports for DATE and DATE the ORG noted , on pages CARDINAL and CARDINAL respectively , that the chromium content of the sludge coming from the GPE wastewater treatment plant was above the regulatory maximum . That sludge was therefore not appropriate for the reclamation and regeneration of agricultural land .", "The relevant provisions of the DATE LAW read as follows :", "“ GPE shall ensure the preservation and the reproduction of the environment , the conservation of the variety of living nature , and the reasonable utilisation of the country 's natural and other resources . ”", "“ ORG shall have the right to a healthy and favourable environment corresponding to the established standards and norms . They must preserve the environment . ”", "“ CARDINAL . The courts shall review the lawfulness of the administration 's acts and decisions .", "Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them , save as expressly specified by statute . ”", "Under section CARDINAL(CARDINAL ) of the DATE LAW ( ORG за опазване на околната среда ) , repealed and replaced by DATE LAW , all activities of private individuals and entities and ORG bodies could be subjected to an ORG . Section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act , superseded by section CARDINAL(CARDINAL ) of LAW , provided that an ORG was mandatory for all the schemes listed in a schedule to the LAW . Those schemes included the dumping of industrial and domestic waste and of waste - water sludge ( point CARDINAL of the Schedule , as in force DATE ) . An ORG could be carried out in other cases as well , pursuant to a proposal made by those concerned to the competent authorities ( section CARDINAL ) of the CARDINAL LAW , superseded by LAW CARDINAL of LAW , which lays down more detailed rules in that domain ) .", "The ORG was to be commissioned by the investor and carried out by independent experts having no connection with the scheme 's planning and no vested interest in its completion ( section CARDINAL(CARDINAL ) of the CARDINAL Act ) . The expenses were to be borne by the investor ( section CARDINAL ) of the DATE Act ) . The final report was to be submitted to the competent authority , which had to organise a public discussion on it ( sections CARDINAL ) and CARDINAL ) of the DATE Act ) . The public had to be notified of the discussion DATE in advance , through the mass media or other appropriate channels ( section CARDINAL ) of the DATE Act ) . The authority was to decide on the scheme 's feasibility not DATE ( after an amendment in DATE , DATE ) after the discussion ( section DATE ) of the DATE Act ) . The decision was to be notified to the investor and made public through the mass media or other appropriate channels ( section CARDINAL ) of the DATE Act ) . Those concerned could seek judicial review ( section CARDINALb(CARDINAL ) of the DATE Act ) . Under section DATE of the CARDINAL Act , the authorities had to ban or halt schemes whose EIAs were negative or which had not been subjected to an ORG if CARDINAL was mandatory .", "Under LAW of the CARDINAL LAW , whose text has been reproduced in section CARDINAL of the CARDINAL Act , everyone was bound to make good the damage which they had , through their own fault , caused to another by polluting or spoiling the environment . The amount of compensation could not be less than the money needed to repair the damage . Under section CARDINAL ) of the CARDINAL LAW , the text of which has been reproduced in section CARDINAL of LAW , those who had suffered damage as described in section CARDINAL could bring proceedings to enjoin the polluter to put an end to the breach and eliminate the pollution 's effects . Section CARDINAL(CARDINAL ) provided that such proceedings could be brought by any individual , the municipal authorities and nonprofit associations . There is no reported caselaw under those provisions .", "The DATE Regulations on hygienic requirements for the protection of health in the urban environment ( GPE № CARDINAL от DATE г. за хигиенните изисквания за здравна защита на селищната среда ) , issued by the Minister of Health on DATE and amended several times after that , lay down minimum permitted distances between urban areas and sources of pollution . Schedule No . CARDINAL to the ORG provides , in point CARDINAL , that tailings ponds used for depositing hazardous industrial waste for DATE must be situated farther than QUANTITY kilometres from urban areas . Point CARDINALa lays down the same requirement in respect of tailings ponds used for depositing nonhazardous industrial waste for DATE . FAC provides that non - hazardous waste periodically covered with soil must be stored QUANTITY from urban areas . Point CARDINALa lays down the same requirement in respect of hazardous waste which is intended to remain in the storage area for DATE . ORG may authorise a reduction of those distances on the basis of an opinion by the local hygiene and epidemiology inspectorate and of an ORG ( regulation CARDINAL ) ) . If no ORG is required in respect of the installation in issue , before authorising a reduction the ORG must obtain a comprehensive ecological expert 's report containing a healthimpact assessment , drawn up by an independent expert ( regulation CARDINAL ) ) .", "Under section CARDINAL ) of the CARDINAL Limitation of the Adverse Impact of Waste on the Environment Act ( ORG за ограничаване на вредното въздействие на отпадъците върху околната среда ) , superseded by section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW ( ORG за управление на отпадъците ) , a licence was required for all activities relating to the collection , storage or decontamination of waste . The decision to grant such licence was subject to judicial review ( section CARDINAL of LAW , superseded by section CARDINAL of the CARDINAL Act ) .", "Section CARDINAL(CARDINAL ) of the DATE Act provided that facilities and installations for the storage and decontamination of waste could be built only following a positive ORG .", "Section CARDINAL(CARDINAL ) of the LAW originally called the DATE ORG to Citizens Act , renamed on DATE the ORG and ORG , provides that the ORG is liable for the damage suffered by private persons as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties . Section CARDINAL(CARDINAL ) provides that compensation for damage flowing from unlawful administrative decisions may be claimed after the decisions concerned have been annulled in prior proceedings . The court examining the claim for compensation can not enquire into the validity of a voidable decision ; it may merely examine whether a decision is null and void . Section CARDINAL(CARDINAL ) provides that if another statute provides for a special avenue of redress , the LAW does not apply .", "The text of a number of international instruments and documents concerning the environment , including that of the DATE United Nations Convention on Access to Information , Public Participation in Decision Making and Access to ORG in ORG ( the Aarhus Convention , which GPE signed on DATE and ratified on DATE ) may be found in the ORG 's judgment in the case of PERSON GPE ( no . PERSON , ORG DATE ... ( extracts ) ) .", "On DATE a standing committee acting on behalf of ORG adopted Recommendation CARDINAL ( DATE ) , entitled “ Future action to be taken by ORG in the field of environment protection ” . Point CARDINAL of the recommendation said that “ [ i]n the light of changing living conditions and growing recognition of the importance of environmental issues , ... the ORG could include the right to a healthy and viable environment as a basic human right ” . It urged ORG to , among other things , “ instruct the appropriate bodies within ORG to examine the feasibility of ... drafting an amendment or an additional protocol to LAW ] concerning the right of individuals to a healthy and viable environment ” .", "On DATE ORG adopted LAW ( DATE ) , entitled “ Environment and human rights ” . Point CARDINAL of the recommendation stated that “ in view of developments in international law on both the environment and human rights as well as in NORP caselaw , especially that of the [ ORG ] , the time has now come to consider legal ways in which the human rights protection system can contribute to the protection of the environment ” . Point CARDINAL referred to “ the caselaw of the [ ORG ] concerning GPE ' positive obligations in the area of protection against environmental nuisances which are harmful or dangerous to health ” and said that it “ ORG ] to encourage this process by adding provisions concerning the recognition of individual procedural rights , intended to enhance environmental protection , to the rights set out in the [ Convention ] ” . It therefore recommended to the governments of the Member States to “ ensure appropriate protection of the life , health , family and private life , physical integrity and private property of persons in accordance with ORG , CARDINAL and DATE of the [ Convention ] and by LAW , by also taking particular account of the need for environmental protection ” . It also called upon ORG to “ draw up an additional protocol to LAW ] concerning the recognition of individual procedural rights intended to enhance environmental protection , as set out in the Aarhus Convention ” and to “ draw up , as an interim measure in preparation for the drafting of an additional protocol , a recommendation to member states setting out the ways in which LAW ] provides individual protection against environmental degradation , proposing the adoption at national level of an individual right to participation in environmental decision making , and indicating a preference , in cases concerning the environment , for a broad interpretation of the right to an effective remedy guaranteed under LAW ” ." ]

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[ "13", "6", "8", "P1" ]

[ "6-1", "8-1", "P1-1" ]

[ "P1-1-1" ]

[ "The applicant was born in DATE and lives in the village of GPE , GPE .", "In DATE the applicant was arrested and charged with a number of serious offences , including possession of explosives , death threats , attempted murder and murder .", "The Rostov Regional Court examined the applicant ’s case and gave judgment on DATE acquitting him on all charges .", "On DATE ORG of GPE examined the first - instance judgment on appeal . The court decided that the trial court had committed serious breaches of procedure , quashed the judgment of DATE and remitted the case for a fresh examination at first instance .", "On DATE ORG re - examined the applicant ’s case and found him guilty on all charges . He was sentenced to DATE imprisonment . The court also ordered the forfeiture of the applicant ’s property .", "An appeal by the applicant against the judgment of DATE was dismissed by ORG of GPE on DATE .", "On an unspecified date the Deputy Prosecutor General of GPE lodged a special appeal against the judgment of DATE and the decision of DATE .", "On DATE the Presidium of ORG of GPE examined the prosecutor ’s appeal . The court reopened the proceedings and partly changed the decisions in the case . In particular , the court declared the prosecution in respect of the death threats to be time - barred and changed the legal characterisation of the applicant ’s criminal conduct in relation to CARDINAL of the other charges . The applicant ’s sentence remained unchanged .", "The applicant and his counsel were neither notified of the hearing nor summoned to it . The prosecution was present and made submissions .", "NORP In letters dated DATE , DATE , DATE , DATE and CARDINAL DATE the applicant complained that he had been unable to correspond freely with the ORG , other domestic authorities and his lawyers ; that the authorities had not accepted sealed envelopes for dispatch ; and that there had been considerable delays in forwarding correspondence to him after its receipt by the prison and in actually sending letters out after their acceptance for dispatch .", "In their observations , the ORG submitted the register of correspondence which stated that the applicant had sent out letters to various destinations on various dates . There was a short description of the content of the letters dated DATE . In respect of the letters dated DATE , it was recorded that they had been “ sealed ” .", "In a letter of DATE the applicant informed the ORG that its letters of DATE , DATE had been forwarded to him with considerable delay . In particular , the letter of DATE had been received by the prison on DATE , registered under the incoming number CARDINAL , and had not been forwarded to him until DATE .", "In a letter of CARDINAL DATE the applicant informed ORG that the ORG ’s letter of DATE had been received by the prison on DATE and had not been served on him until DATE . He also stated that his understanding was that his letters dated DATE and CARDINAL , DATE and DATE ( outgoing no . ORG dated DATE , outgoing CARDINAL dated DATE and outgoing ORG dated DATE ) had not been received by ORG .", "NORP In reply , in a letter of DATE , the Government submitted that the competent authorities had carried out an additional verification and had established CARDINAL occurrence of delayed forwarding of mail from the ORG to the applicant . As a result , some officials had been reprimanded . The Government denied , however , that any letters had been sent by the applicant to ORG on DATE , DATE and DATE .", "In their further observations , the parties responded to the ORG ’s factual questions concerning the applicant ’s claims in this respect and provided the following information .", "The Government submitted that DATE and DATE the applicant had served his sentence of imprisonment in penitentiary establishment UCh-CARDINAL/CARDINAL , GPE . As of DATE the applicant had been serving his sentence in penitentiary establishment MONEY , GPE .", "The applicant did not contest these dates .", "In respect of the question concerning the total number of letters received by the applicant from the ORG through the prison services , the ORG submitted that DATE and DATE the applicant had received CARDINAL letters . These letters had been received by the prison and served on the applicant on the following respective dates : CARDINAL and DATE and DATE and DATE , CARDINAL and DATE ( CARDINAL letters ) and CARDINAL DATE , CARDINAL , DATE and DATE , CARDINAL and DATE ( CARDINAL letters ) , CARDINAL and DATE and CARDINAL and DATE .", "They also submitted that all the letters had been handed to the applicant in sealed envelopes and had not been censored .", "In his further observations , the applicant submitted that during this time he had received CARDINAL letters from the ORG through the prison authority . He also alleged that all of these letters had been served on him with substantial delays . He did not submit any concrete evidence in support of the latter point .", "The ORG ’s database indicates that DATE and DATE it dispatched a total of CARDINAL letters to the applicant ’s prison addresses , dated respectively DATE , DATE and DATE , DATE , DATE and DATE , DATE and DATE , DATE and DATE , DATE and DATE , DATE , CARDINAL DATE and CARDINAL , DATE and DATE and CARDINAL DATE , DATE , DATE , DATE and DATE .", "In respect of the question concerning the total number of letters sent by the applicant to the ORG through the prison services , the ORG submitted that DATE and DATE the applicant had sent out CARDINAL letters . These letters had been sent by the applicant on the following dates : DATE , DATE , DATE , DATE and CARDINAL May CARDINAL , and DATE , CARDINAL and DATE , CARDINAL DATE and DATE .", "The Government admitted that the applicant ’s letters sent out on DATE , DATE and DATE had been censored by the prison authorities under LAW then in force . They stated , further , that there had been no censorship of the remaining letters as the relevant applicable legislation had been amended and ORG had been added to the list of bodies with which a prisoner could correspond without censorship .", "The applicant submitted that , contrary to the ORG ’s submission , during that period he had sent out CARDINAL letters to the ORG through the prison administration and that the prison administration had required him to hand these letters to them unsealed for censorship . The dates of dispatch were as follows : CARDINAL DATE , DATE and CARDINAL May , DATE , CARDINAL DATE , DATE , CARDINAL and DATE ; CARDINAL May , DATE , DATE ; CARDINAL and DATE , DATE , CARDINAL May , DATE ; CARDINAL and DATE , CARDINAL DATE , DATE , DATE and DATE ; DATE , CARDINAL and DATE , DATE and DATE ; DATE ; and DATE .", "The ORG ’s database indicates that DATE and DATE it received a total of CARDINAL letters from the applicant , dated respectively CARDINAL DATE , DATE , DATE , CARDINAL and DATE ; CARDINAL DATE , DATE and DATE ; DATE and DATE ; DATE , CARDINAL May , DATE , DATE and CARDINAL and DATE ; DATE , CARDINAL May and DATE ; and DATE and DATE . It is unclear whether the applicant sent these letters out directly from his prisons or through his relatives or a lawyer .", "On DATE the ORG gave notice of the application to the respondent Government .", "On DATE the ORG received the applicant ’s letter of DATE . The letter stated that in DATE some officials from ORG and ORG for the Execution of Sentences of ORG had visited him and had forced him to sign some papers . They had allegedly wanted the applicant to withdraw his application and had told him that he would not prove anything and only make things worse .", "In their observations , the Government included the statement by the applicant dated DATE and addressed to the Head of ORG of ORG in charge of GPE , GPE , in which he stated that he had “ no complaints , claims against the prison administration ” and that he had no “ claims concerning the receipt and dispatch of correspondence to and from ORG . The statement was written in the applicant ’s own hand . In it the applicant also said that he had made his statement without physical or psychological coercion . The statement was collected and signed on the same date by CARDINAL officials : the Assistant to the Head of ORG of ORG in charge of GPE , PERSON . , and the Head of ORG in charge of GPE , B.", "In respect of this letter the ORG submitted that on DATE the Assistant Chief of ORG , PERSON . , had had an interview with the applicant . According to the ORG , the purpose of the interview had been the “ clarification of some facts with a view to submitting the position of ORG on the application lodged by PERSON ” . PERSON ’s explanatory note to the interview stated that he had not requested the applicant to withdraw his application to ORG , and that the interview had been conducted in the correct form , without any rough , rude or degrading treatment on his part . The applicant ’s explanatory note stated that he had not made any complaints or critical remarks in respect of the prison administration and that he had not been subjected to any psychological or physical pressure .", "The Government submitted a letter from ORG dated DATE in which the Deputy President of that court had certified that neither the applicant nor his counsel had made any complaints to the competent lower courts in respect of alleged interference with correspondence .", "The Government submitted that on DATE Mr PERSON from ORG had had an interview with the applicant . The applicant had made the following statement to PERSON", "“ ... My correspondence with ORG started in DATE during my detention in establishment UCh-CARDINAL/CARDINAL in the town of Shakhty . From that prison I sent out CARDINAL letters ( DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , DATE , DATE , DATE , DATE ) . All the above letters were received by the addressee and I retain proof of that . There were no instances of refusal to dispatch letters from prison IK-CARDINAL . However , all letters were only accepted by the administration in an unsealed form and were dispatched with considerable delay . I made attempts to send out sealed envelopes but the head of the special department returned them to me with reference to the corresponding instructions from higher authorities .", "Since DATE I have been serving my sentence in UCh QUANTITY of ORG for the Execution of Sentences of ORG . From this correctional establishment I dispatched CARDINAL letters to ORG DATE , CARDINAL DATE , DATE , DATE and DATE ) . I only know that my letter of CARDINAL April DATE was dispatched on CARDINAL DATE , whilst CARDINAL previous letters never reached the ORG . As to the letter of DATE , I am unaware of its fate . All these letters were not accepted from me in sealed form . The authority forced me to present them unsealed . As regards the answers from ORG , I received CARDINAL whilst serving the sentence in IKCARDINAL , and all were sealed . The incoming numbers of IK-CARDINAL were : CARDINAL of DATE , DATE of DATE . I do not know the number of the third answer , because I did not keep it . But I remember the date of receipt DATE .", "With all confidence I can state that I signed the receipt in respect of CARDINAL of the answers and do n’t remember in respect of the others . Whilst serving the sentence in IK-CARDINAL I received copies of CARDINAL answers from ORG . They had been forwarded from GPE since I had not received them there .", "Apart from the foregoing , I do n’t have any other complaints in respect of the conditions of detention ... ”", "On DATE the applicant was interviewed by PERSON . , the head of the ORG responsible for supervising the lawfulness of the execution of sentences at ORG . The applicant confirmed that on DATE he had had a word with PERSON . from ORG and on DATE with PERSON from ORG . The applicant submitted that they had not put any pressure on him whatsoever and that all explanations had been given by him voluntarily .", "On DATE the applicant made the following statement to PERSON . :", "“ In a supplementary application form I mentioned that I had been forced to sign some papers and this was formulated in such a way that it could be understood that I had signed the documents under pressure from the representative of the prosecutor ’s office and ORG for the Execution of Sentences . In fact , this did not correspond to reality because in that case I was referring to the relations that I had previously had with the prison administration , when correspondence had been dispatched with delays and the administration had requested me to withdraw the complaints and had refused to send them out .", "At present the administration has been replaced and many officials fired , which is why I have normal relations with the administration and have no complaints . ... I have given no explanations against my will . ”", "In their statements of DATE , PERSON . and PERSON explained that they had visited the applicant to check the facts outlined in his complaints to ORG and interview the persons allegedly involved and that no coercion whatsoever had been put on the applicant in connection with his application to the ORG .", "NORP In their further observations , the Government said that the above - mentioned interviews had taken place during the check carried out by the competent bodies of GPE in connection with the request of ORG dated DATE to ORG to clarify the applicant ’s allegations . They also submitted that the difference in the applicant ’s position in his statements of CARDINAL and DATE did not prove the alleged coercion as the applicant could have changed his position for other reasons .", "Section VI , LAW of LAW of DATE , ( Уголовно-процессуальный кодекс РСФСР ) , as in force at the material time , allowed certain officials to challenge a judgment which had become operative and to have the case reviewed .", "Pursuant to LAW , a judgment became operative and was subject to execution as of DATE when the appeal ( cassation ) instance pronounced its judgment or , if it had not been appealed against , when the time - limit for appeal had expired .", "“ The grounds for quashing or changing a judgment [ on supervisory review ] are the same as [ those for setting aside judgments which have not become operative on cassation appeals ] . ”", "“ The grounds for quashing or changing a judgment on appeal are as follows :", "( i ) prejudicial or incomplete inquest , investigation or court examination ;", "( ii ) inconsistency between the facts of the case and the conclusions reached by the court ;", "( iii ) grave violation of procedural law ;", "( iv ) misapplication of [ substantive ] law ;", "( v ) inadequacy of the sentence in relation to the gravity of the offence and the convicted person ’s personality . ”", "Article CARDINAL of the Code of Criminal Procedure of DATE provided that the power to lodge a request for a supervisory review could be exercised by ORG , the President of ORG of GPE and their respective Deputies in relation to any judgment other than those of the Presidium of ORG , and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court . A party to criminal or civil proceedings could solicit the intervention of such officials for a review .", "Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure of DATE provided that a request for supervisory review was to be considered by the judicial board ( the ORG ) of the competent court . The court could examine the case on the merits , and was not bound by the scope and grounds of the extraordinary appeal . The ORG could dismiss or uphold the request . If the request was dismissed , the earlier judgment remained in force . If it upheld the request , the ORG could decide whether to quash the judgment and terminate the criminal proceedings , or remit the case for a new investigation or fresh court examination at any instance , or uphold a first - instance judgment reversed on appeal , or amend and uphold any of the earlier judgments .", "Article CARDINAL § § CARDINAL and CARDINAL of LAW of DATE provided that the ORG could in the same proceedings reduce a sentence or amend the legal classification of a conviction or sentence to the defendant ’s advantage . If it found a sentence or legal classification too lenient , it had to remit the case for a new examination .", "In accordance with LAW , a public prosecutor took part in hearings before a supervisory review instance . A convicted person and his or her counsel could be summoned if a supervisory review court found it necessary . If summoned , they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing .", "On DATE ORG of GPE ruled that LAW was unconstitutional in so far as it allowed supervisory review proceedings to be conducted in the absence of the defence where a special appeal against the previous decisions would , if successful , result in the worsening of the convicted person ’s situation .", "Under LAW of LAW , which entered into force on DATE , a convicted person and his counsel are notified of the date , time and place of hearings before the supervisory review court . They may participate in the hearing provided that they have made a specific request to that effect .", "Article PERSON ) of LAW of DATE ( Уголовно-исполнительный кодекс ) provided for censorship of ORG correspondence .", "Law no . CARDINAL-FZ of DATE amended this Article to provide for an exception from the rule in respect of correspondence with a court , a prosecutor ’s office , higher officials of the penitentiary system and the Ombudsman of GPE . A prisoner ’s correspondence with his lawyer or representative could be censored in certain cases upon a reasoned decision of the director or deputy director of the prison authority .", "Law no . CARDINAL of DATE introduced further amendments to the LAW . ORG was added to the list of bodies with which the prisoner could correspond without censorship . The PERSON entered into force as of the date of its first official publication on DATE ." ]

[ "6", "8" ]

[ "6-1" ]

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[ "34", "8" ]

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[ "The first applicant ORG . H. , is the owner and publisher of the DATE newspaper “ ORG ” with its seat in GPE . The second applicant , PERSON , is an NORP national , who was born in DATE and lives in GPE . He is a journalist working for the first applicant .", "The facts of the case , as submitted by the applicants , may be summarised as follows .", "DATE a series of letter bombs which severely injured some of the addresses was sent to politicians and other persons of public interest in GPE .", "The bombs were accompanied by confessing letters signed “ ORG ” ( NORP [ NORP tribe tracing back to the CARDINALth and DATE ] ORG ) .", "After the first assaults , an expert on criminal psychology drew up a psychological profile of the author(s ) of these acts and concluded that they were committed by a single person . According to another hypothesis the series of bombs had to be attributed to a group of right wing extremists .", "From DATE until DATE Mr GPE was Federal Minister for the ORG ( ORG ) .", "The author of the assaults , PERSON , a person with no particular connection to any political grouping , was arrested in DATE .", "In DATE sporadic critics in the press and by some politicians reproached Mr PERSON with having neglected the theory of a single author . A politician of the ORG ( ORG ) accused Mr PERSON of having suppressed the single author profile because it did not correspond with what he imagined the author of the offences would be .", "In DATE the television film “ The Letter Bomber ” ( “ FAC ” ) , an NORP and NORP co - production , which was to be shown on NORP and NORP television , was presented to the press . The film , a fiction , based its story - line on the above cited series of letter bombs . It dramatised in substance the criminal investigations from the point of view of the expert on criminal psychology , the responsible of the investigation team and the committer himself .", "In the film the character of the Minister for the ORG , Mr M , favoured for political reasons the theory attributing the bombs to a group of right wing extremists and therefore suppressed the single author theory . This becomes particularly evident in CARDINAL scene , where Mr M forbade the film character personating the expert on criminal psychology to publish the psychological profile of the author of the offences and shortly afterwards forbade him to speak to the press .", "The article at issue", "On DATE the second applicant published a CARDINAL - page article under the heading “ Bomber – Film with explosive message ” in the “ PERSON GPE ” .", "The subtitles read as follows : “ Already seen for readers of the “ Krone ” : the television thriller about the hunting down of PERSON . Suspenseful and close to the truth . Particularly close to the political [ truth ] ” .", "In its first paragraph the article again stated that the film at issue was a “ thriller with an explosive political message- against the former Federal Minister for the Interior PERSON ”", "The article went on to describe the film as the result of meticioulous investigation and possessing a documentary quality . It then explained that the film concentrated on CARDINAL important aspects . On the one hand the fierce and long lasting battle of the criminal psychologist defending the single author theory against his colleagues . And , on the other hand , his battle", "“ against a Minister for the ORG who refuses for political reasons to communicate the psychological profile of the author of the offences - which later turned out to be astonishing correct - to the public . And this because in view of forthcoming elections the Minister - everybody in GPE knows , that PERSON is meant - prefers to have the search continued much too long in the right wing circles . [ This matter is ] still political explosive DATE . Bad rumour has it that this is possibly the reason why the broadcast [ of the film ] by ORG - originally planned for DATE before the elections in GPE - has been postponed to DATE . ”", "Defamation proceedings and compensation under LAW", "Mr PERSON filed a private prosecution for defamation ( üble GPE ) against the second applicant and a compensation claim against the first applicant company under LAW ( Mediengesetz ) with ORG ( PERSON ) .", "On DATE ORG ordered the first applicant to publish a notice on the introduction of the proceedings .", "On DATE and on DATE ORG held hearings and heard inter alia the second applicant , Mr GPE , the criminal psychologist , the Director General for public security ( ORG für öffentliche ORG ) and the responsible police officer for the criminal investigations at the time of the letter bomb series .", "On DATE ORG convicted the second applicant of defamation under LAW ) and sentenced him to a fine CARDINAL DATE rates ( PERSON ) of ORG CARDINAL each ( i.e a total of ORG DATE , CARDINAL [ approximately € CARDINAL,CARDINAL ] ) or DATE imprisonment in default .", "It further ordered the applicant company to pay ORG CARDINAL ( MONEY ) as compensation to Mr GPE , pursuant to LAW .", "Finally , the court ordered confiscation of the remaining stocks of the relevant issue of “ ORG ” and the publication of extracts from its judgment .", "The court noted that the second applicant had not merely repeated the story - line of the television film but had rather given the reader the impression that he identified with its message . He had conveyed to the reader that Mr GPE , in abuse of his authority , had disregarded his duty to resolve properly and efficiently the letter bomb case . He had thereby accused Mr PERSON of behaviour contrary to honour or morality ( unehrenhaftes PERSON ) , namely of politically motivated breach of his professional duty .", "This accusation was a statement of fact . The applicant had , however , failed to supply any evidence to prove this reproach .", "The court noted in this regard that Mr PERSON had mobilised a special investigation team for the investigation concerning the letter bomb series . Mr PERSON had not given any instruction as to the orientation of the investigations nor had he prevented the experts from investigating all avenues .", "The court found it established that in DATE a book about the psychological profile of a single author of all acts was presented to the public . The idea behind the book , which had been written in cooperation with the Director General for public security and the expert on criminal psychology , was to get by this way in contact with the still unknown author of the attacks and to prompt a reaction from him . It subsequently came to a debate between the chief executive officer for public security and Mr GPE as the latter had not been informed about the publication of the book . The expert on criminal psychology had been instructed not to give any statements on that subject to the public . However , there had never been a discussion between Mr PERSON and the expert on criminal psychology during which the latter had requested permission from Mr PERSON to publish the single committer profile which Mr PERSON had refused . Nor was there any further indication that Mr PERSON had in fact influenced , had given instructions or had hindered the investigations .", "The court further noted that the second applicant had not complied with the standards of journalistic diligence . The second applicant had in particular never confronted Mr PERSON with the reproaches he was raising against him .", "The applicants appealed against this judgment and argued inter alia that the court had wrongly classified the article at issue as a statement of fact instead of a value judgment , which , at all events , was based on true facts . They referred in this regard to the statements of the witnesses in the proceedings before the Regional court according to which Mr PERSON had been of the opinion that the bombs had to be attributed to several committers .", "On DATE ORG ( Oberlandesgericht ) dismissed the applicants ' appeal . It noted that the article could not be seen as neutral reporting . It was true that the second applicant in his article correctly reproduced the story of the film . He had , however , added formulations and wordings which showed that he identified with the film 's message , found its reproaches justified and repeated them .", "It further noted that at the time of the criminal investigations the experts ' opinions had been divided on the question whether the bombs had to be attributed to a single person or to a group of right wing extremists . At this time nobody could have taken it for established that the single committer theory finally turned out to be correct . The mere preference of CARDINAL of the hypothesis could therefore not justify the reproach that the other hypothesis had been suppressed on purpose . Nor did the statements of the witnesses in the proceedings at issue give any indication that Mr PERSON had abused his function .", "Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him / her . In this context “ defamation ” has been defined in LAW ) , as follows :", "“ CARDINAL . As it may be perceived by a third party , anyone who accuses another of having a contemptible character or attitude , or of behaving contrary to honour or morality , and of such a nature as to make him contemptible or otherwise lower him in public esteem , shall be liable to imprisonment not exceeding DATE or a fine ...", "Anyone who commits this offence in a printed document , by broadcasting or otherwise , in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...", "The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was arrested by the police on suspicion of having committed rape and uttered threats against a certain PERSON On DATE he was brought before FAC ( Sąd Rejonowy ) and , upon the application of FAC ( Prokurator Rejonowy ) , detained on remand for DATE starting from the date of his arrest , that is , until DATE .", "The court held that the evidence against the applicant , in particular his partial confession , justified a reasonable suspicion that he had committed the offences with which he had been charged . It also considered that there was a considerable risk that the applicant , if released , would obstruct the proceedings against him or induce witnesses to give false testimony . Moreover , CARDINAL of the offences in question ( rape ) carried a maximum sentence of CARDINAL years’ imprisonment , which made it likely that a severe penalty would be imposed on him . In sum , in the court ’s opinion , keeping the applicant in custody was necessary to secure the proper conduct of the proceedings .", "Earlier , the applicant and PERSON had been in a relationship that had lasted DATE , but they had terminated it DATE before the above events .", "As regards the circumstances surrounding PERSON ’s decision to ask the prosecution to institute criminal proceedings against the applicant , the ORG submitted that , when testifying during the initial stage of the proceedings , she had stated that she had been afraid to terminate their relationship because she had been threatened by the applicant , and that on several occasions he had beaten her . On DATE , when ORG again heard evidence from her , she confirmed her decision .", "In the meantime , on DATE , FAC had extended the applicant ’s detention until DATE , holding that the grounds stated in the initial decision remained valid . It added that his detention was necessary to secure the process of obtaining evidence from experts in sexology , forensic psychiatry and psychology .", "NORP The applicant appealed on DATE . He contested the factual basis for the rape charge , arguing that it was doubtful whether his acts could be qualified as rape , in particular as they had been directed against his co - habitee , PERSON , whom he had beaten during intercourse because she had told him that she had had a relationship with another man . He had already confessed to battery . Moreover , since in his view it was the victim ’s evidence , not his , that was the most relevant for the outcome of the proceedings , there was no risk of his exerting pressure on her . He also relied on LAW , maintaining that , in these particular circumstances , his detention amounted to serving a prison sentence .", "The appeal was examined and rejected by ORG ( PERSON ) on DATE . The court held that the charges against the applicant were supported by the existing evidence and that keeping him in detention was justified by a serious risk of collusion and of his interfering with the collection of evidence . These conclusions were based on the fact that the applicant had threatened the victim and used physical violence against her , and that one of the offences carried a severe penalty .", "Meanwhile , on DATE , PERSON had prolonged the applicant ’s pre - trial detention until DATE , relying on the grounds given in the previous decisions . The applicant appealed on DATE , again contesting the basis for the rape charge and submitting that there were serious doubts as to whether he had committed the offence since PERSON wished to marry him .", "Earlier , on DATE , the applicant had asked PERSON to release him under police supervision , stating that on DATE he had received a visit from PERSON He had apologised to her and she had forgiven him for everything he had done . They wanted to get married and live a normal family life together . In consequence , she wished to withdraw all her accusations . As DATE was approaching , he wanted to spend it with PERSON and her daughter to strengthen their relationship and make amends for all the harm he had done to her . He feared that his continued detention would be detrimental to their relationship and to PERSON ’s young daughter , who treated him as her father and whom he treated as his own daughter .", "ORG rejected the application on DATE .", "On DATE PERSON asked ORG to release the applicant , unconditionally or under police supervision . She said that he had apologised and she had forgiven him . She thought he should be released because the time he had already spent in detention had changed him for the better and made him realise that what he had done was wrong . She believed that he would mend his ways as he was aware that if he did not he would be severely punished . She admitted that she had made her accusations against the applicant under the influence of the anger and pain he had caused her , adding that , for those reasons , she would like to be absolved from testifying against him .", "On DATE the applicant asked ORG to release him under police supervision . He stated that he loved PERSON and had apologised to her and been forgiven . What had happened would never happen again . They wanted to get married and live together . They could move into a flat that he had meanwhile inherited from his grandfather . PERSON needed his financial support and help taking care of her daughter , whom he used regularly to fetch from school . He added that , having been in detention since DATE , he had understood that what he had done had been wrong . He knew that he would never do it again . He wanted very much to be with PERSON and make amends to her for what he had done .", "The application was rejected on DATE .", "On DATE the applicant also filed a complaint that his appeal of DATE had been examined as late as DATE , that is to say DATE . This was incompatible with LAW , which required the court to examine the lawfulness of his detention “ speedily ” .", "On DATE the applicant was indicted before ORG on charges of rape and uttering threats .", "On DATE ORG heard the applicant ’s appeal of DATE against the decision extending his detention until DATE . It dismissed the appeal , finding that the decision had been fully justified by the need to secure the proper conduct of the proceedings . In particular , the court stressed the risk of the applicant ’s exerting pressure on PERSON , especially in view of the fact that she had stated during the investigation that even when in detention he had sent her a letter hinting that after his release he might seek revenge on her . Moreover , the offence of rape carried a maximum sentence of DATE which , together with the serious circumstances of the incident as related by PERSON , gave sufficient grounds to believe that the applicant , given the severity of the penalty , might be prompted to bring pressure to bear on her in order to make her refuse to testify , or change her testimony .", "The trial started on DATE . PERSON stated before the court that she “ was a family with the applicant ” and wished to exercise her right not to testify .", "On DATE ORG ordered that the applicant be held in detention pending trial until DATE . In particular , it relied on the risk of his bringing pressure to bear on PERSON It further reiterated all the previous grounds for his continued detention .", "The applicant appealed and again contested the factual basis for the rape charge and stressed that his detention had exceeded a “ reasonable time ” within the meaning of LAW .", "In the meantime , presumably on DATE , PERSON had made a written declaration to the court , submitting that she wished to exercise her right not to testify because she was , as defined in LAW ( NORP postępowania karnego ) , “ in a particularly close personal relationship ” ( w szczególnie bliskim stosunku osobistym ) with the applicant . She also asked the court to release the applicant and stated that she wished to marry him .", "On DATE PERSON repeated that statement at a hearing and asked the court to absolve her from her duty to testify . However , the court rejected her request . It held , first , that her refusal was dictated by her fear of the applicant rather than by her affection for him and , secondly , that their relationship – both past and present DATE lacked the necessary psychological , physical and financial bonds to be regarded as a de facto marriage and , consequently , a “ particularly close personal relationship ” within the meaning of LAW that would override her duty to testify against the applicant at the trial . Since PERSON persisted in refusing to testify , the presiding judge imposed a fine on her for obstructing the trial .", "On DATE PERSON unsuccessfully appealed against the court ’s decision to fine her for refusing to testify . She again stated that she did not want to testify against the applicant .", "On DATE ORG dismissed the applicant ’s appeal against the decision of DATE , holding that ORG had correctly assessed the evidence before it and had rightly concluded that it fully indicated the probability that the applicant had committed the offences with which he had been charged . It also analysed the circumstances surrounding PERSON ’s refusal to testify , explaining that , even though she had again informed the trial court that she would like to exercise her right not to testify because she regarded herself as a “ person in a particularly close relationship ” with the applicant , that question had to be decided finally by the trial court . In ORG opinion , regardless of how the trial court eventually qualified their relationship there was still the risk that the applicant would attempt to influence the witness , especially in view of his previous aggressive behaviour towards her . Lastly , referring to the complaint of a breach of LAW , the court rejected the applicant ’s arguments as to the allegedly excessive length of his detention . It observed that ORG had proceeded swiftly with the trial . Since DATE , the date on which the bill of indictment had been lodged , it had already held QUANTITY hearings and , as it had heard most of the evidence , the first - instance proceedings were soon to be concluded .", "During the proceedings the applicant sent numerous letters to PERSON In DATE their number reached CARDINAL .", "Subsequently , ORG gave CARDINAL further decisions prolonging the applicant ’s detention . On DATE it extended his detention until DATE and on DATE until DATE . The court relied on the grounds given in the previous decisions , attaching special importance to the risk of the applicant ’s tampering with the witness PERSON At that time the witness still maintained her decision to marry the applicant and her refusal to testify .", "The applicant unsuccessfully appealed against those decisions , submitting that the trial court , by holding him in custody , repeatedly imposing fines on PERSON and refusing to grant them leave to marry in prison , had not only penalised him without him having been convicted but also showed no respect for their private life . In his view , this amounted to a “ misunderstanding ” and unjustified interference with their right to private life . He also relied on the fact that PERSON had stated before the court that she “ no longer felt that she had been raped ” , maintaining that the change of both parties’ attitude to each other and to the applicant ’s deed was an important circumstance militating in favour of his release . In his appeals , he invoked LAW and LAW .", "Before the end of the trial PERSON eventually testified , stating , among other things , that she no longer considered that the applicant had raped her and that she had forgiven him .", "On DATE FAC convicted the applicant as charged and sentenced him to DATE imprisonment . It ordered that the applicant be held in custody pending the outcome of his appeal .", "On DATE the ORG heard the applicant ’s appeal . It upheld the conviction but reduced the sentence to CARDINAL years’ imprisonment , finding that the complete change of the victim ’s attitude to the applicant over the course of the proceedings fully justified the reduction . It also observed that that change could not have been dictated simply by her fear of the applicant because , had it been so , she would have preferred to have him locked up for the longest period possible .", "The applicant filed a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) . ORG heard and dismissed the appeal on DATE .", "On DATE the applicant asked the trial court to grant him leave to marry PERSON in FAC . He maintained , among other things , that they both wished to solemnise their relationship and that they had already planned to get married in the past . In DATE their plans were delayed because PERSON , who had been pregnant with their child , had had a miscarriage . DATE was to be fixed for DATE but that fell through because he was arrested and detained on remand in DATE .", "On DATE PERSON requested PERSON to grant them leave to marry in prison . She stated that they had been together for DATE and remained in a close relationship for DATE . She also referred to their past decisions to get married DATE which had not been realised because of her miscarriage in DATE and , as regards the plans to fix a marriage date in DATE , because the applicant had been arrested . Furthermore , she submitted that their marriage would also be important for her daughter , who had developed a close emotional bond with the applicant , treated him as her father and missed him badly . Finally , she said that she loved the applicant very much and asked for her request to be granted .", "At the hearing held on DATE the applicant again asked the court to grant him leave to marry PERSON in prison . He said that he loved her very much and would like to marry her as soon as possible .", "PERSON , summoned by the presiding judge to the hearing room , confirmed that she had already applied to the court for leave to marry the applicant in ORG . She asked the court to enable her to contact him in order to discuss arrangements for the marriage . She continued to refuse to testify against him , saying that she loved him very much and deeply regretted what she had said at the police interview . She asked the court to regard her as his common - law wife .", "On DATE the applicant again asked ORG for leave to marry in FAC , maintaining that the judge had informed him at the hearing of DATE that leave had been granted and that he would receive it in writing . He further asked the court to grant him permission to have photographs taken of the ceremony and to serve light refreshments , such permission being required by the Governor of ORG in order to organise the event .", "By a letter of DATE the presiding judge informed the applicant , his lawyer and PERSON that their requests for leave to marry in the remand centre had been refused . The letter read , in so far as relevant , as follows :", "“ FAC hereby informs you that the application for leave to contract a marriage in prison made by the accused PERSON and the injured party ( pokrzywdzona ) [ PERSON ] has not been granted in view of the interests of the proceedings .", "A prison or remand centre is no place to hold ... ceremonies so important in a person ’s life as a wedding .", "In this court ’s opinion no circumstances justify contracting a marriage in the remand centre . If indeed DATE which in the court ’s view is doubtful DATE the accused and the injured party are sure of their decision that is so important for them and for their families and want to hold a ceremony , they may plan it for another time and in another place than a remand centre .", "It should be noted that marriage is always connected with a ceremony and the participation of other persons whose presence is obligatory ; certainly , the conditions in a remand centre or prison are not suitable for it .", "If the accused and the injured party have known each other for DATE and they have not yet managed to officialise their life , in the circumstances of the present case their sudden decision to enter into a marital union sheds doubt on their intentions , to say the least .", "The accused and [ PERSON ] ’s decision to marry has emerged at TIME in the course of the proceedings , namely when the court refused to consider [ PERSON ] as a ‘ close person’ ( osoba najbliższa ) – [ a status ] which would have given her the right to refuse to testify DATE and when it imposed a fine on her for unjustified refusal to testify .", "Thus , the court can not but find that a request for leave to contract a marriage [ made ] at this particular time is a further attempt to persuade the court that the relations between the accused and the injured party are of a close nature DATE which , in reality , in the court ’s opinion , is not the case and was invented only for the sake of the proceedings . ”", "The applicant ’s lawyer replied to the letter on DATE . He stated that the court ’s arguments could not erase the applicant ’s and PERSON ’s right to marry guaranteed by LAW . He added that the mere fact that he was in detention did not deprive him of that right .", "It appears that later the applicant and PERSON made further requests for leave to contract their marriage in the remand centre , but to no avail .", "In his cassation appeal against ORG judgment of DATE the applicant invoked LAW as one of the legal grounds for the appeal . ORG , in its above - mentioned judgment of CARDINAL DATE ( see paragraph CARDINAL above ) , held that the refusal to grant the applicant leave to contract a marriage in prison constituted a violation of LAW . Nevertheless , in ORG view , this kind of – admittedly serious – breach of the law on the part of the trial court did not have any real bearing on the applicant ’s conviction and could not result in it being quashed .", "The relevant part of the reasoning of ORG judgment reads as follows :", "“ However , one must agree with the appellant that there has been a violation of LAW ] in the present case . This provision concerns the right to marry and in this context ORG Human Right ’s case - law states that a detainee can not be prohibited from marrying , except in order to prevent fictitious unions .... However , in the court ’s decision refusing the request made by the injured party and the accused for leave to marry , it was observed that if they had known each other for DATE and had not managed to officialise their life “ their sudden decision to enter into a marital union shed doubt on their intentions ” , especially as the request “ emerged at a particular moment ... when the court refused to consider [ PERSON ] as a ‘ close person’ ” ; this , in the [ court ] ’s view , was accordingly merely “ a further attempt to persuade the court that the relations between the accused and the injured party [ were ] of a close nature , which , in reality ... [ was ] not the case ” .", "These arguments are not convincing . It is in a way natural that the request for leave to contract a marriage emerged after the court ’s refusal to recognise the injured party ’s status at the trial because the injured party and the accused had previously regarded themselves as close persons . It is also evident that if the accused had not been kept in detention but had been released , there would have been no obstacles to his contracting a marriage . Only his incarceration made it impossible for him and the injured party to decide autonomously to get married . A prospective nuptial couple ( nupturienci ) do not have to prove and demonstrate to the relevant authority the depth of their feelings justifying their marriage . The court ’s decision , especially in view of the reasons given for it , was consequently wrong and amounted to a flagrant breach [ of the law ] since it infringed the standards laid down in LAW , which is binding on GPE . ”", "The relevant domestic law and practice concerning the detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .", "As regards the general situation of a detainee , during criminal proceedings against him he is considered to be “ at the disposal ” ( w dyspozycji ) of the authority – be it a prosecutor or a court DATE currently dealing with the case . CARDINAL of the consequences of this is that a detainee wishing to have visits from relatives in prison , or a visit from any third person or , as in the present case , to contract a marriage during his detention , must first obtain leave from the relevant authority . While the number and nature of visits in prison are regulated by the provisions of the Code of Execution of Criminal Sentences ( ORG karny wykonawczy ) and the Rules for Execution of Detention on Remand ( Regulamin wykonywania tymczasowego aresztowania ) , such matters as leave to contract a marriage in prison are entirely at the competent authority ’s discretion .", "The Code of Criminal Procedure grants an unqualified right not to testify only to the accused ’s closest relatives and an accomplice witness who has been charged with the same offence in another case ( Article CARDINAL ) . Except for national security , in all other situations , even such as client - lawyer privilege , doctor - patient privilege and journalist privilege , the prosecutor or the court can either absolve witnesses from their duty not to disclose confidential information or order them to testify ( Article CARDINAL ) .", "According to LAW , a similar rule applies to persons who are in a “ particularly close personal relationship ” with the accused . This provision reads as follows :", "“ A person who remains in a particularly close personal relationship with the accused may , if he or she has so requested , be absolved from testifying or from replying to a question . ”", "In the light of ORG case - law and legal writing , a “ particularly close personal relationship ” is generally defined as a strong and long - lasting emotional bond between the accused and the witness , resulting , for instance , from friendship , colleagueship , engagement , cohabitation or tutorship such that the act of testifying causes the witness internal conflict .", "Under the provisions of ORG ( PERSON i PERSON ) the registrar of ORG ( PERSON ) may refuse to solemnise a marriage only if there exists a statutory obstacle rendering the marriage null and void , such as age , legal incapacity , mental disorder , bigamy , close affinity of the parties or adoptive relationship ( Articles CARDINAL , DATE , DATE and DATE ) . In case of doubt , the registrar must ask the competent court to rule on whether the marriage can be contracted ( Article CARDINAL ) .", "Pursuant to LAW , a marriage before the registrar may not be concluded until DATE after the persons concerned have made a written declaration that they have no knowledge of any statutory obstacle to the solemnisation of their marriage . At their request and for important reasons , the registrar may solemnise the marriage before the expiry of that term .", "Article CARDINAL of ORG lays down the rules for a proxy marriage . Contracting a marriage through a representative is subject to leave that can be granted by a family court in a non - contentious procedure . It depends on CARDINAL principal conditions . First , the court must be satisfied that there exist “ important reasons ” justifying the departure from the normal procedure . Secondly , the applicant ’s signature on a proxy must , on pain of being null and void , be made in the presence of a notary , who confirms its authenticity by a special declaration .", "ORG case - law and the practice of the domestic courts in respect of proxy marriage is very scant . A few existing rulings of ORG relate to applications by foreigners for leave to contract proxy marriages with NORP women and date back to the CARDINALs .", "The Recommendation of the Committee of Ministers to member states on ORG ( Rec(CARDINAL)CARDINAL ) ( “ FAC ” ) , adopted on DATE , sets out the following standards in respect of the enforcement of custodial sentences and detention on remand that may be relevant to the present case .", "Rule CARDINAL reads :", "“ Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed . ”", "Rule CARDINAL reads , in so far as relevant :", "“ CARDINAL . Prisoners , individually or as a group , shall have ample opportunity to make requests or complaints to the director of the prison or any other competent authority .", "...", "If the request is denied or a complaint rejected , reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority . ”" ]

[ "12", "13", "5" ]

[ "5-4" ]

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[ "The applicants , PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE and GPE in GPE .", "The first applicant works as a commercial clerk ( kaufmännischer Angestellter ) in a private enterprise . He is unmarried and his DATE contributions to the statutory old - age insurance for employees amounted in DATE to ORG CARDINAL,CARDINAL and in DATE to ORG CARDINAL,CARDINAL .", "On DATE the first applicant filed a request to be exempted from his obligation to contribute to the statutory old - age insurance for employees ( gesetzliche GPE ) . He argued that the compulsory insurance violated his right to equal treatment as guaranteed by LAW .", "On DATE ORG ( ORG , ORG ) rejected the applicant ’s request , finding that the applicant , as an employee , was subject to the obligatory old - age insurance under LAW ( ORG , see relevant domestic law below ) , and that he did not meet the requirements to be exempted under sections CARDINAL or CARDINAL of that same law .", "On DATE ORG rejected the applicant ’s objection .", "On DATE the applicant lodged a motion with ORG ( ORG ) with a view to being exempted from the obligatory insurance and to being reimbursed his contributions since DATE , alternatively to reduce his DATE contributions to an acceptable degree and to reimburse the exceeding part .", "He submitted a statement on political , economic and legal aspects of the compulsory insurance scheme . He argued that the obligatory old - age insurance deprived him of the possibility to provide for old age under a private pension scheme , which would yield considerably higher returns on his investments . The pension which he was likely to receive under the statutory old - age insurance was totally disproportionate when compared to his own contributions . This was partly due to the fact that the contributions under the compulsory insurance were not exclusively used to finance contribution - based pensions , but also to finance so called “ extrinsic benefits ” ( versicherungsfremde ORG , see relevant domestic law below ) , including costs incurred by the NORP reunification .", "He further alleged that he was discriminated against when compared to the older generation who currently profited from higher pensions than those which he himself would receive on reaching pension age . Moreover , he complained about discrimination when compared to the group of earners who were not subject to the obligatory insurance system such as self - employed persons and civil servants .", "On DATE ORG rejected the applicant ’s motion . It noted , first , that the legal provisions for exemption did not apply to the applicant . Secondly , ORG found that the compulsory insurance did not violate the applicant ’s rights under LAW . It noted that the legislator had been granted a wide margin of appreciation when taking measures in the social - political area . ORG was obliged to provide for every citizen ’s basic needs . Accordingly , the legislator was entitled to limit the risk of social neediness by introducing a compulsory insurance scheme . It followed that the compulsory insurance as such did not violate the applicant ’s rights under LAW . ORG finally found that the selection of the group of people who were subject to the compulsory insurance scheme was not arbitrary and thus did not violate the applicant ’s right to equal treatment .", "On DATE the Baden - ORG of Appeal ( ORG ) rejected the applicant ’s appeal . Confirming ORG reasoning , that court emphasised that the applicant ’s arguments did not sufficiently take into account the concept of solidarity . Furthermore , ORG referred to the decisions of ORG ( PERSON ) of CARDINAL DATE and of ORG ( Bundesverfassungsgericht ) of DATE , according to which the financing of so - called extrinsic benefits did not violate the applicant ’s rights . The old - age insurance scheme was based on the idea of solidarity and of social compensation ( sozialer PERSON ) which traditionally included an element of social welfare . Even though pension claims had a personal character , they also had to be seen in a distinctly social context . It followed that the legislator was allowed to limit pension claims and to modify benefits as long as these measures served the public welfare and respected the principle of proportionality .", "ORG further found that the applicant advocated a position which was focused on the interests of an insured person who did not become unfit for work , who did not need rehabilitation measures and whose contributions did not benefit a surviving spouse . This line of argument neglected the principles of insurance and of solidarity in an unacceptable way . It finally noted that , during proceedings , the legislator had raised the tax - based financing of the extrinsic benefits and had stabilised the rates of contribution .", "With his appeal on points of law before ORG , the applicant argued that the insurance system amounted to an expropriation for the following reasons : for the applicant , as a single male , the returns would be lower than his contributions . This was due to CARDINAL factors : the fact that the contributions also covered so - called “ extrinsic benefits ” , including the costs incurred by the NORP reunification , the principle of social compensation , the fact that the impact of the negative growth of population was not compensated by a capital reserve , and the additional costs incurred by women ’s higher life expectancy . He alleged that the legislator had overstepped his competencies under LAW , and that his obligation to contribute to the insurance scheme violated his right to freedom of action and to equal treatment under LAW .", "On DATE ORG rejected the applicant ’s appeal on points of law . It found , inter alia , that it was acceptable to subject all employees to an obligatory insurance with a view to their typically higher social vulnerability . Accordingly , the obligation did not depend on the individual ORG ability to provide for themselves . The insurance system was justified by the principle of ORG , which obliged the ORG to provide for the risks of life . Obligatory adherence and contributions were necessary to reach this aim , in particular in order to protect the weaker groups of society . ORG did not examine if the assessment of the applicant ’s future benefits could violate his property rights , as this could only be examined at the time the applicant actually touched his benefits .", "With respect to the applicant ’s complaint about unequal treatment , ORG found that it was justified to limit the obligatory adherence to the group of employees , because these were typically more in need of security . This followed from the fact that employees were typically dependant on exploiting their own capacity to work in order to earn their living . ORG noted that the legislator had applied similar principles to define the group of self - employed persons who were subject to the obligatory insurance ( section CARDINAL of the sixth book of LAW , see relevant domestic law below ) . It further found that the rate of the obligatory contributions did not put an excessive burden on the applicant , which might amount to a violation of his property right .", "The fact that the contributions also covered the so - called “ extrinsic benefits ” did not lead to a violation of the principle of equality , taking into account that these other responsibilities were related to those of the old - age insurance .", "In DATE ORG refused to entertain the applicant ’s constitutional complaint .", "The second applicant works as an executive employee in a private insurance company .", "On DATE the second applicant filed a request to be exempted from his obligation to contribute to the statutory old - age insurance for employees and requested to be reimbursed his contributions .", "On DATE ORG ( ORG für GPE , BfA ) rejected the applicant ’s request .", "On DATE that same authority rejected the applicant ’s objection .", "On DATE the applicant lodged a motion with ORG . He alleged that the obligatory adherence to the insurance scheme amounted to an expropriation and complained about unequal treatment when compared to self - employed persons .", "On DATE ORG rejected the applicant ’s motion , finding that the differentiation between employees and self - employed persons was not arbitrary , but was justified by the different social vulnerability of these groups . ORG further noted that also self - employed persons were increasingly subject to obligatory insurance schemes , for example to the lawyer ’s insurance . The current rate of contribution was not excessive and thus did not violate the applicant ’s property rights . The applicant had not established a violation of his future pension claims . The mere apprehension that his pension claims might be reduced in the future did not lead to a violation of the applicant ’s present property rights .", "On DATE the GPE Social Court of Appeal rejected the applicant ’s appeal , referring mainly to ORG decision .", "On DATE ORG rejected the applicant ’s complaint against the denial of leave to appeal ( Nichtzulassungsbeschwerde ) as inadmissible . It found that the applicant had failed to establish that the subject matter of his motion was of fundamental importance or that the lower court had committed a procedural error .", "On DATE ORG refused to entertain the applicant ’s complaint .", "GPE is divided into QUANTITY books , namely Book One and then Books DATE .", "The Sixth Book of the Social Code ( ORG ) deals with the public old - age insurance scheme ( ORG ) .", "Section CARDINAL ( CARDINAL ) provides that all employees are subject to the obligatory insurance .", "Section CARDINAL stipulates that certain groups of self - employed persons are also subject to the obligatory insurance , such as teachers , nursing staff and midwifes , artisans who do not have their own business and persons who mainly work for CARDINAL single customer .", "According to section CARDINAL the following groups of persons are not subject to the obligatory insurance : ( CARDINAL ) civil servants and judges ; ( CARDINAL ) employees of public or clerical entities insofar as they have pension claims under the civil servant ’s pension scheme or under comparable church regulations ; ( CARDINAL ) members of religious orders insofar as their maintenance according to the rules of that order is assured .", "Section CARDINAL defines certain groups of persons who are exempt from the obligatory insurance , in particular those who are subject to another obligatory insurance scheme or who have claims which are comparable to those of civil servants .", "The amount of the pension paid under the insurance scheme mainly depends on the amount of the insured person ’s income and the time of contribution .", "Besides the pensions and survivor ’s pensions which are based on the insured person ’s contributions , the insurance also grants benefits which are not based on contributions . These payments , which are also referred to as “ extrinsic benefits ” ( versicherungsfremde ORG ) , include pension claims based on times devoted to the raising of children ( NORP ) , pensions compensating the effects of war and injustice ( Kriegsfolge- und Wiedergutmachungslasten ) and payments relating to the conversion of pensions following the NORP reunification .", "The general retirement age is DATE ( section CARDINAL ORG ) . From DATE until DATE , women were entitled to a pension by DATE . In DATE the legislator gradually adapted women ’s retirement DATE .", "The financing of the benefits under the statutory insurance is organised in a revolving system under which payments made over DATE are financed from contributions received in DATE ( ORG , see section CARDINAL ( CARDINAL ) ORG ) .", "The financing is based on the contributions of the insured persons ( a ) , which are complemented by a tax - financed federal state subsidy ( b ) .", "( a ) The contributions are calculated according to the insured person ’s gross wages , which are taken into account up to a certain limit ( GPE ) . This limit is calculated on a yearly basis . In DATE , the limit was set at a yearly income of LAW .", "The contribution rates are also fixed on a DATE basis and developed as follows : DATE : PERCENT , DATE : PERCENT ; DATE : PERCENT ; DATE : PERCENT ; DATE : PERCENT ; DATE PERCENT , DATE : PERCENT , DATE : PERCENT ; DATE : PERCENT of the gross income .", "The contributions have to be paid in equal shares by the employed person and by the employer ( section CARDINAL ( CARDINAL ) no . CARDINAL SGB VI ) .", "( b ) The ORG contributes to the expenses by tax - financed subsidies ( section CARDINAL ORG ) . On DATE the legislator introduced an additional state subsidy which was aimed at financing those expenses under the insurance scheme , which were not covered by contributions ( see no . CARDINAL above ) . These additional payments amounted in DATE to DEM CARDINAL.CARDINAL billion . In DATE , the overall subsidies covered CARDINAL % and in DATE PERCENT of the overall spending ." ]

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[ "The applicant was born in DATE and lived until his arrest in the town of GPE . He is a former deputy governor of GPE .", "On DATE criminal proceedings were instituted against several officials of ORG on suspicion of money laundering and fraud .", "On DATE the applicant was arrested in ORG office where he had been invited for questioning . He was transferred to ORG of ORG ( hereinafter DATE the ORG ) . A record of his arrest , drawn up at TIME on DATE and produced by the Government , indicated that certain documents were found and seized from the applicant 's office . Those documents and other evidence , including witness statements , linked the applicant to or placed him in charge of private and ORG - owned enterprises implicated in money laundering and fraudulent activities and served as the basis for suspecting the applicant of having participated in an aggravated fraud . The relevant part of the record read as follows :", "“ [ The applicant ] , who is suspected of having committed a serious criminal offence , was arrested according to subparagraphs CARDINAL , CARDINAL and CARDINAL of paragraph CARDINAL of LAW of LAW , and because the pre - trial investigating authorities have sufficient grounds to believe that , if released , he may abscond ... , threaten witnesses , destroy evidence or in any other way obstruct the investigation in the present case . ”", "The applicant signed the record , making a handwritten objection to his arrest and the accusations against him .", "On DATE a senior investigator of ORG , with the consent of the acting ORG , lodged an application with ORG , seeking authorisation for the applicant 's detention on remand . The application contained a lengthy description of the fraudulent activities of a number of private and ORG - owned enterprises in which the applicant had allegedly taken part . The senior investigator also drew ORG attention to other circumstances warranting the applicant 's detention , namely the likelihood that he would abscond and pervert the course of justice .", "On DATE ORG authorised the applicant 's detention , finding that he was accused of having committed a serious crime and that , if released , he might threaten witnesses , destroy evidence and obstruct justice .", "The applicant 's lawyer appealed against the decisions authorising the arrest and detention . In particular , she complained that there was no evidence which could serve as grounds for the applicant 's arrest and that if such evidence did exist , it had not been listed in the record of the applicant 's arrest . According to the lawyer , the authorities did not put forward any evidence justifying the conclusion that the applicant was liable to abscond or obstruct justice .", "On DATE ORG upheld the decision of DATE , holding as follows :", "'s application is substantiated because [ the applicant ] may threaten witnesses , destroy evidence in the case and obstruct adjudication of the case . ”", "DATE , on DATE , ORG rejected the lawyer 's complaint concerning the applicant 's arrest , finding that the arrest had been effected in compliance with LAW of LAW .", "On DATE ORG , endorsing the reasons given by ORG , upheld the decision of DATE .", "On DATE ORG extended the applicant 's detention until DATE , holding that there were no grounds warranting his release .", "The applicant 's lawyer appealed . In particular , she complained that ORG had not put forward any reason necessitating the extension of the applicant 's detention .", "On an unspecified date ORG upheld the decision of DATE .", "On DATE ORG extended the applicant 's detention until DATE , reasoning that additional time was required to perform certain investigative actions . ORG further held as follows :", "“ [ The applicant ] is accused of having committed a serious criminal offence ; the court remanded him in custody because he was charged with a serious criminal offence , thus , there are no grounds for a change or annulment of [ the preventive measure ] .", "The court takes into account that the detention is extended only for DATE and DATE .", "The court takes into account that [ the applicant ] has minor children , however , in determining the issue of the extension of detention , the court has regard to the fact that [ the applicant ] is charged with an offence under LAW ( b ) of LAW , that is with having committed a serious crime for which the most lenient penalty is DATE imprisonment . ”", "The decision of DATE was upheld on appeal .", "On CARDINAL DATE ORG extended the applicant 's detention until DATE , citing the same reasons as in the decision of DATE .", "On DATE ORG upheld the decision of CARDINAL DATE , accepting ORG reasoning that the applicant was charged with serious criminal offences and that the investigating authorities needed additional time .", "On DATE the applicant 's lawyer applied for the applicant 's release under his own recognisance not to leave the town . The lawyer argued that the need to hold the applicant in custody had long ceased to exist as the pre - trial investigation had been closed . The lawyer further pointed to circumstances making the applicant 's absconding improbable : the applicant had CARDINAL minor children and permanent places of residence and work , and before his arrest the investigating authorities had summoned him on several occasions and he had never defaulted .", "On DATE ORG dismissed the request for release . It held that the applicant had been charged with aggravated fraud , money laundering , unlawful possession of ammunition and forgery of documents . DATE ORG upheld the decision , endorsing ORG findings .", "On DATE ORG held a preliminary trial hearing , at which the applicant 's lawyers petitioned for the applicant 's release and discontinuation of the criminal proceedings against him . ORG dismissed the request for release because the applicant was charged with serious criminal offences , and if released , could abscond or obstruct establishment of the truth . ORG listed the first trial hearing for DATE .", "NORP The applicant 's lawyers , PERSON , PERSON and PERSON , appealed .", "On DATE ORG returned the statement of appeal to PERSON , stating that the applicant had refused her services .", "DATE the president of Lawyer 's office no . CARDINAL of ORG informed ORG that PERSON and the applicant had signed an agreement according to which PERSON had been entrusted with the authority to appeal against the decision of QUANTITY DATE . PERSON statement of appeal against the decision of QUANTITY DATE was enclosed .", "On DATE ORG accepted PERSON statement of appeal and sent it to ORG . DATE ORG , having heard the arguments by PERSON and PERSON , upheld the decision of DATE . The appeal statement lodged by PERSON was examined by ORG on DATE and dismissed as unsubstantiated .", "At the trial hearing on DATE ORG dismissed the applicant 's lawyer 's application for the applicant 's release .", "DATE the lawyer lodged an appeal against ORG decision .", "On DATE ORG , relying on LAW ( CARDINAL ) of LAW , discontinued the appeal proceedings , finding that the release application had been examined and dismissed at the trial hearing and that such a decision was not amenable to appeal .", "On DATE ORG held a trial hearing . At that hearing the applicant 's lawyer asked for the applicant 's release under his own recognisance . ORG dismissed the request , noting that there were no grounds for the release .", "The applicant 's lawyer , invoking LAW , appealed against the decision of CARDINAL DATE .", "On DATE ORG upheld the decision of CARDINAL DATE . ORG held that the grounds warranting the applicant 's detention had not changed and , thus , the request for release had been dismissed lawfully .", "On DATE ORG dismissed another application for the applicant 's release . It held that no new grounds authorising the applicant 's release had been established . That decision was upheld on appeal on DATE by ORG , which endorsed ORG reasoning .", "On DATE the applicant 's lawyer requested the applicant 's release on a written undertaking not to leave the town . ORG refused to examine the request , finding that it was a mere restatement of the lawyer 's previous release applications .", "At the trial hearing on DATE the applicant unsuccessfully asked ORG to release him . On DATE ORG examined the lawyers ' appeal against the decision of DATE , upholding that decision as lawful . ORG confirmed ORG opinion that there were no grounds authorising the applicant 's release .", "On DATE ORG adjourned the proceedings because the applicant 's co - defendant was ill . The lawyers unsuccessfully petitioned for the applicant 's release . On DATE ORG upheld the decision of DATE because there were no new grounds justifying the release .", "On DATE ORG extended the applicant 's detention until DATE . The relevant part of the decision read as follows :", "“ [ The applicant ] is accused of having committed intentional mercenary and serious crimes . The circumstances which served as the basis for remanding [ the applicant ] in custody have not changed . New circumstances justifying [ the applicant 's ] release ... have not appeared .", "The trial investigation has not been finished , [ the court ] continues to examine the evidence . If released , the accused may obstruct establishment of the truth in the case , abscond or commit new crimes . ”", "On DATE ORG endorsed the reasons given by ORG on DATE and upheld that decision .", "NORP On DATE ORG extended the applicant 's detention until DATE for the same reasons as in the decision of CARDINAL DATE . That decision became final on DATE , when ORG upheld it on appeal , finding that ORG had taken into account all relevant factors , including the applicant 's personality , and that it had lawfully extended the detention .", "On DATE ORG found the applicant guilty of aggravated fraud , unlawful possession of ammunition and forgery of documents and sentenced him to DATE imprisonment .", "On DATE ORG amended the judgment of DATE , discontinued the criminal proceedings on the forgery charge due to the expiration of the statutory limitation period and reduced the sentence by DATE .", "On TIME CARDINAL DATE the applicant 's car was shot at several times . The applicant , his DATE daughter , his bodyguard and his driver were in the car . The applicant was wounded , his bodyguard received serious injuries and the driver was killed .", "On DATE the applicant gave a press conference , at which he accused Mr M. , an ORG general and candidate in the upcoming election of ORG , of having tried to kill him .", "A complaint lodged by PERSON with ORG led to the institution of criminal proceedings against the applicant on a charge of criminal libel on DATE .", "On DATE the applicant , in the presence of his lawyer , PERSON , was served with the final text of the bill of indictment and was questioned as the accused . On the same day PERSON began studying the case file , in compliance with the requirements of LAW . DATE the applicant and PERSON finished reading the file and made handwritten notes to that effect in a case file record .", "On DATE the applicant was committed to stand trial before the Justice of the Peace of the CARDINALth ORG of GPE , which , at the applicant 's and PERSON request , fixed a preliminary hearing for DATE .", "At the first trial hearing , held on DATE , the applicant successfully asked the Justice of the Peace to adjourn the proceedings to allow his lawyer to study the case file . On DATE the Justice of the Peace granted another request by the applicant and allowed CARDINAL other lawyers retained by the applicant to enter the proceedings .", "A number of trial hearings were held DATE and DATE , at which the applicant was mostly represented by Ms GPE .", "At the trial hearing on DATE the applicant notified the Justice of the FAC that he no longer intended to participate in the trial and that he had terminated his contracts with all his lawyers . On DATE the Justice of the FAC decided to proceed with the examination of the case in the applicant 's absence , dismissed CARDINAL of the applicant 's lawyers from the proceedings and ordered that PERSON , the applicant 's third counsel , should continue representing him . The ORG adjourned the hearing until TIME . After the lunch break , the hearing resumed . PERSON read out the applicant 's repeated refusal of her services and left the courtroom , without waiting for the ORG 's response to it .", "On DATE the Justice of the Peace held that PERSON had committed contempt of court because she had left the courtroom without permission . The ORG also sent a notification to the President of ORG concerning PERSON actions and asking him to ensure that she attended the following hearing .", "PERSON attended the following hearing . She informed the Justice that she refused to assist the applicant , referring to his refusal of her services .", "At the following hearing , on DATE , PERSON defaulted . The Justice of the Peace issued an interim order and again notified ORG of PERSON actions .", "On DATE the Justice of the Peace found the applicant guilty of aggravated libel and sentenced him to DATE probation . The Justice of the FAC based its judgment on testimonies by the victim and CARDINAL witnesses who had attended the press conference given by the applicant , a written record and audio and video recordings of the press conference , a letter from ORG indicating that it had no information concerning participation by PERSON in any illegal activities and a record of the applicant 's questioning . The Justice of the Peace held , in particular :", "“ ... the court characterises the actions of [ the applicant ] ... as dissemination of false information defaming the honour and dignity of another person and damaging his reputation , connected to accusation of that person of having committed an especially serious criminal offence , because he , by oral statements [ addressed ] to a number of persons , disseminated false information concerning the organisation by PERSON of the attempted murder of [ the applicant ] . He disseminated that information in an affirmative rather than a presumptive manner . Furthermore , [ the applicant ] knew that PERSON was a top ranking governmental official who , at the time the statement was made , was running for election as Governor of GPE , thus any discreditable information could damage his reputation in some way . The statements made by [ the applicant ] were false ... unfounded and unsubstantiated : at the time the statements [ were made ] no criminal proceedings were instituted against PERSON and no other investigative measures were taken by law enforcement agencies ; the statement did not contain references to any reliable evidence or documents proving the truthfulness of the statement , or any reference to sources of information on the basis of which [ the applicant ] had concluded that PERSON had participated in the criminal offence committed against him . ORG , [ the applicant ] understood that , but he publicly and intentionally made the above - mentioned statement in the presence of representatives of the mass media , accusing PERSON of having committed an especially serious crime , thereby defaming the victim , his honour and his dignity , and [ the applicant ] , in his official position as the deputy Governor of GPE , must have been aware of that .", "At the meeting of the administration of GPE of DATE , [ the applicant ] only put forward one piece of evidence to substantiate his statement about Mr NORP involvement in the attempted murder : DATE before the [ attempted murder ] General PERSON had threatened him ( [ the applicant ] ) in the presence of a deputy president of ORG , PERSON , and a deputy prosecutor of GPE , PERSON This submission ... was examined in the course of the trial but was not proven , because PERSON and PERSON , questioned as witnesses in open court , did not confirm it . The court does not see any reason not to trust those witnesses . No other evidence proving the truthfulness of [ the applicant 's statement ] was presented .", "The court also notes that [ there is evidence confirming ] the defendant 's intention to disseminate the false statements publicly ( whatever his reasons ) and thus to negatively influence people 's opinion of the victim , in order to damage his reputation before the election : firstly , the affirmative , rather than presumptive character of the statement ; the content of the [ the applicant 's ] speech before and after the libellous statement ; the dissemination of the false information at the meeting of the administration of GPE , that is , to individuals who had no right to institute criminal proceedings and verify the statement ; the fact that the statement was made on several occasions ... after the attempted murder ... and in the course of the pre - trial investigation ... Moreover , the false character of the statement made by [ the applicant ] was confirmed by his confession made at a press conference on DATE , during which he had confirmed that as far as he knew Mr PERSON had not participated in the attempted murder , and [ the applicant ] had apologised . ”", "The applicant and his CARDINAL lawyers appealed against the judgment of CARDINAL DATE . In particular , they complained that the Justice of the Peace had proceeded with the trial after the applicant refused to participate , and that it had forced PERSON to represent the applicant despite the fact that he had refused the assistance of his QUANTITY lawyers , including PERSON . PERSON also filed a separate appeal against the interim orders of CARDINAL and CARDINAL DATE .", "On DATE ORG , in the presence of the applicant and his CARDINAL lawyers , upheld the judgment of CARDINAL DATE . As regards the applicant 's complaint concerning his defence rights , ORG held that under NORP law a lawyer could not refuse to represent a defendant if he had already undertaken such a responsibility . However , the defendant could refuse legal assistance . Such a refusal would not be binding on the court , if the defendant , at the same time , asked for the case to be determined in his absence . Thus , the Justice of the Peace had lawfully ordered that PERSON should continue representing the applicant because the latter had not wished to participate in the trial , had refused the assistance of his lawyers and had not asked the trial court to appoint another lawyer .", "On DATE ORG upheld the interim orders of CARDINAL and CARDINAL DATE .", "On DATE ORG , in the final instance , upheld the judgments of DATE and DATE and the interim orders of CARDINAL and CARDINAL DATE . The applicant and CARDINAL of his lawyers attended the hearing .", "Until DATE criminal - law matters were governed by LAW of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .", "“ Preventive measures ” include an undertaking not to leave a town or region , a personal guarantee , bail and remand in custody ( LAW CCrP , LAW ) .", "LAW of DATE provides that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .", "Under the old ORG , a decision ordering detention could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .", "The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor , supported by appropriate evidence ( LAW CARDINAL , CARDINAL - CARDINAL ) .", "When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial , obstruct the establishment of the truth or reoffend ( LAW CCrP ) . 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 CCrP , LAW ) .", "Before DATE , remand in custody was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . On DATE the old ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment , if they had previously defaulted , had no permanent residence in GPE or their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .", "The Codes make a distinction CARDINAL types of remand in custody , the first being “ during investigation ” , that is , while a competent agency – the police or a prosecutor 's office – is investigating the case , and the second being “ before the court ” ( or “ during judicial proceedings ” ) , at the judicial stage . Although there is no difference in practice between them ( the detainee is held in the same detention facility ) , the calculation of the time - limits is different .", "After arrest the suspect is placed in custody “ during investigation ” . The maximum permitted period of detention “ during investigation ” is DATE but this can be extended for DATE in “ exceptional circumstances ” . Under the old ORG , extensions were authorised by prosecutors of ascending hierarchical levels , but they must now be authorised by judicial decisions , taken by courts of ascending levels ( under the new CCrP ) . No extension of detention “ during investigation ” beyond DATE is possible ( LAW CCrP , LAW of the new ORG ) .", "The period of detention “ during investigation ” is calculated up to the date on which the prosecutor sends the case to the trial court ( Article CARDINAL of the old CCrP , Article CARDINAL § CARDINAL of the new CCrP ) .", "Access to the materials in the file is to be granted DATE before the expiry of the authorised detention period ( LAW CCrP , LAW of the new ORG ) . If the defendant needs more time to study the case file , a judge , at the request of a prosecutor , may grant an extension of the detention until such time as the file has been read in full and the case sent for trial ( LAW CCrP , LAW ( CARDINAL ) of the new ORG ) . Under the old ORG , such an extension could not be granted for DATE .", "DATE . Under the old ORG , the trial court was entitled to refer the case back for “ additional investigation ” if it found procedural defects that could not be remedied at the trial . In such cases the defendant 's detention was again classified as “ during investigation ” and the relevant time - limit continued to apply . If , however , the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “ during investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE , starting from the date on which he or she received the case . Subsequent extensions could only be granted if the detention “ during investigation ” had not exceeded DATE ( Article CARDINAL ) .", "From the date the prosecutor refers the case to the trial court , the defendant 's detention is classified as “ before the court ” ( or “ during judicial proceedings ” ) .", "Before DATE the old ORG set no time - limit for detention “ during judicial proceedings ” . On DATE a new Article , CARDINAL - CARDINAL , entered into force which established that the period of detention “ during judicial proceedings ” could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant 's release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with particularly serious criminal offences .", "The new ORG provides that the term of detention “ during judicial proceedings ” is calculated from the date the court received the file up to the date on which judgment is given . The period of detention “ during judicial proceedings ” 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 ) .", "Under the old ORG , the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor , and any subsequent extension order , before a court . The judge was required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . The review was to be conducted in camera in the presence of a prosecutor and the detainee 's counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances , if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee 's release ( LAW ) . An appeal to a higher court lay against the judge 's decision . It had to be examined within the same time - limit as appeals against a judgment on the merits ( Article CARDINAL in fine ) .", "Under the new ORG , an appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention . The appeal court must rule on the appeal within DATE of its receipt ( LAW ) .", "Upon receipt of the case file , the judge must determine , in particular , whether the defendant should be held in custody or released pending the trial hearings ( LAW and LAW CCrP , LAW ) and LAW ( CARDINAL ) of the new ORG ) and rule on any application by the defendant for release ( LAW CCrP ) .", "At any time during the judicial proceedings the court may order , vary or revoke any preventive measure , including remand in custody ( LAW CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberation room and signed by all the judges on the bench ( LAW ORG , LAW ) .", "DATE . An appeal against such a decision lies to a higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP ) .", "Under the old ORG , within DATE after receipt of the case file ( if the defendant was in custody ) , the judge was required to do one of the following : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to refer the case back for further investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court having jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ; or ( CARDINAL ) to fix a trial date ( Article CARDINAL ) . In this last case , the trial proceedings must begin no later than DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .", "The duration of the entire trial proceedings is not limited in time .", "Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE after it was lodged . In exceptional circumstances or in complex cases or in proceedings before ORG this period could be extended by DATE ( Article CARDINAL ) . No further extensions were possible .", "The new ORG requires the appeal court to start examining an appeal DATE after it is lodged ( Article CARDINAL ) .", "Article CARDINAL of the new CCrP , in so far as relevant , reads as follows :", "“ CARDINAL . Participation of legal counsel in the criminal proceedings is mandatory if :", "CARDINAL ) NORP the suspect or the accused has not waived legal representation in accordance with LAW ;", "CARDINAL ) NORP the suspect or the accused is a minor ;", "CARDINAL ) NORP the suspect or the accused can not exercise his right of defence by himself owing to a physical or mental handicap ;", "CARDINAL ) the court proceedings are to be conducted [ in the absence of the accused ] in accordance with LAW of this Code ;", "CARDINAL ) NORP the suspect or the accused does not speak the language in which the proceedings are conducted ;", "CARDINAL ) the suspect or the accused faces serious charges carrying a term of imprisonment DATE , life imprisonment or the death penalty ;", "CARDINAL ) NORP the criminal case falls to be examined by a jury trial ;", "CARDINAL ) the accused has filed a request for the proceedings to be conducted [ without a hearing ] under LAW of this Code ;", "...", "In the circumstances provided for by paragraph CARDINAL above , unless counsel is retained by the suspect or the accused , or his lawful representative , or other persons at the request , or with the consent , of the suspect or the accused , it is incumbent on the investigator , prosecutor or the court to ensure participation of legal counsel in the proceedings . ”", "Article CARDINAL of the Code provides that a suspect or an accused may refuse legal assistance at any stage of criminal proceedings . Such a waiver may be accepted only if made on the initiative of the suspect or the accused . The waiver must be filed in writing and must be recorded in the official TIME of the relevant procedural act . The refusal of legal assistance may not strip the suspect or accused of the right to ask to be assisted by counsel during further procedural actions in the criminal case . The admission of a lawyer may not lead to the repetition of procedural actions which have already been performed by that time .", "The presence of a defendant at the trial is mandatory unless , in a case which does not concern a grave criminal offence , the defendant petitions the court for the case to be examined in his absence ( LAW and CARDINAL of the new CCrP ) .", "Chapters CARDINAL of the new CCrP regulate procedure for lodging and examining appeals against judgments taken by justices of the peace . In particular , LAW establishes that a district court , when examining an appeal against a judgment taken by a justice of the peace , should conduct a judicial investigation which includes examination of the parties ' submissions and evidence , including the hearing of witnesses , experts , and so on . The district court may , at the parties ' request , hear new witnesses , authorise an expert examination , and collect material evidence and documents , even if the justice of the peace previously refused to perform those procedural actions . The district court may not dismiss a party 's request pertaining to examination of new evidence on the ground that such a request was also dismissed by the justice of the peace ." ]

[ "5" ]

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[ "10", "5", "6" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .", "On DATE the applicant lodged a civil action with ORG ( Sąd Rejonowy ) asking for discontinuation of the construction works carried out on an adjacent plot of land .", "On DATE ORG gave judgment .", "On DATE the applicant lodged an appeal against this judgment with ORG ( PERSON ) . On DATE ORG gave judgment and upheld the first - instance judgment .", "On DATE the applicant ’s lawyer lodged a cassation appeal with ORG ( Sąd Najwyższy ) .", "On DATE ORG refused to examine the cassation appeal , considering that it had been manifestly ill - founded . That decision was served on the applicant on DATE .", "On DATE , the date on which the application was lodged with the ORG , the proceedings were pending before ORG .", "On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .", "Section CARDINAL of the CARDINAL Act reads , in so far as relevant :", "Section CARDINAL reads , in so far as relevant :", "“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”", "Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :", "“ CARDINAL . The court shall dismiss a complaint which is unjustified .", "NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .", "At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .", "NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”", "Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :", "“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .", "... ”", "On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant initiated civil proceedings against the local administration seeking formal acknowledgment of his entitlement to child benefits and the relevant arrears .", "On DATE the ORG of GPE ( “ the ORG ” ) dismissed his claims finding that he was not eligible for the sought benefits . The applicant appealed against the judgment .", "On DATE ORG summoned the applicant to appear at the appeal hearing fixed for DATE . There is no evidence that the summons was dispatched or that the applicant indeed received it .", "On DATE ORG examined and dismissed as unfounded the applicant ’s appeal . The applicant was absent from the appeal hearing , and the appeal court did not examine the question of his due notification at the hearing .", "According to the applicant , on DATE he inquired about the date of the appeal hearing at the registry of ORG and was told that ORG had already examined and dismissed his appeal ." ]

[ "6" ]

[ "6-1" ]

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[ "NORP The applicant , PERSON Lysaya , is a NORP national who was born in DATE and lives in GPE , in the GPE region . She was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant ’s husband , PERSON , who had no previous criminal record , was apprehended on suspicion of theft . The same day he confessed to having been an accomplice in a theft committed with CARDINAL other individuals .", "On DATE the prosecutor of ORG charged the applicant ’s husband with theft and decided to place him in FAC of ORG ( the ORG ) in cell no . CARDINAL , which he shared with CARDINAL other detainees , PERSON , PERSON and PERSON .", "On DATE the applicant ’s husband was examined by a medical team at his own request . A doctor gave him an injection of chloromazine , finding that the applicant ’s husband was suffering from minor bodily injuries and hallucinations as a result of alcohol intoxication .", "On DATE at TIME the ORG administration requested medical assistance for the applicant ’s husband . He was transferred by ambulance at TIME to the emergency unit of ORG , where he died on DATE .", "According to the autopsy report of DATE , the applicant ’s husband died from serious multiple bodily injuries , namely ; head and chest injuries , a brain haemorrhage , a broken chest bone , broken ribs on both sides , injuries to his lungs inflicted by fragments of broken ribs and chest bones , and an internal haemorrhage into the kidneys and stomach .", "On DATE the applicant lodged a complaint with ORG against the officers of ORG for murdering her husband .", "On DATE ORG instituted criminal proceedings into the death of the applicant ’s husband .", "On DATE the Prosecutor of ORG sent a petition to the Head of ORG , referring to violations of regulations in the Antratsyt ITT , in particular the placing of persons without any previous criminal record with those who had been convicted before , and failure of the ORG officers to comply with their duties properly and to react effectively to breaches of discipline by detainees . The ORG requested that the officers responsible for the situation involving the applicant ’s husband be disciplined .", "On DATE the ORG conducted an internal inquiry , which resulted in disciplinary sanctions against some of the police officers . The results of the disciplinary proceedings were reviewed and overruled on DATE by ORG , which issued an order acknowledging that the failure of the officers of the LOC police station to isolate the applicant ’s husband and the violation of police regulations had led to serious circumstances . They decided to impose stricter disciplinary sanctions on those responsible and their superiors . As a result , CARDINAL officers were downgraded in their positions , CARDINAL officers were warned about their partial non - compliance with the requirements of their posts , and CARDINAL more officers were reprimanded .", "On DATE the investigation charged Mr S. with inflicting bodily harm on the applicant ’s husband .", "On DATE an additional forensic medical examination was ordered by the investigator to define which injuries had been inflicted on the applicant ’s husband by each of his cellmates .", "On DATE the investigation charged PERSON with inflicting bodily harm on the applicant ’s husband .", "On DATE the investigation conducted an on - site reconstruction of the crime with Mr S.", "On DATE the additional forensic medical examination was carried out .", "On DATE the prosecutor Zh . refused to institute criminal proceedings against the police officers of ORG for lack of proof of their involvement in the crime", "On DATE the applicant filed a claim for damages against Mr S. , PERSON and PERSON .", "On DATE the investigation charged PERSON . with inflicting bodily harm on the applicant ’s husband .", "On DATE the applicant studied the case file , which contained all the procedural decisions taken prior to that date .", "On DATE the investigation was completed and the criminal case was sent to ORG ( “ the ORG ” ) for examination .", "On DATE ORG held a preparatory hearing and accepted the case for examination .", "On DATE , ORG for ORG allowed the applicant ’s request for assistance in the protection of her rights in the proceedings and authorised Mr PERSON to act in the criminal proceedings as a “ public accuser ” in her interests . The same day the above - mentioned NGO requested ORG to admit PERSON as a “ public defender ” in the criminal proceedings concerning the death of the applicant ’s husband .", "NORP In the course of the proceedings , the applicant alleged that her husband had been tortured by the police , had had a broken skull and metal objects under his nails . On DATE an additional forensic medical examination , ordered by the court , provided further clarifications in relation to the previous expert opinions . The expert confirmed that the applicant ’s husband had sustained numerous injuries , but denied the existence of the broken skull and presence of metal objects under the nails of the victim , as alleged by the applicant .", "On DATE ORG found PERSON and PERSON . guilty of inflicting bodily injuries on the applicant ’s husband , causing his death . The court also found that the police officers had had no reason to beat the applicant ’s husband , as he had already pleaded guilty by the time of the incident . It also found that the applicant ’s husband had been suffering from chronic alcoholism and had been very aggressive towards the other cellmates . It found that the injuries had been inflicted by the persons who were held in the same cell with the applicant ’s husband , who had been defending themselves against his aggressive behaviour , which had been caused by his alcohol - related dependence ( delirium tremens ) . The court stated that the applicant ’s husband had sustained the following injuries on DATE : a cerebral haemorrhage , haemorrhage of both eyelids , left auricle and lips , a broken nose , an injury to the lower eyelid , abrasion of the lumbar region , a haemorrhage of the right kidney capsule and bruises to the lumbar region , all of which amounted to “ moderate bodily injuries ” for the purposes of assessing the impact on his health . The court further established that on DATE the applicant ’s husband had been severely beaten by PERSON and had had a conflict with other detainees . Moreover , it found that on DATE Mr S. had tied the applicant ’s husband up with a shirt and left him lying injured on the floor of the cell until TIME . The court sentenced PERSON and PERSON . to DATE , DATE of imprisonment . The judgment also mentioned that no civil claim had been lodged in the case .", "On DATE ORG made a separate ruling concerning shortcomings in the work of investigation . It noted that the allegations of the applicant as to signs of torture had not been fully checked at the pre - trial stage and therefore the court had had to order an additional forensic examination to verify the applicant ’s allegations ( see paragraph CARDINAL above ) , although that examination could have been carried out at the pre - trial stage .", "On DATE Mr S. lodged an appeal in cassation with ORG . Not denying the fact that he had beaten the applicant ’s husband , he claimed that he had acted in self - defence and therefore requested a re - examination of the case .", "Having been informed that Mr S. had lodged an appeal against the judgment of DATE , the applicant decided not to appeal against that judgment . She did not submit any written submissions to the appeal of Mr S. According to the applicant she had expected to present her arguments orally , but she had not been duly notified of the date of the hearing . According to the Government , the relevant notification had been sent to the applicant .", "Following amendments to LAW , which entered into force on DATE and introduced CARDINAL levels of jurisdiction in lieu of CARDINAL , ORG ( now ORG ) examined the case as a second , appellate instance on DATE . PERSON , who had allegedly found out about the hearing by chance , was not allowed to present his arguments to ORG , since he was not legal counsel for the applicant or any other party , while the procedural figure of public accuser , in which capacity Mr PERSON had entered the proceedings in the first instance , had been completely abolished following the above - mentioned amendments to LAW . The court , in the absence of the parties , upheld the judgment of DATE with minor amendments . It found no evidence that injuries had been inflicted on the applicant ’s husband by police officers .", "The applicant appealed in cassation to ORG . She maintained that her husband had been killed by the police officers and the sentenced persons had confessed to a crime that they had not committed . She further complained that she could not present her arguments to the court of appeal as she had not been duly summoned to it .", "On DATE ORG rejected the applicant ’s appeal in cassation against the judgment of DATE and the decision of DATE , respectively , as being unsubstantiated . It also found the conclusions of the lower courts well - founded .", "Prior to DATE the criminal proceedings in GPE had comprised CARDINAL levels of jurisdiction : a first - instance court and a court of cassation . After a judgment had been given by a first - instance court , the parties had DATE to lodge an appeal in cassation .", "The Code defined the roles of “ public accuser ” and “ public defender ” , which were introduced in NORP times with the aim of achieving a more active participation of the public in criminal proceedings . Under LAW representatives of non - governmental organisations and groups of employees could participate in judicial proceedings ( not at the stage of investigation ) both on the side of the prosecution and on the side of the defence . The court could rule to allow a representative of an NGO to participate as a “ public accuser ” in the court hearings on behalf of his or her organisation . Under the said Article the public accuser was entitled to give testimonies , to examine evidence , make requests , express his or her opinion about the requests of other participants in the proceedings , to request withdrawals , to take part in the court deliberations , and give his or her opinion . The public accuser was not entitled to appeal against a judgment of a court in a criminal case in which he or she had participated . The role of public accuser was complementary to that of the prosecutor and the representative of the aggrieved party .", "Following LAW of DATE ( which entered into force on DATE ) , criminal proceedings are examined at CARDINAL or CARDINAL levels of jurisdiction depending on the seriousness of the case . If the case was first decided in a local court , the decision is appealable to the regional court of appeal and then to ORG , as a court of cassation . The LAW also repealed the provisions concerning the roles of “ public accuser ” and “ public defender ” in their entirety ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE , the applicant lodged with ORG an action for recovery of possession ( acţiune în revendicare ) of a plot of land that , although recorded in the land register ( cartea funciară ) as belonging to ORG , she claimed she had inherited it from ORG who had received it from the ORG in exchange for another plot of land .", "The CARDINAL courts that dealt with the case found in favour of the applicant . ORG gave its decision on DATE . Upon appeals by ORG , ORG upheld it on DATE and ORG on DATE , the latter by means of a final and irrevocable decision .", "NORP Before all the courts that dealt with the case , ORG argued that certificate no . CARDINAL of CARDINAL DATE , used by the applicant in order to prove her ownership title , was false as it contained a series of irregularities .", "The first - instance court and the appeal court rejected the argument on the ground that the defendant had not brought evidence to prove the allegations . Moreover , the courts noted that , according to the information in their possession , no criminal proceedings had been started on the matter .", "The court of last resort rejected ORG request that the proceedings be stayed until the courts had ruled on the nullity of the certificate ( procedure described at CARDINAL below ) . On the merits , it noted as follows :", "“ The [ defendant ’s ] allegations about the existence of irregularities in certificate no . DATE of CARDINAL DATE ... seem well - founded . However , this certificate established a prima facie case [ început de probă scrisă ] which entitled the firstinstance court to examine additional evidence ; witness testimonies confirmed that the property title in dispute had been transferred from the ORG to ORG , who exercised public and peaceful possession without causing any nuisance ... This situation is also confirmed by the evidence on the consolidations of land that had taken place . The fact that the exchange of land occurred is undoubtedly proved by letter no . CARDINAL of DATE , issued by ORG ... , which can not be contested ... ”", "It also noted that the criminal investigation into the alleged forgery of the DATE certificate had been terminated on DATE as the time - limits for criminal responsibility had expired . However , ORG considered that the evidence adduced , in particular the letter of ORG CARDINAL DATE , rendered that investigation devoid of relevance in any case .", "On an unspecified date the applicant ’s ownership title was recorded in the land register .", "On DATE ORG lodged with ORG an action against the applicant , seeking that the CARDINAL DATE certificate above be set aside because it contained irregularities . The applicant argued that the issue was res judicata in so far as the courts ruling on the action for recovery of possession had already dealt with the matter .", "The case was transferred to ORG which , on DATE , allowed the action , established that the document was false and set it aside .", "Appeals by the applicant were rejected successively by ORG , on DATE , and by ORG , in a final decision of DATE .", "Following the ruling of ORG , ORG sought the revision of the final decision of CARDINAL DATE ( cerere de revizuire ) . It also asked the Procurator General to lodge an application with ORG to have that decision set aside ( recurs PERSON anulare ) .", "In a final decision of DATE , ORG allowed the Procurator General ’s request , noted that the DATE certificate had been declared false , quashed all the decisions rendered in the action for recovery of possession and , ruling on the merits , rejected the initial action on the ground that the applicant had failed to prove her ownership title .", "ORG considered as follows :", "“ Although according to LAW the judges have an obligation to use all legal means in order to prevent any error in establishing the truth , by a correct determination of facts and application of law , the court of last resort rejected as ill - founded the request for a stay in the proceedings , although the ruling in the [ parallel ] action for nullity was essential for adopting a lawful decision . ”", "On DATE , at ORG request , ORG took note of ORG decision and struck off the request for revision .", "The relevant provisions of LAW read as follows :", "“ A final decision ... shall be revised in the following cases :", "...", "NORP ... if the decision was adopted based on an act which was declared false either during or after the proceedings . ”", "“ The Procurator General may , of his own motion or on an application by the Minister of ORG , apply to ORG for a final decision to be quashed on any of the following grounds : ...", "NORP when the decision in question has seriously infringed the law by giving a wrong solution on the merits of the case , or when the decision is manifestly illfounded ; ... ”", "Article CARDINAL has been repealed by LAW no . CARDINAL of DATE ." ]

[ "6", "P1" ]

[ "P1-1" ]

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[ "The applicants , whose particulars are set out in the appendix , are NORP nationals . They are the parents and siblings of Mr ORG who disappeared in DATE . The applicants were represented before the ORG by PERSON , a lawyer practising in GPE .", "ORG and as they appear from the documents submitted by them , may be summarised as follows .", "On DATE ORG was performing his military service in the town of GPE when he went missing . No information was given to the family about his disappearance by the military authorities and the family became aware of it when his father PERSON – who is the first applicant – tried to contact him .", "On DATE ORG petitioned the NORP prosecutor and asked the prosecutor to find his son . On DATE the prosecutor concluded that ORG had not disappeared but gone absent without leave ( ORG ) , and closed the investigation . The prosecutor ’s decision was communicated to Mr Özsüren on DATE .", "In the meantime , and on subsequent dates , steps were taken by the military authorities to find ORG who , in their opinion , had gone AWOL .", "On DATE the first applicant , ORG , sent a letter to the commander of ORG , and asked for his son to be found . Pursuant to Mr Özsüren ’s request an administrative investigation was conducted at the military barracks where ORG disappeared , but that investigation did not yield any results . The investigators recommended that military judges instigate a judicial investigation .", "In DATE the military authorities instituted a criminal case against ORG for having gone AWOL , and issued a warrant for his arrest .", "Nothing has been heard from ORG since his disappearance and the criminal proceedings against him are still pending in absentia ." ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE , GPE .", "Police officers from the anti - terrorist branch of ORG arrested the applicants on suspicion of membership of an illegal organisation , the ORG ( ORG Party ) , and placed them in custody on CARDINAL and DATE respectively . Both applicants alleged that they had been beaten and insulted by policemen on the way to ORG .", "On DATE the public prosecutor attached to ORG ordered the extension of the applicants ' custody period until DATE .", "The applicants alleged that during their interrogation by the police , they had been kept blindfolded and forced to give information about persons they did not know . They were allegedly subjected to various forms of ill - treatment by police officers . They claimed they were beaten , strung up by the arms , threatened with death and given electric shocks .", "On CARDINAL DATE the applicants were allegedly forced to sign police statements about their activities in the ORG and their connections with other ORG members .", "On CARDINAL DATE the applicants were examined by ORG medical expert along with CARDINAL other detainees . In his report , the institute 's doctor noted that there were no signs of beating , force or violence on the bodies of the applicants , whereas he had spotted certain signs of injury on the bodies of CARDINAL other detainees .", "On CARDINAL DATE the first applicant underwent a second medical examination in prison . According to the prison doctor 's report , the applicant had fading bruises on his body and ecchymoses on his left foot . The applicant was later transferred to ORG where another medical expert examined him . In a report dated DATE , it was concluded that the applicants ' injuries , as cited in the report of the prison doctor , would prevent him from carrying out his work for DATE .", "On DATE the prison doctor also examined the second applicant . In his report , the doctor noted the presence of abrasions on the penis , pain in the chest and ecchymoses under the left eye . He also noted that the applicant had described a feeling of pain while chewing and pain on both shoulders .", "On CARDINAL DATE the applicants were brought before the public prosecutor attached to ORG . In their questioning they denied their police statements and rejected the allegations against them .", "On DATE they were brought before ORG , where they repeated their denials in relation to the statements taken by the public prosecutor . The court ordered the applicants ' detention on remand on account of the nature of the accusations against them and of the evidence already available .", "On DATE the public prosecutor initiated criminal proceedings against the applicants in ORG and charged them with carrying out acts aimed at the separation of a part of LOC .", "On DATE the applicants filed a complaint with the PERSON public prosecutor 's office alleging that they had been subjected to various forms of ill - treatment during their detention in police custody .", "By decisions of CARDINAL and CARDINAL September CARDINAL the PERSON public prosecutor declined to bring any criminal proceedings against the police officers , because of a lack of evidence against them .", "On DATE the applicants filed an appeal with ORG against this decision .", "On DATE ORG dismissed the appeal lodged by the second applicant on the ground that there was insufficient evidence to commit the police officers for trial . The court , however , upheld the appeal in respect of the first applicant .", "On DATE ORG filed an indictment with ORG accusing CARDINAL police officers from ORG of inflicting ill - treatment on the first applicant .", "On DATE ORG acquitted the QUANTITY police officers on the ground that there was no sufficient and convincing evidence which would enable the court to convict the accused . The court reasoned that the complainant could not identify the police officers since he had allegedly been kept blindfolded while being tortured and that ORG report stated that no lesions had been seen on his body . It further noted that ORG report had been given DATE after the alleged incident and that the accused had denied the allegations .", "The Criminal Code makes it a criminal offence to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL respectively ) ." ]

[ "3" ]

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[ "The applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE . She is represented before the Court by PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE , after having undergone CARDINAL knee operations , the applicant resigned from her full - time job . Continuing to suffer from pain , she felt that she was no longer capable of working full - time . She subsequently started to work on a freelance basis . Having married in DATE , the applicant stopped her freelance professional activities in DATE . The applicant and her husband separated in DATE and divorced in DATE .", "On DATE , given its then imminent entry into force , the applicant applied for benefits under ORG ( Algemene Arbeidsongeschiktheidswet ; “ AAW ” ) on account of her incapacity for work as a result of the medical problems which she had experienced with her knees since DATE .", "Her request was rejected on DATE by the competent occupational association ( bedrijfsvereniging ) which found that her incapacity for work did not exceed PERCENT , i.e. the minimum level of incapacity for entitlement to AAW benefits . The applicant filed an appeal with ORG ( PERSON ) , arguing that , in addition to knee problems , her incapacity was also due to psychiatric problems , for which she had begun treatment in DATE .", "Pending those appeal proceedings , the occupational association reconsidered its decision on the basis of the conclusions of psychiatric and orthopaedic examinations of the applicant . These examinations had been requested by ORG and the results were submitted to the social security medical experts . According to the latter , the applicant was suffering from more severe psychiatric / social problems than had initially been assumed . On DATE the occupational association informed the applicant that it had withdrawn its decision of CARDINAL DATE . Finding that the applicant was PERCENT incapacitated for work on DATE , i.e. the date on which the ORG entered into force , she was granted AAW benefits corresponding to that level .", "On DATE the social security authorities informed the applicant that , pursuant to the Act of CARDINAL DATE ( see below under “ Relevant domestic law ” ) , AAW benefits would be withdrawn if a beneficiary had become incapacitated for work before DATE without having earned any income from work in DATE the occurrence of the incapacity . As the applicant 's incapacity had occurred on DATE and as it did not appear that she had received an income from work during DATE , her benefits would be withdrawn from DATE .", "By a decision of CARDINAL DATE the social insurance authorities informed the applicant that , in view of the provisions of LAW ( see below under “ Relevant domestic law ” ) , the decision to withdraw her benefits from DATE had been annulled . She was further informed that , although her benefits would be continued to be paid for the time being , in view of measures announced by the Government it remained possible that her benefits would be withdrawn from DATE .", "On DATE the social insurance authorities informed the applicant that , in application of LAW of CARDINAL DATE as amended by LAW DATE , her AAW benefits would be withdrawn from DATE . On DATE the applicant filed an appeal against this decision with ORG ( arrondissementsrechtbank ) .", "On DATE the Acting President of ORG informed the applicant that the examination of her appeal would be adjourned pending the outcome of proceedings before ORG ( ORG ) in a similar case . On DATE ORG informed the applicant that , in similar cases pending before ORG , the tribunal intended to put preliminary questions to ORG of ORG ( ECJ ) . As the answer to those questions could be of importance for the applicant 's case , her appeal would be adjourned pending the determination by ORG of those similar cases , and this could take some time .", "On DATE , the ECJ gave its ruling on the preliminary questions put by ORG ( see below under “ Relevant domestic law ” ) . This ruling was published in the Social Security Law Reports ( PERSON – “ RSV ” ) PERSON .", "On DATE , following a hearing held on DATE , ORG dismissed the applicant 's appeal . It rejected the applicant 's argument that she should be considered as having become incapacitated for work in DATE and that , having been gainfully employed in DATE , she was thus eligible to retain her AAW benefits . On this point ORG held :", "“ It appears from [ the case file ] that until DATE the [ applicant ] worked as an interior designer ... and subsequently , until DATE , worked occasionally as a freelance interior designer . The [ applicant ] married in DATE , her daughter was born in DATE and she divorced in DATE .", "On DATE the [ applicant ] applied [ for AAW benefits ] indicating that she had been incapacitated for work since DATE . She appeared to have been suffering from knee problems for DATE and had been operated on in DATE . It further appeared that she had been treated by a neurologist since DATE . In the course of the investigation [ for AAW purposes ] by ORG Gemeenschappelijke Medische Dienst ) in DATE , the applicant told the social security medical officer that she had stopped working ... because her husband was providing the family income .", "... Initially ... [ the applicant 's request for ] benefits for incapacity for work was rejected because [ the applicant ] was considered fit to do work which spared her knees , but after a letter from [ her ] neurologist she was granted AAW benefits from DATE ( entry into force of AAW ) on medical - psychological grounds . ...", "ORG does not find it established ... that the [ applicant ] has been uninterruptedly incapacitated for work to a relevant degree since DATE . It considers that , from DATE onwards , work which would spare her knees was indicated to [ the applicant ] but , apart from the period in DATE during which she underwent a knee operation , [ the applicant ] has not been incapable of undertaking gainful employment . In this connection ORG points out that the [ applicant ] worked until DATE , albeit irregularly , and ceased to work on grounds which were not medical .", "This leads ORG to conclude that the defendant has correctly considered DATE as DATE of [ the applicant 's ] incapacity for work .", "ORG further finds it established that the [ applicant ] has not had any income from employment or in connection therewith in DATE . ”", "On DATE the applicant filed an appeal with ORG against the decision of DATE . She argued , inter alia , that ORG had unjustly found that she had not been incapacitated for work since DATE . She further argued that the decision violated her rights under LAW No . CARDINAL and LAW in conjunction with LAW No . CARDINAL .", "In its decision of DATE , following a hearing held on DATE , ORG rejected the applicant 's appeal . It noted that the applicant 's AAW benefits had been withdrawn from DATE because the applicant had not had any income from work in DATE the occurrence of her incapacity for work . It further noted that this decision was based on LAW DATE as amended by LAW ( Reparatiewet AAW ) of DATE . Under those provisions , eligibility for continued receipt of ORG benefits after DATE by persons whose incapacity for work had occurred before DATE was subject to the conditions set out in LAW as worded following the entry into force of LAW DATE . As regards the determination of the date on which the applicant 's incapacity for work had occurred , ORG accepted ORG ruling as correct and upheld its findings .", "Relying , inter alia , on its findings in a decision of DATE published in GPE CARDINAL ( Administratiefrechtelijke Beslissingen – “ GPE ” ) , in which it had examined the compatibility of LAW ( see below under “ Relevant domestic law ” ) with LAW , ORG rejected the applicant 's complaint that the withdrawal of her AAW benefits was contrary to her rights under LAW , without giving any additional reasons . Insofar as the applicant complained that the withdrawal of her benefits also violated her rights under LAW No . CARDINAL , ORG accepted that this withdrawal constituted a deprivation of property within the meaning of the second sentence of this provision . It noted that , according to the criteria established in the ORG 's case - law , a deprivation of property must strike a fair balance between the general interest of the community and the requirements of the protection of the individual 's fundamental rights , and that there must be a reasonable relationship of proportionality between the means employed and the aim pursued . Moreover , a ORG enjoys a wide margin of appreciation in applying these criteria . On this point ORG considered :", "“ In answering the question whether those criteria have been met in the present decision , taken pursuant to LAW , ORG recalls the history of that LAW as set out in the preliminary questions to the ECJ which resulted in the Posthuma - PERSON judgment [ of DATE ] ( RSV CARDINAL ; the preliminary questions in RSV CARDINAL ) :", "' The ORG , in force since DATE , originally conferred on men and unmarried women , after DATE of incapacity for work , entitlement to labour disability benefits , the amount of which did not depend either on any other income or on any loss of income by the beneficiary .", "Entitlement to benefits under the ORG was extended to married women by LAW on LAW ( PERSON Uitkeringsrechten voor ORG ) of DATE . At the same time this LAW made entitlement to benefits for all those insured , save for certain categories , subject to the condition that during DATE the occurrence of the labour incapacity the beneficiary had received from employment or in connection therewith a certain income which was initially set at no less than MONEY ( NLG ) ( hereinafter “ the income requirement ” ) . The income requirement applied to all persons whose incapacity for work had occurred after DATE .", "By virtue of the transitional provisions contained in the above - cited LAW DATE , men and unmarried women whose incapacity for work had occurred before DATE continued to be entitled to benefits without having to satisfy the income requirement . Married women whose incapacity had occurred before DATE were not entitled to benefits even if they satisfied the income requirement . Married women whose incapacity had occurred DATE and DATE were entitled to benefits only if they satisfied the income requirement .", "By several judgments of CARDINAL DATE ORG held that those transitional provisions constituted discrimination on the ground of sex , contrary to LAW ORG ) ... and that married women whose incapacity for work arose before DATE were entitled , with effect from DATE , the date on which LAW DATE entered into force , to AAW benefits on the same conditions as men , that is to say without having to satisfy the income requirement , even if their incapacity had occurred before DATE . '", "The legislature 's choice in LAW to make an income requirement apply to all persons claiming entitlement to AAW benefits from DATE , subsequent to the development outlined above , was mainly inspired by CARDINAL considerations :", "– under the regime of a long - term benefits arrangement , namely until DATE in the case of continuous labour disability , there was a significant difference in the conditions for benefits ( the income requirement ) that was solely determined by the date of occurrence of the labour disability ( prior to , on or after DATE ) and which as such raised serious concerns regarding the principle of equal treatment of similar cases ;", "– the case - law had considerably enlarged the group of persons incapacitated for work who , without having to comply with the income requirement , had a continued entitlement to benefits after DATE , which could result in unacceptable budgetary consequences .", "In reconstructing the ORG to take account of these considerations , the legal norms on equal treatment also had to be respected for other reasons , in which connection a major role was played by ORG legislation concerning equal treatment of men and women and the prohibition of direct and indirect discrimination of men and women in the field of social security as further elaborated in the ECJ case - law .", "The balance struck by the legislature has led to full equality in the conditions for benefits as regards previous income from work for the entire group of persons entitled to AAW benefits . Although , for part of that group , as in [ the applicant 's ] case , this means that , after receiving AAW benefits for a period of up to a ( maximum ) of DATE , their benefits are withdrawn , a situation which must undoubtedly be considered as a serious interference with the right protected by LAW , and although the construction opted for , through the retroactive introduction of an eligibility condition , meets with objections as formulated in ORG decision ORG , ORG is of the opinion that , given the [ above ] development and the limited options subsequently available to the legislature , the chosen measure must also be upheld when examined in the light of LAW No . CARDINAL .", "In reaching this finding , ORG further notes that , for the group concerned , a statutory transitional period of , ultimately , DATE has been created , within which the entitlement to benefits continues in full . In this limited compensation it deserves to be mentioned that , as regards measures that are ( also ) inspired by compelling considerations of a financial nature , full or even considerable compensation can not come into play without ( to a large extent ) annihilating the aim of those measures .", "ORG further takes into consideration that the additional condition was intended to affect only that group which , prior to the occurrence of the incapacity for work , did not depend for subsistence on AAW benefits .", "ORG finally considers it relevant that in the GPE system LAW ( PERSON ) functions as a social “ safety net ” which therefore is also applicable to those who were dependent for their subsistence on AAW benefits .", "ORG concludes that on this point also the appeal can not succeed and that the impugned decision must be upheld . ... ”", "As the applicant 's assets , i.e. her personal savings and the value of the mortgage - free home that she owned , exceeded the exemption limit under LAW ( PERSON ) , she was not entitled to general welfare benefits during the period DATE , when her AAW benefits were withdrawn , and DATE , when – having turned DATE she became entitled to benefits under LAW ( PERSON ) .", "The ORG , as in force between CARDINAL DATE and DATE , provided for a general labour disability insurance scheme under which all persons residing in the GPE DATE were guaranteed index - based benefits if , owing to labour incapacity having lasted for DATE , they were unable to generate income from work .", "Given that , since DATE , employees were already insured against labour incapacity under ORG ( Wet op de Arbeidsongeschiktheidsverzekering – “ PERSON ” ) , the ORG was primarily of importance for those groups who , until then , had been ineligible for ORG benefits , namely the self - employed and those who were disabled from birth or who had become disabled before completing their education .", "Entitlement to AAW benefits was not linked to payment of contributions : contrary to social security schemes based on employment ( werknemersverzekering ) such as , for instance , the ORG , the ORG was a general social security scheme ( volksverzekering ) . Until DATE the ORG scheme was funded by employers on the basis of a percentage of paid wages . From DATE AAW contributions were collected through income tax .", "The level of AAW benefits was linked to the level of incapacity and did not depend on a person 's personal savings or other property . Entitlement to benefits started when the level of incapacity exceeded PERCENT . Full incapacity for work entailed entitlement to AAW benefits equal to PERCENT of a base figure ( grondslag ) related to the statutory minimum wage in force in the GPE . The base figure applicable to married men and single persons caring for a child DATE was higher than the base figure applicable to single men and women .", "Beneficiaries remained entitled to AAW benefits for as long as they were incapacitated for work , but not beyond DATE . Initially , married women were not eligible for AAW benefits on the basis of the then prevailing view that men were the breadwinners in the family .", "On DATE ORG issued Directive CARDINAL/CARDINAL/EEC on the progressive implementation of equal treatment between men and women in the field of social security , granting member states a period of DATE until DATE within which to make any amendments to their legislation which might be necessary in order to bring it into conformity with the Directive .", "This Directive led to the LAW on LAW DATE , which entered into force on DATE and as a result of which married women also became entitled to AAW benefits in their own right . However , given the slowdown in economic growth in the GPE in DATE , and in order to avert major financial repercussions from granting an additional category of persons an entitlement to AAW benefits , an additional requirement for entitlement to benefits was simultaneously introduced . From DATE , anyone who had become incapacitated for work on or after DATE ( thereby taking into account DATE waiting period ) was required to have earned a fixed minimum amount of income from work in DATE the occurrence of the labour incapacity ( “ the income requirement ” ) , thus rendering entitlement to AAW benefits dependent on the existence of a demonstrable link with actual income from work .", "In accordance with the transitional provisions of LAW December CARDINAL , married men and single persons who had become incapacitated before DATE retained their entitlement to AAW benefits without having to comply with the newly introduced income requirement .", "As regards married women a difference in treatment was made between those who had become incapacitated before DATE ( DATE before the entry into force of the AAW ) and those who had become incapacitated DATE and DATE . The first group was not entitled to AAW benefits even if the persons concerned complied with the income requirement , whereas members of the second group were entitled to AAW benefits only if they complied with the income requirement .", "In CARDINAL decisions given on DATE , ORG held that these ORG rules in respect of married women constituted discriminatory treatment on the basis of sex , contrary to LAW ORG , as the requirement that a person 's incapacity had to have occurred on or after DATE in order to be entitled to AAW benefits applied to married women but not to married men . According to those decisions , married women whose incapacity for work had arisen before DATE were entitled , from DATE , to AAW benefits under the same conditions as married men , i.e. without having to comply with the income requirement and on the basis of the same base figure as that applicable to married men . It was further held in those decisions that married women who had become incapacitated for work before DATE and who were not entitled to AAW benefits , even if they did comply with the income requirement , were entitled , from DATE , to AAW benefits .", "This finding led to LAW of DATE , which entered into force on CARDINAL DATE and which created the following situation :", "married women who had become incapacitated for work before DATE were entitled to AAW benefits . Married women who had applied for AAW benefits before CARDINAL DATE did not have to comply with the income requirement in order to be entitled DATE with retroactive effect DATE to AAW benefits . Married women who had applied for AAW benefits on or after CARDINAL DATE had to comply with the income requirement in order to be entitled to AAW benefits ;", "married women who had become incapacitated for work before DATE and who had already been granted AAW benefits obtained , from CARDINAL DATE , AAW benefits on the basis of the same base figure applied to married men ; and", "all persons DATE men and women alike – who had become incapacitated for work before DATE were to lose their entitlement to AAW benefits on DATE if they did not comply with the income requirement .", "By the LAW of DATE the date of withdrawal of AAW benefits , originally fixed at CARDINAL DATE for those concerned , was postponed to DATE .", "This resulted in numerous proceedings brought by persons whose AAW benefits had been withdrawn on the ground of non - compliance with the income requirement . In a judgment of DATE , ORG held that , with regard to the income requirement , the fixed minimum income constituted indirect discrimination against women , in violation of LAW ORG and LAW MONEY , and that the income requirement was to be regarded as being satisfied if , during DATE prior to the occurrence of the incapacity for work , the beneficiary had earned “ some income ” .", "In other sets of appeal proceedings concerning the withdrawal of AAW benefits for failure to comply with the income requirement , in which it was argued that the income requirement under the ORG was contrary to Directive FAC and was discriminatory , ORG decided on DATE to seek a preliminary ruling from the ECJ on this point .", "On DATE the ECJ handed down the requested preliminary ruling . This ruling , insofar as relevant , states :", "“ CARDINAL . ... it should be recalled in the first place that the ORG [ has previously ] ruled ... that ORG law does not preclude the introduction of national legislation which , by making continuance of entitlement to benefits for incapacity for work subject to a condition applicable henceforth to men and women alike , has the effect of withdrawing from women in future rights which they derive from the direct effect of LAW CARDINAL/CARDINAL .", "The ORG also ruled that LAW QUANTITY precludes the application of national legislation which makes the grant of benefits for incapacity for work subject to the condition of having received some income during DATE the commencement of the incapacity , a condition which , although it does not distinguish on grounds of sex , affects far more women than men , even if the adoption of that national legislation is justified on budgetary grounds .", "Next it should be observed that , when the ORG examined whether Community law precluded the introduction of national legislation which , by making continuance of entitlement to benefits for incapacity for work subject to a condition applicable henceforth to men and women alike , has the effect of withdrawing from women in future rights which they derive from the direct effect of LAW , it expressly reserved consideration of the question whether , as such , an income requirement of the kind at issue in the main proceedings complied with the principle of equal treatment between men and women . ...", "In view of the foregoing , the questions referred for a preliminary ruling by ORG should be construed as seeking to establish whether LAW QUANTITY precludes the application of national legislation which makes receipt of a benefit for incapacity for work subject to the requirement of having received a certain income from or in connection with work in DATE the commencement of incapacity where it is established that that requirement affects more women than men . ...", "[ As to the question whether persons who did not receive a certain income from or in connection with work in DATE the commencement of incapacity fall within the scope ratione personae of Directive CARDINAL , the ECJ concludes ] that such persons do not necessarily fall outside the scope ratione personae of Directive CARDINAL/CARDINAL . ...", "In order to reply to the national court 's question , as reformulated in paragraph CARDINAL , it should be recalled that LAW prohibits in social security matters all discrimination whatsoever on grounds of sex either directly , or indirectly by reference in particular to marital or family status , in particular as concerns the scope of the social security schemes and the conditions of access thereto .", "As the ORG has consistently held , LAW precludes the application of a national measure which , although formulated in neutral terms , works to the disadvantage of far more women than men , unless that measure is based on objective factors unrelated to any discrimination on grounds of sex . That is the case where the measures chosen reflect a legitimate social policy aim of the Member ORG whose legislation is at issue , are appropriate to achieve that aim and are necessary in order to do so ....", "NORP ... ORG essentially argue that , by introducing the income requirement in the ORG , the PERSON of DATE caused the GPE scheme relating to incapacity for work to shift from being pure national insurance to insurance against loss of income guaranteeing a minimum income to insured persons and that , by providing that the income requirement was henceforward to apply to all insured persons , whether male or female , married or unmarried , who became unfit for work before or after DATE , the LAW DATE accentuated the nature of that scheme as CARDINAL providing insurance against loss of income . They consider that , in so doing , the GPE legislature pursued a legitimate social policy aim , inherent in numerous social security schemes , of restricting eligibility for a given benefit to persons who have lost income following the materialisation of the risk which the benefit is intended to cover .", "As the ORG has held [ in its judgment of DATE ] in PERSON , née PERSON , and Others [ Case C-CARDINAL/CARDINAL ] at CARDINAL , Directive FAC leaves intact the powers reserved by ORG CARDINAL and CARDINAL of LAW to LAW to define their social policy within the framework of close co - operation organised by ORG , and consequently the nature and extent of measures of social protection , including those relating to social security , and the way in which they are implemented . In exercising that competence , the Member States have a broad margin of discretion ....", "It must be held that guaranteeing the benefit of a minimum income to persons who were in receipt of income from or in connection with work which they had to abandon owing to incapacity for work satisfies a legitimate aim of social policy and that to make the benefit of that minimum income subject to the requirement that the person concerned must have been in receipt of such an income in DATE to the commencement of incapacity for work constitutes a measure appropriate to achieve that aim which the national legislature , in the exercise of its competence , was reasonably entitled to consider necessary in order to do so .", "The fact that that scheme replaced a scheme of pure national insurance and that the number of persons eligible to benefit from it was further reduced to those who had actually lost income from or in connection with work at the time when the risk materialised can not affect that finding .", "It appears from the case - law of the ORG ( PERSON , née PERSON , and Others , at paragraph CARDINAL , confirmed in Case PERSON [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ) that Community law does not prevent Member GPE from taking measures which have the effect of withdrawing social security benefits from certain categories of persons , provided that those measures are compatible with the principle of equal treatment between men and women as defined in LAW CARDINAL/CARDINAL . Subject to that proviso , Member GPE are also free to lay down , as part of their social policy , new rules which have the effect of reducing the number of persons eligible for a social security benefit .", "The reply to the national court 's questions must therefore be that LAW does not preclude the application of national legislation which makes receipt of a benefit for incapacity for work subject to the requirement of having received a certain income from or in connection with work in DATE the commencement of incapacity , even if it is established that that requirement affects more women than men . ”", "In other domestic proceedings the income requirement was challenged on grounds , inter alia , of its incompatibility with the prohibition of discrimination set out in , for instance , LAW .", "In a judgment given on DATE , ORG rejected this argument . This judgment , insofar as relevant , reads :", "“ It has been argued that the withdrawal of the AAW benefits on grounds of [ non - compliance with the income requirement ] is in violation of LAW in conjunction with LAW No . CARDINAL . On the assumption that AAW benefits , such as in issue in the present case , can be regarded as a “ possession ” within the meaning of the latter provision , which assumption finds support in the [ PERSON v. GPE ] judgment of ORG DATE , it must be examined whether LAW of CARDINAL DATE entails a violation of LAW ...", "ORG is of the opinion that , insofar as Article PERSON links the ( continuation of ) entitlement to [ AAW benefits ] to the condition that prior to the occurrence of labour incapacity ( some ) income from or in connection with work must have been obtained , this is without any doubt an “ objective and reasonable justification ” in the sense of the ORG 's case - law which , in accordance with that same case - law , entails that a “ legitimate aim ” must be pursued and that there must be a “ reasonable relationship of proportionality between the means employed and the aim sought to be realised ” ( see paragraph CARDINAL of the PERSON judgment ) .", "In this connection ORG points out that LAW DATE has already passed a similar test on the basis of certainly no less strict criteria , as apparent from the above - cited ECJ judgment of DATE ( RSV CARDINAL ) . ”", "The ORG was repealed on DATE and replaced , as regards persons not employed by others , by the ORG - employed Persons Disablement Benefits Act ( PERSON ) and LAW ( PERSON jonggehandicapten ) . Employees continued to be insured for incapacity for work under the ORG .", "Under LAW , as in force at the material time , all persons DATE and lawfully residing in the GPE were eligible for benefits under LAW if they had no other means of subsistence . General welfare beneficiaries who were younger than DATE were obliged to make demonstrable efforts to find work and had to be registered at an employment office ( arbeidsbureau ) . Beneficiaries who were older than CARDINAL½ and mothers with children younger than DATE were exempted from this obligation .", "There were national norms under LAW for different categories of beneficiaries . Married and cohabiting couples were entitled to welfare benefits equal to PERCENT of the statutory fixed minimum wage , single parents to welfare benefits equal to PERCENT of the minimum wage , and single persons to benefits equal to PERCENT of the minimum wage . For the latter CARDINAL categories , supplementary welfare benefits of PERCENT could be granted under certain conditions , such as when the beneficiary was living alone . Special rules applied to welfare beneficiaries DATE .", "Unlike the ORG , ORG was not designed to insure against loss of income ( opportunities ) resulting from a certain risk materialising ( e.g. incapacity for work ) but was to serve as a last resort safety net , in that entitlement to welfare benefits only arose where there were no other possibilities for obtaining sufficient income for meeting basic needs .", "In order to be eligible for welfare benefits , personal savings were not to exceed an DATE defined limit . On DATE this limit was set at MONEY ( NLG ) for a single person and at NLG CARDINAL for a family . This limit was higher for homeowners , in that capital tied up in their home was taken into account . On DATE , the limit for a single home - owner was set at a maximum of NLG CARDINAL , and at a maximum of NLG CARDINAL for a home - owning family .", "On DATE , FAC was replaced by ORG ( PERSON Bijstand ) ." ]

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[ "The applicant , PERSON , was born in DATE and lives in GPE .", "In DATE the NORP authorities nationalised the property owned by his parents and deported his family to LOC .", "On DATE the ORG enacted Law No . CARDINAL “ on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime ” . The PERSON enabled the victims of NORP repression to claim compensation for their nationalised property .", "In DATE the applicant brought an action against ORG in respect of the latter 's refusal to pay him compensation .", "On DATE ORG found in favour of the applicant and ordered ORG to pay him compensation of CARDINAL Moldovan Lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) .", "NORP The applicant obtained an enforcement warrant which the bailiff failed to enforce . On an unspecified date the applicant wrote to ORG , complaining about the non - enforcement of the judgment of DATE . In a letter of CARDINAL DATE , ORG assured the applicant that everything possible was being done to enforce the decision , but that ORG did not have any money in its account .", "On DATE , after the case had been communicated to the Government , the judgment was enforced . The applicant wrote a receipt addressed to the head of ORG in which he confirmed that he had received the money in accordance with the judgment of DATE and that he had no more claims against the debtor and against ORG .", "The relevant domestic law has been summarised in GPE v. GPE , no . CARDINAL , § DATE , ECHR DATE ..." ]

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[ "NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON . She was represented before the Court by Mr A. Briceac , Mr PERSON , Mr GPE and Mr PERSON , acting on behalf of ORG .", "The Moldovan Government ( “ the Government ” ) were represented by their Agent , Mr PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a disabled person suffering from severe mental incapacity . The nature of her condition means that she requires full - time care from her mother . At the time of the events she was DATE and DATE .", "On DATE the applicant followed a young man , ORG , who was DATE at the time , out of her home . QUANTITY female neighbours saw them and asked where they were going . According to the neighbours , the applicant had replied that they were going to go somewhere to kiss and fondle . The neighbours decided to follow them to ensure that nothing happened to the applicant . The applicant and FAC crossed the shallow part of a small river . The neighbours saw the applicant and FAC first kiss under a tree and then disappear into some bushes near some cliffs . It was alleged that ORG had then assaulted the applicant and that she had let out a scream , but the neighbours did not see or hear anything . While they were watching the applicant and ORG , a man named PERSON also crossed the river and went the way the applicant and ORG had gone . According to CARDINAL of the applicant ’s neighbours , who knew ORG , he had been taking a shortcut home to the neighbouring village . He was later seen by their village ’s mayor . After crossing the river , GPE passed by the bushes where the applicant and FAC were , but he did not see them .", "One of the neighbours ran off to inform the applicant ’s parents . The other neighbour , who did not move from where she was , could not see the events that followed because of the bushes , but she kept shouting at ORG to let the applicant go .", "Soon afterwards , the applicant ’s brother arrived and ORG ran away . The applicant ’s brother did not find the applicant because he had been looking in the wrong place . The applicant saw her neighbours on the other side of the river and joined them after being directed by them to a shallow point of the river . According to the neighbours , she had appeared scared and had said that ORG had kissed her . They did not see any injuries on the applicant ’s body and her clothes were wet from crossing the river . CARDINAL of the neighbours took her home where , eventually , the applicant told her and her parents that ORG had beaten her up .", "A medical report dated DATE , which forms part of the case file , states that the applicant had been gang - raped . The circumstances in which that report was obtained are not clear .", "According to a medical report dated DATE the applicant had a freshly torn hymen and some minor bruising around her genitals . No other injuries were found .", "On DATE the applicant ’s mother lodged a criminal complaint in which she accused G.P of raping her daughter . On the same date , the applicant ’s stepfather told the police that the applicant had in fact been raped by CARDINAL people , namely ORG and GPE", "In a statement of DATE to the prosecutor , the applicant submitted that ORG had come to her house , beaten her up and taken her by force to a secluded place on the other side of the river , where he had raped her . She did not accuse anyone other than FAC She made a similar statement on DATE .", "NORP In a statement of DATE to the prosecutor , the applicant ’s mother submitted that after being raped by ORG , the applicant looked as though she had been assaulted and her clothes had been soiled with blood and torn . The applicant ’s mother did not accuse anyone other than ORG", "As to ORG ’s version of events , he initially denied having had sexual intercourse with the applicant ; however , he later admitted that they had done so but stated that he had not forced her to . He also admitted having slapped her once across the face after intercourse because she had provoked him .", "In a second medical report dated DATE a doctor found that the applicant had suffered a blow to the head and had bruising around her nose .", "On DATE a prosecutor questioned PERSON , who confirmed the applicant ’s ORG statements that he had crossed the river on TIME CARDINAL September CARDINAL to take a shortcut to the neighbouring village . He submitted that he had not seen the applicant and ORG , but that he had seen the mayor .", "NORP The prosecutor also obtained a report from the school where FAC was a pupil , according to which he was said to have had limited intellectual abilities .", "Following an investigation , the prosecutor ’s office concluded that ORG had been the sole perpetrator of the rape and initiated criminal proceedings against him . The prosecution recommended a sentence of CARDINAL PERSON imprisonment in a young ORG institution .", "In the trial before the first - instance court , the applicant ’s mother claimed compensation in the amount of CARDINAL NORP lei ( MDL ‒ MONEY ) from ORG She did not give any evidence to suggest that ORG had been involved and did not seek to have him convicted . ORG submitted that he had not forced the applicant to have sexual intercourse with him and that he had only slapped her because she had provoked him . The applicant stated that she had followed ORG from her house to a secluded place on the other side of the river and that she had kissed him . ORG had then told her to undress and when she had refused , he had punched her in the nose . After the rape , she had heard her brother calling to look for her , and ORG had then run away . The applicant was specifically asked whether anyone else had been present and she replied that they had been alone . The applicant was assisted in court by her mother , who made a formal statement to the effect that the applicant had not been intimidated and was giving evidence in her own words .", "On DATE ORG found ORG guilty of rape and , in view of the fact that he was a minor , gave him a suspended sentence of CARDINAL PERSON imprisonment with a probationary period of DATE . He was also ordered to pay the applicant damages of MDL CARDINAL , the same amount claimed by the applicant ’s mother .", "The applicant ’s mother appealed against the decision and argued , inter alia , that the proceedings had been unfair because the court had tried to cover up the crime . She submitted that the court had not established the identity of the second person who had raped her daughter and that ORG ’s sentence had been too lenient . She also argued that the amount of compensation claimed by her at first instance had been too low because she had been misled by the prosecutor , who had informed her that that amount was the maximum which could be claimed . The applicant ’s mother submitted a fresh claim for damages in the amount of MDL CARDINAL .", "NORP The prosecutor ’s office also appealed against the judgment of the first - instance court on the grounds that the sentence was too lenient .", "During the proceedings before ORG , the applicant ’s mother submitted a request for further witnesses to be examined ; however , her request was refused on the grounds that they could not have brought anything new or significant to the case . CARDINAL of the eyewitnesses could not be examined because she had since emigrated . The court simply read out the statements she had given during the investigation . On DATE ORG dismissed both appeals . The court found , inter alia , that the sentence imposed on ORG had exceeded the maximum limit set out in LAW for offences committed by minors . It was reduced to a suspended sentence of CARDINAL years’ imprisonment with a probationary period of DATE .", "The applicant ’s mother lodged an appeal on points of law in which she contended that ORG ’s sentence had not been proportionate to the seriousness of the offence committed by him and that the amount of damages awarded had been too low . However , that appeal was dismissed by ORG on DATE .", "At the material time Article CARDINAL of the Criminal Code provided that the offence of rape was punishable by a minimum of CARDINAL and a maximum of CARDINAL years’ imprisonment . The same offence committed knowingly against a minor , or by CARDINAL or more persons , was punishable by a minimum of CARDINAL and a maximum of CARDINAL years’ imprisonment .", "Article CARDINAL of the Criminal Code provided that where the offence was committed by a minor , the maximum sentence was to be halved .", "’ imprisonment ." ]

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[ "On DATE there were a number of incidents such as spontaneous unauthorised demonstrations , shop closures and attacks on public buildings in the town of ORG in GPE . CARDINAL people were killed – one of whom was PERSON , aged DATE , a pupil at ORG and the applicant ’s son DATE and CARDINAL others were wounded .", "NORP The owners of CARDINAL rifles confiscated after the incidents , spent cartridges from which had been collected by the security forces , were prosecuted in ORG , but acquitted because they had proved that they had not taken part in the events concerned .", "According to the ORG , PERSON was hit by a bullet fired by armed demonstrators at the gendarmes .", "According to the applicant , his son was killed by the security forces , who fired on the unarmed demonstrators to make them disperse .", "On DATE the applicant filed a criminal complaint with the ORG public prosecutor ’s office against a person or persons unknown and against the commander of the security forces , PERSON .", "On DATE the public prosecutor ’s office , after noting that the criminal complaint was directed against Major PERSON , declared that it had no jurisdiction to deal with it and transferred the case file to ORG for a preliminary investigation .", "On DATE ORG halted the proceedings by means of a discontinuation order which was never served on the applicant ’s lawyer . It found that the victim had died of bullet wounds received in the course of a confrontation between the demonstrators and the security forces . However , it found that it was impossible to identify those responsible .", "On DATE ORG , to which the case had been automatically referred by law , upheld the above decision , holding that it was impossible to bring a prosecution against civil servants where the identity of those responsible and their status as civil servants had not been established .", "On DATE PERSON lawyer wrote to the Chairman of ORG enquiring what had been done about the applicant ’s complaint . On DATE ORG sent the applicant ’s lawyer copies of the discontinuation order of CARDINAL DATE and ORG judgment of CARDINAL DATE .", "The applicant and the respondent Government submitted various documents relating to the investigation carried out after the death of PERSON PERSON to identify those responsible . They also produced documents relating to the criminal proceedings brought against persons who were suspected of taking part in the demonstration .", "The applicant alleged that his son had been shot and killed by the security forces in the course of the incidents of CARDINAL DATE . He stated that eyewitnesses had seen the killing and asked that the gendarmes who had killed his son be identified .", "The petitioners , who had all witnessed these events , alleged that during an unauthorised demonstration the gendarmes had opened fire on unarmed demonstrators . CARDINAL people had been killed and CARDINAL wounded . The gendarmerie commander had given the order to fire at will on unarmed people . In particular , the local councillors , who had been in a meeting in the district authority offices , had seen the security forces opening fire on young people . CARDINAL senior - high - school pupil had been killed and others wounded in the shooting . The petition stated that the gendarmerie had acted without reference to the District Commissioner , the public prosecutor or the police . The signatories requested the public prosecutor to take the necessary steps to bring those responsible to justice .", "This document contains a detailed description of the events by the commanding officers of the various security forces present in ORG .", "It states that , on TIME in question , the shopkeepers all closed the shutters of their shops . The security forces had been informed that a group of CARDINAL people from the neighbouring villages was advancing on ORG . The demonstrators said that they were going to a funeral . When they reached the middle of the LOC district of the town , more people joined the group . The crowd then set off towards the town hall . The gendarmerie commander , the district chief of police and other civil servants intercepted them and made several announcements to the effect that the demonstration was illegal . However , the demonstrators continued to advance along FAC , shouting slogans like “ Long live the NORP ” , “ Long live freedom ” , “ Long live GPE ” and “ Freedom for NORP ” . The group , composed of men , women and students , was CARDINAL strong . When they reached the junction with FAC , some demonstrators began to attack the police and gendarmes with stones and sticks and firearms . When the demonstrators reached the centre of town they began to break the closed shutters , windows and doors of the shops . At that moment , CARDINAL reinforcement units sent in by the gendarmerie and police again barred the demonstrators’ way , requiring them to disperse . Sticks and stones were thrown at the security forces who were trying to disperse the demonstrators . Certain unidentified demonstrators opened fire on the security forces with the aim of spreading panic and disorder .", "After the shooting the demonstrators began to disperse through the centre of town . CARDINAL group went to ORG , the adult education centre , DATE , the police station , the gendarmerie headquarters and the security police offices . When they reached the post office , the group threw sticks and stones , breaking all the windows , and set fire to a post - office minibus . The windows of the school and adult education centre were broken and damage caused to the interior of both buildings . When the same group started to attack DATE and the town hall , the gendarmes and police fired warning shots and gave warnings over the town hall loudspeakers . The security forces began to disperse the group .", "In the course of these events PERSON , a senior - high - school pupil , was killed on the spot by a shot fired by armed troublemakers who had mingled with the demonstrators . A number of civilians were wounded and taken to the public hospital in Cizre . Ekrem Oruç died in hospital . CARDINAL soldiers were injured by flying stones . Some QUANTITY men and QUANTITY women who had taken part in the unauthorised demonstration were taken into police custody . CARDINAL spent cartridges from GPE - type weapons were found at the scene of the demonstration .", "“ Medical examination", "... The body was stripped .", "At the mid - point of the right axillary line towards the victim ’s back there was a wound QUANTITY in diameter caused by a bullet fired from some distance . The exit wound measures QUANTITY in diameter and is QUANTITY lower , QUANTITY in from the outside of the groin . QUANTITY below the entry wound on the same right axillary line there is a further wound caused by a bullet fragment measuring QUANTITY by QUANTITY .", "The body was still warm when the examination commenced . Rigor mortis had not set in and there was no cyanosis . It was concluded from this that death had occurred TIME .", "... CARDINAL expert opinions were requested . These confirmed the public prosecutor ’s finding ( see above ) , that is that there is no exit wound relating to the bullet fragment which entered through the middle of the thorax , underneath the right arm . Further , they confirmed that , QUANTITY above the point of impact of the fragment , there is an entry wound caused by a bullet striking at an oblique angle , with an exit wound on the same trajectory . Since neither the bullet nor the fragments touched any vital organ , the experts recommended that a full autopsy be carried out in order to determine the precise cause of death . ”", "“ Autopsy", "The ribcage and abdominal cavity were opened according to the usual procedures . A large quantity of accumulated blood was observed in the thoracic cavity . QUANTITY of blood were pumped out . The left lung had been lacerated by the bullet fragment which , as noted above , struck the victim at the mid - point of the right axillary line . The bullet whose entry and exit wounds were identified and whose trajectory did not touch any vital organ could not have caused death . We conclude that death was caused by the bullet fragment which struck the victim at the mid - point of the right axillary line ; this followed a horizontal trajectory , hitting the left lung and causing death by internal haemorrhaging and hypovolaemic shock . In the course of the full autopsy , the bullet fragment which struck the left lung was found in the left armpit and was placed under seal as an exhibit ... ”", "The witness gave the following version of events :", "“ On DATE ... I came across the crowd of demonstrators . I did not join them , but went back the way I had come . At that moment I saw that shots were being fired at the ground from the armoured military vehicle , presumably to disperse the demonstrators . Something – I suppose pieces of lead – anyway , bits of metal – hit my left arm , right thigh and the inside of my left calf . I fell to the ground . I must have lost consciousness ... I did not see who fired the shots which hit me , or what weapon they came from . However , shots did come from the Condor military vehicle . ”", "The ORG public prosecutor declared that he had no jurisdiction to examine the applicant ’s complaint against the ORG gendarmerie commander , Major PERSON , for reckless and negligent homicide . The public prosecutor found that Major PERSON had been acting in the performance of his duties and observed that civil servants were subject to special provisions . He accordingly sent the case file to the LOC Commissioner , who forwarded it to ORG for investigation .", "NORP This declaration states :", "“ On DATE the security forces fired into the air from the armoured vehicle belonging to the ORG gendarmerie with the aim of dispersing the demonstrators . CARDINAL person was wounded by the shooting ... The bullets which hit the demonstrator were fired by civil servants acting in the performance of their duties . It has not been possible to identify the persons in question . ”", "In this letter , the LOC Commissioner stated :", "“ On DATE an illegal demonstration took place in [ ORG ] . In order to make the demonstrators disperse , the security forces fired into the air from the armoured vehicle belonging to the gendarmerie of our district . CARDINAL citizen was wounded . An investigation into the conduct of the gendarmes has been opened . ”", "The District Commissioner also requested the gendarmes to inform him of “ the identity and addresses of those gendarmes in the armoured vehicle who allegedly opened fire , wounding citizens ” . He added : “ This information will serve as a basis for the investigation to be carried out by my officials . ”", "In this letter , the gendarmerie state , firstly :", "“ Your authorities know perfectly well that this illegal demonstration was organised by terrorist ORG militants . It was not simply a demonstration , since the offices of public authorities were attacked . Moreover , the infiltration of armed militants among the people and the use of weapons during the demonstration show how serious the situation was . The District Commissioner ’s office asked us for backup in order to prevent the situation getting out of hand ; in view of the urgency and dangerousness of the situation , all our available personnel were sent to the scene . ”", "The gendarmerie gave the following reply to the District Commissioner ’s request :", "“ We hereby inform you that , as stated above , given the sudden and serious nature of the events in question , the exact position of each of our men was not noted in the log - book . We are no longer in a position to verify their position on DATE in question , given that DATE have since elapsed . ”", "On DATE the Governor of GPE instructed PERSON PERSON , a gendarmerie lieutenant - colonel , to hold a preliminary investigation into the events of CARDINAL DATE . Lieutenant - Colonel PERSON took evidence from the following witnesses :", "PERSON , mayor of the LOC district of ORG ( statement of CARDINAL DATE ) :", "“ ... We heard children ’s voices coming from the ORG road . The children carried on marching towards the centre . They were not carrying anything , but simply making “ V ” signs and chanting slogans ... The major arrived . He was in front of ORG . The demonstrators , who had become more agitated , carried on marching . The major then gave the order to fire . We heard shots from all sides . I took refuge on the second floor of the building with the people who had been in front of the District Commissioner ’s offices . Through the window I could see that CARDINAL people had fallen to the ground as a result of the shooting , but I did not recognise them . Subsequently , the gendarmes and police arrived , dispersed the demonstrators and took the wounded to hospital ... ”", "PERSON ( statement of DATE ) :", "“ I live in the ORG district ; the place where the events took place is QUANTITY from my house . The sound of shots gradually intensified , lasting TIME . I did not leave the house , I was afraid . I was unable to see anything of what was happening . TIME , the sound of shooting stopped . Women passing my house in tears told me that my son PERSON had been killed in the confrontation . That was how I learned that my son had been killed ... According to what I was told , my son was killed in front of the bakery ... in the central market ... He was on his way to school but , when he saw the demonstrators , he followed them . In the confrontation which arose during this demonstration , soldiers opened fire , killing my son . The district gendarmerie major , PERSON , gave the order to fire . He is responsible for the death of my son . ”", "ORG ( statement of DATE ) :", "“ On DATE in question , at TIME ... I saw a group of demonstrators coming up FAC towards the central market . There were men , women and children in the group . Most of the demonstrators had scarves over their faces . They were armed with stones and pieces of wood and were very worked up . Most of them went past the post office , but others stopped there and broke the windows . The Condor vehicle from the battalion arrived to make the crowd disperse . The men in the vehicle opened fire on the agitated demonstrators DATE or , rather , fired at the ground . PERSON PERSON , a relative of mine , who died later in hospital , fell to the ground . I believe he was hit by a bullet which was fired at the ground but ricocheted and hit him , because if the shots had been aimed at the crowd , everyone in the group would have been killed . When PERSON fell , wounded , I took him to the medical centre in the town hall taxi . In the meantime , other people had been wounded . I did not see the soldiers who were in the ORG , nor the person who fired . However , the shots fired to disperse the demonstrators did come from the Condor . I repeat , they did not open fire on the crowd . Stray bullets could have caused the death . ”", "PERSON ( statement of CARDINAL DATE ) :", "“ On DATE in question , I had gone ... to the centre of town to do some shopping . I was making my purchases when I saw a large group of demonstrators approaching . They were chanting slogans , but I could not understand what they were saying . I heard shots . I saw that shots were being fired from an armoured military vehicle . In the ensuing confusion and surprise I was hit by CARDINAL bullets , which I think were fired from the armoured vehicle . I was wounded and fell to the ground . I fainted and so I do not know what happened afterwards . ”", "On DATE Mr GPE had to withdraw from the investigation , as he had been transferred .", "On DATE the Provincial Governor then appointed Mr PERSON , the gendarmerie battalion ’s commanding officer .", "This document contains the results of the investigation carried out by the CARDINAL investigating officers .", "Mr PERSON , who was at the material time a gendarmerie major , made the following findings of fact :", "“ On DATE an unauthorised demonstration started in the early morning and lasted into the afternoon . The demonstrators were chanting ORG slogans and shouting defiance of GPE . This demonstration grew to a crowd of CARDINAL people . The demonstrators then began to damage public buildings and vehicles and related property . They fired shots in all directions . Since there were not enough police officers , reinforcements were requested . The gendarmerie company command and the district gendarmerie headquarters responded to this request in accordance with the provisions of PERSON no . CARDINAL on the duties and powers of the gendarmerie . In the course of these events CARDINAL citizens were killed and CARDINAL others injured . The majority of the persons taken into custody were arrested after initial questioning . CARDINAL officers , warrant - officers , sergeants and men from the security forces were also injured in the same incidents . ”", "With regard to the identity of those responsible , he concluded :", "“ The statement of PERSON ... reveals that he did not see , and does not know , who opened fire ... PERSON , the father of the victim [ PERSON ] ... makes gratuitous and inopportune accusations against Major PERSON , who was simply obeying orders . The fact that the major has been made the target of the accusations , despite the fact that he was armed only with his handgun , reveals an ideological outlook and a complete lack of objectivity . The security forces did not aim at the citizens and have twice as many wounded as the demonstrators . The law was applied in order to prevent further incidents . There is , nevertheless , an imbalance ( between the numbers of wounded on each side ) . The security forces did not reply ... to the shots from the crowd . In such circumstances , it is impossible to determine who was responsible for the incidents . In total , QUANTITY police officers and gendarmes were deployed . ”", "In the covering letter to the summary of the investigation he asserted : “ The investigation has shown that the complaints filed by PERSON [ the applicant ’s lawyer ] and his QUANTITY friends contain unfounded and regrettable statements reflecting a lack of objectivity . ”", "This order stated that there were no grounds to commit for trial any civil servants belonging to the security forces responsible for maintaining order during the demonstration of CARDINAL DATE . According to this document , the material facts were as follows :", "“ On DATE in question , all the shops in the centre of ORG were closed . Their suspicions having been aroused by this situation , the security forces took security measures at the points of entry to the town , on the roads coming from the villages of PERSON , PERSON and PERSON . As they were doing this , a crowd of CARDINAL people was seen approaching ORG . The security forces personnel asked them what they were doing . The marchers replied that they were going to a funeral and carried on towards the centre of ORG . As they went through the LOC district , a large number of men , women and children joined the group . It must then have numbered CARDINAL persons , heading for the town hall . The district chief of police and the gendarmerie commander made several announcements to the effect that the march was illegal and that the participants should disperse . However , the unauthorised demonstration continued , accompanied by the chanting of slogans such as ‘ Long live the PKK’ and ‘ Freedom for Kurdistan’ . The demonstrators fired shots at the security forces and attacked them with stones and sticks . Subsequently , they broke the windows of public buildings and housing and burned the post - office minibus parked outside the post office . The security forces , confronted with a situation which was becoming stormy , fired shots in the air in order to calm the demonstrators down and make them disperse . However , shots were also fired by demonstrators . Several persons died from wounds caused by shots fired during the demonstration ; the medical report also proves that the wounds were caused by gunshots . A search of the scene of the incidents and the surrounding streets and alleyways after the demonstration produced CARDINAL spent cartridges from bullets of various calibres coming from weapons registered with the security forces . An analysis of the cartridges showed that the bullets had come from CARDINAL different weapons . It was concluded that the demonstrators had used firearms . ”", "ORG held that it was “ not possible on the basis of the evidence on the case file to identify who had killed and injured the victims ” .", "ORG upheld the above discontinuation order on the following grounds :", "“ Offences committed by civil servants acting in the performance of their duties or by virtue of their powers must be dealt with in accordance with the procedures governing the prosecution of civil servants ... , [ whereby ] an administrative investigator is appointed by ordinance to carry out the investigation ...", "... Before an investigation can be opened into the conduct of a civil servant , the suspect must be precisely identified . In the absence of a precise identification , no judicial investigation can be carried out , no summary of such investigation can be prepared and no competent court can give a ruling on the matter .", "On DATE , in the course of a demonstration in the town of ORG , there were a number of confrontations between the security forces and the demonstrators , as a result of which CARDINAL persons were killed and QUANTITY others wounded . It has not been possible to identify those responsible . Although no judicial investigation can be carried out into this matter , the investigator appointed opened a preliminary investigation and prepared a summary of its findings , on the basis of which ORG made a discontinuation order . Since those responsible for the deaths and woundings are unknown , it is impossible for this ORG to look into the case and give judgment . Having examined the case file , we hold that ORG decision was in accordance with the law and procedurally valid . ”", "Oral evidence", "Mr PERSON stated that he had not been in PERSON at the time of the events of DATE . When he returned home in the evening he was informed that his son was dead and told that he had been shot . He heard that his son had gone to the scene of the demonstration to look for his younger brothers , at which point he was hit by a bullet . He did not know who had shot his son .", "PERSON said that he had not made any statement to the authorities . He remembered being in shock after the incident . Many people had come to visit him , including journalists and members of parliament . He did not know exactly where the body of his son had been found . He had seen it for the first time at the hospital .", "As regards the investigation opened after the death of his son , he confirmed that he had signed the criminal complaint filed with the ORG public prosecutor ’s office , but afterwards he had shut himself up at home . He did not know the details of how his son died . He did not know that he was entitled to compensation as a result of his son ’s death . Even if his lawyer had advised him to apply for this , he was not in a fit state to understand anything at all at the time of the incidents .", "Mr PERSON had been present in PERSON during the incidents , visiting a sick uncle . He had remained in his uncle ’s house throughout the demonstration and so was not an eyewitness . He had only heard the demonstrators and the shots . When told of PERSON death , he had gone to the hospital where he had looked for but failed to find the body . Later , he had brought the body back to the village for the funeral , which he had attended .", "Some of the leading citizens of ORG , together with the ORG , had organised the demonstration and publicised it energetically . All the villagers had taken part ( both adults and children ) , except for the elderly , since those who did not take part in these demonstrations were killed or punished by the ORG . The victim , PERSON , had been a pupil at the town ’s senior high school and , as such , like all the pupils of the school , had been obliged to take part in the demonstration . If he had not done so , he would have been punished by the ORG .", "At that time , ORG was a “ protected ” area : that is , the ORG controlled people ’s movements . If he , PERSON , had been found in his uncle ’s house , he would have been forced to participate in the demonstration .", "The population of ORG district was essentially made up of nomads , who lived in ORG in DATE and moved up into the mountains in DATE . These people were armed , possessing CARDINAL guns per family in order to protect themselves from the wolves and thieves in the region . There were contacts between members of the ORG and these nomads . In DATE was not yet over and the village nomads did not migrate to the mountains until DATE At the time of the demonstration there must therefore still have been a large number of nomads in GPE .", "PERSON asserted that the victim had told him , on an unspecified date , that the ORG had contacted him to try to persuade him to join their movement .", "On DATE he had been in his office . The demonstration had taken place about a QUANTITY away . He had not realised it was happening until he heard shots . He had telephoned the police who had informed him that there were CARDINAL dead and a number of wounded . He had not left his office . He was not responsible for security in the town . That was the responsibility of the police and the gendarmerie .", "Mr PERSON acknowledged that he had signed the complaint lodged by leading citizens of ORG against the gendarmerie commander . At first , he had thought that the gendarmes had used excessive force against the demonstrators . However , on reflection , he recognised that the gendarmes had acted in the way they had in order to avoid losing control of the situation , so he had withdrawn his complaint .", "Mr PERSON said that he had not met PERSON . The town hall was CARDINAL to QUANTITY away from where the demonstration took place . The demonstration and associated incidents had taken place in the centre of town . He had not been present at these incidents , nor had he seen the demonstration . He had heard noises and shots .", "He had been placed in police custody and held for DATE after the incidents . He had been charged when he claimed not to have taken part in the demonstration . The charge - sheet stated that he had taken part in the demonstration , that spent cartridges from the weapons used during the demonstration had been found at the scene and that one of these weapons belonged to him .", "DATE after being released from police custody he had been remanded in custody for DATE . At the end of the criminal proceedings brought against him and many other inhabitants of ORG , ORG had acquitted them all .", "He had a gun licence . On DATE of the incident he had been working in the town hall and the gun in question had been at his house . He had been told that the security forces had gone to his house , taken the gun and fired shots from it inside their barracks , thus obtaining spent cartridges .", "Mr PERSON stated that during the demonstration of DATE he had been at home and had not gone out . He was therefore not an eyewitness . His house was CARDINAL or QUANTITY from where the demonstration took place , so he had only heard the demonstrators and gunshots . He did not know the exact reason for the demonstration .", "With regard to the complaint filed with the ORG public prosecutor , he had signed it , but had done so as an emotional response in the heat of the moment .", "He had not been interviewed in the course of the investigation conducted following the demonstration .", "Mr PERSON stated that on CARDINAL DATE the shutters of all the shops in ORG had been lowered very early in the morning . At the request of the LOC Commissioner , the police had taken measures to prevent any untoward occurrences .", "While he was at the district authority offices the gendarmes had informed him by walkie - talkie that a group of CARDINAL people was heading towards the centre of town . PERSON and his men had gone out to meet the demonstrators in order to inform them that they were demonstrating illegally and should stop . However , the demonstrators had continued their march . PERSON and his men had returned to the district authority offices .", "After the arrival of the gendarmes , PERSON had remained in the ORG Commissioner ’s office and had not witnessed the incidents . Following a call from a group of gendarmes led by PERSON and stationed in front of the post office , the armoured vehicle had been sent to their assistance . PERSON had not seen the shooting . The demonstrators had been armed and violent . They had damaged a post - office vehicle and other public property . The security forces had returned fire from the demonstrators .", "The security forces had not been equipped with batons or riot shields which could have helped them to quell the demonstrators . They had been armed with handguns and rifles . PERSON also asserted that if the security forces had fired directly on the crowd , CARDINAL people would have been killed .", "He also stated that the cartridges found in the streets after the incidents belonged to inhabitants of ORG . It was routine procedure for the security forces to pick up spent cartridges .", "According to PERSON , the MG-CARDINAL gun mounted on the armoured vehicle could not possibly have been used against a crowd . If it had been , CARDINAL people in the front ranks of the crowd would have been killed .", "Mr PERSON stated that on TIME he had learned that shops in the town had lowered their shutters . Finding this unusual , he had awaited developments in his brigade ’s building . When he saw that the number of demonstrators had increased and that , despite warnings , they were continuing to advance towards the building , he had taken up position at its entrance with CARDINAL gendarmes .", "PERSON stated that the crowd of demonstrators had been made up of women and children surrounding armed men with scarves over their faces . He had warned the demonstrators that the demonstration was illegal and advised them to disperse . The women and children had tried to obey but the armed men had forced them to go on .", "He had given a second warning , but the armed men had continued to advance . Stones and sticks were then thrown at the gendarmes . The demonstrators had chanted many slogans , such as , “ We want to enter the brigade building ” . PERSON and some of his men in the front line had been wounded by flying stones .", "The armed demonstrators had taken advantage of this to try and seize the gendarmes’ weapons . PERSON had fired warning shots in the air , which had made the women and children disperse . He himself , his second lieutenant and his orderly had each fired CARDINAL shots . Consequently , between the CARDINAL of them they would have fired CARDINAL bullets , which the witness considered sufficient to make the demonstrators disperse . He and his men had then retreated to the side of the road . TIME later they had come under very heavy fire from GPE - type automatic weapons fired by the armed men , who were also shooting with the weapons which they had stolen from the gendarmes .", "PERSON had used his radio to call up the ORG armoured vehicle as backup . The ORG had been standing QUANTITY away from his brigade building . When it reached his position it had managed to disperse the demonstrators without firing a shot . It had come from DATE and , in order to get to the brigade building , it must have gone past the post office , where the victim had been killed . However , PERSON did not know whether the ORG had opened fire on its way , but did remember that he had requested that the ORG be sent in exclusively as a deterrent and that the weapons mounted on the vehicle should not be used against the crowd . He knew the Condor crew but could not identify the person who had been driving the vehicle at the time .", "PERSON emphasised that ORG members provoked and built up this kind of incident , and threatened the local population to force them to participate in ORG - organised demonstrations . Refusing to take part could be fatal .", "There was a distance of QUANTITY between the spot where the victim ’s body was found and the place where he had taken up position with his men to defend his brigade ’s building . They had been out of range of the place where the victim ’s body was found and PERCENT of the spent cartridges found there had belonged to ORG members .", "Lastly , in relation to the investigation , PERSON said that he had made the necessary statements to ORG , ORG and the lawyers .", "Mr PERSON stated that the commanding officer of ORG gendarmerie was Major PERSON . The second in command was a lieutenant and he was third in rank .", "He remembered that on DATE of the incident , at TIME , he had received a telephone call informing him that there was an unauthorised demonstration in town . He had gone round to the office of the LOC Commissioner . The head of the security police and the gendarmerie commander had also been present . The crowd of demonstrators was coming towards the centre of town from the district behind the town hall and the immigrant districts . Mr PERSON had ordered his men not to intervene .", "By then , the crowd was CARDINAL strong . At that point , the Condor armoured vehicle was standing near DATE , with a view to preventing any attack on them . It was parked in a narrow lane QUANTITY from the main street where the demonstration was taking place . On the order of a young man whose face was masked , the crowd had begun to advance , chanting slogans like “ Up the NORP ” . They were heading for the centre of town . At that moment handgun shots had been heard coming from the crowd . Shots had also been fired at the security forces from the surrounding alleys and roofs of houses . The ORG had not moved .", "At some point , the district gendarmerie commander ( Major PERSON ) had informed him by walkie - talkie that the demonstrators were attacking the school where his wife was teaching . The ORG militants were demanding that she be handed over to them . The commander had ordered PERSON to go and get his wife from the school . In order to get to the school , the ORG , driven by PERSON , had turned left into the main street , towards the centre of town , then took the first street on the right , which ran alongside the school . In that narrow street Mr PERSON had fired CARDINAL or CARDINAL times in the air in order to gain the ORG attention . Shots were being fired at the vehicle from all sides . The windows of the school and of the adult education centre had been broken by stones . The Condor had been driven towards the demonstrators in order to disperse them , and a second armoured vehicle ( a ORG ) had succeeded in picking up the commander ’s wife at the other entrance to the school and getting her away from the scene . The Condor had then returned to its position near DATE . TIME Mr PERSON had been informed by walkie - talkie that Lieutenant PERSON was requesting assistance . He had started out for the infantry regiment barracks in the LOC . He had to go through the centre of town . In the middle of the main street , between the baker ’s and the post office , he had seen a body stretched out on the ground . There was no one with it . PERSON had told the driver of the armoured vehicle to keep well away from the body because it could have been a trap . When the PERSON came up behind the crowd , which had already got as far as the infantry regiment barracks , the people had moved aside . The demonstrators had run away and the disturbances had ended . When the ORG again returned to its position near DATE , the body was no longer lying in the main street .", "Mr PERSON stated that the LOC was equipped with an MG-CARDINAL automatic rifle . This was the weapon he had used to fire into the air . He had pressed the trigger CARDINAL or CARDINAL times . He did not know the exact number of bullets he had fired but he estimated that it must have been CARDINAL . The MG-CARDINAL machine gun was a combat weapon . If he had fired on the crowd , many people would have been killed .", "Mr PERSON stated that he knew that an investigation into these events had been opened but did not remember giving a statement to anyone in authority . He did not remember whether the spent cartridges from the weapon he had used had been passed on to the judicial authorities . If not , they would have been kept in the gendarmerie depot and handed over to superior officers .", "In response to a question concerning the death of another demonstrator , Mr PERSON stated that the LOC had fired in the air in a narrow street . As soon as the trigger of an MG-CARDINAL machine gun was pressed , it immediately fired CARDINAL bullets . Mr PERSON thought the victims had been killed by bullets fired by the ORG . ORG militants were not professionals and often hit the wrong targets .", "Mr PERSON stated that on DATE he was in ORG and had seen the demonstration . While on his way to his office , he had heard shots and slogans and had taken refuge in the gendarmerie building . At that moment , he had heard numerous gunshots coming from the centre of town .", "From the garden of the gendarmerie building he could see the ORG armoured vehicle moving along FAC , firing in the air in order to disperse the crowd . Shots fired in the air made a different sound than straight shots . He had also heard GPE and GPE fire coming from the gendarmerie building .", "As regards the investigation , he had conducted an inquiry following the criminal complaint filed with the ORG public prosecutor ’s office by ORG . He had taken a statement from PERSON and other witnesses . He had ordered an autopsy on the victim ’s body .", "The autopsy , which was a full one , had been performed in ORG paramedical health centre and produced the following findings : the victim had been dead for TIME as rigor mortis had not yet set in . The victim had been hit by a single bullet . The point of impact was below the right armpit and the bullet had lodged in the left shoulder , causing internal bleeding . The bullet had been found in the victim ’s body . It had followed a rising trajectory .", "Mr PERSON considered that it was not impossible , in view of the trajectory followed by the bullet - core found in the victim ’s body , that it had been fired from the LOC armoured vehicle and had then ricocheted . He referred to the autopsy report , which he had in front of him , and which stated that the fatal bullet must have ricocheted off a building or wall . The bullet - core found in the victim ’s body had been knocked out of shape , and this could not be accounted for by the bullet ’s passage through the victim ’s body .", "A ballistic report on the spent cartridges had been drawn up by the regional criminal police laboratory . According to that report , a bullet fragment which had passed through the body had been found and compared to CARDINAL specimen bullets . No match had been found . Since the other fragments of the bullet had not been found , it had been impossible to identify the weapon which had caused the victim ’s death . However , the bullet - core , which was an important piece of evidence , had been preserved as an exhibit , in accordance with the relevant procedure .", "PERSON had seen to it that the wounded were examined by doctors . CARDINAL medical reports had been filed and placed on the case file sent to the District Commissioner . According to those reports , certain demonstrators had wounds QUANTITY and the knees . None of them had been wounded on the upper body .", "The position of these wounds might have been due to crossfire and bullets ricocheting off the ground or buildings .", "Since the criminal complaint concerned civil servants , PERSON had made a declaration on DATE to the effect that he had no jurisdiction to deal with it , in accordance with the legislation on prosecution of civil servants . He had then transferred the investigation file to the District Commissioner .", "When appointed as the investigator in the PERSON case , he had opened an inquiry and compiled a case file . He had taken witness statements from ORG , PERSON and the other civil servants working in the town hall , who had taken part in the demonstration .", "In his report he stated that the accusations against Major PERSON were unfounded and did not reflect what had actually happened . Before arriving at that conclusion , he had taken evidence from witnesses , read expert reports and gathered other evidence from various official and private sources . Finally , he had taken a decision on the basis of his personal conviction . He had put himself in the place of the security forces faced with the demonstrators . He had thought about the case for DATE before reaching his decision , weighing all the possibilities .", "Mr PERSON had also taken evidence from the gendarmes and Major PERSON . He did not remember whether he had taken evidence from GPE and had not taken a statement from ORG , the mayor of ORG , whom he had seen by chance on his way to ORG town hall . Mr PERSON had only told him that if the gendarmes had intervened sooner , they would have prevented most of the incidents .", "In his statement , PERSON had told Mr PERSON that he had not seen exactly what had happened . He had only heard shots and seen the crowd but had not seen people being killed or wounded . Mr PERSON ’s case file also contained statements from demonstrators . These statements had been taken by the public prosecutor and the previous investigator .", "Mr PERSON did not remember taking evidence from Mr PERSON , the driver of the LOC vehicle . Nor did he remember how many shots had been fired in the air from the Condor .", "Before reaching his conclusion , he had taken into account not only witness statements , but also the results of his own investigations . These indicated that the young man had been killed before the security forces intervened . The ORG militants had been in the middle of the crowd of demonstrators , surrounded by women and children . They had fired shots in all directions in order to create an atmosphere of terror . Some bullets had ricocheted and hit PERSON . The gendarmes had not even been there when he was wounded .", "He had found that the security forces had taken all necessary precautions . Those who had come forward as witnesses were reliable people . The mayor of ORG was one of them .", "There had been CARDINAL demonstrators . If firearms were discharged haphazardly , accidents could happen , even in a group of CARDINAL people . In the case in point , the CARDINAL demonstrators had not been aware of the danger . It had even been inevitable that someone would be killed . He had interviewed everyone , even the victim ’s relatives , who had explained to him that PERSON had very probably been killed by ORG bullets .", "Mr PERSON had not immediately ruled out the possibility that the security forces had fired on the demonstrators . He had been completely impartial and had begun his investigation with an open mind . He had come to the conclusion that the gendarmes had intervened after the victim ’s death . The complaint filed against the gendarmerie commander had really been an emotional reaction intended to tarnish his reputation . Major PERSON had been armed only with a handgun .", "The crew of the ORG armoured vehicle had controlled the situation effectively . If the machine gun mounted on the vehicle had been fired towards or at the crowd , there would have been a large number of deaths .", "The CARDINAL spent cartridges referred to in ORG decision had come from bullets fired in the air by the gendarmes . The DATE spent cartridges referred to in the report on the incidents and in the public prosecutor ’s report of DATE had come from weapons used by the demonstrators . The reference to “ weapons registered ” related to the weapons seized during searches and preserved as exhibits .", "Mr PERSON had interviewed only those people who had been listed by the gendarmerie commander as injured . The difference between the number of injured referred to in his report and the number mentioned by the chief of police could be explained by the fact that some people had gone to hospital and received immediate attention there whereas others had been admitted . Some people did not immediately realise that they had been injured , while others did not inform all the relevant authorities .", "He had seen the injured gendarmes in their barracks . Their injuries had been caused by stones and other hard objects which had been thrown at them , not by bullets .", "The commanding officer was responsible for operations . The troops had taken up their positions on his orders . If a subordinate misapplied CARDINAL of the commanding officer ’s orders , or acted outside the scope of that order , the subordinate was answerable for the consequences .", "He thought that the commanding officer of the district gendarmerie had given appropriate orders . When the police proved to be unable to handle the situation , the gendarmerie had intervened . Major PERSON had therefore intervened in good time and taken the appropriate steps .", "Where the investigating officer was not a gendarmerie officer , the chief of police or his deputy could investigate the case . If no such person was available , someone else , an engineer for example , could act as the investigating officer .", "Mr PERSON confirmed that he had worked in Şırnak from DATE . He also confirmed that Major PERSON had worked in Şırnak for part of that period and stated that he had taken over the investigation in the case long after the events in question .", "Mr Güven had been standing in for the Governor as Chairman of ORG when it discontinued the proceedings against the commanding officer of the gendarmerie forces ordered to suppress the demonstration of DATE . He himself had not been present at the scene of the incidents .", "He described the rules governing prosecution of civil servants , which were as follows . The Governor appointed an investigator , who gathered all the evidence and submitted his conclusions to ORG . The case file was examined at a meeting of ORG at which each member expressed his or her views . The investigator did not attend that meeting . A decision to commit for trial or discontinue proceedings could be taken either unanimously or by a majority . ORG decision was transmitted to ORG which , after examining the case file , upheld or quashed it . These special rules governing the prosecution of civil servants applied in regions where a state of emergency was in force . A state of emergency had to be declared according to the democratic process by ORG , by a majority vote .", "In the present case , ORG had unanimously discontinued the proceedings , on the ground that the persons responsible had not been identified . No one had testified to seeing how PERSON had died . In GPE , gendarmes did not fire on citizens except when driven by necessity to do so .", "CARDINAL", "The ORG based its decisions on the documents which the investigator had placed on the case file , and was not strictly speaking empowered to conduct an investigation itself . That power belonged to the Governor . In general , ORG met DATE , although DATE there was no meeting . If so , the Governor circulated a draft decision among the members of ORG .", "When ORG met , it was chaired by the Governor or his representative . The ORG ’s Secretary read the case file aloud . The members of the ORG could examine the documents on the file . They were then invited to express their views and to sign a draft decision . In theory , the members could oppose the Governor ’s proposal . Those who were not convinced of the correctness of what was proposed could ask for further investigations to be carried out . However , in the final analysis , the procedure was based on the trust placed in the Governor . Either the members of the ORG were convinced and signed the decision , or they were replaced by others who were willing to sign it . In practice , it was not possible for the decision , as proposed by the Governor , not to be signed .", "PERSON stated that he thought the decision given in the present case had not been a discontinuation order but a decision not to commence criminal proceedings against civil servants and to transfer the case file to the public prosecutor for him to carry out a further investigation with a view to identifying those responsible . He had not been informed of subsequent developments in the case .", "Mr GPE stated that the local population had spontaneously organised a demonstration on DATE in order to protest against acts of brutality committed by the gendarmes DATE in the village of GPE . The District Commissioner had called him to the town hall . On his way there , he had seen the demonstrators in the street , and also the security forces and their armoured vehicles . When he got to the town hall , the demonstrators were already assembled .", "At the town hall , the witness had seen and heard gendarmerie major , PERSON , give the order to open fire by walkie - talkie . As the town hall was the tallest building in ORG he had seen a ORG - type armoured vehicle open fire while travelling along FAC in front of the town hall . All the demonstrators were trying to run away . CARDINAL of his friends had been killed before his eyes . He had seen shots being fired from the armoured vehicle . The vehicle was following the demonstrators and the soldiers manning it were firing at the ground , in the direction of the demonstrators .", "CARDINAL people had been wounded in the abdomen and chest by ricocheting bullets . Some of the wounded had refused to be taken to hospital because they were afraid of the authorities’ reaction .", "Mr GPE had not seen how PERSON had been killed . With others , he had signed a complaint filed with the ORG public prosecutor ’s office against PERSON . A gendarmerie officer , Major PERSON , had taken his statement in the course of an investigation into the incidents . But the investigation had come to nothing .", "Mr GPE had been arrested , in relation to another matter , in DATE . In DATE he had left GPE while proceedings against him were pending . He had eventually been sentenced to DATE and CARDINAL months’ imprisonment under LAW § CARDINAL of LAW for membership of an armed group , namely the ORG .", "After examining the photograph of the armoured vehicle on the case file , Mr PERSON stated that it was a NORP and that the ORG was smaller . In fact , a ORG was a jeep equipped with a machine gun . The ORG had fired for TIME .", "Mr PERSON stated that he had been at home when the demonstration started . His house was QUANTITY from the centre of town . From his balcony , he had been able to see the route taken by the demonstrators ( mainly FAC ) and the armoured vehicles belonging to the security forces following them .", "The demonstration had been called to protest against what gendarmes had done to certain inhabitants of a village in GPE . The demonstrators were not armed . At TIME he had heard shots . From his balcony , he could see the armoured vehicles firing in all directions . Later he had gone to the health centre where there were a number of wounded people and PERSON body . He had helped to take the wounded to various hospitals in the region .", "The soldiers inside the armoured vehicle were not necessarily shooting to kill but might have been trying to disperse the demonstrators . However , they had fired without concern for the risk to the ORG lives . Most of the wounded had not gone to hospital for fear of being prosecuted for demonstrating illegally . PERSON had not seen any gendarmes injured in the course of the incidents .", "While PERSON was at the health centre in the social security hospital he had been arrested by gendarmes and held in police custody for DATE before being brought before one of the public prosecutors at ORG . CARDINAL members of his family had later been charged but then acquitted . The gendarmes had seized weapons and cartridges from citizens and fabricated evidence . However , this ploy had not fooled anyone for long .", "PERSON stated that the demonstration had been called in protest against searches carried out by the army and arrests made on DATE in a village near ORG .", "PERSON had taken part in the demonstration together with PERSON PERSON , who had been a school friend of hers . There were no lessons because of the demonstration . They had decided to take part with other pupils from the senior high school . There had been many demonstrators and they were not acting under anyone ’s orders . They were not carrying weapons or stones .", "With regard to the circumstances surrounding the death of PERSON , PERSON stated that she was with him in the middle of the crowd when they found themselves trapped between the gendarmes who were barring the road in front of them ( QUANTITY away ) and a ORG tank which was following close ( CARDINAL or QUANTITY ) behind the demonstration , having come from the centre of town . The armoured vehicle had fired from behind the demonstrators , many times , at random and directly at the demonstrators , although this was not necessary to bring them under control . She had seen PERSON fall to the ground beside her when the shooting first started . He had remained lying on the ground while the demonstrators were running off into the adjacent streets . She had taken refuge in a house from which she had called her father . She had got home TIME . At that time , she could still hear shots . She had later found out that her friend had died .", "On DATE in question Mr PERSON had gone to his café at TIME At TIME the demonstration began . It was a large one . The demonstrators did not have weapons , or stones or sticks . They were chanting slogans such as , “ Stop the torture , stop the repression ” .", "The soldiers had formed a barricade in front of the demonstrators . The ORG , which suddenly appeared behind the crowd , fired into the air , at the ground and in the direction of the demonstrators . CARDINAL person was hit by a bullet and fell to the ground QUANTITY in front of Mr PERSON ’s café . All the other demonstrators dispersed . The ORG had been QUANTITY from the café . PERSON was lying on the ground in front of the café , before the post office .", "When the soldiers inside the ORG opened fire , they were not concerned to preserve human life . The MG-CARDINAL machine gun mounted on the vehicle was a very powerful weapon . A number of people were wounded .", "Shots could be heard in all the streets of ORG until TIME that evening . Mr PERSON had been trying to get home when he was arrested and held in police custody for DATE . Mr PERSON ’s café and other buildings in ORG had been damaged during the incidents . On DATE Mr PERSON had made a statement to the ORG public prosecutor to the effect that he had stayed in bed on DATE of the incidents and had not opened his café , but this was a lie .", "Mr Arı stated that he had arrived in ORG on TIME CARDINAL DATE at TIME from the village of GPE . He had taken part in the demonstration .", "With regard to the circumstances of PERSON death , Mr Arı had seen him fall under fire from the ORG . At that time Mr Arı had been in the middle of the demonstration and had seen soldiers and police officers open fire in the direction of the crowd , without giving any warning . The ORG , which had come from the centre of town , had been behind the demonstrators when it fired several times , in their direction , at the ground and in the air . CARDINAL or QUANTITY people had fallen close to him and the demonstrators had dispersed . PERSON , who was QUANTITY from the ORG , had also fallen to the ground . Mr Arı had run away into the surrounding streets and helped the injured to make their way to the health centre . He had been arrested and taken to the gendarmerie headquarters .", "The demonstrators had not been acting on anyone ’s orders .", "Mr PERSON ’s parents lived in a village QUANTITY from ORG , and he had been on holiday in the region in DATE . He had not seen what took place in the centre of town , in FAC . He had arrived in PERSON TIME and seen people coming away from the scene of the incidents . Armoured vehicles were patrolling the streets . CARDINAL of the vehicles had opened fire on him . He had hidden behind a rock , but his leg had been burned by bullet fragments . According to PERSON , the gendarmes were out of control and were taking absolutely no precautions to preserve human life . They were acting like hunters .", "Mr PERSON stated that he had taken part in the demonstration . He had seen the NORP fire at the crowd from a distance of QUANTITY . The demonstrators had separated into CARDINAL groups , but the firing had continued and he had received a bullet wound .", "As regards the circumstances of PERSON death , he had not been near him but QUANTITY away . He had seen a large ORG and a small one . He had seen the large ORG fire at the crowd without prior warning . He had been treated in secret after the incident by a doctor . CARDINAL people who had been injured did not go to see a doctor for fear of being arrested .", "Article CARDINAL of LAW GPE provides :", "“ All acts or decisions of the administration are subject to judicial review ...", "The administration shall be liable to indemnify any damage caused by its own acts and measures . ”", "The above provision is not subject to any restrictions , even in a state of emergency or war . The second paragraph does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility 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 unidentified persons where the ORG may be said to have failed in its duty to safeguard individual life and property .", "Under LAW , torture and ill - treatment are criminal offences ( Articles CARDINAL and CARDINAL deal with torture and ill - treatment inflicted by civil servants respectively ) .", "Under ORG CARDINAL and CARDINAL of LAW , complaints may be lodged with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may also appeal against a decision not to institute criminal proceedings .", "Under LAW no . CARDINAL ( which introduced the office of Governor of a State of Emergency Region ) , criminal offences committed by members of the security forces within the area covered by the state of emergency must be dealt with under the procedure for prosecuting public servants . Under this procedure , the administrative investigatory authorities conduct the preliminary investigation . If this investigation implicates an agent of the ORG or a civil servant , authorisation to initiate criminal proceedings must be given by the local administrative council ( the executive committee of the provincial administrative authorities ) . Administrative councils’ decisions may be appealed to ORG ; a decision not to proceed is subject to an automatic appeal of this kind .", "Under LAW no . CARDINAL , a person who has been wrongfully held in police custody may apply to the local assize court for compensation within DATE of a decision to drop the charges against him .", "Furthermore , any illegal act by a civil servant , whether a crime or a tort , which causes pecuniary or non - pecuniary damage may be the subject of a claim for compensation before the ordinary civil courts .", "Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing ." ]

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[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . She is represented before the Court by PERSON , a solicitor practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .", "NORP The applicant ’s daughter , PERSON ( born in DATE ) , died on DATE .", "PERSON had a history of mental health problems associated with alcohol and substance misuse .", "In DATE CARDINAL warrants against her were considered by a GPE court . Sentencing was deferred ( until DATE ) the conditions of which were that she lived with her mother in GPE , kept in touch with her probation officer ( not amounting to formal probation supervision ) , accepted her treatment for drug abuse and did not commit further offences . She went to live with her mother in GPE . The facts set out below are taken from the documents submitted , including the transcript of the Inquest held on DATE ( paragraphs CARDINAL - CARDINAL below ) .", "PERSON was seen by many health professionals from DATE . A General Practitioner ( “ GP ” , who treated her from DATE ) later certified to the Inquest that it was not clear whether she was a chaotic individual with a long history of substance abuse or whether there was evidence of psychotic illness . A psychiatric nurse certified to the Inquest that she was unsettled and agitated expressing paranoid ideation and suspicious thoughts and that most of her problems appeared to be caused by long - standing substance abuse .", "Because no recall notice had issued as regards CARDINAL of the CARDINAL warrants from ORG , in DATE ORG officers circulated , in error , PERSON details on ORG ( “ LAW ) citing a failure to surrender to the warrant . In short , that warrant was , erroneously , now recorded as “ outstanding ” whereas it had been dealt with by the GPE court in DATE .", "On DATE PERSON was arrested in GPE for being drunk and disorderly . She was found guilty by a GPE court on DATE and a small fine was imposed .", "During that process , a ORG search revealed the warrant erroneously described as outstanding . She was re - arrested on DATE and , on DATE , transferred to GPE ( GPE station ) , arriving at CARDINAL . ORG ( “ PCO ” ) obtained a copy of the “ outstanding ” warrant and approved her custody at CARDINAL . He asked her a number of standard questions including those to determine her state of health and well - being . She replied in the negative when asked if she needed any assistance and whether she was suffering from any medical condition , illness or injury . Although she was acting appropriately and calmly , she had medication in her possession and the ORG referred her to ORG ( “ ORG ” ) . The ORG examined PERSON at CARDINAL , took her history ( she was open about her history of drugs and alcohol abuse ) and noted her medication ( valium and an anti - psychotic medication ) . The ORG advised her and the ORG how the medication should be taken . She was assessed as calm and fit to be detained . The ORG also advised her of her right to consult a solicitor free of charge and to inform someone of her arrest . She spoke with a solicitor by telephone and later ( CARDINAL - CARDINAL.CARDINAL ) he consulted with her at the police station . She was detained TIME .", "She was transported TIME ( CARDINAL November ) to the GPE court . At CARDINAL it was discovered that the warrant was not valid and she was released from custody , although she stayed in the building . ORG informed the on - duty probation officer , who happened to know PERSON and her background , and who , in turn , informed PERSON . A solicitor ( from the law firm which represented her but who did not know her ) also consulted with her and , having been informed by a “ prison custody officer ” that there was no valid warrant , the solicitor also confirmed this to her . The solicitor saw her around CARDINAL.CARDINAL and at TIME and informed her that arrangements would be made by the probation officer for a travel warrant to be issued for her to return home to GPE . Since she was not under formal probation supervision , her travel could not be funded by the probation service and the probation officer set about obtaining it from court funds . PERSON insisted on going to a friend ’s house in GPE rather than home : her solicitor and the probation officer agreed . The travel warrant to GPE from court funds was approved at CARDINAL by a Stipendiary Magistrate . PERSON collected the travel warrant and , indicating that she knew the way to the bus station , left the court building . The probation officer and her solicitor considered her angry , frustrated and , at times , aggressive . While both believed that she might have been drinking , taking drugs or medication ( she had left the court building during DATE ) , neither considered that she needed medical assistance . According to his evidence at the Inquest , the probation officer did not consider her suicidal and he would have brought her to the bus station had he had cause for concern . PERSON called the applicant in a distressed state at CARDINAL : she expressed no suicidal intent .", "PERSON did not go to GPE but remained in GPE TIME . TIME ( TIME ) she attended PERSON ( a registered charity ) where the manager knew her and she spent some time with a mental health project worker . She was not communicative . She telephoned her mother from FAC . The project worker also spoke to her mother and her mother explained her daughter ’s history and provided the number of her ORG in GPE . On the advice of the manager of ORG was referred to a drop - in ORG ( which PERSON knew ) that afternoon and her GPE in GPE was informed . The project worker gave PERSON the bus fare to ORG left in an improved mood .", "At CARDINAL she attended ORG ( a ORG clinic ) . She saw a ORG who was also familiar with her history and who had consulted with her GPE in GPE before he saw her . She refused to take the medication prescription given to her . She was agitated , aggressive and expressing paranoid ideas , but not suicidal . She left ORG at CARDINAL .", "At CARDINAL the police were called to attend when PERSON had collapsed in the street . Identification , but not medication , was found on her . She was unconscious with a weak pulse . An ambulance arrived and she was transported to hospital where she was pronounced dead at CARDINAL . The post - mortem examination confirmed that she died of a methadone overdose .", "On DATE an Inquest was opened and adjourned by the Coroner . It was resumed on DATE , after the coming into force of LAW DATE ( “ HRA ” ) . The Inquest lasted DATE .", "The applicant , who was present and legally represented , argued that the Inquest should examine : who or what factor(s ) was responsible for the original execution of the warrant not being registered with the proper authorities ; who or what was responsible for incorrect details being entered on the ORG ; what , if any , safeguards existed to prevent the errors ; why there was no reference on LAW that came from the GPE police station to medication , drug abuse or self - harm ; what happened to her medication prior to her being discharged from custody ; who was responsible for securing basic financial , logistical and therapeutic support to a vulnerable woman who had been falsely imprisoned and unlawfully transported QUANTITY from her home , family and probation officer ; why was she left to die involuntarily , homeless , penniless and without sufficient medication ; and why were the CARDINAL treating doctors not able to take more effective action in dealing with her mental health difficulties on DATE of her death .", "The Coroner did not allow the Inquest to cover such matters , the Inquest being limited to matters directly causative of death . Since PERSON had died before the entry into force of the ORG , the question “ how ... she came by her death ” ( section CARDINAL(CARDINAL)(b)(ii ) of the Coroner ’s Act DATE , “ the DATE LAW ) was considered by reference to the pre - ORG test ( NORP v. GPE , ex parte PERSON [ DATE ] QB CARDINAL ) rather than by reference to the post - ORG “ ORG ” test ( ORG ) v. GPE [ DATE ] ORG CARDINAL and PERSON ) v. GPE [ DATE ] ORG CARDINAL ) . In CARDINAL exchange between Counsel for the applicant and the Coroner , the latter stated that it was within his remit to determine matters that were directly causative of death but not to enquire into every underlying circumstance which , however remotely , might be considered responsible for death . Accordingly , while the error in relation to the warrant was accepted , it was not the role of the Inquest to enquire into why or how that error had occurred .", "The Coroner obtained a considerable amount of evidence about PERSON background and the events of DATE of her life . The ORG described his contact with the applicant on DATE . The applicant gave evidence mainly about her difficulty in obtaining information from the probation officer and the solicitor on TIME CARDINAL DATE . The solicitor and probation officer described their contacts with PERSON at the GPE court on TIME . The relevant medical personnel also described their contacts with her : the FAC at FAC as well as the mental health project worker at FAC and the doctor at ORG . The Coroner also read into the record reports detailing her symptoms and treatment from her GPE , community psychiatric nurse and the consultant psychiatrist , all of whom had treated her in GPE , . The police officer called to attend when she collapsed in the street and the pathologist who conducted the post - mortem examination also gave evidence .", "The Coroner summed up the evidence . He then advised on matters of law , explaining , inter alia , that it was no part of the Inquest ’s role to apportion blame given section CARDINAL of the Coroner ’s Rules DATE ( “ the DATE Rules ” ) . He explained the CARDINAL standard questions in the Inquisition Form to which the jury had to respond . Items CARDINAL and CARDINAL concerned certain personal identifying details of the deceased . Item CARDINAL concerned the “ injury or disease causing death ” : the Coroner considered this to be “ crystal clear ” and that there was absolutely no dispute given the pathologist ’s conclusions ( “ Methadone , ORG and alcohol poisoning ” ) . Item CARDINAL concerned “ the time , place and circumstances at or in which injury was sustained ” : the Coroner explained that there was nothing to fill in since the deceased did not suffer any injuries . Item CARDINAL constituted the “ verdict ” and allowed CARDINAL possible conclusions : “ death by misadventure ” and “ an open verdict ” . The former was described as a situation where ‘ an unlooked for or unintended fatal outcome arose from some voluntary act or actions of the deceased’ . The latter ( open verdict ) was explained as the verdict which could be returned if the jury formed the view that the evidence “ did not fully disclose the means whereby the cause of death arose ” or if there was insufficient evidence to return a verdict of death by misadventure .", "The jury found that the cause of death was “ methadone , diazepam and alcohol poisoning ” ( Item CARDINAL ) and it returned a verdict of death by misadventure ( Item CARDINAL ) . The Coroner then closed the Inquest as follows :", "“ From the evidence we heard , [ PERSON ] certainly needed help but there is no evidence to suggest that all the professionals , or indeed the health care professionals , had done anything other than acted in good faith , professionally and tried to help her within quite difficult circumstances . [ PERSON ] died as a result of a drug overdose , by her own volition , which is very sad and tragic indeed . Clearly , no one who had any knowledge of this tragic death could not but have the deepest sympathy for [ PERSON ] mother who clearly was at the end of her tether trying to do the best for her . Her frustration was compounded by the unfortunate ‘ cock up’ of the inappropriate warrant which then brought [ PERSON ] to GPE where she died . [ PERSON ] mother ’s distress and , indeed , palpable anger , was entirely understandable , and ORG at the very least , owe her a big apology indeed . No doubt there will be an inquiry into this matter , which is entirely outside of the remit of my court and I shall comment no more and ..... I wish them luck in their quest in seeking answers to address her concern . ”", "The applicant complained to ORG ( “ PERSON ” ) and a report was sent to her solicitors in DATE ( not submitted ) . ORG ( “ ORG ” ) investigated and reported on the complaint in so far as it concerned the GPE area . Following a meeting with , among others , the applicant and her solicitors on DATE and other inquiries , the ORG issued a report dated DATE . It found that , while the probation officer was not required to supervise PERSON on DATE , he did all that was necessary to ensure a travel warrant was issued ; that the erroneous warrant for arrest was not a matter for the probation service but it would be raised by the ORG before ORG ; and that the ORG and the GPE court staff did as much as they could for PERSON .", "The applicant appealed to ORG and GPE who conducted an investigation into the applicant ’s claims about the ORG and the PERSON . In the ORG ’s report of DATE he supported the conclusions of the ORG , finding that the probation staff had behaved professionally at the GPE court and had assisted PERSON as far as it was within their means to do so . On DATE the ORG ’s report found that the PERSON had fulfilled all of their obligations in respect of the conditions of the deferred sentence , noting that the relevant probation officer in GPE had gone above and beyond what was required of her .", "NORP The applicant also claimed to have made various complaints to the police which were “ unrecorded ” . She submitted that her appeal to ORG ( “ ORG ” ) was “ upheld ” in DATE and that the ORG noted that the complaint might not be investigated because of the lapse of time since the incident . She referred to a letter of DATE wherein ORG declined to “ further investigate the circumstances of the applicant ’s complaints ” . The applicant also believed that she had unsuccessfully pursued complaints to ORG . No substantiating documents were submitted .", "In DATE the applicant ( who had legal aid ) applied to challenge the Inquest under LAW of LAW , arguing mainly that the Inquest failed to comply with LAW . Leave was granted on DATE .", "On CARDINAL DATE the case was dismissed by judgment of ORG . That court defined the key question as : where a Coroner conducted an Inquest into a pre - HRA death , was the approach to the question of “ how ... the deceased came by his death ” ( section CARDINAL(CARDINAL)(b)(ii ) of LAW ) to be considered by reference to the pre - HRA test ( a Jamieson Inquest ) or by reference to the post - HRA test ( a ORG ) .", "The High Court found that an Inquest into a pre - HRA death did not have to be LAW given the ORG judgment of ORG ( In re ORG [ DATE ] CARDINAL WLR CARDINAL ) . ORG concluded :", "“ ... I therefore conclude that the [ ORG ] does not require a Coroner now investigating a death which occurred before the coming into force of the [ ORG ] to conduct an inquest in an LAW compliant manner . It may be that his failure to do so may be actionable in international proceedings in GPE , just as the failure of the Secretary of ORG resulted in a successful application to GPE in ORG . However , that does not assist the claimant in the domestic context . ”", "In addition , the Coroner had retained and properly applied the correct PERSON requirements . Having noted the considerable amount of evidence obtained by the Coroner , ORG considered that the Coroner was “ undoubtedly entitled to conclude that , under the pre - HRA law , it was unnecessary for there to be a detailed investigation into how the warrant came to be executed erroneously . ”", "In commenting on the final passage of the Coroner ’s speech closing the Inquest and , in concluding itself , ORG noted :", "“ ... I wish to associate myself with the deep sympathy expressed by the Coroner . I well appreciate that the claimant , as a loving parent , will continue to feel aggrieved by the scope of the inquest . It will be no consolation to her that if [ PERSON ] had died after DATE , different considerations would have applied to the parameters of the inquest . Sadly , however , the less generous law which applies to the inquest in the present case fails to provide her with all the answers to which she , understandably , feels entitled . I am sorry to say that her appeal must be dismissed . ”", "Leave to appeal to ORG was granted , the single judge noting that an intervening judgment of ORG was in the applicant ’s favour ( R.(Hurst ) v GPE LOC Coroner [ DATE ] EWCA CARDINAL ) . The applicant was legally aided and represented .", "The appeal was therefore stayed pending the ORG of Lords’ judgment in the PERSON case . On DATE that judgment was delivered ( R.(Hurst ) v GPE LOC [ DATE ] UKHL CARDINAL ) , ORG reversing ORG judgment and confirming that there was no duty on a Coroner to hold an Inquest complying with LAW in relation to a death that pre - dated the entry into force of the ORG even if the Inquest took place thereafter . Lord PERSON approved the judgment of ORG in the present applicant ’s case .", "Accordingly , on DATE Counsel advised he applicant that her appeal had no prospects of success and should be withdrawn . On DATE ORG dismissed the appeal on a consent basis .", "On DATE the applicant issued civil proceedings for damages against a number of respondents , including the Greater London ORG , alleging negligence and false imprisonment as regards the arrest and detention of PERSON on the basis of an unlawful warrant . The case was stayed pending the above - described judicial review proceedings . Legal aid was discharged in DATE and the applicant acted in person when the case was re - activated thereafter .", "On DATE the Greater London ORG agreed to compensate the applicant in the sum of MONEY ( “ GBP ” ) and for previously incurred legal costs in the sum of GBP CARDINAL .", "The ORG came into force in GPE , GPE and GPE on DATE .", "Section CARDINAL of the ORG provides that so far as it is possible primary and secondary legislation must be read and given effect in a Convention compatible manner . Section CARDINAL of the ORG makes it unlawful for a public authority to act incompatibly with Convention rights , unless it is not possible to act differently by virtue of primary legislation . A successful claim under LAW would render the relevant public authority liable to the plaintiff under LAW ORG and a judge has power to award damages under section CARDINAL of the ORG .", "Section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW to hold an Inquest in circumstances where there are grounds to suspect that the person ( a ) has died a violent or an unnatural death or ( b ) has died a sudden death of which the cause is unknown .", "Section CARDINAL(CARDINAL)(b ) of the DATE Act outlines the content of the Inquisition Form ( the document completed by ORG jury at the end of the evidence ) as follows :", "“ ( i ) who the deceased was ; and", "( ii ) how , when and where the deceased came by his death ; ... ”", "Rule CARDINAL of LAW ( “ the DATE Rules ” ) requires that proceedings be directed solely to ascertaining : ( a ) who the deceased was ; ( b ) how , when and where he came by his death ; and ( c ) the particulars required by LAW to be registered concerning the death . Rule DATE provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person .", "In GPE v Her Majesty ’s Coroner for LOC of GPE ex parte PERSON , PERSON and Manners ( unreported DATE ) , Lord Justice PERSON said :", "“ In short the inquiry must focus on matters directly causative of death and must , indeed , be confined to these matters alone ... . The recent , eleventh edition of GPE on Coroners puts it thus :", "‘ The question of how the deceased came by his death is of course wider than merely finding the medical cause of death , and it is therefore right and proper that the coroner should enquire into acts or omissions which are directly responsible for the ORG . ”", "This latter case informed the findings of ORG in the principal case concerning the role and function of an Inquest as a fact - finding inquiry concerning a death pre - dating the ORG ( NORP v. PERSON for GPE and GPE ex p. PERSON [ DATE ] Q.B. CARDINAL ) . Sir PERSON held that the words “ How ... the deceased came by his death ” in section CARDINAL(CARDINAL)(b ) of LAW DATE and Rule CARDINAL were to be understood as meaning “ by what means ” :", "“ ... the task is not to ascertain how the deceased died , which might raise general and far - reaching issues , but ‘ how ... the deceased came by his ORG , a more limited question directed to the means by which the deceased came by his death . ”", "A ORG provides therefore for narrow circumstances in which a lack of vigilance on the part of the third party could feature in the Inquest verdict . Having emphasised that the Inquest could not be concerned with matters of ordinary negligence ( a failure to take reasonable care ) , the judgment defined the verdict of neglect ( or lack of care ) as a term of art :", "“ Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence .", "Since many of those seeking that verdict do so as a stepping - stone towards such a claim the boundary is bound to become blurred . But lack of care in the context of an inquest has been correctly described as the obverse of self - neglect . It is to be hoped that in future the expression ‘ lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by “ neglect . ”", "Neglect in this context means a gross failure to provide adequate nourishment or liquid , or provide or procure basic medical attention or shelter or warmth for someone in a dependent position ( because of youth , age , illness or incarceration ) who can not provide it for himself . Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect . ”", "On DATE House of Lords decided ( NORP ( PERSON ) ν GPE [ DATE ] CARDINAL A.C. CARDINAL ; and NORP ( PERSON ) v. GPE [ DATE ] CARDINAL W.L.R. CARDINAL ) that the limited scope of ORG , being insufficient to provide a meaningful conclusion as to whether the conduct of ORG agents might reasonably have prevented a death , was incompatible with the procedural requirement of LAW . In so deciding and using the interpretation mechanism of section CARDINAL of the ORG an Inquest , in deciding “ how ” the deceased came by his death , was to consider both “ by what means ” and “ in what circumstances ” the deceased came by his death . This would be applicable to cases where it was plausibly alleged that unjustified lethal force had been used by agents of the ORG as well as in cases where it was alleged that the ORG had breached its positive duty to take reasonable steps to safeguard the lives of individuals . In this latter respect , ORG noted that :", "“ The decision in [ PERSON v. GPE , no . CARDINAL , ORG CARDINALIII ] shows that it does apply to a broader category of cases , since although in that case no breach of the state ’s investigative obligation was alleged or found , the court based its conclusion that LAW had been violated in part on its opinion ... that the inquest , which did not permit any determination of liability , did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities nor did it ... constitute an investigation capable of leading to the identification and punishment of those responsible for the deprivation of life . A statement of the inquest jury ’s conclusions on the main facts leading to the suicide of PERSON would have precluded that comment .", "Lord GPE therefore made the following observation as to how those Rules would henceforth be applied :", "“ The prohibition in rule PERSON ) of the expression of opinion on matters not comprised within sub - rule ( CARDINAL ) must continue to be respected . But it must be read with reference to the broader interpretation of “ how ” in section CARDINAL ) and rule CARDINAL ) and does not preclude conclusions of fact as opposed to expressions of opinion . However the jury ’s factual conclusion is conveyed , rule CARDINAL should not be infringed . Thus there must be no finding of criminal liability on the part of a named person . Nor must the verdict appear to determine any question of civil liability . Acts or omissions may be recorded , but expressions suggestive of civil liability , in particular “ neglect ” or “ carelessness ” and related expressions , should be avoided . Self - neglect and neglect should continue to be treated as terms of article ”", "On DATE ( DATE ) ORG gave judgment in In re PERSON ( [ DATE ] CARDINAL WLR CARDINAL ) . Following a finding of a breach of the procedural obligation under LAW by ORG ( ORG v. GPE , no . CARDINAL/CARDINAL , ECHR CARDINALIII ) , that case determined that an obligation to conduct an LAW inquiry into a fatal shooting did not apply to a death which pre - dated the entry into force of the ORG .", "Further to the delivery of this ORG ’s judgment in ORG v. GPE ( [ ORG ] , no . CARDINAL , DATE ) , ORG accepted that an Inquest compliant with LAW should be held into the use of lethal force which took place prior to the entry into force of the ORG ( PERSON and Another , Re Application for Judicial Review [ DATE ] ORG ) . PERSON did not consider that this required the re - opening of an Inquest that had already taken place , unless there was important new material .", "The ORG refers to LAW outlined in its judgment in PERSON v. GPE ( DATE , § § CARDINAL - CARDINAL , Reports of Judgments and Decisions CARDINAL ) and in Z and Others v. GPE ( [ ORG ] , no . CARDINAL , § § DATE ) , ORG CARDINALV ) . It would add as follows .", "ORG judgment in GPE v. Chief Constable of GPE ( [ DATE ] A С CARDINAL ) was later relied upon in PERSON ( [ DATE ] CARDINAL AU . E.R.CARDINAL ) and is also described in the judgment of this Court in its above - cited PERSON judgment .", "The public policy constraints on recognising a duty of care by public authorities were further considered in PERSON v. Commissioner of Police for the Metropolis ( [ DATE ] CARDINAL W.L.R. CARDINAL ) . The claimant was the friend of PERSON . Both men had been subjected to a racist attack by CARDINAL white youths , which resulted in the death of PERSON . A subsequent public inquiry held that the investigation , and in particular the treatment of PERSON , was open to criticism on a number of fronts , as well as indicating unwitting racism on the part of several officers and a generalised problem of institutional racism on the part of ORG . ORG allowed the appeal of the Commissioner of Police against the decision of ORG refusing to strike out the claimant ’s action in damages for negligence . Lord PERSON gave the main judgment and considered the continuing status of PERSON ’s case under LANGUAGE law . He conceded that it was no longer appropriate to articulate the public policy issue in terms of an entitlement of public institutions to blanket immunities from civil proceedings . However , the underlying refusal in PERSON ’s case to recognise a duty of care when the police merely exercise their public functions was upheld . The judgments of Lord PERSON and Lord PERSON recognised , however , that a duty of care would be held to exist in exceptional cases .", "Since the PERSON case , a number of cases have exhibited a sufficient degree of special relationship to displace the public policy consideration preventing the recognition of a duty of care . They include circumstances where a person acts as an informant of the police ( Swinney v. Chief Constable of GPE [ DATE ] Q.B. CARDINAL ) ; or has their property targeted in the course of police operations ( PERSON v. Chief Constable of GPE [ DATE ] CARDINAL All . ORG ) ; or is employed within their service ( Waters v. Commissioner of Police [ CARDINAL ] CARDINAL WLR CARDINAL ) ; or where a person is in detention ( PERSON v. Chief Constable of GPE [ DATE ] CARDINAL Q.B. CARDINAL ) .", "There is a parallel common law line of authority concerning the duty of care of local authorities . It is authoritatively expressed in the case of X and Others v. ORG ( [ DATE ] CARDINAL All England Law Reports CARDINAL and described in the above - cited Z and Others v. the GPE judgment ) , where ORG held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children . CARDINAL later significant judgments found the local authority to owe a duty of care , including to parents , as regards children placed by , or in the care of , a local authority ( PERSON and Others v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ; and PERSON v. GPE of GPE [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) .", "The Court of Appeal judgment in the case of PERSON ν. Chief Constable of GPE ( [ DATE ] CARDINAL W.L.R. DATE ) concerned a death ( the killing of a witness in a criminal prosecution ) which post - dated the entry into force of the ORG . The applicant ’s claim under LAW ORG , for a breach of LAW , was upheld .", "In so doing , ORG analysed the differences between that action under section CARDINAL of the ORG and common law negligence , ORG observing that the claimant would not have succeeded if the claim had been brought in negligence :", "“ [ Counsel for the claimant ] stressed the fact that the claimants did not frame their claim in negligence before the judge and they have not done so before us . That was because of the difficulty of persuading the court that the police owed them a duty of care in the light of the decisions of ORG in [ PERSON and PERSON ] . Although there was a suggestion in the course of the argument that a duty of care might be owed on the particular facts of this case and , indeed , the judge ’s judgment gives the claimants some encouragement , the claimants have never advanced their case on that basis and it seems to us to be fraught with difficulty . We shall proceed on the footing that on the authorities as they stand at present no duty of care was owed by the police to the claimants . ”", "In analysing the differences between the common law action and an action under section CARDINAL of the ORG ( of a breach of LAW , ORG noted that the public policy concerns about finite police resources were acknowledged in the LAW case - law , by setting the threshold for a breach of LAW at a relatively high point , although not so high as to require gross negligence . Having cited the relevant paragraph QUANTITY of the above - cited PERSON judgment of this ORG , ORG observed :", "“ .. in [ PERSON v. the GPE ] the [ ORG ] stressed that not every claimed risk to life gives rise to a positive obligation under LAW . That is because of policy considerations which are very similar to those which led ORG in [ the LOC ] case to conclude that no duty of care is owed by the police to those in the position of PERSON . However , unlike the solution so far adopted by the common law , the solution adopted by the court under the Convention was not to hold that there was no positive obligation actionable at the suit of a victim to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual , but to hold that such an obligation must be interpreted so as not to impose an impossible or disproportionate burden on the authorities . ”", "ORG ( [ DATE ] ORG DATE allowed the appeal of the Chief Constable in the PERSON case , finding that the claimants had not satisfied the “ PERSON threshold ” so that there had been no violation of the substantive requirements of LAW .", "The parallel appeal before ORG decided at the same time ( ORG ) v. Chief Constable of Sussex Police [ DATE ] ORG CARDINAL ) concerned a claim under the common law of negligence only . ORG confirmed the “ robust ” approach of the above - cited PERSON judgment and explicitly contrasted that with the remedy available under the ORG .", "LAW ( Miscellaneous ) LAW DATE ( “ the DATE LAW ) provides for the survival of causes of action for the benefit of the deceased ’s personal estate . The relevant part of LAW CARDINAL(CARDINAL ) provides :", "“ Subject to the provisions of this section , on the death of any person after the commencement of this LAW all causes of action subsisting against or vested in him shall survive against , or , as the case may be , for the benefit of , his estate . ”", "This enables recovery on behalf of the estate of damages for losses suffered by the deceased before death , including non - pecuniary damages for pain and suffering between the infliction of injury and death . Where death is instantaneous , or where it can not be proved that the deceased experienced pain and suffering before death , damages are not recoverable under LAW ( the only recoverable amount being funeral expenses ) .", "The Fatal Accidents Act DATE ( “ CARDINAL Act \" ) confers a right of action for a wrongful act causing death . LAW ) provides :", "“ If death is caused by any wrongful act , neglect or default which is such as would ( if death had not ensued ) have entitled the person injured to maintain an action and recover damages in respect thereof , the person who would have been liable if death had not ensued shall be liable to an action for damages , notwithstanding the death of the person injured . ”", "The statutory right of action is reserved to the deceased ’s dependants ( parents are not considered dependants ) and allows the recovery of their pecuniary loss . If there are no dependants , no pecuniary loss is recoverable . Bereavement damages ( fixed at GBP CARDINAL ) are available to parents if the deceased child was DATE . Funeral expenses are recoverable . LANGUAGE law does not recognise a tort of wrongful death ." ]

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[ "Mr PERSON and his wife PERSON are NORP farmers residing at GPE , GPE . They complain of consolidation measures ( PERSON ) taken in respect of their land since DATE .", "On DATE ORG ( PERSON , \" ORG \" ) opened the Hacking land consolidation proceedings , pursuant to section CARDINAL of GPE DATE ( ORG , \" LAW \" ) . The measures concerned CARDINAL landownersand covered QUANTITY , including the applicants’ property at GPE .", "On DATE Mr and PERSON made a \" declaration of wishes \" ( PERSON ) , expressing their wish to receive parcels situated near their farmhouse . On CARDINAL DATE ORG adopted the land valuation schedule , against which the ORG did not appeal .", "On DATE ORG ordered the provisional transfer of compensatory plots ( ORG ) on the basis of a draft consolidation scheme ( ORG ) , pursuant to section CARDINAL of the CARDINAL Act ( see paragraph CARDINAL below ) . The applicants had agreed to this plan , which provided them with a parcel of QUANTITY near their farm , and did not contest the transfer decision . While they lost the ownership of land formerly belonging to them ( including the CARDINAL plots mentioned in paragraph CARDINAL below ) , which passed to the association of landowners ( see paragraph CARDINAL below ) , they acquired the provisional ownership of certain plots subject to a condition subsequent , namely that they would be dispossessed of them under the final consolidation scheme , if it did not confirm the allocation thereof to the applicants ( section CARDINAL of the DATE LAW .", "On DATE the municipal council of GPE had adopted an area zoning plan ( GPE ; see paragraphs CARDINAL - CARDINAL below ) , which was approved on DATE by the government of the Land . The ORG property , which was covered by the consolidation scheme , retained its designation as agricultural land , although certain adjoining plots had been redesignated as building land in DATE and DATE .", "At the request of the new ( provisional ) owners , the municipal council amended the area zoning plan on DATE . It classified as building land CARDINAL plots covering a surface of QUANTITY which had previously belonged to the applicants . On DATE the Land government approved the decision , which became final on DATE", "Subsequently the CARDINAL plots were divided into parcels and sold to several persons who were granted building permits in respect of them .", "On DATE Mr and PERSON asked ORG to return to them the CARDINAL plots by withdrawing them from the consolidation scheme . In their view the plots in question were now to be regarded as land of special value which under the relevant legislation was in principle to be left to the previous owners . In the alternative , they asked to be allocated building land or to be accorded financial compensation ( Geldwertentschädigung ) . They also sought compensation ( ORG ) on account of loss of interest ( PERSON ) arising from the fact that they had not themselves been able to sell the CARDINAL plots after the amendment of the area zoning plan ; they estimated this amount at QUANTITY on the basis of a price of QUANTITY at an interest rate of PERCENT .", "ORG replied by a letter of CARDINAL DATE . It referred to ORG DATE ( \" LAW \" ) , which had replaced LAW , and drew their attention to the fact that claims for compensation had to be submitted within DATE on which the consolidation scheme became final ( section CARDINAL ) ; see paragraph CARDINAL below ) . It therefore requested the applicants to await the publication of the scheme which was scheduled for DATE .", "The PERSON took the view that ORG had failed to resolve within the statutory time - limit of DATE the questions which they had raised with it and , on DATE , filed with ORG ( ORG , \" ORG \" ) an application for a ruling on the matter ( section CARDINAL of LAW , ORG ; see paragraph CARDINAL below ) .", "ORG gave its decision on DATE . It dismissed the request for the CARDINAL plots to be withdrawn from the consolidation scheme . It considered that , in order to attain its objective , the scheme had to include the land in question and the fact that the plots were now building land made no difference in this respect . It found that ORG refusal to rule on the applicants’ other claims was justified since the merits of such claims could not be determined until the consolidation scheme had become final . ORG ordered ORG not to approve or authorise any further division into parcels of the land in question or to allow any further conversion into building land or any further issue of building permits .", "The ORG appealed to ORG ( ORG , \" ORG \" ) , which declared their appeal inadmissible on DATE . Its decision was upheld on DATE by ORG ) and on DATE by ORG ( Verwaltungsgerichtshof ) .", "Previously , on DATE , the applicants had contested ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) directly in ORG , which gave its decision on DATE . It upheld the impugned decision in so far as ORG had refused to return the CARDINAL plots to the applicants , but at the same time declared the appeal well - founded on the other points . As ORG had not ruled within the statutory period of DATE on the alternative claims filed by the applicants , ORG ought to have decided them itself .", "In new proceedings before it , ORG gave its decision on DATE . In its view it was not possible under LAW to afford compensation for the alleged damage . The LAW provided that the owners of plots of special value covered by a consolidation scheme should in principle be compensated by the allocation of land of the same type . As regards the building land claimed by the ORG , ORG noted that the provisional transfer of the plots precluded altering their allocation for the time being . However , the provisional transfer did not prejudge the consolidation scheme which would determine definitively the question of land of special value . Furthermore , the building plots were referred to only in the area zoning plan for GPE and there was therefore an inseparable link between that plan and the question of statutory compensation for land of special value . Accordingly , the area zoning , which was the responsibility of the municipal authorities and not the agricultural authorities , was a precondition . The municipal council of GPE had announced that it proposed to convert into building land certain of the compensatory plots allocated to the applicants , but their area and location had not yet been fixed . ORG concluded that it could not rule on the merits of the question until an appeal had been filed concerning the consolidation scheme , once the latter had been adopted and published .", "Mr and PERSON then appealed to ORG , which on DATE refused to entertain their appeal as the case did not raise any specific questions of constitutional law . It remitted the case to ORG , in accordance with the ORG alternative plea .", "ORG dismissed the appeal on DATE . It noted in the first place that the applicants had themselves obtained the plots which they had wished and whose designation as agricultural land had not been changed . They had thus suffered no temporary disadvantage for which they could claim financial compensation . It was true that the area zoning plan had reclassified a part of their former land after its provisional transfer . However , the consolidation scheme , which was to fix the statutory compensation , would have to take into account any changes in the value of the land occurring in the course of the proceedings , for example following a new area zoning plan as in this instance . Consequently , the contested decision was not unlawful .", "Relying on section CARDINALa(CARDINAL ) of ORG DATE ( PERSON , \" the DATE LAW \" ) , according to which the consolidation scheme is to be published not DATE after the final decision on the provisional transfer of plots , the ORG asked ORG on DATE to take jurisdiction over the case in accordance with section CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) .", "On DATE the ORG refused . It considered that it was empowered to adopt the consolidation scheme only if the failure to comply with the statutory time - limit of DATE was exclusively the fault of ORG . This was not the case .", "Since the provisional transfer ORG had made every effort to draw up the consolidation scheme . Its work had been delayed on account , in particular , of the proposed route for a new major road and its link roads across the area in question , which made it necessary to revise the position of CARDINAL owners . Furthermore , a substantial part of the file had had to remain for DATE with ORG in connection with appeal proceedings instituted by a landowner ; likewise , the ORG application of CARDINAL DATE had required the file to be sent to ORG , then to ORG and to ORG , and had therefore prevented a decision from being taken during this period . ORG could have adopted and published the consolidation scheme in DATE if further consideration , inquiries and interviews had not been necessary following the alteration to the GPE area zoning plan . With a view to expediting the final adoption of the area zoning plan , it had held discussions with the municipal council DATE , and then with the authorities with competence in the field of land development on DATE , DATE , DATE and DATE .", "As the area zoning plan had still not been settled , it had not been possible to adopt the consolidation scheme , because ORG could not yet determine whether the allocation of land provided the applicants with sufficient compensation , thereby satisfying the statutory criteria . It was , moreover , contrary to the principles of efficient administration to finalise the consolidation scheme before the adoption of the area zoning plan . The conduct of ORG had thus been justified . Under section CARDINAL of ORG , it was possible to stay ( aussetzen ) proceedings pending a definitive decision on a preliminary question which was the subject of other proceedings . In this case the area zoning constituted a preliminary question for the consolidation proceedings .", "The applicants appealed to ORG , which dismissed their appeal on DATE .", "It began by upholding ORG decision that the latter had competence to adopt a consolidation scheme solely where the failure to comply with the statutory time - limit of DATE was exclusively the fault of ORG . According to the established case - law of ORG , there was no such fault where the delay resulted from the conduct of CARDINAL of the parties or from an insurmountable obstacle . In the present case it had not been suggested that the applicants’ conduct had been in any way reprehensible , nor could the failure to comply with the statutory DATE time - limit be blamed on ORG . Throughout the consolidation proceedings , it had to take account of the area zoning plans and any amendments thereto . It was therefore impossible , and indeed contrary to the principles of efficient administration , to adopt a consolidation scheme where no final land - development plan or area zoning plan existed , and where negotiations for the adoption of such plan were in progress . Even before the ORG appeal had been filed , the competent authority had conducted further inspections of the land and had had contacts with the GPE municipal council , which was considering the possibility of converting some of the plots allocated to them into building land . In those circumstances , there was no justification for adopting a consolidation scheme which would probably have been defective as from its adoption , if the municipal authority subsequently fixed an amended area zoning plan . The finalisation of such a plan in fact constituted a precondition for the adoption of the consolidation scheme . For all these reasons , ORG had been right to stay the proceedings pending the final decision of the municipal council and was not responsible for the delay in the consolidation proceedings .", "Mr and PERSON contested this decision before ORG , which , on DATE , refused to entertain their appeal on the same grounds as those set out in its judgment of DATE ( see paragraph CARDINAL above ) . It remitted the case to ORG in accordance with the ORG alternative plea .", "ORG dismissed the ORG appeal on DATE . It found , inter alia , that ORG refusal to assume jurisdiction had been justified , since the failure to comply with the statutory time - limit was not exclusively attributable to ORG . Furthermore , the applicants’ claims concerning the nature and extent of the compensatory plots related to the question of the statutory compensation , which would be dealt with by the consolidation scheme .", "On DATE ORG published the consolidation scheme ( see paragraph CARDINAL below ) ; it returned to the Wiesingers QUANTITY of their former land and allocated to them plots covering an area of QUANTITY classified as a zone capable of being redesignated as building land ( Bauerwartungsland ) . It pointed out that the applicants had already received monetary compensation , in DATE , for certain plots that they had had to give up in connection with the construction of the new major road . It dismissed their claim for compensation for the increased value of their former land following its reclassification , because that had been taken into consideration when the compensatory plots were allocated definitively . Finally , ORG found that the applicants had not suffered any temporary damage and were not entitled to any financial reparation .", "The applicants contested the scheme before ORG . They argued that the land which they had ultimately received was of a lower value than their former land ; they had , they claimed , sustained a loss of CARDINAL schillings .", "The different agricultural authorities attempted first to secure a friendly settlement of the dispute : ORG , between CARDINAL DATE and DATE , during which period CARDINAL meetings were held , and ORG , DATE and QUANTITY DATE , at eignteen meetings with the parties concerned , the local authorities , the highways department and the land designation supervisory authority . In the course of these meetings ORG invited the municipal authorities in question to redesignate a particular plot which they were proposing to allocate to the applicants as building land .", "However , the authorities’ efforts were in vain .", "After the attempts to reach a friendly settlement had failed , ORG held a hearing on DATE .", "On DATE it allowed in part the ORG appeal . It awarded to them a part of their former land , now reclassified , and other plots converted or to be converted into industrial sites . On the other hand , it dismissed once again their claim for financial compensation .", "The applicants appealed against this decision to ORG , which dismissed their appeal on DATE .", "After having examined in detail the ORG objections , ORG concluded that they had received compensatory plots of a value equivalent to that of their former land , as was required under LAW . Accordingly , the impugned decision did not infringe their statutory rights . Furthermore , according to ORG , if the new situation of agriculture in the area was compared to the old one , it could be said that the consolidation scheme had been a success and had achieved its goals .", "In the meantime the applicants had appealed to ORG , which has not yet ruled .", "Prior to the adoption of the consolidation scheme , the ORG applied to the civil courts for an order directing the cessation of the construction work which had begun on their former land .", "On DATE ORG ( GPE ) found that it lacked jurisdiction . Its decision was overturned on CARDINAL DATE by ORG ( Oberlandesgericht ) , but on DATE ORG ( Oberster Gerichtshof ) confirmed that the civil courts were not competent to decide the matter . ORG declined , on account of the exclusive powers vested in ORG under NORP law ( section CARDINAL(CARDINAL ) of the CARDINAL Act ; see paragraph CARDINAL below ) , to follow its previous case - law , although it concerned similar facts .", "The applicants also requested authorisation to construct CARDINAL animal feed silos on their compensatory plots near their farm . However , the authorities refused on the ground that they were only provisionally owners of the land in question .", "The basic rules applying to the consolidation of agricultural land are embodied in ORG ( Flurverfassungs - Grundsatzgesetz DATE ) , as amended in DATE . The ORG have regulated the matters for which they are made responsible under LAW in provincial agricultural land planning Acts ( ORG ) .", "In GPE , consolidation is governed by ORG DATE ( \" LAW \" ) . This replaced an Act of DATE , which had itself replaced an LAW that had been brought into force again in DATE . The proceedings in the present case were instituted under LAW , on the basis of which the provisional transfer was ordered . However , the subsequent proceedings were governed by LAW .", "The purpose of consolidation is to improve the infrastructure and the pattern of agricultural holdings in a given area ( section CARDINAL(CARDINAL ) of LAW ) . It comprises communal measures and facilities and redistribution of land . The operation takes place in the following stages :", "- the initial proceedings ;", "- ascertainment of the occupiers of the land in question and assessment of its value ;", "- planning of communal measures and facilities ;", "- provisional transfer of land , where appropriate ;", "- adoption of the consolidation plan .", "None of these stages may begin until the previous stage has been terminated with a final decision .", "The initial proceedings , which are instituted of the authorities’ own motion , serve to determine the consolidation area , which , in addition to farmland and forest , may include land voluntarily offered for consolidation and land required for communal facilities ( sections CARDINAL and CARDINAL ) . Land which is not needed for the purposes of consolidation may subsequently be withdrawn from the area ( section CARDINAL(CARDINAL ) ) . The owners form an association ( ORG ) , which is a corporate body governed by public law .", "The institution of proceedings means that land use is restricted until the proceedings are concluded ; any change in use must be approved by the appropriate agricultural authority . This authority has exclusive jurisdiction , inter alia , over disputes concerning ownership and tenure of land in the consolidation area ( section CARDINAL ) .", "Once the decision to open proceedings has become final , the agricultural authority ascertains who are the occupiers of the land and assesses its value ( sections CARDINAL and DATE ) . Its decision ( PERSON ) determines the value of the land in accordance with precise statutory criteria ( LAW CARDINAL ) . Each of the landowners involved may challenge the valuation not only of his own land but also of the land of the others . Once the agricultural authority ’s decision has become final , however , it is binding on all of them .", "Communal measures ( e.g. soil improvement , alterations to terrain or landscape ) and communal facilities ( e.g. private roads , bridges , ditches , drainage and irrigation ) are ordered , where they are needed , in a specific decision by the relevant authority ( Plan der gemeinsamen ORG ) , which must also settle the question of costs , these usually being shared by the landowners .", "Under section CARDINAL , in both the DATE and LAW , land may be provisionally transferred before the adoption of the consolidation scheme , even if some owners object .", "Decisions by the competent authorities ordering provisional transfers are not appealable ; but section CARDINAL of ORG DATE ( ORG , as amended in DATE , \" the CARDINAL/CARDINAL LAW \" ) provides that the final decision shall lie with ORG , except in cases where an appeal lies to ORG ( see paragraph CARDINAL below ) .", "The main purpose of provisional transfer is to ensure that the consolidation area is rationally cultivated during the interim period . The land transferred becomes the property of the transferees subject to a condition subsequent : ownership of it reverts to the original owner if the allocation is not confirmed in the final consolidation plan ( NORP unter auflösender PERSON , section CARDINAL(CARDINAL ) ) . This provisional , conditional ownership is , as a rule , not entered in the land register , since it is subject to a resolutive condition and it is possible that the parties concerned may be allotted other parcels once the proceedings are completed . ORG has to authorise any entry in the land register ( sections CARDINAL et seq . ) .", "At the end of the proceedings , the agricultural authority adopts the consolidation scheme ( ORG , section CARDINAL ) . Since DATE this has to be published within DATE of the final decision provisionally to transfer parcels of land ( section CARDINALa(CARDINAL ) of the DATE LAW ) , failing which the person concerned may request the higher authority to assume jurisdiction . The adoption of the plan is an administrative act which is supported by maps and other technical data , and whose main function is to determine the compensation due to the landowners who are parties to the proceedings . LAW includes the following regulations on this matter :", "- when compensatory parcels are being determined , regard shall be had to the wishes of the parties directly concerned in so far as this can be done without infringing statutory provisions or interfering with important public interests served by the consolidation scheme ;", "- any landowner whose land is included in the consolidation scheme shall be entitled to compensation in the form of other land of equal value included in the same scheme or , if that is not possible , to be reallocated his previous parcels , including building land ( section DATE ) ;", "- changes in the value of land which come about in the course of the proceedings , including those occurring after the provisional transfer , must be taken into account in the final allocation under the consolidation scheme ( section CARDINAL(CARDINAL ) ) ;", "- claims for compensation have to be submitted within DATE from the date on which the consolidation scheme becomes final ( section CARDINAL ) ) .", "The provincial legislation does not provide for any financial compensation for damage suffered , before a final consolidation plan comes into force , by landowners who successfully challenge the lawfulness of compensation received in the form of land .", "The first - instance authority in GPE is ORG , which is a purely administrative body . The higher authorities are ORG , established at ORG ( Amt der Landesregierung ) , and ORG , set up within ORG für Land- PERSON ) . These boards include judges and constitute a kind of \" specialised administrative tribunal \" .", "Decisions ( PERSON ) of ORG can be challenged by way of appeal ( GPE ) to ORG , whose decision is final except where it varies the decision in question and where the dispute concerns CARDINAL of the issues listed in section CARDINAL(CARDINAL ) of the CARDINAL/CARDINAL Federal Act , such as the lawfulness of the compensation in the event of land consolidation ; in such cases an appeal lies to ORG .", "The executive can neither set aside nor vary the decisions of these CARDINAL bodies , but they can be challenged in ORG ( section CARDINAL of of the CARDINAL/CARDINAL LAW and Article CARDINAL para . CARDINAL of LAW ) .", "Procedure before the land reform boards is governed by LAW , section CARDINAL of which stipulates that LAW - except for one section of no relevance in the instant case - shall apply , subject to the variations and additional provisions made in the DATE LAW .", "The boards are responsible for the conduct of the proceedings ( section CARDINAL of the General Administrative Procedure Act ) . By section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW , the boards take their decisions after a private hearing .", "Boards must determine cases without undue delay ( ohne unnötigen Aufschub ) and in any event not DATE after an application has been made to them ( section CARDINAL(CARDINAL ) ) . If the board ’s decision ( Erkenntnis ) is not notified to the parties concerned within that time , they may apply to the higher authority , which will thereupon acquire jurisdiction to determine the merits ( section CARDINAL(CARDINAL ) ) . If the latter authority fails to give a decision within the statutory time - limit , jurisdiction passes - on an application by the interested party - to ORG ( Article CARDINAL of LAW and section CARDINAL of LAW ) .", "In the present case , area zoning planning is governed by ORG ( Raumordnungsgesetz ) .", "In NORP law area zoning plans and any amendments thereto are regarded as decrees ( ORG ) , even if they only concern CARDINAL individual ’s property . Accordingly , the proceedings in which they are issued are not normal administrative proceedings and the persons affected are not parties to them .", "However , the competent local authorities ( NORP ) must take into consideration planning proceedings of neighbouring local authorities and other public law corporations , as well as regionally significant measures of other planning organisations ( section CARDINAL(CARDINAL ) ) , including the planning projects of the agricultural authorities .", "The lawfulness of decrees can be challenged before ORG under LAW . However , case - law has established that area zoning plans can not be directly challenged in proceedings under LAW by the individuals affected if it is possible to institute administrative proceedings .", "This is the case , in particular , where the area zoning plan is the basis for the granting or withholding of building permits . The persons affected are expected to assert their rights in administrative proceedings concerning the building permit , in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation . Ultimately this question can be brought before ORG by a constitutional complaint under LAW or by a request made by ORG under LAW para . CARDINAL and LAW .", "The decisions of land reform boards can be challenged in ORG . The latter will determine whether there has been any infringement of the applicant ’s rights under LAW and whether the boards have applied a decree ( Verordnung ) that is unauthorised by statute law , an unconstitutional statute or an international treaty that is unlawful ( rechtswidrig ) under NORP law ( LAW ) .", "As an exception to the general rule laid down in Article CARDINAL para . CARDINAL of LAW , section CARDINAL of the CARDINAL/CARDINAL LAW provides for an appeal to ORG against the decisions of land reform boards . Application may be made to ORG before or after an application to ORG . The latter will , if it rules that there has been no infringement of the right relied on in the application to it and if the applicant so requests , refer the case to ORG ( Article CARDINAL para . CARDINAL of LAW ) .", "Under LAW , the ORG determines applications alleging the unlawfulness of an administrative act ( Bescheid ) or a breach by a competent authority of its duty to take a decision . It also hears appeals against decisions of boards whose members include judges - such as the land reform boards ( see paragraph CARDINAL above ) - where such jurisdiction is conferred on it by statute ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .", "The applicant ’s father owned a plot of land of QUANTITY in the area around GPE , which was expropriated after DATE .", "In DATE , following the adoption of legislation providing for the restoration of titles to certain types of expropriated property , the applicant sought the restitution of the land . In DATE her claim was only allowed in respect of QUANTITY of the plot as the authorities found that in respect of QUANTITY the applicant ’s father had soon after the expropriation been compensated with other land .", "On an unspecified date in DATE the applicant brought a rei vindicatio action against the GPE municipality , claiming that the latter was unlawfully in possession of QUANTITY of land in respect of which restitution had been refused . The applicant alleged that her rights to the property at issue had been restored ex lege by virtue of the denationalisation legislation .", "In a judgment of DATE ORG dismissed the claim , finding that the applicant ’s rights had not been restored ex lege as her father had , at the relevant time , received compensation for the lands at issue . On DATE ORG upheld that judgment .", "On DATE the applicant appealed in cassation . As she had failed to justify her appeal in view of the requirements of LAW DATE ( see Relevant domestic law below ) , she was instructed to do so by a judge of ORG .", "Within the time - limit given , the applicant submitted a written statement concerning the grounds for cassation under LAW , and not the admissibility criteria under LAW . Finding that she had failed to comply with the aforementioned instructions , on DATE ORG discontinued the proceedings . On an appeal by the applicant , on DATE that decision was upheld by ORG , which confirmed the lower court ’s conclusion that she had failed to comply with the relevant procedural requirements .", "The Code of Civil Procedure , adopted in DATE and in force since DATE , introduced new requirements for the admissibility of cassation appeals .", "Pursuant to LAW , as worded initially , ORG was competent to examine cases where the court of appeal has ruled upon “ a material question of law or procedure ” , and where , in addition , one of the following CARDINAL situations has occurred : ( a ) the question has been decided not in conformity with the practice of ORG ; ( b ) there have been conflicting decisions of the national courts ; and ( c ) the question is of importance for the accurate application of the relevant law or for the development of the law .", "In a decision of DATE ORG found that these new requirements for the admissibility of cassation appeals did not , in principle , run contrary to the right to access to a court , as guaranteed in LAW . Their exact content and meaning would be clarified in judicial practice . However , ORG found that the requirement of LAW that the court of appeal must have ruled on “ a material question of law or procedure ” ( see above ) unnecessarily restricted the access to cassation and , accordingly , struck down as being anti - constitutional the word “ material ” ( see ORG no . CARDINAL of DATE , constitutional case no . CARDINAL/CARDINAL ) .", "The Code of Civil Procedure DATE further provides that it is incumbent on the party seeking cassation to justify , in view of the requirements of LAW , that the cassation appeal merits examination . Failure to put forward arguments in that regard will result in the discontinuation of the proceedings ( LAW and CARDINAL of the Code ) .", "Under LAW , the grounds for seeking cassation remained the same as those under LAW , namely material breaches of law and procedure , nullity and ill - founded conclusions ( LAW of LAW ) ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant submitted a request to ORG concerning Olympic annuity as being the coach of an Olympic medal winner . He was informed that according to the legal regulation in force , he could not request the annuity as it was the medal winner who should make a proposition for the beneficiary of such annuity . In the meanwhile ORG established the annuity for another coach .", "On DATE ORG submitted an objection to the ORG ’s decision on the applicant ’s behalf , which was dismissed by the Minister on DATE .", "The Prosecutor ’s Office sought judicial review of the Minister ’s decision before ORG . The applicant intervened in the proceedings . ORG dismissed the action on DATE . In the review proceedings ORG quashed the Minister ’s decision and remitted the case to the administrative authority on DATE .", "In the resumed proceedings the administrative authorities dismissed the applicant ’s request on both levels . The applicant sought judicial review of the ORG ’s decision before ORG . It dismissed his action on DATE .", "The applicant lodged a petition for review with ORG . Finding that the applicant should have initiated the action against the Minister , it quashed the first - instance judgment and discontinued the proceedings on DATE .", "The applicant therefore again initiated the judicial review of the administrative decisions mentioned in paragraph CARDINAL above before ORG , this time bringing the action against the Minister . His action was finally dismissed by ORG on DATE ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant company is registered under NORP PERSON and is based in GPE .", "NORP The applicant company exported organic bananas to LOC . In DATE it concluded a commission contract with CARDINAL NORP companies , agreeing that all legal disputes would be brought before the courts in GPE . The contract also included a clause that legal disputes be settled by an arbitration tribunal in GPE .", "On DATE the applicant company requested legal aid to bring a civil action before ORG ( Landgericht ) against the CARDINAL NORP companies for breach of the commission contract , submitting that the applicant company and its shareholder were insolvent and could thus not afford an advance payment of the court fees .", "On DATE ORG dismissed the request for legal aid . It held that , according to section CARDINAL ( CARDINAL ) of LAW ( PERSON , see Relevant domestic law , below ) , only legal persons founded or based in CARDINAL of the member GPE of ORG or ORG were entitled to legal aid .", "On DATE ORG rejected an objection by the applicant company . It held that section CARDINAL of LAW exhaustively determined which legal persons were entitled to receive legal aid , and it was not for the court to extend this provision to include companies based outside LOC . GPE was not obliged to enable all legal persons in the world to benefit from legal aid .", "On DATE ORG ( Oberlandesgericht ) confirmed ORG decisions . It added that the interference with the applicant company ’s right of access to a court was justified . The restriction imposed on the applicant ’s right of access to a court was justified by the principle of reciprocity : if equal treatment was codified under constitutional law , there would be no incentive for foreign States to provide NORP legal persons with the same legal standard . The court also held that , even if the applicant company were to be put on a par with a domestic legal person , the non - litigation of the applicant company ’s case did not run counter to the general interest . Relying on a ruling of ORG ( no . CARDINAL BvR CARDINAL/CARDINAL , report BVerfGE CARDINAL , CARDINAL ) , it considered in this regard that even a domestic legal entity retained its right to exist under the legal order only if it was able to pursue its objectives by virtue of its own strength and means .", "On DATE ORG refused to admit the applicant company ’s constitutional complaint . This decision was served on the applicant company on DATE .", "The relevant provisions of LAW read as follows :", "“ ( CARDINAL ) Plaintiffs who do not reside in a Member ORG of ORG or in another State party to LAW have , at the other party ’s request , to provide a security for the costs of the proceedings . ”", "“ Parties who on account of their personal and economic circumstances are unable to pay the costs of litigation , or who can only pay these costs in part or in instalments shall , upon their application , be granted legal aid if the intended litigation of the case offers sufficient prospects of success and does not appear wanton . ... ”", "“ Upon their application , legal aid shall be granted to", "...", "( CARDINAL ) NORP legal persons or associations capable of being a party founded or based in another Member State of ORG or in another State party to LAW if the costs can be paid neither by them nor by those financially involved in the object of the legal dispute and if non - litigation of the case would run counter to the general interest . LAW , last part of first sentence , shall apply . ”", "The relevant provisions of LAW ( PERSON ) read as follows :", "“ In civil legal disputes the action shall not be served until the fees for the general proceedings have been paid ... ”", "“ Section CARDINAL ... shall not apply where", "NORP the plaintiff has been granted legal aid ,", "NORP the plaintiff is exempt from paying fees , or", "the intended litigation of the case does not lack prospects of success and does not appear wanton , and where it can be substantiated that", "( a ) in view of the plaintiff ’s financial situation or other reasons , immediate payment of the costs would cause difficulties or", "( b ) delaying litigation would cause damage to the plaintiff that could not be compensated , or only with difficulty ; the declaration of the authorised counsel is deemed to be sufficient substantiation . ”", "“ An appeal can be lodged against the decision to make the court action contingent upon the advance payment of costs and against the amount of the fees ... ”", "Article CARDINAL of LAW Procedure reads as follows :", "“ Legal aid is granted to natural persons who would risk , upon payment or guarantee of the costs of the proceedings , to no longer be able to maintain themselves or their dependents . ”", "Article CARDINAL § CARDINAL of LAW ( concluded on DATE ) reads as follows :", "“ In civil and commercial matters , nationals of the Contracting States shall be granted free legal aid in all the other ORG , on the same basis as nationals of these GPE , upon compliance with the legislation of the ORG where the free legal aid is sought . “", "LAW provides that any ORG may accede to the convention , unless a ORG or several GPE which have ratified the convention object .", "GPE ratified LAW on DATE . GPE is not a State party to that convention .", "A comparative survey conducted in DATE on legislation and practice in CARDINAL State Parties to the Convention distinguished CARDINAL different approaches as to the possibility for legal persons to obtain legal aid ( compare ORG v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE , and PERSON GPE DATE . ) , no . CARDINAL , DATE , § § CARDINAL–CARDINAL ) .", "In the majority of GPE surveyed ( GPE , GPE , GPE , GPE , GPE , GPE and GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) legislation excluded any form of legal aid to legal persons . In a number of other GPE ( GPE , GPE , GPE , GPE , GPE and GPE ) only legal persons with a non - commercial purpose ( but non - lucratif ) were eligible for legal aid . In the third group of GPE ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE and GPE ) legal persons including commercial companies were eligible for specific forms of legal aid in certain circumstances ." ]

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[ "14", "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE . The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant , at the material time Vice - President of ORG ( Munkáspárt ) – a registered left - wing political party DATE was a speaker at a lawful demonstration in the centre of GPE . The demonstration took place at the former location of a statue of PERSON , which had been removed by the authorities . On his jacket , the applicant wore a CARDINAL - pointed red star ( hereinafter “ the red star ” ) , QUANTITY in diameter , as a symbol of the international workers’ movement . In application of LAW , a police patrol which was present called on the applicant to remove the star , which he did .", "Subsequently , criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public . He was questioned as a suspect on DATE .", "On DATE the Pest Central District Court convicted the applicant of the offence of using a totalitarian symbol . It refrained from imposing a sanction for a probationary period of DATE .", "The applicant appealed to ORG ( ORG ) .", "On DATE that court decided to stay the proceedings and to refer the case to ORG of ORG ( CJEU ) for a preliminary ruling under LAW establishing ORG . The reference – received at the ORG on DATE concerned the interpretation of the principle of non - discrimination as a fundamental principle of Community law .", "In its order for reference , ORG observed that in several member States of ORG , such as GPE , the symbol of left - wing parties is the red star or the hammer and sickle . Therefore , the question arose whether a provision in CARDINAL member ORG of ORG prohibiting the use of the symbols of the international labour movement on pain of criminal prosecution was discriminatory , when such a display in another member ORG did not give rise to any sanction .", "On DATE the ORG declared that it had no jurisdiction to answer the question referred by ORG . The relevant part of the reasoning reads as follows :", "“ CARDINAL . By its question , the national court asks , essentially , whether the principle of non - discrimination , Article CARDINAL ORG , ORG CARDINAL/CARDINAL/EC of DATE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin ( ORG , p. CARDINAL ) or Articles CARDINAL , DATE and DATE of GPE , proclaimed on DATE in GPE ( OJ C CARDINAL , p. CARDINAL ) , preclude a national provision , such as LAW , which imposes sanctions on the use in public of the symbol in question in the main proceedings .", "...", "By contrast , the ORG has no such jurisdiction with regard to national provisions outside the scope of Community law and when the subject matter of the dispute is not connected in any way with any of the situations contemplated by the treaties ( see GPE , paragraphs CARDINAL and DATE ) .", "It is clear that PERSON situation is not connected in any way with any of the situations contemplated by the provisions of the treaties and the NORP provisions applied in the main proceedings are outside the scope of Community law .", "In those circumstances , it must be held , on the basis of LAW , that the ORG clearly has no jurisdiction to answer the question referred by the ORG . ”", "On DATE ORG upheld the applicant ’s conviction .", "The LAW of GPE provides , in its relevant part , as follows :", "“ CARDINAL . GPE is an independent and democratic ORG under the rule of law ...", "No one ’s activity shall aim at the violent acquisition or exercise of power or at its exclusive possession ... ”", "“ CARDINAL . In GPE everyone has the right to freely express his opinion , and , furthermore , to have access to and distribute information of public interest . ”", "The Criminal Code , as in force at the material time , provided , in so far as relevant , as follows :", "“ CARDINAL . In case of a misdemeanour ( vétség ) or a felony ( bűntett ) punishable by imprisonment of up to a maximum of DATE , the court may postpone the imposition of a sentence for a probationary period if it can be presumed with good reason that the aim of the punishment may be just as well attained in this manner . ”", "“ CARDINAL . NORP The probation shall be terminated and a punishment shall be imposed if ... the person on probation is convicted of an offence committed during the probationary period ... ”", "“ CARDINAL . A person who commits an action whose direct objective is to change the constitutional order of GPE by means of violence or by threatening violence – in particular , using armed force – commits a felony ... ”", "“ A person who incites , before a wider public , to hatred against", "( a ) NORP the NORP nation , or", "( b ) a national , ethnic , racial or religious community or certain groups of the population ...", "commits a felony ... ”", "“ CARDINAL . A person who ( a ) disseminates , ( b ) uses in public , or ( c ) exhibits a swastika , an ORG - badge , an arrow - cross , a symbol of the sickle and hammer or a red star , or a symbol depicting any of them , commits a misdemeanour – unless a more serious crime is committed DATE and shall be sentenced to a criminal fine ( pénzbüntetés ) .", "The conduct proscribed under paragraph CARDINAL is not punishable , if it is done for the purposes of education , science , art or in order to provide information about history or contemporary events .", "Paragraphs CARDINAL and CARDINAL do not apply to the insignia of GPE which are in force . ”", "The Code of Criminal Procedure provides as follows :", "“ CARDINAL . Review proceedings may be instituted in favour of the defendant if :", "...", "( b ) a human rights institution set up by an international treaty has established that the conduct of the proceedings or the final decision of the court has violated a provision of an international treaty promulgated by an act , provided that GPE has acknowledged the jurisdiction of the international human rights organisation and that the violation can be remedied through review . ”", "Decision no . CARDINAL ( V. CARDINAL . ) of ORG , dealing with the constitutionality of LAW , contains the following passages :", "“ ... [ N]ot only do such totalitarian symbols represent the totalitarian regimes known to and suffered by the general public , but it has from the very beginning been reflected in the legislation of GPE that the unlawful acts committed by such regimes should be addressed together ...", "ORG has expressly confirmed in its decisions ... that no constitutional concern may be raised against the equal assessment and joint regulation of such totalitarian regimes ...", "In DATE before the democratic transformation , only the dissemination of NORP and arrow - cross symbols had been prosecuted ... At the same time , resulting reasonably from the nature of the political regime , the use of symbols representing NORP ideas had not been punished ; on the contrary , they were protected by criminal law . In this respect , the LAW does , indeed , eliminate the former unjustified distinction made in respect of totalitarian symbols ...", "The Convention ( of ORG a wide margin of appreciation in assessing what can be seen as an interference which is ‘ necessary in a democratic society’ ( PERSON , DATE ; markt intern , DATE ; ORG , DATE ; PERSON , DATE ; PERSON , DATE ) . ...", "In several of its early decisions , ORG included the historical situation as a relevant factor in the scope of constitutional review ...", "In its decisions so far , ORG has consistently assessed the historical circumstances ( most often , the end of the [ previous ] regime ) by acknowledging that such circumstances may necessitate some restriction on fundamental rights , but it has never accepted any derogation from the requirements of constitutionality on the basis of the mere fact that the political regime has been changed ...", "The Constitutional Court points out that even the practice of ORG takes into account the specific historical past and present of the respondent State when it assesses the legitimate aim and necessity of restricting freedom of expression .", "In the case of ORG v. GPE concerning the restriction of the political activities and the freedom of political debate of police officers , the ORG passed its judgment on DATE stating that ‘ the objective that the critical position of the police in society should not be compromised as a result of weakening the political neutrality of its members is an objective that can be accepted in line with democratic principles . This objective has special historical significance in GPE due to the former totalitarian system of the country where the ORG relied greatly on the direct commitment of the police forces to the ruling party’ ...", "In the practice of ORG , conduct endangering public order and offending the dignity of communities may be subject to criminal - law protection if it is not directed against an expressly defined particular person ; theoretically , there is no other – less severe – tool available to achieve the desired objective than criminal sanction ...", "To be a democracy under the rule of law is closely related to maintaining and operating the constitutional order ... The LAW is not neutral as regards values ; [ on the contrary , ] it has its own set of values . Expressing opinions inconsistent with constitutional values is not protected by LAW ...", "The LAW belongs to a democratic ORG under the rule of law and , therefore , the constitution - making power has considered democracy , pluralism and human dignity constitutional values worth protecting ; at the same time , it makes unconstitutional any activity directed at the forcible acquisition or exercise of public power , or at the exclusive possession thereof ( LAW ) . Article CARDINAL orders the punishment of distributing , using in front of a large public gathering and exhibiting in public symbols that were used by political dictatorial regimes ; such regimes committed unlawful acts en masse and violated fundamental human rights . All of these symbols represent the despotism of the ORG , symbolise negative political ideas realised throughout the history of GPE in DATE , and are expressly prohibited by LAW , which imposes upon everyone the obligation to resist such activities ...", "Using the symbols in the way prohibited by LAW can cause a reasonable feeling of menace or fear based on the concrete experience of people – including their various communities – who suffered injury in the past , as such symbols represent the risk of having such inhuman acts repeated in connection with the totalitarian ideas concerned .", "In the opinion of ORG , if DATE in addition to the subject thus protected by criminal law – the protection of other constitutional values can not be achieved by other means , criminal - law protection itself is not considered to be disproportionate , provided that it is necessary to have protection against the use of such symbols . Whether or not it is necessary to have such protection in a NORP society depends on the nature of the restriction , its social and historical context , and its impact on the persons affected .", "Based on the above , in the present case , the statute under review serves the purpose of protecting other constitutional values in addition to the protected subject defined in criminal law . Such values are the democratic nature of the ORG under the rule of law mentioned in LAW , the prohibition defined in LAW , as well as the requirement specified in LAW , stating that all people shall be treated by the law as persons of equal dignity ...", "Allowing an unrestricted , open and public use of the symbols concerned would , in the present historical situation , seriously offend all persons committed to democracy who respect the human dignity of persons and thus condemn the ideologies of hatred and aggression , and would offend in particular those who were persecuted by NORP and communism . In GPE , the memories of both ideologies represented by the prohibited symbols , as well as the sins committed under these symbols , are still alive in the public mind and in the communities of those who have survived persecution ; these things are not forgotten . The individuals who suffered severely and their relatives live among us . The use of such symbols recalls the recent past , together with the threats of that time , the inhuman sufferings , the deportations and the deadly ideologies .", "In the opinion of ORG , it is indeed a measure with a view to the protection of democratic society – and therefore not unconstitutional – if , in the present historical situation , the ORG prohibits certain conduct contrary to democracy , connected to the use of the particular symbols of totalitarian regimes , their dissemination , their use in front of a large public gathering , and a public exhibition ...", "The constitutional assessment and evaluation of criminally sanctioning separate violations of the values protected by DATE namely , public order and the dignity of communities committed to the values of democracy DATE could possibly result in a different conclusion ; however , since the use of totalitarian symbols violates both values jointly and simultaneously , there is a cumulative and synergic effect reinforced by the present - day impact of recent historical events .", "ORG holds that the historical experience of GPE and the danger to the constitutional values threatening NORP society reflected in the potential publicly to demonstrate activities based on the ideologies of former regimes , convincingly , objectively and reasonably justify the prohibition of such activities and the use of the criminal law to combat them . The restriction on freedom of expression found in LAW , in the light of the historical background , is considered to be a response to a pressing social need .", "According to ORG , in the present historical situation , there is no effective legal tool other than the tools of criminal law and penal sanction ( ultima ratio ) against the use of the symbols specified in LAW ; the subjects committing the crime and , in particular , the CARDINAL specific types of conduct in committing the crime , require restriction for the protection of the aims represented by the constitutional values . In another country with a similar historical experience , LAW also deems it an offence , endangering the democratic ORG under the rule of law , to use the symbols ( flags , badges , uniforms , slogans and forms of greeting ) of unconstitutional organisations [ Strafgesetzbuch ( StGB ) vom CARDINAL . Mai CARDINAL ( RGBl . PERSON ) in der PERSON GPE vom CARDINAL . DATE ( BGBl . I , CARDINAL ) § ORG . ] ...", "It is not prohibited by the law to produce , acquire , keep , import , export or even use such symbols provided it is not done in front of a large public gathering . There are CARDINAL specific types of conduct mentioned in the law as being contrary to the values of ORG under the rule of law ( distribution , use in front of a large public gathering and public exhibition ) , because of the tendency of such conduct not only to ‘ insult or cause amazement or GPE to the public , but also to create express fear or menace by reflecting an identification with the detested ideologies and an intention to propagate openly such ideologies . Such conduct can offend the whole of NORP society , especially the human dignity of major groups and communities which suffered from the most severe crimes committed in the name of both ideologies represented by the prohibited symbols .", "...", "On the basis of the above , in the opinion of ORG , the restriction specified in LAW is not disproportionate to the weight of the protected objectives , while the scope and the sanction of the restriction is qualified as the least severe potential tool . Therefore , the restriction of the fundamental right defined in the given provision of LAW is in compliance with the requirement of proportionality ... ”" ]

[ "10" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON .", "The applicant is married with CARDINAL children . She has a medium - level education . Prior to her early retirement she was employed for DATE and had paid her social security contributions to the ORG . Her child , born in DATE , suffers from atopic bronchial asthma ( atopowa astma oskrzelowa ) , various allergies and recurring sino - pulmonary infections .", "On DATE the applicant filed an application with ORG to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called “ EWK ” pension .", "NORP The particular type of pension sought by the applicant was at the relevant time regulated by the ORG ’s Ordinance of CARDINAL DATE on the right to early retirement of employees raising children who require permanent care ( ORG PERSON . DATE w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki ) ( “ the DATE LAW ) .", "Along with her application for a pension , the applicant submitted , among other documents , a medical certificate issued on DATE by a specialist in allergy and pulmonology from ORG in GPE ( GPE Opieki PERSON ) . The certificate stated that the applicant ’s DATE son had suffered from DATE from atopic bronchial asthma , various allergies , as well as frequent sinopulmonary infections often accompanied by fever and bronchial constriction ( spastyczne skurcze oskrzeli ) . Consequently , he was in need of his mother ’s constant care . It was further noted that the medical certificate had been issued in connection with the application for an early - retirement pension regulated by the DATE Ordinance in view of the need to provide permanent care to the child from DATE .", "On DATE ORG ( ORG ) issued a decision granting the applicant the right to an early - retirement pension in the amount of MONEY ( ORG ) gross ( ORG CARDINAL,CARDINAL net ) , starting from DATE . In the same decision , however , ORG suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision .", "On DATE the applicant resigned from her full - time job as a clerk at ORG in PERSON , where she had been employed for DATE .", "Consequently , on an unspecified date , ORG issued a new decision authorising the payment of the previously awarded retirement pension starting from DATE .", "Subsequently , the applicant was issued with a pensioner ’s identity card marked ‘ valid ORG and for the following DATE she continued to receive her pension without interruption .", "On DATE ORG issued CARDINAL decisions . By virtue of the first decision , the payment of the applicant ’s pension was discontinued starting from DATE . By virtue of the second decision , the ORG revoked the initial decision of CARDINAL DATE and eventually refused to award the applicant the right to an early - retirement pension under the scheme provided for by the DATE Ordinance . The latter decision stated that on DATE the proceedings concerning the applicant ’s right to a pension had been re - opened ex officio and that , as a result , “ the medical certificate attached to her application for a pension had been found to raise doubts [ as to its accuracy ] ” . Furthermore , the following standard clause appeared in the decision :", "“ In the light of the medical documentation obtained concerning the child , it was established that the condition with which the child had been diagnosed was not enumerated in the [ DATE ] Ordinance , and the analysis of the level of severity and the course [ of the disease ] did not indicate an impairment of bodily functions to such a degree as to justify the award of the pension [ on account of ] the necessity of permanent care of the child . It follows that the medical certificate serving as the basis for the award of the benefit is not supported by medical documentation . Consequently the right to a retirement pension is denied . ”", "The applicant appealed against the decision of DATE divesting her of the right to an early - retirement pension . She submitted that she should receive the benefit because her son required her constant care , as confirmed by the medical certificate attached to the original application . Moreover , the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights .", "On DATE ORG ( PERSON ) dismissed the applicant ’s appeal .", "A medical report by an expert in pulmonology was ordered by ORG . Having examined the medical documentation concerning the applicant ’s son , as well as the child in person , the expert found that the applicant ’s son suffered from sporadic bronchial asthma and recurring sinopulmonary infections . The expert concluded that the child did not require , as of DATE or at the time of the proceedings , his mother ’s permanent care , her nursing or any further aid , since his bronchial asthma did not significantly impair his respiratory functions . He further observed that the applicant ’s care was needed only when the child ’s condition occasionally became more severe .", "Relying on the above expert opinion , ORG held that the applicant had been rightfully divested of the right to a pension under the scheme provided by the DATE Ordinance as she did not satisfy the requirement of necessary permanent care . ORG did not examine the case from the standpoint of the doctrine of vested rights .", "On DATE ORG ( FAC ) dismissed the applicant ’s appeal against the aforementioned judgment . ORG agreed with the findings of fact contained in the expert opinion produced in the course of the first - instance proceedings to the effect that the applicant ’s son did not require at the relevant time his mother ’s permanent care .", "On the issue of the re - opening of the proceedings , ORG observed that decisions concerning retirement and disability pensions were only of a declaratory character . Therefore , they could be quashed by a social security authority where new evidence had been submitted or relevant circumstances , which pre - existed the initial pension award but which had not been taken into consideration by the authority beforehand , had come to light .", "Furthermore , ORG observed that pension decisions could be verified even in the light of pre - existing circumstances which had not been taken into consideration as a result of the authority ’s own mistake or negligence . On the other hand , ORG agreed with the applicant that the proceedings could not be re - opened as a consequence of a different assessment of the very same evidence which had accompanied the original application for a pension .", "The Court of Appeal found that , in the instant case , the impugned pension proceedings had been re - opened because relevant circumstances pre - existing the initial pension award had been discovered by the authority in the course of a supplementary examination of the child ’s entire medical record by ORG doctor ( lekarz orzecznik ) .", "Finally , ORG stated that the doctrine of vested rights did not apply to rights acquired unjustly , for example when a person had been granted a right to a pension whereas in fact he or she had never met the requirements laid down in the relevant provisions . ORG recalled that the purpose behind the DATE Ordinance was to enable the carers of children with extremely severe disorders to take early retirement . It was aimed at providing a substitute source of income in cases where persons had lost their wages owing to the need to terminate their employment in order to take care of their sick children on a permanent basis . ORG emphasised that , in such circumstances , it was necessary for the social security authorities to make a careful examination of whether or not persons applying for the right in question satisfied all the requirements .", "On DATE ( decision served on DATE ) ORG ( Sąd Najwyższy ) dismissed the applicant ’s cassation appeal , fully endorsing the Court of Appeal’authority had lacked evidence as to the severity of the child ’s condition , since the medical certificate attached to the application did not specify those activities which the child could not perform due to his alleged impairment . The fact that the aforementioned evidence had been lacking at the date of the decision did not come to light until after the validation of the decision . Therefore , the impugned proceedings had been re - opened due to the discovery of new relevant circumstances and not on the basis of a reexamination of the very same evidence attached to the applicant ’s application for a pension .", "The applicant was not ordered to return her early - retirement benefits paid by ORG from DATE until DATE , despite the revocation of her right to the early - retirement pension .", "In the period from DATE ( the date on which the payment of the applicant ’s “ EWK ” pension was discontinued ) to DATE the applicant was not in receipt of any social benefits . The applicant submitted that in that period she had had no other income .", "As a result of separate social security proceedings , which had been instituted by the applicant , ORG ( ORG ) decided on DATE to grant the applicant a preretirement benefit ( zasiłek przedemerytalny ) in the amount of MONEY ( ORG ) net . Because , under the applicable law , a DATE statute of limitations applies to social security claims the decision to grant the right had a retroactive effect , with a starting date of DATE .", "As a result , on an unspecified date , presumably on DATE , the applicant received a pre - retirement benefit in the form of a lump - sum payment for the period DATE and DATE , without interest .", "The benefit was at first paid by ORG ( Powiatowy Urząd Pracy ) and since DATE it was paid by ORG . As of DATE the applicant ’s preretirement benefit amounts to MONEY ( ORG ) net .", "In the light of the law as it now applies , it appears that the applicant will qualify for a regular retirement pension in DATE .", "CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The applicant in the instant case and most of the other applicants form ORG ( ORG przez ZUS ) ( “ the Association ” ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .", "The applicant submitted , according to the ORG , that PERCENT of the total number of “ EWK ” pension recipients had been subjected to review and re - opening under LAW of the DATE Law .", "The Government submitted that as of DATE approximately CARDINAL individuals had been in receipt of the “ EWK ” pension . Although there were no statistics as to how many pensions had been revoked either countrywide or in each region , that number was very small .", "The system of social security in GPE is regulated by LAW DATE on the system of social insurance ( Ustawa o systemie ubezpieczeń społecznych ) and a number of other acts applying to specific occupational groups and regulating specific types of benefits .", "Proceedings for granting welfare benefits are CARDINAL - tier . First , an application for a benefit is made to the regional ORG . The board makes an assessment of the eligibility criteria for each type of benefit and issues a decision . Then , in the event that an individual concerned appeals , the decision becomes subject to judicial review by a social security court , which is a specialised branch of a regional civil court . ORG is a ORG authority which carries out administrative functions and issues declaratory decisions . In the judicial review phase , the ORG becomes a party to the proceedings before the social security court .", "A judicial decision taken by the regional social security court may then be challenged by either party to the proceedings before a special social security branch of a court of appeal . Ultimately , a decision delivered by an appellate court may be appealed to ORG . This remedy is available irrespective of the amount of the claim .", "The DATE Ordinance ceased to be in force on DATE . However , its provisions remained in operation with regard to persons who had met the requirements of an early - retirement pension before that date but had failed to apply for the benefit in due time . The conditions to be fulfilled by a person in order to qualify for an early - retirement pension were laid down by paragraph CARDINAL of the DATE Ordinance .", "Paragraph CARDINAL.CARDINAL contained a reference to LAW paragraph CARDINAL point CARDINAL of the LAW DATE on retirement pensions of employees and their families . In the relevant part it provided that persons entitled to an earlyretirement pension were those persons ( both women and men ) who had been employed for CARDINAL or DATE and who personally took care of a child .", "Paragraph CARDINAL.CARDINAL provided that for children under the age of DATE it was not necessary to submit an official ORG disability certificate . It was sufficient to present a medical certificate issued by a specialist medical clinic stating : “ due to the health condition , caused by CARDINAL of the diseases enumerated in paragraph CARDINAL , the child requires permanent care ” .", "Paragraph CARDINAL.CARDINAL provided that early retirement was justified by the following physical and/or mental conditions of the child :", "“ CARDINAL . Complete dysfunction of upper or lower limbs , pareses and palsies , which prevent the child from independent movement and from controlling his or her physiological functions ;", "Mild , moderate and severe mental retardation , mental disorders , injury or disease of the central nervous system , making impossible autonomy in decisions or in DATE activities ;", "Mild mental retardation with accompanying significant impairment of movement , sight , hearing or other chronic diseases significantly impairing bodily functions ;", "Other diseases impairing body effectiveness to a very serious degree . ”", "The re - opening of the proceedings concerning the benefit in question is regulated in CARDINAL of the DATE Law , which at the relevant time read as follows :", "“ CARDINAL.CARDINAL The right to benefits or the amount of benefits will be re - assessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered . ”", "In its resolution of CARDINAL DATE ( no . III UZP CARDINAL/CARDINAL ) , adopted by a bench of CARDINAL judges , ORG ( Sąd Najwyższy ) dealt with the question submitted by the Ombudsman ( PERSON ) as to whether a different assessment of the evidence attached to the application for a pension , carried out by a social security authority after validation of the decision concerning the pension , might constitute a ground for reopening the proceedings leading to a review of the right to a pension in accordance with CARDINAL of the PERSON of DATE on retirement and disability pensions paid from ORG . The answer was in the negative . ORG held , inter alia :", "“ A different assessment of the [ same ] evidence as attached to the application for a retirement or disability pension , carried out by a social security authority after validation of the decision awarding the right to a pension , is not one of the circumstances justifying the ex officio re - opening of the proceedings for a review of the right to a pension in accordance with section CARDINAL of the Law of CARDINAL DATE on retirement and disability pensions paid from ORG . ”" ]

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[ "The applicants were born in DATE and DATE , respectively , and live in the town of GPE .", "On DATE the applicants sued ORG for arrears and an increased interest on their savings deposited with the bank .", "On DATE and CARDINAL DATE the ORG of GPE issued judgments . Both judgments were quashed on appeal on DATE and DATE , respectively , and the case was remitted for a fresh examination by ORG .", "On DATE ORG dismissed the applicants ' action . On DATE ORG , acting on appeal , quashed the judgment of DATE and ordered re - examination of the case .", "On DATE ORG partly accepted the applicants ' action , awarded the first applicant MONEY ( ORG , MONEY ) and the second applicant RUR CARDINAL,CARDINAL.CARDINAL ( approximately ORG CARDINAL ) in arrears and dismissed the remainder of their claims .", "On DATE ORG upheld the judgment of DATE in the part concerning payment of arrears , which accordingly became final , but remitted the remainder of the claims for a new examination .", "ORG issued writs of execution and on DATE the applicants lodged the writs with bailiffs .", "On DATE the President of ORG lodged before the Presidium of ORG an application for a supervisory review of the judgments of DATE and DATE and DATE .", "A supervisory - review hearing was listed for DATE and the applicants were summoned .", "The applicants arrived to the courthouse on DATE . They were invited to a courtroom and asked whether they supported the application for a supervisory review . After the applicants had objected to the review they were asked to leave the courtroom .", "On DATE the Presidium of ORG , by way of the supervisory - review proceedings , quashed the judgments of CARDINAL October and DATE and DATE and upheld the judgment of CARDINAL DATE ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in ‘ s - Hertogenbosch .", "On TIME DATE , a man was shot and killed in a café in ‘ s - Hertogenbosch by a person believed to be the applicant ’s unmarried life partner , PERSON The applicant was understood to have been in the company of PERSON at the relevant time .", "According to the Government , PERSON had been convicted of similar offences in DATE and DATE , and on the latter occasion of attempted manslaughter using a firearm . While serving his sentence for that offence , PERSON had been given DATE leave ; it was during DATE that the above - mentioned shooting took place .", "On DATE , having been summoned as a witness in the criminal investigation that had been opened against PERSON , the applicant appeared but refused to testify before the investigating judge ( rechtercommissaris ) . She explained that , although they were not married and had not entered into a registered partnership ( geregistreerd partnerschap ) , she and PERSON had been cohabiting for DATE in a relationship out of which CARDINAL children had been born , both of whom had been recognised by PERSON The applicant argued that on the basis of this relationship she should be regarded as entitled to the testimonial privilege ( verschoningsrecht ) afforded to ORG spouses and registered partners under LAW , opening sentence and sub - paragraph CARDINAL , of LAW ( PERSON ; see paragraph CARDINAL below ) . Although being of the view that the applicant was not entitled to testimonial privilege , the investigating judge rejected the public prosecutor ’s request to issue an order for the applicant ’s detention for failure to comply with a judicial order ( gijzeling ) , finding that the applicant ’s personal interests in remaining at liberty outweighed those of the prosecution . The public prosecutor appealed against this decision to the ‘ s - ORG ( rechtbank ) .", "On DATE the ‘ s - ORG , sitting in chambers ( raadkamer ) , quashed the investigating judge ’s decision of CARDINAL DATE and ordered the applicant ’s detention for failure to comply with a judicial order . It considered that it could reasonably be assumed that the applicant was able to convey what had occurred in relation to PERSON before , during and after the shooting . It noted that , according to the provisions of LAW , opening sentence and sub - paragraph CARDINAL , of LAW as in force from DATE , the ( former ) spouse or the ( former ) registered partner of a suspect were competent but not compellable witnesses , that is to say , persons entitled to testimonial privilege . It further held :", "“ It follows from the wording and the legal history of [ Article CARDINAL , opening sentence and sub - paragraph CARDINAL , ] that the legislature has quite recently and unambiguously chosen not to include in the scope of [ the privilege set out in Article CARDINAL , opening sentence and sub - paragraph CARDINAL , ] any partners other than spouses and registered partners ( as well as former spouses and former registered partners ) . As it does not appear that [ the applicant ] and the suspect are or have been married or that they are or have been registered partners , ORG is of the view that [ the applicant ] can not claim an entitlement to the testimonial privilege laid down in LAW . This is not altered by the fact that [ the applicant ] and the suspect are engaged in another kind of longterm cohabitation . ORG rejects the argument raised by counsel for [ the applicant ] that it follows from ORG CARDINAL and CARDINAL of the Convention that the GPE legislature can not limit the group of persons ( related to a suspect ) entitled to testimonial privilege . An extension of that group must , also in view of the far - reaching consequences thereof , be decided by the legislature and for that reason goes beyond the judicial function ( rechtsvormende taak ) of the courts . ”", "In its subsequent balancing of the competing interests involved , ORG noted that the facts at issue concerned CARDINAL of the most serious crimes set out in LAW ( PERSON ) and concluded that the applicant ’s personal interests were outweighed by the general interest of the truth being uncovered . It further added that the circumstance that the applicant and PERSON were cohabiting as if they were in a marriage or a registered partnership could not lead it to balance the interests differently . Rejection of the request to issue a detention order on the basis of that circumstance would entail that the applicant was nevertheless , and in circumvention of LAW , granted a right to testimonial privilege , and that would be contrary to the legislature ’s choice .", "On DATE , DATE , at TIME , the applicant was taken into detention for failure to comply with a judicial order . As required by LAW ( see paragraph CARDINAL below ) , the applicant was heard on DATE by an investigating judge , who rejected a release request by counsel for the applicant and who notified ORG within the statutory time - limit of TIME after she was taken into detention .", "On DATE ORG , sitting in chambers , examined whether the applicant ’s detention should continue , and in that context it heard the applicant , who persisted in her refusal to give evidence in the criminal investigation against PERSON ORG agreed with the decision taken in chambers on DATE that the applicant was not entitled to testimonial privilege . Concluding that the interests of the investigation in obtaining the applicant ’s evidence outweighed the interests invoked on behalf of the applicant , ORG decided that the applicant was to be kept in detention for DATE , with a possibility of further extension . The applicant lodged an appeal with ORG ( gerechtshof ) .", "On DATE ORG , sitting in chambers , examined a request by the prosecution of DATE to extend the applicant ’s detention . After hearing the public prosecutor , the applicant and her lawyer ORG rejected the request and ordered the applicant ’s immediate release . It found that the interest of the truth being uncovered in the criminal proceedings against PERSON was outweighed by the applicant ’s personal interest in being released , also taking into account the fact that the applicant ’s detention entailed an interference with her rights under LAW ( “ mede gelet op het feit dat de vrijheidsbeneming van de getuige een inbreuk op artikel CARDINAL van het EVRM tot gevolg heeft ” ) .", "On DATE , the ‘ s - ORG dismissed the applicant ’s appeal ( hoger beroep ) and upheld the impugned decision of DATE .", "On DATE , after noting that the applicant had been released on DATE , ORG ( PERSON ) declared inadmissible for lack of interest the applicant ’s subsequent appeal on points of law ( cassatie ) . ORG nevertheless saw fit to consider the applicant ’s first complaint that ORG had incorrectly upheld the ruling of ORG in which it was concluded that she was not entitled to the testimonial privilege of Article CARDINAL , opening sentence and sub - paragraph CARDINAL , of LAW , as well as her second complaint that to deny her this privilege was contrary to Articles CARDINAL and CARDINAL of the Convention .", "Having noted the wording of Article CARDINAL , opening sentence and subparagraph CARDINAL , of LAW as in force since DATE , ORG rejected the first complaint . As to the applicant ’s grievance based on ORG CARDINAL and CARDINAL of the Convention , ORG held :", "“ Testimonial privilege as laid down in LAW , opening sentence and sub - paragraph CARDINAL , of LAW seeks to protect the ‘ family life’ within the meaning of LAW that exists between the spouses and partners referred to in that provision . By granting this privilege to spouses and registered partners but not to other partners – even when such partners , like the applicant and her partner , cohabit in a sustained fashion – the law differentiates between the different forms of cohabitation at issue here . Even assuming that this can be said to constitute a difference in treatment of persons in the same situation , there is an objective and reasonable justification for this difference in treatment , having regard to the fact that the granting of testimonial privilege to spouses and registered partners is an exception to the statutory duty to testify , which exception makes the interest of uncovering the truth yield to the interests of those relationships , with the statutory arrangement delimiting this exception in a clear and workable manner , thus serving legal certainty . ”", "No further appeal lay against this ruling .", "Unlike the suspect , a witness in ( preliminary ) criminal proceedings is obliged to answer questions put to him or her when he or she is under oath , and any deliberate refusal to do so constitutes a criminal offence under LAW . However , LAW grants the right not to give evidence to certain relatives of the suspect .", "Article CARDINAL of the Code of Criminal Procedure provides as follows :", "“ The following shall be excused the obligation to give evidence or answer certain questions :", "CARDINAL : NORP the relatives in the ascending or the descending line of a suspect or co - suspect , whether connected by blood or by marriage ;", "CARDINAL : NORP the relatives ex transverso [ i.e. siblings , uncles , aunts , nieces and nephews , etc . ] of a suspect or co - suspect , whether connected by blood or by marriage , up to and including the third degree of kinship ;", "CARDINAL : NORP the spouse or former spouse , or registered partner or former registered partner , of a suspect or co - suspect . ”", "The third sub - paragraph formerly applied only to the spouse and the former spouse of a suspect or co - suspect . It was amended to extend the testimonial privilege to the registered partner ( or former registered partner ) with effect from DATE , when LAW ( GPE geregistreerd partnerschap ) and LAW on the Adaptation of Legislation to LAW into Book CARDINAL of the Civil Code ( Wet tot aanpassing van wetgeving aan de invoering van het geregistreerd partnerschap in PERSON ) entered into force .", "As can be inferred from the Explanatory Memorandum ( PERSON ) to LAW ( see Parliamentary Documents , ORG of ORG ( PERSON ) CARDINAL , CARDINAL , no . CARDINAL , p. CARDINAL ) , and from an advisory opinion of ORG endorsed by ORG in a judgment of DATE ( National LAW , published in PERSON ( GPE Law Reports ) DATE , no . CARDINAL ) , the basis for this testimonial privilege lies in the sphere of the protection of family relations . In accepting the right not to give evidence against a relative , spouse or registered partner , the legislature has acknowledged the important social value of those relationships in society and has sought to prevent witnesses from being faced with a moral dilemma by having to make a choice between testifying , and thereby jeopardising their relationship with the suspect , or giving perjured evidence in order to protect that relationship .", "Article CARDINAL of LAW provides as follows :", "“ CARDINAL . If , when questioned , the witness refuses without any lawful reason to answer the questions put to him or to make the required statement or take the required oath or affirmation , the investigating judge shall , if this is urgently required in the interest of the investigation , either proprio motu or if so requested by the public prosecutor or by the defence , order that the witness shall be detained for failure to comply with a judicial order until ORG has given a decision in the matter .", "NORP The investigating judge shall notify ORG within TIME after the detention has commenced , unless the witness is released from detention before then . ORG shall , within TIME [ from the notification ] , order that the witness be kept in detention or released . ”", "Article CARDINAL of LAW provides as follows :", "“ CARDINAL . ORG order for the witness to remain in detention shall be valid for no longer than DATE .", "NORP However , as long as the preliminary judicial investigation ( gerechtelijk vooronderzoek ) remains pending , ORG may , on the basis of the findings of the investigating judge or at the request of the public prosecutor , after having again questioned the witness , extend the validity of the order again and again ( telkens ) for DATE each time . ”", "Article CARDINAL of the Code of Criminal Procedure provides as follows :", "“ CARDINAL . The investigating judge shall order the witness released from detention as soon as he has fulfilled his obligation or his evidence is no longer needed .", "ORG may at any time order the witness released from detention , whether on the basis of the findings of the investigating judge , proprio motu or if so requested by the public prosecutor or by the defence . The witness shall be heard or summoned beforehand .", "NORP If the witness ’s request to be released from detention is refused , he may appeal within DATE of the official notification of the decision , and in the event that his appeal is dismissed , he may within the same time - limit lodge an appeal on points of law . ...", "NORP In any event , the public prosecutor shall order that the witness be released as soon as the preliminary judicial investigation has been closed or discontinued . ”", "A partnership is registered by means of a registration document drawn up by ORG , Deaths and Marriages ( ambtenaar van de burgerlijke stand ) ( LAW ) ; the formal requirements are similar to those of a marriage . It can be dissolved by mutual consent , by the registration of a statement to that effect signed by both parties and co - signed by an advocate or a notary , or by a court order at the request of CARDINAL of the parties ( Article CARDINAL of LAW ) .", "The provisions of the Civil Code setting out the legal consequences of marriage apply by analogy to a registered partnership , with the exception of certain rules governing the establishment of legal family ties ( familierechtelijke betrekkingen ) with descendants ( Article CARDINAL of LAW ) .", "On DATE , in response to a request made during the ORG ’s hearing ( see paragraph CARDINAL above ) , the Government supplied the following information :", "“ In DATE article CARDINAL of the Code of Criminal Procedure ( ORG ) was amended to the extent that the right to be exempted from testifying would also apply to a witness who had entered into a registered partnership with the defendant . This amendment in itself did not lead to any debate on the question whether other forms of relationships should be entitled to the same exemption .", "However , this amendment – among many others – was a consequence of the introduction of registered partnership , which in turn was preceded by a full survey ( concluded in DATE , [ Parliamentary Documents , ORG of ORG , DATE , no . CARDINAL ] ) of all legislation that made a distinction between married and unmarried couples . With regard to article CARDINAL ORG the survey mentioned that an amendment should be considered to the effect that the article would include a life partner ( p. CARDINAL ) .", "Following this survey the ORG committee [ a committee tasked with reviewing legislative projects , named after its chairman , Professor PERSON ] presented its report ‘ Partnerships’ ( ORG , DATE ) to the ORG . The committee was of the opinion that the best way to remove all existing distinctions would be to introduce CARDINAL new possibilities of registering partnerships in addition to marriage . Together these CARDINAL forms of registration could be used as categories in most legal provisions that attached legal consequences to different types of partnerships .", "Following further discussion in parliament ( [ Parliamentary Documents , ORG of ORG , DATE , ORG . CARDINAL , DATE and DATE ] ) the Government decided to introduce CARDINAL new form of registration , which then became known as registered partnership . In doing so , the Government accepted that in several instances , specific provisions might be required to accommodate situations of family life not covered by the accepted categories . However , in the context of article CARDINAL ORG this was not considered necessary . ”", "All Council of Europe Member GPE have addressed in their legislation the question whether in criminal proceedings the spouse of the defendant can be compelled to give evidence . The following is a brief and necessarily condensed survey of the position in the various domestic legal orders . It is based on information available to the ORG at the time of its hearing ( see paragraph CARDINAL above ) .", "In no ORG member ORG , with the exception of GPE and GPE , are spouses obliged to give evidence in criminal proceedings in which the other spouse is a suspect . In a few cases , namely GPE , GPE and GPE , exclusion of the evidence of the suspect ’s spouse is automatic ; in general , however , the spouse may opt to give evidence or claim a privilege or an exemption when called as a witness .", "The possibility formally to register a partnership exists in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE ( some of the autonomous communities ) , GPE , GPE , GPE and GPE . Some of these GPE allow such registration only if the parties are of the same sex ( including GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ; the other member GPE concerned provide registration of a partnership as an alternative to marriage when the parties are a man and a woman .", "Of the CARDINAL member GPE that allow the registration of partnerships , CARDINAL are prepared to exempt the suspect ’s registered partner from giving evidence : these are GPE , GPE , GPE , GPE , GPE and the GPE , whose legislation explicitly so provides , and GPE , GPE , GPE , GPE , GPE , GPE and GPE , whose laws assimilate registered partnership to marriage in this aspect as in others . GPE and GPE do not extend this privilege to registered partners ; GPE and GPE grant no testimonial privilege at all .", "A minority of member GPE – namely GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE – exempt the person engaged to be married to the suspect from the duty to give evidence . However , apart from GPE , GPE , GPE , GPE , GPE , GPE and GPE , these member States qualify this exemption by requiring evidence of the existence of a bond similar to marriage , such as stable cohabitation or a child born of the relationship .", "Cohabitees who are not married , engaged to be married or in a registered partnership with the suspect appear to be dispensed from giving evidence unconditionally only in GPE , GPE , GPE and GPE . By contrast , GPE , GPE , GPE , GPE , GPE , GPE , “ the Former GPE ” , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE require proof of the marriage - like nature of the relationship , usually in the form of children born of it , demonstrable financial arrangements or length of cohabitation . It would appear that the other ORG member GPE do not permit a person merely cohabiting with the suspect to withhold his or her evidence ." ]

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[ "8" ]

[ "8-1" ]

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[ "The applicant was born in DATE and is currently in FAC .", "NORP Since the applicant attained the age of criminal responsibility he has been convicted CARDINAL times and has spent DATE outside prison .", "DATE he was repeatedly convicted of theft committed jointly and burglary . He escaped from prison CARDINAL times .", "On DATE ORG , applying the criminal law relating to young offenders , convicted the applicant of attempted murder , robbery committed jointly with others , dangerous assault and blackmail and sentenced him to CARDINAL years’ imprisonment . It found that DATE after his release from prison the applicant , together with an accomplice , had injured and robbed an acquaintance of his and had forced the victim , a homosexual , to sign a borrower ’s note . Moreover , he had injured and attempted to kill his victim DATE when he learned that the latter had reported the robbery to the police . Having regard to a report submitted by expert NORP , the court found that the applicant suffered from a pathological mental disorder , with the result that his criminal responsibility was diminished ( LAW ) .", "On DATE ORG convicted the applicant of dangerous assault , sentenced him to DATE and CARDINAL months’ imprisonment and ordered his subsequent placement in a psychiatric hospital under LAW ( see paragraph CARDINAL below ) . The applicant had injured a prison guard by throwing a heavy metal box at his head and stabbing him with a screwdriver after having been reprimanded . As confirmed by expert NORP , the applicant suffered from a serious pathological mental disorder , with the result that his criminal responsibility was diminished .", "On DATE ORG , on appeal , convicted the applicant of assault of a disabled fellow prisoner following a discussion as to whether or not the cell window should remain open . Incorporating the sentence imposed by the judgment of ORG of DATE , it sentenced him to a cumulative sentence of DATE and CARDINAL months’ imprisonment . Moreover , it upheld the order for the applicant ’s placement in a psychiatric hospital . In the proceedings , an expert found that there were no longer any signs that the applicant suffered from a pathological brain disorder .", "On DATE ORG convicted the applicant of attempted murder and robbery and sentenced him to DATE imprisonment . It further ordered his placement in preventive detention ( GPE ) under LAW ( see paragraphs CARDINAL below ) . It found that when the conditions of his detention in the psychiatric hospital where he had been detained since DATE had been relaxed , the applicant had on DATE robbed and attempted to murder a woman who had volunteered to spend DATE with him in a city away from the hospital . Having regard to the report of a neurological and psychiatric expert , PERSON , the court found that the applicant still suffered from a serious mental disorder which could , however , no longer be qualified as pathological and did not have to be treated medically . He therefore had not acted with diminished criminal responsibility and the preconditions for his placement in a psychiatric hospital under LAW were no longer met . However , he had a strong propensity to commit offences which seriously damaged his GPE physical integrity . It was to be expected that he would commit further spontaneous acts of violence and he was dangerous to the public . Therefore , his preventive detention was necessary .", "Since DATE the applicant , having served his full prison sentence , has been in preventive detention in FAC .", "On DATE ORG refused to suspend on probation the applicant ’s preventive detention and his placement in a psychiatric hospital . It relied on a report submitted by expert M .- I. , who had concluded that the applicant was likely to commit offences as a result of his propensity to reoffend within the meaning of LAW , whereas it was not very probable that he would commit offences as a result of his psychiatric condition within the meaning of LAW .", "On DATE the applicant took advantage of a day release to abscond , but gave himself up to the police on CARDINAL DATE .", "On DATE ORG refused to suspend on probation the applicant ’s preventive detention and his placement in a psychiatric hospital , as it had previously done on DATE and CARDINAL DATE . It took into consideration the fact that in the meantime the applicant , who at that time associated himself with skinheads , had assaulted and broken the nose of a fellow prisoner and had grossly insulted the governor of PERSON .", "On DATE ORG dismissed the applicant ’s requests to suspend on probation his preventive detention as ordered by that court on DATE and his placement in a psychiatric hospital as ordered by it on DATE . Applying LAW § CARDINAL of LAW ( see paragraph CARDINAL below ) , it declared that no request for review of this decision would be admissible within a DATE period .", "Having regard to the applicant ’s previous convictions and his conduct in prison , ORG found that it could not be expected that the applicant , if released , would not commit further serious offences ( Article CARDINAL § CARDINAL of LAW ; see paragraph CARDINAL below ) . The court had heard evidence from the applicant , who was represented by officially appointed counsel , in person . It had further consulted PERSON and the PERSON public prosecutor ’s office , both of which had recommended not suspending on probation the orders for the applicant ’s detention . It also agreed with the report submitted by an external expert in forensic psychiatry , PERSON The expert had taken the view that the applicant , who had a narcissistic personality and a total lack of empathy , but could not be regarded as suffering from a psychopathic disorder , needed to be observed for DATE before it could be assumed that he was no longer dangerous to the public .", "ORG stated that it was ordering the applicant ’s preventive detention also for the period after DATE , when ( after a period during which the applicant had escaped from detention had been deducted ) he would have served DATE in preventive detention . There were no constitutional obstacles to such a decision . According to the court , the applicant ’s continued preventive detention was authorised by LAW as amended in DATE ( see paragraph CARDINAL below ) . In section CARDINALa(CARDINAL ) of LAW to LAW , as amended in DATE , the LAW in question had been declared applicable also to prisoners whose preventive detention had been ordered prior to the change in the law ( see paragraph CARDINAL below ) . ORG had refused to admit a constitutional complaint in which the change in the law had indirectly been at issue . In view of the gravity of the applicant ’s criminal past and possible future offences his continued preventive detention was not disproportionate .", "As to the order for the applicant ’s placement in a psychiatric hospital , his request was premature as he was neither currently detained nor about to be detained in a psychiatric hospital .", "On DATE the GPE am ORG , amending the decision of ORG in this respect , quashed the order of DATE for the applicant ’s placement in a psychiatric hospital . Upholding the remainder of ORG decision , it decided not to suspend on probation the applicant ’s preventive detention as ordered by ORG judgment of CARDINAL DATE , and ordered his continued detention also after the expiry of DATE of detention on DATE . It confirmed that a request for review of the decision would not be admissible within DATE .", "The Court of Appeal found that the order for the applicant ’s placement in a psychiatric hospital was devoid of purpose . Having regard to the expert reports submitted to the criminal courts since DATE and a new report by expert PERSON requested by the court itself , it was clear that the applicant no longer suffered from a serious mental disorder which should be qualified as pathological .", "As to the preventive detention of the applicant , who was represented by counsel , ORG , endorsing the reasons given by ORG , found that the applicant ’s dangerousness necessitated his continued detention . In view of the offences he had committed and could be expected to commit on release , his continued detention was proportionate . No material change in the circumstances decisive for his detention was to be expected within DATE ( LAW of LAW ) .", "According to ORG , Article CARDINAL CARDINAL of LAW , as amended in DATE , was constitutional . The court conceded that at the time when the applicant ’s preventive detention was ordered , it would have ceased after DATE of detention at the latest . However , LAW ( see paragraph CARDINAL below ) authorised a retrospective worsening of the applicant ’s situation as far as measures of correction and prevention such as preventive detention were concerned . Such measures were not classified as penalties , but as preventive measures , and were therefore not prohibited under LAW ( see paragraph CARDINAL below ) as retrospective criminal provisions .", "Likewise , the applicant ’s continued preventive detention did not infringe the prohibition in principle of retrospective provisions enshrined in the rule of law . Weighty public - interest grounds , namely the protection of the public from dangerous offenders , justified the adoption of such retrospective provisions by the legislator in the present case .", "On DATE the applicant , represented by counsel , lodged a complaint with ORG against the decisions ordering his continued preventive detention even on completion of the tenyear period . He claimed , in particular , that these decisions were based on Article CARDINAL of LAW , as amended in DATE , under the terms of which the duration of a convicted person ’s first period of preventive detention could be extended retrospectively from a maximum period of DATE to an unlimited period of time . Accordingly , this provision violated the prohibition of retrospective punishment under Article CARDINAL § CARDINAL of LAW , the prohibition of retrospective legislation enshrined in the rule of law , the principle of proportionality and his right to liberty under LAW , second sentence , of LAW ( see paragraph CARDINAL below ) . Moreover , the impugned provision entailed his being refused any relaxation in his conditions of detention which would allow him to obtain a positive finding to the effect that he was no longer dangerous to the public . As a consequence , it entailed lifelong imprisonment without any prospect of release .", "On DATE a panel of CARDINAL judges of ORG , having held a hearing at which it also consulted psychiatric experts and several prison governors , dismissed the applicant ’s constitutional complaint ( no . CARDINAL BvR CARDINAL/CARDINAL ) as ill - founded . In its thoroughly reasoned leading judgment ( running to CARDINAL pages ) , it held that Article CARDINAL of LAW , read in conjunction with LAW ) of LAW to LAW , as amended in DATE , was compatible with LAW .", "ORG held that preventive detention based on Article CARDINAL of LAW restricted the right to liberty as protected by LAW in a proportionate manner .", "The court stressed that the longer a person was held in preventive detention , the stricter became the requirements concerning the proportionality of the deprivation of liberty . However , Article CARDINAL of LAW took into account the increased importance of the right to liberty after DATE in custody . It set a higher standard with respect to the legal interest under threat ( protecting only threats to the GPE physical or mental integrity ) and the proof of the applicant ’s dangerousness ( requiring a duly substantiated report by an experienced external psychiatric expert ) . It also made termination of detention the rule and extension the exception , to be used as a measure of last resort . Moreover , the procedural provisions on preventive detention ( Articles CARDINALc § CARDINAL , GPE CARDINAL QUANTITY of LAW ) provided for regular review to determine whether the person ’s detention could be suspended or terminated . Due to the special significance which the relaxation of detention conditions had for the prognosis of future dangerousness , the court responsible for the execution of the sentence was not permitted to accept without sufficient reason a refusal by the prison authorities to relax detention conditions as a possible precursor to the termination of a detainee ’s preventive detention .", "Preventive detention did not serve to avenge past offences but to prevent future ones . Therefore , the ORG had to ensure that a detainee was able to have his or her detention conditions improved to the full extent compatible with prison requirements .", "The Federal Constitutional Court further held that Article CARDINAL of LAW , taken in conjunction with LAW ) of LAW to LAW , did not violate LAW . The absolute ban on the retrospective application of criminal laws imposed by that Article did not cover the measures of correction and prevention , such as preventive detention , provided for in LAW .", "Interpreting the notions of “ punished ” and “ punishable act ” in LAW , ORG found that the LAW applied only to ORG measures which expressed sovereign censure of illegal and culpable conduct and involved the imposition of a penalty to compensate for guilt . Having regard to the genesis of LAW and the purpose of LAW , it did not apply to other ORG measures interfering with a person ’s rights .", "NORP In particular , LAW did not extend to measures of correction and prevention , which had always been understood as differing from penalties under LAW twin - track system of penalties and measures of correction and prevention . The fact that a measure was connected with unlawful conduct or entailed considerable interference with the right to liberty was not enough . Unlike a penalty , preventive detention was not aimed at punishing criminal guilt , but was a purely preventive measure aimed at protecting the public from a dangerous offender . Therefore , preventive detention was not covered by LAW , even though it was directly connected with the qualifying offence .", "The Federal Constitutional Court further held , by CARDINAL votes to CARDINAL on this issue , that the abolition of the maximum period of detention where preventive detention was ordered for the first time , and the application of the relevant provision ( Article CARDINAL of LAW read in conjunction with LAW ) of LAW to LAW ) to criminals who had been placed in preventive detention prior to its enactment and entry into force and who had not yet fully served their sentences , were in conformity with the protection of legitimate expectations guaranteed in a ORG governed by the rule of law ( LAW read in conjunction with LAW of LAW ; see paragraph CARDINAL below ) .", "The court stressed that Article CARDINAL of LAW as amended did not retrospectively alter the legal consequences attaching to the offence as fixed in the final judgment of the sentencing court . It had always been the courts responsible for the execution of sentences which had jurisdiction to decide whether and for how long a convicted person was held in preventive detention .", "Nevertheless , the maximum duration of a first period of preventive detention as laid down in the old version of Article CARDINAL § § CARDINAL of the Criminal Code gave detainees reason to expect release when DATE had elapsed . However , pursuant to LAW ( see paragraph CARDINAL below ) , the DATE maximum duration of preventive detention , like all other measures of correction and prevention , had been subject from the outset to changes in the law .", "Weighing the interests involved , ORG concluded that the legislator ’s duty to protect members of the public against interference with their life , health and sexual integrity outweighed the detainee ’s reliance on the continued application of the DATE limit . As Article CARDINAL of LAW was framed as an exception to the rule and in the light of the procedural guarantees which attached to it , its retrospective application was not disproportionate .", "The Federal Constitutional Court further found that a person ’s human dignity as enshrined in LAW did not impose a constitutional requirement that there be a fixed maximum period for a convicted person ’s preventive detention . The person ’s dignity was not violated even by a long period of preventive detention if this was necessary owing to the continued danger which he or she posed . However , the aim of preventive detention had to be to rehabilitate detainees and to lay the foundations for a responsible life outside prison . Human dignity required laws and enforcement programmes which gave detainees real prospects of regaining their freedom .", "Preventive detention in its present form met these requirements . The courts responsible for the execution of sentences had , in particular , to examine before the end of a convicted person ’s prison term ( Article CARDINAL § CARDINAL of LAW ) and subsequently at least DATE ( LAW CARDINAL of LAW ) whether the measure could be suspended . If DATE had been spent in preventive detention , they declared the measure terminated under Article QUANTITY § CARDINAL of LAW if no specific dangers remained . In practice , persons in preventive detention were released after having spent a certain length of time in prison .", "Lastly , ORG found that the prohibition on being removed from the jurisdiction of the lawful judge , as guaranteed by LAW ( see paragraph CARDINAL", "In FAC , persons in preventive detention like the applicant are placed in a separate building from prisoners serving their sentence . They have certain privileges compared with convicted offenders serving their sentence . For instance , they have the right to wear and wash their own clothes and have more pocket money . They can practise sport in a separate sports room and may stay outside in the yard for TIME every day . They may equip their more comfortable cells with additional furniture and equipment and have longer visiting TIME .", "As to measures aimed at reintegration into society , persons held in preventive detention in FAC , like those detained in other prisons , are offered a DATE discussion group which proposes ideas for recreational activities and for structuring DATE life . Furthermore , there are individual discussions to improve the detainee ’s integration into the group and a residential group DATE aimed , inter alia , at motivating detainees to accept the treatment on offer . Where it is considered appropriate , detainees are offered individual therapy sessions with an external therapist or group therapy in the socio - therapeutic facility of another prison . The detainee may also request a consultation with the psychologist or social worker in charge in order to deal with crisis situations .", "The applicant has been receiving therapy since he was placed in preventive detention . Since DATE he has had therapy sessions with a psychologist in FAC . From DATE he also had regular individual therapy sessions with an external psychologist . At that point , the therapy was considered to have been completed and no longer necessary . In addition , the applicant has been examined by psychiatrists at regular intervals in order to evaluate his dangerousness and to permit relaxation of the prison regime as appropriate . As to relaxation of the conditions of the applicant ’s preventive detention , he is currently granted short periods of leave under escort ( PERSON ) a few times per year . He also receives regular visits ( on average CARDINAL times per month ) from his fiancée , to whom he has been engaged since DATE . He has been working , with a short interruption , in prison and is currently working in the prison ’s metal workshop , with net earnings of CARDINAL to CARDINAL euros ( ORG ) per month .", "According to a psychiatric expert report and an additional psychological report drawn up in DATE , the applicant had made important steps towards reintegration into society , in particular by turning away from his criminal identity , which he had developed since his childhood , and by trying to think before acting . His new relationship with his fiancée could be seen as a further positive development and would also improve his social circumstances in the event of his release from prison . However , this trend had not yet stabilised and a lack of loyalty and empathy towards others as well as a dangerous impulsiveness , which had manifested itself again when the applicant had punched a fellow detainee in the face following a dispute concerning a baking tin in DATE , persisted . The expert recommended maintaining and cautiously extending the current measures to relax the conditions of the applicant ’s preventive detention .", "The German Criminal Code distinguishes between penalties ( GPE ) and socalled measures of correction and prevention ( Maßregeln der Besserung und GPE ) to deal with unlawful acts . This twin - track system of sanctions , the introduction of which had been considered and discussed since DATE , was incorporated into LAW by the PERSON on dealing with dangerous habitual offenders and on measures of correction and prevention ( PERSON gegen gefährliche PERSON und über Maßregeln der PERSON ) of DATE . The rules on preventive detention remained in force , essentially unchanged , after DATE and underwent several reforms enacted by the legislator from DATE onwards .", "Penalties ( see Articles CARDINAL et seq . of LAW ) consist mainly of prison sentences and fines . The penalty is fixed according to the defendant ’s guilt ( LAW ) .", "Measures of correction and prevention ( see Articles CARDINAL et seq . of LAW ) consist mainly of placement in a psychiatric hospital ( LAW ) or a detoxification facility ( LAW ) or in preventive detention ( LAW ) . The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them . They may be ordered for offenders in addition to their punishment ( compare Articles CARDINAL et seq . ) . They must , however , be proportionate to the gravity of the offences committed by , or to be expected from , the defendants as well as to their dangerousness ( Article CARDINAL of LAW ) .", "The temporal applicability of provisions of the Criminal Code depends on whether they relate to penalties or measures of correction and prevention . The penalty is determined by the law which is in force at the time of the act ( LAW ) ; if the law in force on completion of the act is amended before the court ’s judgment , the more lenient law applies ( LAW ) . On the other hand , decisions on measures of correction and prevention are based on the law in force at the time of the decision unless the law provides otherwise ( LAW ) .", "The sentencing court may , at the time of the offender ’s conviction , order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be dangerous to the public ( LAW ) .", "NORP In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to CARDINAL years’ imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW ) .", "Article CARDINALc of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final . Paragraph CARDINAL of the LAW provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention , the court responsible for the execution of sentences ( that is , a special ORG composed of CARDINAL professional judges ; see sections ORG and CARDINAL ) of LAW ) must review , before completion of the prison term , whether the person ’s preventive detention is still necessary in view of its objective . If that is not the case , it suspends on probation the execution of the preventive detention order ; supervision of the person ’s conduct ( GPE ) commences with suspension .", "At the time of the applicant ’s offence and his conviction , Article CARDINAL of LAW , in so far as relevant , was worded as follows :", "“ CARDINAL . Detention in a detoxification facility may not exceed DATE and the first period of preventive detention may not exceed DATE . ...", "NORP If there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend further execution of the detention order on probation as soon as there are justifiable reasons for testing whether the detainee can be released without committing further unlawful acts . Suspension shall automatically entail supervision of the conduct of the offender .", "NORP If the maximum duration has expired , the detainee shall be released . The measure shall thereby be terminated . ”", "Article CARDINAL of LAW was amended while the applicant was in preventive detention for the first time , by ORG and Other LAW ( Gesetz zur PERSON und anderen gefährlichen ORG CARDINAL DATE , which entered into force on DATE . The amended provision , in so far as relevant , provided :", "“ CARDINAL . Detention in a detoxification facility may not exceed DATE ...", "NORP If there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release . Suspension shall automatically entail supervision of the conduct of the offender .", "NORP If a person has spent DATE in preventive detention , the court shall declare the measure terminated if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the conduct of the offender . ”", "As to the applicability ratione temporis of Article CARDINALd of LAW as amended , LAW to LAW , in so far as relevant , reads :", "“ Article PERSON of LAW , as amended by ORG and Other LAW of DATE ( ORG I , p. CARDINAL ) , shall apply without restriction . ”", "With respect to the judicial examination required under Article CARDINAL § CARDINAL of LAW and to the subsequent decisions under LAW , LAW , as amended by ORG and Other LAW , makes it compulsory for the court responsible for the execution of sentences both to consult an expert on the question whether the convicted person is likely to commit serious offences when released and to appoint defence counsel to represent him or her .", "In addition to Articles DATE § CARDINAL and CARDINALd § § CARDINAL and CARDINAL of LAW , LAW provides for the review of a convicted person ’s preventive detention . The court may review at any time whether the further execution of the preventive detention order should be suspended on probation . It is obliged to do so within fixed time - limits ( LAW ) . For persons in preventive detention , this time - limit is DATE ( § CARDINAL of Article CARDINAL ) . The court may shorten this time - limit , but may also set terms within the statutory limits for review before which an application for review shall be inadmissible ( § CARDINAL of Article CARDINAL ) .", "LAW , second sentence , of LAW provides that the liberty of the person is inviolable .", "Pursuant to LAW , the legislature is bound by the constitutional order , the executive and the judiciary by law and justice .", "According to the well - established case - law of ORG , LAW read in conjunction with LAW of LAW protects legitimate expectations in a ORG governed by the rule of law . A law may be retrospective in the sense that , while its legal effects are not produced until it is published , its definition covers events “ set in motion ” before it is published ( so - called unechte PERSON ; see the decisions of ORG in the compendium of decisions of ORG ) , vol . DATE , pp . CARDINAL et seq . , CARDINAL , and vol . CARDINAL , pp . CARDINAL et seq . and CARDINAL et seq . ) . In respect of retrospective laws in that sense , the principles of legal certainty and protection of legitimate expectations are not given overall priority over the intention of the legislator to change the existing legal order in response to changing circumstances . The legislator may enact such retrospective laws if the importance of the purpose of the legislation for the common good outweighs the importance of the interest in protecting legitimate expectations ( see the judgment of ORG in the instant case , pp . DATE , with many references to its case - law ) .", "Pursuant to LAW , no one may be removed from the jurisdiction of the lawful judge .", "Under LAW of LAW , an act may be punished only if the fact of its being punishable was determined by law before the act was committed .", "The ( Federal ) Execution of Sentences Act ( Strafvollzugsgesetz ) lays down rules for the execution of sentences of imprisonment in prisons and for the execution of measures of correction and prevention depriving the persons concerned of their liberty ( see section CARDINAL of the Act ) . Its provisions were applicable in all ORG until DATE ; since then , the ORG have had the power to legislate on these issues . In so far as they have already made use of this power , the provisions laid down by the Länder on the execution of preventive detention orders do not differ significantly from those laid down in LAW .", "Section CARDINAL of the Execution of Sentences Act deals with the purpose of the execution of sentences of imprisonment . During the execution of a sentence of imprisonment the detainee should become capable henceforth of leading a socially responsible life without committing offences ( purpose of execution ; first sentence ) . The execution of the sentence of imprisonment is also aimed at protecting the public from further offences ( second sentence ) .", "Sections CARDINAL to CARDINAL of LAW contain special rules for the execution of preventive detention orders . Section CARDINAL provides that persons held in preventive detention shall be detained in secure conditions for the protection of the public ( first sentence ) . They are to be given assistance in readjusting to life outside prison ( second sentence ) . Unless stipulated otherwise ( in sections CARDINAL to CARDINAL of the said Act ) , the provisions concerning the execution of prison sentences shall apply mutatis mutandis to preventive detention ( section CARDINAL of that Act ) .", "According to section CARDINAL of LAW , the equipment of the institutions in which persons are held in preventive detention , notably detention cells , and particular measures to promote their welfare , must be designed to help detainees to organise their life in the institution in a reasonable manner and to protect them from damage caused by a lengthy deprivation of liberty . Their personal needs are to be taken into account as far as possible . Section CARDINAL of the said LAW provides that detainees may wear their own clothes and use their own linen and bedding , unless this is prohibited for security reasons and provided they see to their cleaning , repair and regular changing at their own expense . Moreover , under section CARDINAL of the said Act , detainees are allowed to occupy themselves against payment if this serves the objective of imparting , maintaining or promoting skills needed for paid employment after their release . They also receive pocket money . Pursuant to section CARDINAL of the said Act , the conditions of detention may be relaxed and special leave for a period of DATE may be granted in order to test detainees’ readiness and prepare them for release .", "Section CARDINAL(CARDINAL ) of LAW provides that preventive detention is served either in a separate institution or in a separate wing of a prison for the execution of sentences of imprisonment .", "According to statistical material submitted by the ORG , which was not contested by the applicant , the NORP sentencing courts made a total of CARDINAL preventive detention orders in DATE , CARDINAL of which concerned sexual offenders . A total of CARDINAL persons were being held in preventive detention in GPE on DATE . In DATE , the average duration of a first period of preventive detention was DATE in the different Länder . In DATE , CARDINAL persons placed in preventive detention for the first time were affected by the abolition of the maximum duration of preventive detention of DATE under Article CARDINAL of LAW , read in conjunction with LAW ) of LAW to LAW as amended in DATE . In DATE , CARDINAL persons were still affected by that change in the law and had been in preventive detention for DATE .", "DATE . According to statistical material submitted by the ORG , which was not contested by the applicant , GPE had CARDINAL prisoners per CARDINAL inhabitants in DATE , whereas there were , for example , CARDINAL prisoners per CARDINAL inhabitants in GPE , CARDINAL in GPE , CARDINAL in GPE , CARDINAL in GPE and GPE , CARDINAL in GPE , CARDINAL in GPE , CARDINAL in GPE and CARDINAL in GPE . Furthermore , according to ORG , of CARDINAL DATE ( PC - CP ( DATE ) CARDINAL of DATE , p. CARDINAL ) , the total number of prisoners sentenced to terms of imprisonment ranging from DATE up to and including life imprisonment on DATE was CARDINAL in GPE , CARDINAL in GPE , CARDINAL in GPE , CARDINAL in GPE , CARDINAL in GPE and GPE , CARDINAL in GPE , CARDINAL in GPE and CARDINAL in GPE .", "According to the information and material before the ORG , the member ORG have chosen different ways of shielding the public from convicted offenders who acted with full criminal responsibility at the time of the offence ( as did the applicant at the relevant time ) and who risk committing further serious offences on release from detention and therefore present a danger to the public .", "Apart from GPE , CARDINAL seven other Convention States have adopted systems of preventive detention in respect of convicted offenders who are not considered to be of unsound mind , in other words , who acted with full criminal responsibility when committing their offence(s ) , and who are considered dangerous to the public as they are liable to reoffend . These include GPE ( see Articles CARDINAL et seq . and CARDINAL et seq . of LAW , and ORG CARDINAL et seq . of LAW ) , GPE ( see Articles CARDINAL et seq . of LAW ) , GPE ( see Articles CARDINAL et seq . of LAW ) , GPE ( see Articles CARDINAL et seq . and CARDINAL of LAW and Articles CARDINAL et seq . of LAW ) , GPE ( see PERSON . of FAC ) , GPE ( see Articles CARDINAL and CARDINAL of GPE ) and GPE ( see Articles CARDINAL et seq . of LAW ) . Preventive detention in these GPE is ordered , as a rule , by the sentencing courts and is generally executed after the persons concerned have served their prison sentences ( with the exception of GPE , where preventive detention is ordered instead of a prison sentence ) . The GPE dangerousness is reviewed on a periodic basis and they are released on probation if they are no longer dangerous to the public .", "As to the place and duration of the placement , persons subject to preventive detention are placed in special institutions in GPE ( see LAW ) , GPE ( see LAW ) , GPE ( see PERSON . of FAC ) , GPE ( see LAW of LAW ) and GPE ( see LAW ) . Even though NORP law also stipulates that preventive detention is to be served in special institutions ( compare Articles CARDINAL et seq . of LAW ) , it appears that in practice these institutions no longer exist and that the persons concerned are kept in ordinary prisons under a special detention regime . Dangerous offenders in preventive detention in GPE are also kept in ordinary prisons under a special detention regime . In GPE , GPE , GPE , GPE ( see the express provisions of LAW ) and GPE , the applicable provisions do not fix a maximum duration of preventive detention . By contrast , in GPE and GPE , such detention may not exceed DATE ( see LAW of both the NORP and ORG ) .", "As regards the temporal applicability of the provisions on preventive detention , it is to be noted that , according to the wording of the applicable provisions in some of the GPE concerned , they may be applied retrospectively . Thus , pursuant to LAW , a decision on preventive measures is to be based on the law in force at the time of their execution , and pursuant to LAW of LAW , these decisions are to be based on the law in force at the time of the decision ordering the security measure . Under LAW of LAW , the question whether an offence is to be punished by preventive detention is decided by applying the law in force at the time of the judgment in the criminal proceedings . FAC likewise does not prohibit the retrospective application of preventive measures . By contrast , retrospective application appears to be prohibited in respect of preventive detention measures pursuant to Articles CARDINAL § CARDINAL et seq . of both the NORP and ORG and under NORP law .", "In many other GPE , there is no system of preventive detention and offenders’ dangerousness is taken into account both in the determination and in the execution of their sentence . On the one hand , prison sentences are increased in the light of offenders’ dangerousness , notably in cases of recidivism . In this respect it is to be noted that , unlike the courts in the majority of GPE , the sentencing courts in GPE expressly distinguish between the punitive and the preventive part of a life sentence . The retributive or tariff period is fixed to reflect the punishment of the offender . Once the retributive part of the sentence has been served , a prisoner is considered as being in custody serving the preventive part of his sentence and may be released on probation if he poses no threat to society ( see , inter alia , sections CARDINAL and CARDINAL of LAW DATE and CARDINAL of ORG . On the other hand , offenders’ dangerousness generally has an influence both on their conditions of detention and on their chances of benefiting from a reduction of their sentence or from release on probation .", "As regards the distinction between penalties and preventive measures in GPE and the consequences drawn from the qualification of the sanction in question , it must be noted that the same type of measure may be qualified as an additional penalty in CARDINAL ORG and as a preventive measure in another . Thus , the supervision of a person ’s conduct after release , for example , is an additional penalty under ORG CARDINAL - CARDINAL - CARDINAL et seq . of LAW and a preventive measure under LAW and CARDINAL of the NORP LAW .", "NORP Moreover , GPE DATE on post - sentence preventive detention and diminished criminal responsibility due to mental deficiency ( PERSON relative à la rétention de sûreté et à la déclaration d’irresponsabilité pénale pour cause de trouble mental ) has introduced preventive detention into LANGUAGE law . Under Article CARDINAL - CARDINAL - CARDINAL of LAW Code of Criminal Procedure , this measure may be ordered against particularly dangerous offenders who pose a high risk of recidivism because they suffer from a serious personality disorder . ORG , in its decision of DATE ( no . PERCENT , ORG ) of DATE , p. CARDINAL ) , found that such preventive detention , which was not based on the guilt of the person convicted but was designed to prevent persons from reoffending , could not be qualified as a penalty ( § CARDINAL of the decision ) . To that extent , it thus took the same view as ORG in respect of preventive detention under NORP law ( see paragraphs CARDINAL - CARDINAL above ) . Nevertheless , in view of its custodial nature , the time it may last , the fact that it is indefinitely renewable and the fact that it is ordered after conviction by a court , ORG considered that post - sentence preventive detention could not be ordered retrospectively against persons convicted of offences committed prior to the publication of LAW ( § CARDINAL of the decision ) . In this respect , it came to a different conclusion than ORG ( see paragraphs CARDINAL and also paragraphs CARDINAL above ) .", "DATE . ORG Commissioner for Human Rights , Mr PERSON , stated the following in his report on his visit to GPE from CARDINAL to CARDINAL and from DATE ( CommDH(CARDINAL)CARDINAL of CARDINAL DATE ) regarding the issue of what he referred to as “ secured custody ” ( GPE ) :", "“ CARDINAL . During the visit , the Commissioner discussed the issue of secured custody with several ORG authorities , judges and medical experts . The Commissioner is aware of the public pressure judges and medical experts are exposed to when they make decisions regarding the release of a person who might recommit a serious crime . It is impossible to predict with full certainty whether a person will actually reoffend . Psychiatrists regularly assess the behaviour of an imprisoned person who might act differently outside the prison . In addition , it is difficult to foresee all the conditions that wait for the offender outside the prison .", "NORP The Commissioner calls for an extremely considerate application of secured custody . Alternative measures should also be considered before recourse to secured custody is taken . The Commissioner is concerned about the rising number of people deprived of their liberty under secured custody . He encourages the NORP authorities to commission independent studies on the implementation of secured custody in order to evaluate the measure in terms of protecting the general public and its impact on the detained individual .", "...", "Furthermore , the Commissioner was informed that persons kept under secured custody regularly experience a loss of future perspective and give up on themselves . This would appear to call for the provision of psychological or psychiatric care . The medical opinion may occasionally be divided on the efficacy of care provided to persons kept under secured custody , yet the possibility of their eventual rehabilitation and release should not be excluded . Accordingly , people held under secured custody should receive adequate medical treatment or other care that addresses their specific situation . ”", "In its report to ORG on its visit to GPE from DATE to DATE ( ORG ( DATE ) CARDINAL of DATE ) , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) made the following findings in respect of ORG ” ( GPE ) in FAC :", "“ CARDINAL . Material conditions in the unit were of a good or even very good standard , with several particularly positive elements : well equipped single rooms with sanitary annexes ; a light and reasonably spacious communal environment ; a small kitchen with equipment for inmates to prepare hot drinks and light snacks , and an area where washing , drying and ironing could be done .", "In principle , inmates had access to the same activities as ordinary prisoners ( in terms of work , education , etc . ) . In addition , in accordance with the relevant legislation , inmates benefited from a number of special privileges . In particular , cell doors remained open throughout DATE , and inmates were granted additional entitlements for visits ( TIME instead of TIME ) , outdoor exercise ( TIME instead of TIME on non - working days ) , the supply of parcels ( CARDINAL rather than DATE ) and pocket money ( if there was no work ) . It is also noteworthy that all inmates had unrestricted access to the telephone .", "In theory , at least , the unit offered opportunities for a positive custodial living environment . However , not all inmates were capable of making the best of these opportunities , which was not surprising if CARDINAL takes into account that , according to medical staff , most if not all of the inmates were suffering from multiple personality disorders . The vast majority of inmates were completely demotivated , with CARDINAL taking any outdoor exercise , CARDINAL working full - time and CARDINAL part - time . CARDINAL inmates were offered work , but were not willing to take part in it . Thus , the vast majority of inmates was idling away their time alone in their cells , occupying themselves with watching TV or playing video games .", "Even among those inmates who apparently assumed and coped with the responsibility for their DATE lives on the unit , the sense was that the activities were strategies to pass time , without any real purpose . As might be expected , this appeared to be related to their indefinite GPE . Several inmates interviewed expressed a clear sense that they would never get out and one stated that the only thing he could do was prepare himself to die .", "According to the prison administration , staff worked according to special treatment criteria , the aim being the individual ’s release from placement in GPE ; the focus was to minimise the risk to the general public , as well as to deal with the physical and psychological effects of long - term custody . Yet , the delegation observed that in practice , staff ( including the social worker ) were conspicuous by their absence in this unit , thereby keeping staff - inmate contacts to a minimum .", "...", "Even for the other inmates who were apparently coping better with their situation , the lack of staff engagement on the unit was not justifiable . Allowing inmates responsibility and a degree of independence does not imply that staff should leave them to their own devices . The duty of care can not be ignored , particularly in relation to such a special group of inmates . The delegation gained the distinct impression that the staff themselves were not clear as to how to approach their work with these inmates . As well as empowering inmates to take charge of their lives in custody , there is a need for ongoing support to deal with indefinite detention , as well as to address the legacy of serious past histories of aberrant behaviour and apparent psychological problems . Psychological care and support appeared to be seriously inadequate ; the ORG recommends that immediate steps be taken to remedy this shortcoming .", "The difficult question of how to implement in practice a humane and coherent policy regarding the treatment of persons placed in GPE needs to be addressed as a matter of urgency at the highest level . Working with this group of inmates is bound to be one of the hardest challenges facing prison staff .", "Due to the potentially indefinite stay for the small ( but growing ) number of inmates held under GPE , there needs to be a particularly clear vision of the objectives in this unit and of how those objectives can be realistically achieved . The approach requires a high level of care involving a team of multi - disciplinary staff , intensive work with inmates on an individual basis ( via promptly - prepared individualised plans ) , within a coherent framework for progression towards release , which should be a real option . The system should also allow for the maintenance of family contacts , when appropriate .", "The ORG recommends that the NORP authorities institute an immediate review of the approach to GPE at FAC and , if appropriate , in other establishments in GPE accommodating persons subject to GPE , in the light of the above remarks . ”", "In its Concluding Observations adopted at its session from CARDINAL DATE on the report submitted by GPE under LAW ( see ORG / CO/CARDINAL of DATE ) , ORG found :", "“ CARDINAL . The ORG is concerned by ORG claim of authority under LAW . MONEY ( DATE ) to place criminal defendants under renewable DATE terms of civil preventive detention ( rétention de sûreté ) because of ‘ ORG , even after they have completed their original prison sentences . While ORG has prohibited retroactive application of the statute , and the judge who sentences a criminal defendant contemplates the possibility of future civil preventive detention as part of the original disposition of a case , nonetheless , in the view of the ORG , the practice may remain problematic under Articles CARDINAL , DATE and DATE of the LAW . ”" ]

[ "5", "7" ]

[ "5-1", "7-1" ]

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[ "The first applicant is a NORP citizen , born in DATE and resident in GPE . He owns and represents the limited liability company ORG ( i.e. the second applicant ) . The respondent Government are represented by their Agent , Mr PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant company brought civil proceedings for damages against a another company . On DATE ORG ( käräjäoikeus , tingsrätten ) of GPE ordered the defendant to pay certain damages and dismissed the remainder of the action . Both parties appealed .", "On DATE ORG ( hovioikeus , hovrätten ) of GPE quashed ORG judgment and dismissed the whole of the applicant company 's action . The panel of CARDINAL judges examining the appeal comprised , among others , Judge PERSON , an extraordinary judge on leave of absence from his permanent post as law clerk ( référendaire ; esittelijä , föredragande ) in ORG ( korkein oikeus , högsta domstolen ) .", "In the case in point , ORG was responsible for checking any amendments to the draft judgment which ORG law clerk in charge had presented for the panel ’s deliberations . According to the case - file , T. had checked the draft judgment on DATE , whereas he had returned to his post at ORG with effect from DATE .", "On DATE the applicant company requested ORG to complete its judgment in respect of CARDINAL claim allegedly left without examination . On DATE ORG dismissed this request .", "The company was subsequently informed of Judge PERSON ’s return to ORG . In DATE the company sought leave to appeal to that court and also lodged a procedural complaint ( kantelu tuomiovirheen perusteella , klagan på grund av domvilla ) , arguing , inter alia , that as from DATE ORG had not been constituted according to the law ( tuomionvoipa , domför ) in the case in question .", "On DATE ORG refused the company leave to appeal both against ORG judgment of CARDINAL DATE and its decision of DATE . ORG dismissed the procedural complaint , noting that the deliberations on the company ’s appeal to ORG had taken place already on DATE . The tasks which Judge PERSON had accomplished up to the delivery of the judgment had consisted of ordinary follow - up measures in accordance with established practice . ORG had thus been constituted according to the law despite his having left that tribunal with effect from DATE .", "In the NORP court system a law clerk prepares the draft decisions and judgments of the courts of appeal and ORG but can not take part in any vote . He or she may annex a dissenting opinion , should his or her proposal not be followed .", "According to chapter CARDINAL , section CARDINAL of LAW ( PERSON , PERSON Balk ) , the quorum of a court of appeal shall comprise CARDINAL judges in order for it to be constituted in accordance with the law .", "According to Rules CARDINAL of the DATE Rules of Procedure of the Helsinki Court of Appeal , a judge may , after the competent panel has deliberated on the law clerk ’s proposal , propose necessary amendments to the draft judgment . The revised draft is then circulated among the judges for approval . On such approval , the judgment is prepared for delivery in its final wording . If the Presiding Judge considers that a proposed amendment would change the substance of the judgment or if a judge has changed his or her opinion , the matter shall , whenever deemed necessary , be subject to a second deliberation .", "In a precedent of DATE ( no . CARDINAL:CARDINAL ) ORG held that a former justice could , after taking up his post as ORG , check a draft judgment and carry out other measures in a case deliberated upon prior to his departure . Nor had his departure endangered his independence and impartiality in the case in question .", "In another precedent of DATE ( no . CARDINAL:CARDINAL ) ORG held that a court of appeal judge had become biased after he had checked and signed the original judgment but before it had been delivered ." ]

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[ "The applicants are :", "PERSON , born in DATE ;", "PERSON , born in DATE ;", "Ms Ayshat Lom - Aliyevna Meshayeva , born in DATE ;", "PERSON , born in DATE ;", "ORG , born in DATE ;", "Mr PERSON , born in DATE ;", "Mr PERSON , born in DATE ;", "Mr PERSON , born in DATE ;", "Mr PERSON , born in DATE ;", "PERSON , born in DATE ;", "Mr PERSON , born in DATE ;", "PERSON , born in DATE ;", "PERSON , born in DATE ;", "Mr PERSON , born in DATE ;", "Mr PERSON , born in DATE ;", "Mr PERSON , born in DATE .", "They live in the village of Martan PERSON , ORG district , GPE .", "The applicants represent CARDINAL families . CARDINAL of their relatives were detained on TIME DATE in Martan PERSON . The CARDINAL men have not been seen since DATE of detention , and the families have been conducting a search for them together .", "The first CARDINAL applicants are relatives of PERSON , who was born in DATE . The first applicant is his wife , the second applicant is his brother , the fourth , fifth , sixth and the seventh applicants are his children . The third and eighth applicants are his niece and nephew . PERSON worked as a driver and tractor mechanic . The first applicant suffers from a number of chronic diseases and has category CARDINAL disabled status . The fifth applicant , the ORG minor daughter , is seriously ill and has category CARDINAL disabled status . The applicants submitted that ORG had suffered from tuberculosis . In DATE the heads of administration of PERSON and of the Urus - Martan district certified that there was no information to suspect Mr Meshayev of involvement in illegal armed groups or any other criminal activities .", "The PERSON family live in their own house at CARDINAL FAC . TIME on DATE a group of CARDINAL or CARDINAL men wearing camouflage uniforms and white camouflage cloaks entered the house . They were all armed and masked and spoke NORP and NORP .", "One of the men woke up PERSON and told him in NORP “ GPE , wake up ! ” They threw him on the floor and handcuffed him . When CARDINAL of the intruders pointed his automatic rifle at ORG ’s DATE son , another told him in NORP “ Do n’t touch the children , they are not guilty ” . Then the armed men escorted PERSON out of the room , without permitting him to put on warm clothes . He was wearing a short - sleeved ORG , trousers and was allowed to put on a pair of boots .", "The first applicant submitted that she had cried and asked them not to take her husband away and that he had n’t done anything . The armed men had ordered her to keep quiet , or they would use the firearms . They took her husband ’s passport with them , in which documents for his LOC truck were inserted . When they were leaving the house , CARDINAL of the men hit the first applicant with a rifle butt on the head , as a result of which she briefly lost consciousness . The first applicant was able to see this person quite closely and submitted that he was short and plump , had large blue eyes visible in the opening of his mask and spoke LANGUAGE .", "When the first applicant came round , she found that the men had closed the entrance door to the house by pushing a wardrobe against it . The first applicant managed to open it , with difficulty , and went out into the courtyard . The servicemen there tried to start her husband ’s NORP truck , but failed . They then proceeded along FAC towards the cemetery . The first applicant ran after them , but they started to shoot at her with machine guns with silencers and she had to keep a distance .", "The first applicant reached the cemetery and there she lost sight of the men . A woman who lived near the cemetery told her on DATE that she had seen military vehicles – an armoured personnel carrier ( ORG ) , CARDINAL LOC trucks and a FAC vehicle – all without registration numbers , parked near her house . She had also seen a group of armed men around these vehicles , who had loaded her neighbour ’s DATE supply of wood into CARDINAL of the vehicles before they left .", "Leoma PERSON ’s brother , the second applicant , stated that in TIME of DATE he had been awoken by the cries of his sister - in - law , the first applicant , who asked for help and said that his brother had been taken away . The second applicant ran from his house into the nearby main street leading towards ORG and saw an ORG , LOC trucks and a UAZ vehicle passing through the military roadblock towards ORG . In the moonlight the witness clearly saw that the cars were not stopped or detained at the roadblock .", "The first and the second applicants submitted detailed statements about the events of TIME DATE . The applicants also submitted a hand - drawn plan of PERSON indicating the places to which they referred .", "The applicants have had no news from Mr PERSON since TIME .", "The Government in their observations did not dispute the facts as presented by the applicants . They stated that it had been established that on DATE unidentified armed men wearing masks had entered the applicants’ house at CARDINAL FAC and taken away PERSON , whose whereabouts had not been established .", "Applicants DATE are relatives of PERSON , who was born in DATE . The ninth , eleventh , fourteenth and fifteenth applicants are his brothers . The tenth applicant is his mother . The twelfth and sixteenth applicants are his niece and nephew and the thirteenth applicant is his sister - in - law . The applicants submitted that in DATE the eleventh applicant had been abducted by unknown persons at the market in Grozny and the family have had no news of him since . The applicants did not submit any complaints in that connection .", "In DATE the heads of administrations of PERSON and of the Urus - Martan district certified that there was no information to suspect Mr PERSON of involvement in illegal armed groups or any other crimes . The applicants submitted that DATE prior to PERSON detention he , together with the fourteenth applicant , had travelled in the latter ’s ORG truck together with the military commander of the village and his staff to PERSON in GPE , to collect New Year presents for the servicemen stationed in the village .", "The PERSON family live in their own house in FAC . In TIME DATE the applicants and their family members were at home sleeping . At TIME a group of CARDINAL men entered the house . They were all armed with machine guns equipped with silencers and masked . Some were dressed in green or black camouflage uniforms , others wore white camouflage cloaks on top . They spoke NORP and NORP . They did not explain anything to the applicants and did not produce any papers . They proceeded to check the documents of all the men in the family .", "The tenth applicant , PERSON mother , submitted that she had been awoken in the night to find the room filled with armed servicemen . A group of soldiers were standing over FAC bed . They briefly searched the room and ordered PERSON to dress . The tenth applicant asked why they were taking him away and they told her not to worry . They also took PERSON identity documents with them .", "The fourteenth applicant , PERSON brother , submitted that in TIME of DATE he had been awoken by the light of several torches pointed at him . He was ordered not to move and to produce his documents . The fourteenth applicant showed them where his documents were , the men checked them and ordered him to get out of bed and to show them who was sleeping in which room . When the servicemen were taking his brother away , the fourteenth applicant asked where they could find him , but received no reply .", "The eleventh applicant , PERSON other brother , submitted that on TIME DATE he was sleeping with his family in a separate house within the same courtyard . He was awoken at TIME by his mother , the tenth applicant , who knocked on his door and said that PERSON had been taken away . The eleventh applicant rushed into the courtyard and his mother pointed towards the back of the yard , to the vegetable patch . The eleventh and fourteenth applicant tried to pursue the men who had taken their brother away , but they shouted at them to get back and made a few warning shots from automatic guns with silencers , so the applicants had to stop . The applicants noticed an ORG , an LOC truck and a UAZ vehicle that had been stationed QUANTITY from their house in FAC . The vehicles left in the direction of ORG .", "The eleventh applicant submitted that he had immediately gone to the village military commander ’s office but was not allowed to see anyone . Then he had met a fellow villager PERSON who confirmed that he had just seen a convoy of an ORG , an ORG and a ORG passing through the military roadblock at the exit from LOC - Chu towards ORG .", "In addition to their own detailed statements of facts , the applicants also submitted a hand - drawn plan of Martan - Chu indicating the places to which they referred .", "The applicants have had no news from Mr PERSON since TIME .", "The Government in their observations did not dispute the facts as presented by the applicants . They stated that it had been established that on DATE unidentified armed men wearing camouflage uniforms and masks had entered the applicants’ house at FAC in GPE - Chu and taken away PERSON to an unknown destination .", "NORP Immediately after the detention of their family members the applicants started to search for them . On numerous occasions , both in person and in writing , the applicants and their family members applied to prosecutors of various levels , to ORG , to the Special Envoy of the NORP President in GPE for rights and freedoms , to military commanders , ORG ( ORG ) , to the administrative authorities , media and public figures . The applicants also personally visited detention centres in GPE as well as further afield in LOC . The search was primarily carried out by the first and the ninth applicant in respect of their husband and brother , respectively .", "Besides personal visits , the applicants submitted letters to the prosecutors and other authorities in which they stated the facts of their relatives’ detention and asked for assistance and details on the investigation . The applicants have submitted copies of some of the letters they had written .", "The applicants received hardly any substantive information from official bodies about the investigations into the disappearances and their results . On several occasions they were sent copies of letters by which their requests had been forwarded to the different ORG services . Below is a summary of the letters retained by the applicants and the replies they received from the authorities .", "The applicants submitted that in DATE following PERSON arrest they had applied in person to the district military commander ’s office , the district department of the ORG , the district department of the interior ( ROVD ) , ORG ( the district prosecutor ’s office ) with inquiries about the fate of their relative .", "Within this initial period the applicants also submitted written applications stating the circumstances of Mr PERSON ’s detention and requesting assistance in finding him . They did not retain copies of these applications , but on CARDINAL DATE the district prosecutor ’s office opened criminal investigation file no . DATE into ORG abduction by unidentified armed persons in camouflage uniforms under LAW . The applicants submitted that they had learnt of the investigation only on DATE when the first and the second applicants were questioned and granted victim status in the proceedings .", "On DATE the district prosecutor ’s office informed the first applicant that the criminal investigation into her husband ’s abduction had been adjourned due to failure to identify the culprits . In response to this information , the first applicant requested the district prosecutor to allow her to have access to the case - file .", "On DATE the first applicant submitted a statement about a missing person to the Special Envoy of the NORP President in GPE for rights and freedoms .", "On DATE the first applicant wrote to the district prosecutor ’s office and the ROVD and asked them to carry out a proper investigation into her husband ’s abduction .", "On DATE the district prosecutor ’s office replied to the first applicant that although the investigators had taken all possible steps to identify the perpetrators of the crime they had failed to do so . She was invited to inform the prosecutors of any new information about the kidnapping which came to her knowledge .", "On DATE the applicants published a notice in the Marsho newspaper , with a description of the circumstances of their relatives’ apprehension and a call for any information about them .", "On DATE the first applicant again requested the district prosecutor to give her access to the documents of the criminal investigation . On DATE the prosecutor ’s office invited the first applicant to consult the file .", "On DATE the military prosecutor of ORG ( ORG ) in GPE forwarded the first applicant ’s complaint to the military prosecutor of military unit no . CARDINAL in GPE .", "On DATE the district military commander informed the first applicant that , following an internal investigation , it had been established that his office had had no part in the apprehension of her husband and had no information about his whereabouts or the identity of the perpetrators .", "On DATE the first applicant appealed the adjournment of the criminal investigation to ORG . She reasoned that ORG , and also PERSON , who had been detained on TIME by the same group of persons , could only have been detained by servicemen because of the use of military vehicles and the fact that these vehicles had been allowed to travel freely through the roadblock , despite the curfew in place . The first applicant requested the prosecutor to resume the investigation , to question the servicemen from the roadblock , the military commander ’s office and other law - enforcement bodies of the district about the details of the operation , to identify and question witnesses among local residents , and to collect and examine the bullets and cartridges left behind by the abductors who had shot at the applicant as she was trying to pursue them . He was requested to carry out the investigation urgently , before the traces of the detained men had been lost . The first applicant also requested the prosecutor to join the investigation to the CARDINAL opened into the abduction of PERSON .", "On DATE the district prosecutor ’s office replied to the first applicant that the investigation had taken all possible steps to solve the crime , but had failed to identify the culprits .", "On DATE the SRJI wrote to the district prosecutor on behalf of the first and ninth applicants and asked him to inform them of the state of the investigation in files nos . DATE and DATE . The letter further asked him to join the investigations . A copy of that letter was forwarded to ORG .", "On DATE ORG informed the PERSON that on DATE the criminal investigations into the abductions of Mr PERSON and Mr PERSON had been joined . Further details would be communicated to the applicants directly .", "On DATE the PERSON wrote to the district prosecutor ’s office and again asked for information about the progress of the investigation .", "On DATE the district prosecutor ’s office replied to the SRJI that the CARDINAL criminal cases had been joined under file number PERSON and that on DATE ( to quote the text ) the investigation had been adjourned . Efforts to find the CARDINAL men would continue .", "DATE . On DATE the PERSON asked the district prosecutor ’s office to inform them of the progress in the investigation and to carry out the following actions : to identify the provenance of the military vehicles involved in the abduction , to locate and review all registration documents related to the movement of military vehicles in the district on TIME in question , to identify the authorities that had carried out special operations in the district on DATE and to question their officers about the detention of ORG and PERSON , and to question the servicemen of the Urus - Martan military commander ’s office and other officials in charge of enforcing the curfew .", "In TIME after his brother ’s abduction , on DATE , the fourteenth applicant went to the military commander of the village . He submitted that the commander had told him that he did not know who had detained his brother . The commander also told him that on DATE , on DATE , he had received a warning that an operation was being prepared in their village , but that later this operation had been cancelled . He had not been informed about the reasons for the operation or for its cancellation . He also allegedly promised to help them if PERSON had been detained by the military , but said that he would not be able to do anything if he had been detained by the ORG .", "The applicants submitted that in DATE they applied in person with inquiries about the fate of their relative to the district military commander ’s office , the ORG , ROVD and the prosecutor ’s office . The ninth applicant also asked the head of ORG to order an investigation of his brother ’s detention by unidentified servicemen .", "At some point the applicants submitted written applications to the authorities stating the circumstances of Mr PERSON ’s detention and requesting assistance in finding him . They did not retain copies of these applications , but kept copies of the later applications . On DATE the ninth applicant requested the district prosecutor ’s office to open a criminal investigation into his brother ’s abduction or to inform him if his brother had been accused of any crime . He referred to their previous unsuccessful applications to various law - enforcement structures .", "On DATE the ninth applicant wrote to the member of ORG elected from GPE and to the Speaker of ORG , complaining about his brother ’s disappearance . He stated that they had applied to various law - enforcement bodies in vain . The ninth applicant asked the PERSON to create a commission to investigate the phenomenon of “ disappearances ” in GPE .", "On DATE the district prosecutor ’s office informed the ninth applicant that their office had opened criminal proceedings into his brother ’s kidnapping .", "On DATE the ninth applicant was granted victim status in criminal investigation file no . DATE opened into his brother ’s abduction by unidentified persons .", "On DATE the tenth , eleventh , fourteenth and fifteenth applicants asked the district prosecutor ’s office to grant them victim status in the proceedings concerning the abduction of their son and brother . It is unclear if these requests were granted .", "On DATE the district prosecutor ’s office informed the ninth applicant that on DATE criminal investigation no . DATE , opened on DATE , had been adjourned due to failure to identify the culprits . The applicant was informed of the possibility to appeal .", "On DATE the military prosecutor of military unit no . CARDINAL forwarded the ninth applicant ’s complaint to the district prosecutor ’s office and stated that there were no grounds to suspect the involvement of military servicemen .", "On DATE the ninth applicant appealed against the adjournment of the criminal investigation to ORG . He reasoned that his brother could only have been detained by servicemen because of the use of military vehicles and the fact that the vehicles had been allowed to travel freely through the roadblock , despite the curfew in place . The ninth applicant requested the prosecutor to resume the investigation , to question the servicemen of the roadblock , of the military commander ’s office and other law - enforcement bodies of the district about the details of the operation , to identify and question witnesses among local residents , to collect and examine bullets and cartridges left behind by the abductors who had shot at DATE applicant as they were trying to pursue them . The complaint requested that the investigation be carried out urgently , before the traces of PERSON had been lost .", "On DATE ORG forwarded the ninth applicant ’s complaint to the district prosecutor ’s office .", "On DATE the ninth applicant requested the district prosecutor ’s office to allow him access to the materials of the adjourned criminal investigation into his brother ’s abduction .", "In their observations the Government did not dispute the information concerning the investigations as presented by the applicants . Relying on information obtained from ORG , they referred to other procedural steps which had not been mentioned by the applicants . However , despite specific requests from ORG , the Government did not submit copies of most of the documents to which they referred ( see below ) . The Government submitted the following .", "On DATE the district prosecutor ’s office opened criminal investigation file no . CARDINAL concerning the abduction of PERSON on DATE . According to a document issued on DATE by the acting district prosecutor , the main version of the crime examined by the investigation was the involvement of “ power structures and military units ” ( “ силовых структур и воинских подразделений ORG ) .", "On DATE the first applicant was questioned and granted victim status in the proceedings . She was also questioned again on several occasions . She stated that on TIME DATE CARDINAL armed persons wearing military uniforms who had spoken NORP and NORP had entered their house and abducted her husband . The second applicant was questioned on DATE and gave similar statements ; however , he stated that there had been CARDINAL abductors .", "On DATE the district prosecutor ’s office opened criminal investigation file no . CARDINAL concerning the abduction of PERSON on DATE .", "According to the Government , on DATE the investigators granted victim status to the ninth applicant . When questioned he stated that at TIME on DATE he had returned from ORG and had learnt from his brother , the fourteenth applicant , that at TIME on that TIME unknown armed persons had entered their house and taken away their other brother , PERSON . The tenth and the fifteenth applicants gave similar statements on unspecified dates .", "The Government stated that other relatives of PERSON , notably , DATE applicants , had not sought the status of victims in the proceedings related to his disappearance and had not been accorded it .", "DATE . On DATE the investigation of the CARDINAL cases was joined and the case file was assigned number CARDINAL ( to quote the text ) .", "The Government submitted to the ORG one witness statement made by the first applicant , dated DATE , in which she described the circumstances of her husband ’s arrest and the fact that she had been hit in the face by CARDINAL of the intruders . No other statements were produced .", "In their observations the Government referred to witness PERSON ’s statement of DATE that on TIME DATE [ should probably be DATE ] a large part of his supply of cut wood for DATE , which had been stored near the cemetery , had been stolen . He had seen the tracks of heavy military vehicles , such as APCs or LOC trucks , near that place . On DATE the investigation decided not to open criminal proceedings in relation to the theft in view of the expiration of the statutory time - limits .", "The Government noted that the ORG statements that their relatives had been detained by servicemen could not be confirmed . The applicants did not recall any details of the clothing , arms or distinctive marks on the uniforms of the abductors .", "The Government also noted that the investigation had found no grounds to support the first applicant ’s allegations that she had been hit during the arrest of her husband , as she and other witnesses had not mentioned this during questioning . As to the first applicant ’s statement that the armed men had also taken her husband ’s passport , the Government informed the ORG that the investigators had decided not to open criminal proceedings in this respect , due to expiration of statutory time - limits . Finally , the ORG contended that PERSON had not been on the register of the local tuberculosis health centre , despite the ORG allegation that he had suffered from that disease .", "According to the ORG , the investigators had sought information about the CARDINAL men from various ORG authorities . On unspecified dates the district military commander ’s office , the ORG district department of the ORG and “ other power structures ” stated that they had no information about the carrying out of special activities on TIME in question in Martan PERSON . Their offices had not detained ORG and PERSON . The law - enforcement agencies of GPE informed the investigators that they had never detained or arrested the CARDINAL missing men , nor carried out a criminal investigation in their respect . The investigation failed to establish the whereabouts of Mr PERSON and PERSON PERSON . Requests for information sent by the investigators in DATE and DATE produced no new results in the investigation of the crime .", "As it appears from the documents submitted by the ORG , the investigation had been suspended and reopened a number of times . The applicants had been occasionally informed of these developments . According to the ORG , the investigation was under the control of ORG .", "NORP Despite specific requests by ORG did not submit a copy of the file in criminal case no . DATE , providing only copies of decisions to suspend and resume the investigation and to grant victim status , notifications to the applicants of the suspension and reopening of the proceedings and CARDINAL witness statement mentioned above . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in breach of LAW of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings .", "DATE . On DATE the first and ninth applicants applied to ORG ( “ the town court ” ) . They complained that the district prosecutor ’s office had failed to effectively investigate the disappearances and requested to be granted access to the case file .", "On DATE the town court partially allowed the complaint based on the district prosecutor ’s office ’s failure to take effective steps and to investigate the abduction . The court ordered the district prosecutor ’s office to resume the investigation and to carry out a number of investigative actions as requested by the applicants , such as questioning the residents of Martan - Chu and the servicemen of the military roadblock situated on the road towards ORG who had been on duty on TIME DATE . The court refused to grant the applicants access to the case file , stating that that right was accorded to victims only on completion of the investigation , and not when the proceedings were adjourned . On DATE ORG upheld this decision .", "For a summary of relevant domestic law see Akhmadova and PERSON GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ." ]

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

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[ "3" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant sued PERSON , GPE , GPE and GPE before ORG ( FAC ) . He sought payment .", "The proceedings were terminated on DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG ( PERSON ) .", "On DATE the applicant lodged a claim for compensation against GPE , GPE and PERSON with ORG .", "The proceedings were terminated by the judgment of ORG ( Sąd Apelacyjny ) on DATE . It is not certain whether a cassation appeal was available in this case . On DATE , the date on which the application was lodged with the ORG , the proceedings were pending before ORG .", "On DATE , the applicant 's brother , sued him before the Tomaszów Mazowiecki District Court , seeking his eviction .", "The proceedings were terminated on DATE by the judgment of ORG . A cassation appeal was not available in this case .", "On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .", "Section CARDINAL of the CARDINAL Act reads , in so far as relevant :", "Section CARDINAL reads , in so far as relevant :", "“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”", "Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :", "“ CARDINAL . The court shall dismiss a complaint which is unjustified .", "NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .", "At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .", "NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”", "Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :", "“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .", "... ”", "On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied ." ]

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[ "The applicant was born in DATE and lives in the town of Beloyarskiy in LOC .", "On DATE the applicant ’s son , PERSON , was called up for DATE of mandatory military service . He was assigned to serve in military unit no . DATE in the town of GPE .", "On TIME left the military unit without permission . DATE he was arrested in a local village and his detention for DATE on a charge of absence without leave was authorised . He was placed in a disciplinary cell at FAC .", "On DATE junior sergeant PERSON took up convoy duty in the detention unit of ORG . On DATE , on an order from the commandant of the garrison , junior sergeant PERSON attempted to search the applicant ’s son . Mr GPE headbutted the junior sergeant , hurting PERSON lip . PERSON did not fight back . In view of the incident , the commandant ordered a medical examination of the applicant ’s son and junior sergeant PERSON While escorting the applicant ’s son from a military hospital back to the garrison ’s detention unit , PERSON , in an attempt to prevent the applicant ’s son from escaping , fired at him and wounded him in the right buttock . On TIME the applicant ’s son died from the gunshot wound , which had caused injuries to internal organs and extensive bleeding .", "The commandant of the Uzhur Town Garrison immediately reported the shooting to the military prosecutor ’s office of military unit no . DATE . A criminal investigation was opened into the reported incident . On DATE , at TIME , an acting assistant to the military prosecutor examined the scene of the incident . Junior sergeant PERSON participated as a witness . The record showed that the grounds adjacent to the military hospital were surrounded by a concrete fence . A road between the hospital building and the fence led to metal gates guarding the entrance to the hospital grounds . A used cartridge from an automatic gun was found on the road QUANTITY from the entrance gates . The plan of the scene drawn up by the investigator showed that the applicant ’s son had started running along the road towards the gates from QUANTITY back . He had passed the gates without any attempt being made to stop him . The plan also indicated that junior sergeant PERSON had also passed the gates in pursuit of the applicant ’s son and , having run QUANTITY beyond them , had stopped and shot PERSON . A blood stain measuring CARDINAL by QUANTITY was discovered QUANTITY from the place where Mr L. had started shooting , on the road between CARDINAL fences separating the main grounds of the military unit and the grounds of the disciplinary division where the applicant had been detained . The plan also included a drawing of the applicant ’s son ’s path from the place where he had started running to the blood stain . According to the drawing , having passed the gates of the hospital grounds , he had been running towards the checkpoint of the main grounds of the military unit situated right across from the hospital gates and then , having turned , had sprinted along the road between the CARDINAL fences .", "The investigator seized the applicant ’s son ’s uniform and underwear , having made photos of the clothes and a detailed description of the stains and damage to them . The photos showed a blood - soaked undershirt and DATE underpants . The investigator also took possession of PERSON ORG automatic machine gun and the ammunition , including CARDINAL live cartridges and CARDINAL used ones , collected by officer PERSON and other soldiers after the shooting .", "TIME Mr L. was interrogated as a witness . He described his dispute with the applicant ’s son which had caused him a lip injury and their subsequent visit to the military hospital for medical examinations . Junior sergeant PERSON insisted that on the way to the hospital officers had warned the applicant ’s son that he would be shot should he attempt to escape . That had not stopped the applicant ’s son from running away on their way back from the hospital . Mr L. stressed that despite his warning shouts and his firing CARDINAL warning shots into the air , PERSON had continued running away , at the same time inviting PERSON and accompanying officer PERSON to catch him . PERSON had shot at the applicant ’s son once , aiming at his legs . QUANTITY had separated the applicant ’s son from PERSON at the moment of the shooting . At the same moment in time , officer PERSON had been QUANTITY away from the applicant ’s son , having continued to run after him . The applicant ’s son had fallen to the ground and officer PERSON had ordered PERSON to call for an ambulance . After the applicant ’s son had been taken to hospital , officer PERSON had told PERSON to collect the used cartridges . They had been able to recover CARDINAL of them : CARDINAL from the CARDINAL warning shots and CARDINAL from the target shot .", "A search for the bullet with which the applicant had been shot , including with the use of mine detectors , did not produce any results .", "On DATE the investigator ordered a report from the military unit ’s psychologist to address the applicant ’s son ’s psychological condition preceding the incident . The psychologist indicated that during interviews the applicant ’s son had “ hinted at the presence of hazing in the unit directed towards him by junior commanding officers ( sergeants ) [ whose ] last names he [ had ] not mentioned [ and ] [ had ] complained of the impossibility of establishing social contacts and friendly relationships within his military unit ” . At the same time , the psychologist described Mr GPE as a psychologically settled , stubborn and determined person , able to defend his opinion “ until the very end by any means ” . Having observed during an interview the applicant ’s son ’s breaking down and developing signs of depression , the psychologist recommended his transfer to another military unit without giving him access to firearms and placing him under psychological supervision in the new unit .", "In DATE following the shooting the investigator interviewed the applicant ’s son ’s fellow soldiers , including those who had been on duty at the checkpoint of the military unit on DATE and had witnessed the incident , personnel of the military hospital and the unit ’s commanding officers . The witnesses described Mr Putintsev as a calm , but unsociable , person and denied subjecting him or witnessing his being subjected to any form of harassment or ill - treatment . Certain witnesses had seen the applicant ’s son on the ground after the shooting with his hips and stomach covered in blood . Several of them had helped to transport him to the hospital .", "The commandant of the garrison stated that he had had a talk with the applicant ’s son following his unauthorised leave . Mr Putintsev had allegedly confided to him that he had had problems with fellow soldiers from the GPE but had refused to identify them . The commandant insisted that while giving the TIME ’s instructions to the convoy groups he had paid particular attention to PERSON , having heard that he had been “ mentally unbalanced ” . On TIME the officer had received a report of a dispute between the applicant ’s son and a convoy soldier , PERSON , following PERSON refusal to submit to a search . The officer had had a talk with the applicant ’s son , during which the latter had complained that convoy soldiers had been beating him up . The commandant had called the officer in charge of the convoy unit , junior sergeant PERSON , and soldier PERSON and had ordered junior sergeant PERSON to examine the applicant ’s son in their presence to verify whether he had had any injuries . Having complained of insufficient space in the office to perform the examination , PERSON had asked for the commandant ’s permission to do it in another room , where he had then taken Mr PERSON . On their return TIME , PERSON had had an injured lip and had complained of the applicant ’s son having attacked him . The commanding officer had authorised a medical examination of the applicant ’s son and PERSON by hospital doctors . He had offered PERSON the opportunity to step down from convoy duty but the latter had assured him that he had no hard feelings towards the applicant ’s son and that he was willing to escort PERSON to the hospital .", "NORP The investigator also studied materials of an internal inquiry into the applicant ’s son ’s unauthorised leave . The case file included Mr Putintsev ’s explanation of his decision to leave the military unit . He stated that he had felt lonely and depressed and had been tired of military service . The inquiry had led to a decision refusing the institution of criminal proceedings against PERSON in view of his sincere remorse and the fact that his decision to leave the LOC of the military unit had been no more than an attempt to cast off the difficulties of life in the army .", "On DATE the investigation into the shooting took a new turn in view of the applicant ’s son ’s death . The investigator of the military prosecutor ’s office authorised a post - mortem forensic examination , having asked experts to identify the cause of Mr Putintsev ’s death and the distance from which the shot had been fired . The experts were also to list any injuries present on the applicant ’s son ’s body and to determine their nature . In report no . CARDINAL experts identified a perforating wound from the gunshot as the cause of the applicant ’s son ’s death .", "Another expert examination was meant to determine whether Mr L. ’s actions had complied with military regulations , in particular whether the use of a gun had been lawful . An expert report issued on DATE confirmed that PERSON had been under an obligation to open fire at ORG during his escape . PERSON had complied , to the letter , with the rules regulating the use of firearms in such a situation . He had only shot at the applicant ’s son after he had exhausted other means of preventing an escape . He had warned PERSON that the firearm would be used and had made warning shots .", "On DATE the investigator seized the applicant ’s son ’s personal belongings , including a number of letters to him from family members and letters in which Mr Putintsev had complained of being in poor health , extremely homesick and depressed , experiencing difficulties in adjusting to the army , degrading treatment of soldiers by officers , and forced labour for the ORG benefit to the point of being treated like a slave .", "On DATE the military prosecutor of military unit no . DATE assigned a group of investigators to take over the applicant ’s son ’s case .", "In DATE the investigators performed additional interrogations of a large number of witnesses , having attempted to clarify certain aspects of the applicant ’s son ’s military service , his relations with fellow soldiers and commanding officers , and so on .", "DATE the criminal proceedings were closed in view of the absence of criminal conduct on PERSON part . The investigator concluded that PERSON had followed , to the letter , the rules regulating the use of firearms to prevent the escape of an arrestee . On DATE the military prosecutor for ORG quashed that decision and reopened the criminal proceedings , having considered that the investigators had not sufficiently thoroughly studied alternative versions of the events of DATE , including CARDINAL of intentional murder as a result of hazing in the military unit , and had omitted to perform a number of important investigative steps , including an expert examination of the machine gun and used cartridges seized from the scene , a reconstruction with the participation of PERSON , an expert examination of the applicant ’s son ’s clothes , and an assessment of the quality of the medical assistance provided to him in hospital after the shooting .", "Having fully complied with the instructions laid down in the decision of DATE and having re - interviewed a large number of witnesses , on DATE the investigator again closed the criminal proceedings , having considered that there was no evidence of a criminal offence . The final reasoning of the decision read as follows :", "“ [ T]he actions of PERSON , who on DATE , while being on convoy duty ... preventing the escape of PERSON , a detainee for a disciplinary offence , having [ the character of ] “ shoot to kill ” , [ and ] as a result of which ORG was injured and soon died , contain the formal features of the criminal offence proscribed by LAW . However , taking into account the fact that PERSON used the weapon in compliance with LAW in ORG of GPE [ ... ] and that he did not violate his responsibilities imposed on him by the [ ... ] Statute , it is necessary to conclude that his actions do not constitute criminal conduct ” .", "On DATE , following the applicant ’s complaint , a deputy military prosecutor overturned the decision of DATE and reopened the investigation . The deputy prosecutor held that the investigator ’s decision had been premature and ordered him to take a number of additional investigative measures .", "On DATE a deputy military prosecutor of military unit no . DATE closed the criminal proceedings , finding no case to be answered . The relevant parts of the decision read as follows :", "“ On DATE , at TIME , on an order of the military commandant [ the applicant ’s son ] was escorted by junior sergeant PERSON and an assistant to the head of the convoy regiment , senior lieutenant PERSON , to the military hospital of military unit no . DATE for a medical examination .", "On their way back to the detention unit , at TIME , [ the applicant ’s son ] absconded near isolation wards situated in the grounds of the military hospital . In order to prevent [ the applicant ’s son ] committing any criminal acts , junior sergeant PERSON warned [ him ] by shouting : ‘ Stop , [ I ] will GPE , but the [ applicant ’s son ] did not obey the order . [ Junior sergeant ] L. disabled the safety device of his ORG submachine gun and changed the gun lever to trigger single shots . He put a bullet in the firing chamber and fired CARDINAL warning shots in the air . [ The applicant ’s son ] did not react in any way and continued running .", "[ Senior lieutenant ] PERSON ran after [ the applicant ’s son ] to try to catch him , but he tripped and fell . Then junior sergeant PERSON ran after [ the applicant ’s son ] and , realising that he could not catch up with [ him ] , stopped near the entrance gate to the military hospital and fired one shot at [ the applicant ’s son ] , as a result of which [ the applicant ’s son ] sustained a bodily injury in the form of a perforating bullet wound to the right buttock , causing injuries to the main blood vessels , right hip and bone structure , accompanied by a disturbance of the blood flow to the right lower extremity with subsequent necrobiotic changes in the crus muscles and complications in the form of acute renal failure , the appearance of stress ulcers on the large and small intestines and their subsequent perforation , [ and ] the development of fecal peritonitis and general poisoning of his system , [ resulting in ] serious damage to his health .", "An ambulance took [ the applicant ’s son ] to the surgical department of the military hospital of military unit no . DATE , where he underwent surgery .", "On DATE [ the applicant ’s son ] was taken to ORG no . CARDINAL where on DATE , at TIME , he died from his injuries .", "[ Junior sergeant ] L. , questioned as a witness during the pre - trial investigation , stated that ... on DATE he had taken up convoy duty in the detention unit of ORG . [ The applicant ’s son ] , a soldier in military unit no . DATE , had been kept in the detention unit as a disciplinary detainee . On DATE , at TIME , on an order from the military commandant , [ the applicant ’s son ] , escorted by PERSON and [ officer ] PERSON , had been taken to the military hospital of military unit no . DATE for a medical examination . After the examination , at TIME , they had left the hospital and had headed back to the detention unit . Officer PERSON had slipped near the hospital isolation wards and at that moment [ the applicant ’s son ] had started running towards the checkpoint yelling ‘ try to catch GPE . PERSON had run after him . In order to prevent [ the applicant ’s son ] from committing any criminal acts , PERSON had warned [ him ] by shouting : ‘ Stop , [ I ] will ORG . However , [ the applicant ’s son ] had not complied with the order . Then PERSON had stopped , disabled the safety device of his submachine gun , changed the gun lever to trigger single shots and fired a warning shot in the air . [ The applicant ’s son ] had not reacted and had continued running . PERSON had run after him again . After QUANTITY , he had fired another warning shot in the air . [ The applicant ’s son ] had continued running . Then PERSON had fired a single shot at him , aiming at his legs . [ The applicant ’s son ] had fallen down after the shot . Officer K ... had approached [ the applicant ’s son ] and had told PERSON to call an ambulance . Junior sergeant PERSON had run to the hospital and then , together with a doctor on duty , had run to the place where [ the applicant ’s son ] was lying . The doctor had examined [ the applicant ’s son ] , [ had ] placed him in the ambulance and [ had ] taken [ him ] to the hospital .", "Junior sergeant PERSON confirmed his statements during a reconstruction [ conducted as part of the ] investigation on DATE .", "Officer PERSON , questioned during the pre - trial investigation as a witness , stated that he had been in contractual military service in military unit no . CARDINAL . At TIME on DATE he had gone on duty as a garrison guard in the detention unit of ORG in the capacity of an assistant to the head of the convoy regiment ... On DATE , at TIME , on the commandant ’s order , he and junior sergeant PERSON had escorted [ the applicant ’s son ] to the military hospital of military unit no . DATE for a medical examination . After the examination , he , PERSON and [ the applicant ’s son ] had left the hospital and had headed back to the detention unit . On their way to the detention unit , near the hospital isolation wards , [ the applicant ’s son ] had suddenly started running towards the hospital entrance gates and had yelled : ‘ Try to catch and hit me’ . At the same moment officer PERSON had slipped and had been unable to apprehend [ the applicant ’s son ] . Junior sergeant PERSON had immediately shouted to [ the applicant ’s son ] : ‘ Stop , [ I ] will GPE , but [ the applicant ’s son ] had continued running . PERSON had fired a warning shot in the air and had run after [ the applicant ’s son ] . [ The applicant ’s son ] had not reacted in any way and had run through the hospital entrance gates and had continued running along the fence . Mr L. had stopped near the gates and had fired a second warning shot in the air . [ The applicant ’s son ] had continued running , not paying attention to the shots and shouts . After PERSON had run through the hospital gates , he had fired at [ the applicant ’s son ] and had wounded him . At that moment officer PERSON had been QUANTITY away from [ the applicant ’s son ] . After that he had approached [ the applicant ’s son ] and had immediately called an ambulance , which had taken [ the applicant ’s son ] to the hospital .", "Officer PERSON confirmed his statements during a reconstruction [ conducted as part of the ] investigation on DATE .", "ORG , questioned as a witness during the pre - trial investigation , stated that he had been in mandatory military service in military unit DATE . On DATE he had taken up guard duty at the checkpoint . That checkpoint was situated opposite the military hospital of military unit no . DATE . On DATE , at TIME , he had been outside , near the entrance gates of checkpoint no . CARDINAL , and had been inspecting ... cars ... He had been alone outside . When he had once again closed the gates ... he had heard someone shout ‘ Stop , [ I ] will ORG , from the direction of the hospital . He had noticed a soldier running from the hospital and CARDINAL people , an officer and a soldier with a gun , running after him . The fleeing soldier had not reacted to the shouts ... and had continued running , then the soldier with the gun had fired a shot in the air , but [ the applicant ’s son ] had continued running and had not reacted in any way . Then [ Mr N. ] had heard another shot in the air but the situation did not change . The fleeing soldier had started running on the road alongside the fence and Mr N. had no longer been able to see [ him ] from where he had been standing at checkpoint no . CARDINAL ; he had only been able to see when the soldier with the gun had run through the hospital gates and had fired at the fleeing [ soldier ] . [ Mr L. ] had fired once . After that Mr N. had gone onto the road and had looked in the direction where the soldier with the gun had fired . Mr N. had seen that the [ soldier who had been fleeing ] was lying on the verge of the road and that the officer was standing near him ; [ the officer ] had told the soldier with the gun to run to the hospital for an ambulance . CARDINAL or TIME later a doctor , and then an ambulance , had arrived . Mr PERSON remembered clearly that the soldier with the gun had only fired an aimed shot once and had wounded the fleeing soldier with the third shot , as the first CARDINAL shots had been fired in the air .", "The head of military unit no . DATE , Lieutenant Colonel PERSON , questioned as a witness in the criminal case , stated that he had only known [ the applicant ’s son ] from CARDINAL to DATE . He described him as a reserved , unsociable person . [ The applicant ’s son ] had overreacted to commanding ORG remarks . He had had no friends . On DATE ... [ Mr B. ] had been informed that [ the applicant ’s son ] had left the military unit without permission . A search had produced no results . On DATE , at TIME , Mr B. had been notified that ORG had apprehended a soldier who had identified himself as PERSON PERSON and had refused to show a military card . It had turned out that that apprehended person had been [ the applicant ’s son ] . [ Mr PERSON ] had refused to explain the reasons for his absence without leave . PERSON had brought [ the applicant ’s son ] back to the military unit , had authorised his disciplinary detention and had had him detained in the garrison ’s detention unit . [ The applicant ’s son ] had had no injuries on his face . He had had a dry abrasion which , according to him , he had sustained during work in a study unit in the town of ORG .", "Mr PERSON . , questioned as a witness in the criminal case , testified that he worked as a surgeon at ORG no . CARDINAL . On DATE he had been working , and sometime after TIME he had been called to the hospital admissions room . A soldier , [ the applicant ’s son ] , who had suffered a gunshot wound , was lying on a stretcher . During an examination no injuries , save for a gunshot wound , had been discovered on his body .", "...", "According to forensic medical examination no . CARDINAL of the corpse of [ the applicant ’s son ] :", "The death of [ the applicant ’s son ] resulted from a perforating bullet wound to the right buttock , causing injuries to the main blood vessels , right hip and bone structure ... The conclusion made as to the cause of death was confirmed by the presence of entrance and exit wounds on the skin , [ and by ] gross and microscopic impressions .", "According to the medical documents submitted , death was pronounced at CARDINAL a.m. on DATE .", "...", "It was impossible to identify from what distance the gunshot was fired and to give a detailed description of the exit and entrance wounds because they were treated surgically .", "The injury caused severe damage to the [ applicant ’s son ’s ] health , which endangered his life at the moment when it was sustained and had a direct causal link with [ the applicant ’s son ’s ] death .", "...", "According to the results of outpatient complex forensic psychiatric examination no . CARDINAL performed on DATE in respect of the period prior to [ the applicant ’s son ’s ] absence without leave from the military unit and his subsequent escape from the detention unit , [ the applicant ’s son ] had not exhibited any signs of a psychiatric illness ; he had exhibited the following personality traits – attention seeking , stubbornness , a tendency to hysteria , unwillingness to comply with commonly accepted norms and rules and to serve in the army , persistent desire to achieve goals by any means , tendency to overestimate his abilities , and lack of control over his actions in emotionally meaningful situations , [ but ] which did not render him incapable of fully understanding the actual nature and dangerousness of his actions or controlling them . During his escape from the guard he had not exhibited signs of any temporary mental disorder ... , his actions were committed deliberately , for a purpose and [ the applicant ’s son ] was capable of fully understanding the nature and dangerousness of his actions and of controlling them .", "According to the results of the forensic medical report on the medical assistance provided to the [ applicant ’s son ] :", "The cause of [ the applicant ’s son ’s ] death was a single gunshot wound to the right buttock and iliac region with gunshot fractures of the right trochanter , pubic and ischial bones , an injury to the right iliac arteries and vein accompanied by massive blood loss , extensive haemorrhaging in the retroperitoneal space , traumatic and hemorrhagic shock and complicated multiple organ failure .", "NORP [ The applicant ’s son ’s ] surgical treatment in the hospital ... was necessary , technically correct and timely .", "NORP [ The applicant ’s son ’s ] postsurgical treatment in the hospital and subsequently in ORG was performed correctly and to the necessary extent .", "No mistakes during the surgical and postsurgical treatment of [ the applicant ’s son ] in the hospital and subsequently in ORG were detected .", "According to the results of ballistic examination no . CARDINAL :", "...", "CARDINAL cartridge cases submitted for examination are constituent elements of live cartridges ... for an NORP submachine gun ... ;", "CARDINAL , CARDINAL , DATE . There are CARDINAL holes [ in the clothes ( an overcoat , pants , coat ) submitted for examination ] caused by mechanical force : those holes were caused by a gunshot ; CARDINAL is the entrance hole and the other is the exit hole .", "...", "If the overcoat was not buttoned up , the gunshot holes in the military clothes ... submitted for examination were caused by a single bullet fired once ;", "...", "The holes in the clothes submitted for examination were caused by a gunshot fired from a distance of QUANTITY ;", "...", "The CARDINAL cartridge cases submitted for examination were fired from the same NORP submachine gun ( no . DATE ) presented for examination .", "A senior expert , PERSON , stated that the distance from which the shot had been made was QUANTITY . It was impossible to identify the distance precisely because the submachine gun presented for examination had a flash hider ....", "According to military statute examination no . CARDINAL on DATE :", "Section CARDINAL of Protocol No . CARDINAL and LAW in ORG of GPE determine the procedure for using firearms ; they state that a sentry should use a firearm after warning an arrestee ( a detainee ) who is attempting to escape with a peremptory shout : ‘ Stop or [ I ] will ORG , and if the order is not complied with , then [ the sentry ] should shoot .", "The sentry , junior sergeant PERSON , did not violate the procedure for using firearms in his use of the gun and complied with the requirements set out in LAW .", "When a detainee is attempting to escape , a sentry should not run after him ; after giving the warning ‘ Stop or [ I ] will ORG , he must shoot at the detainee .", "By virtue of LAW no . CARDINAL of the Statute ... detained soldiers , in a group of CARDINAL , are to be sent from a detention unit to other [ points ] in the grounds of a military unit under the guard of CARDINAL sentry ... On an order of the garrison ’s military commandant , officer PERSON , an assistant to the head of the convoy regiment , was also sent to accompany [ the applicant ’s son ] because the latter was liable to leave the military unit without permission . While accompanying [ the applicant ’s son ] PERSON did not violate any requirement of the Statute .", "...", "While escorting [ the applicant ’s son ] junior sergeant PERSON complied with the established procedure , walking CARDINAL steps to the left behind [ the applicant ’s son ] , and [ officer ] PERSON walked ahead of the detainee , not violating the requirements of the Statute ...", "According to statements by soldiers in mandatory military service in military units nos . DATE and DATE , [ the applicant ’s son ] was not subjected to acts of violence or harassment by other soldiers or officers in the aforementioned units ; no one beat him up or intimidated or insulted him or forced him to do any work for them .", "Captain PERSON . stated ... that on admittance to the detention unit he had examined [ the applicant ’s son ] , who had not had any injuries or bruises on his body save for a bruise on the left shank which , according to [ the applicant ’s son ] , he had sustained as a result of a fall during his absence from the military unit ... In the detention unit [ the applicant ’s son ] had been given food according to the established regulations ; he had not made any complaints concerning the conditions of detention in the detention unit . While PERSON . had been on duty no one had committed acts of violence or harassment towards [ the applicant ’s son ] .", "...", "A medical officer in military unit no . DATE , PERSON , stated ... that on [ the applicant ’s son ’s ] arrival from the study unit in the town of ORG she had examined him ... During the first examination she had not noticed any injuries or bruises or any other signs of possible beatings on [ the applicant ’s son ’s ] body . When she had examined [ the applicant ’s son ’s ] head she had noticed an infected injury on his scalp ; as per [ the applicant ’s son ’s ] explanations he had sustained that injury when he had hit his head on a low door frame in Pereslavl – Zalesskiy . She had examined soldiers DATE , and during [ the applicant ’s son ’s ] service in military unit no . DATE she had not discovered any injuries , bruises or other signs of beatings on his body . [ The applicant ’s son ] had not made any complaints about the state of his health .", "A medical officer in military unit no . DATE , PERSON , made statements identical to those by PERSON , and she additionally stated that ... in DATE [ the applicant ’s son ] had been admitted to hospital in military unit no . DATE with a diagnosis of “ difficulty in adapting ” . During a conversation with a doctor , T. , she had found out that [ the applicant ’s son ] had wanted to be transferred to a communication centre of military unit no . PERSON as he had been unable to adapt in military unit no . DATE . At the same time , [ the applicant ’s son ] had not told doctor T. that he had been harassed by his fellow soldiers or other individuals .", "Major PERSON stated that ... at CARDINAL [ on DATE of the shooting ] [ the applicant ’s son ] and PERSON had been brought for a medical examination . During the examination [ the applicant ’s son ] had stripped naked and PERSON had examined him , searching for injuries , bruises , scratches , etc . He had performed the examination starting from [ the applicant ’s son ’s ] head and face and finishing with his legs . During the examination he had discovered an injury covered by a brown scab on [ the applicant ’s son ’s ] scalp . He had concluded that the injury had been sustained DATE before . He had also discovered a small injury on [ the applicant ’s son ’s ] left shank which could also have been sustained DATE before . He had not discovered any other injuries on [ the applicant ’s son ’s ] body . When he had examined PERSON , he had discovered a lacerated wound , measuring QUANTITY , on the inner side of the upper lip . That injury could have been sustained TIME before their arrival at the hospital . Subsequently , [ major A. ] had recorded [ the applicant ’s son ’s ] and PERSON injuries in letters of referral for medical examinations .", "According to [ the applicant ’s son ’s ] written statements , he had sustained an injury to his scalp in the study unit in ORG in DATE .", "During the pre - trial investigation , the allegations that [ the applicant ’s son ] had been subjected to acts of violence or harassment by other servicemen during his service in military units nos . CARDINAL and DATE were not confirmed . The allegations of extortion of money , personal and military belongings from [ the applicant ’s son ] were not confirmed either . It is established that [ the applicant ’s son ] had sustained an injury to the scalp during his service in the study unit in ORG ; he had sustained an injury to the left shank as a result of a fall during his absence without leave from the military unit DATE ; a bruise on [ the applicant ’s son ’s ] right eye had been sustained as a result of resuscitation actions taken in ORG no . CARDINAL ; CARDINAL is responsible for causing injuries to [ the applicant ’s son ] .", "Thus , it is necessary to conclude that [ the applicant ’s son ’s ] attempt to escape from the detention unit was caused by his own disorderly actions and lack of understanding of the actual nature and social harmfulness of his actions ; it had a purposeful and conscious character and was not caused by any external factor .", "In his use of the gun , junior sergeant PERSON did not violate the procedure on the use of firearms ; [ he ] complied with all the necessary requirements set out in LAW . ”", "The applicant appealed against the decision of the deputy military prosecutor to ORG of FAC . Amongst other things , she asked ORG to grant her victim status in the criminal case concerning her son ’s death to enable her to claim compensation later on for the pecuniary and non - pecuniary damage which had resulted from his death .", "On DATE ORG , endorsing the findings made by the deputy prosecutor in his decision of CARDINAL DATE , dismissed the applicant ’s complaint . As regards the applicant ’s request for victim status , ORG held :", "“ By virtue of LAW , a victim is a person who sustained physical , pecuniary or non - pecuniary damage as a result of a crime . As [ the deputy military prosecutor ] refused to institute criminal proceedings against junior sergeant PERSON , and the criminal case concerning the death of [ the applicant ’s son ] was closed because there was no evidence of a crime , it is necessary to state that [ the applicant ’s ] request for victim status due to the death of her son is unfounded . ”", "On DATE ORG of the CARDINALrd Command quashed the judgment of ORG of the CARDINALst Garrison and remitted the case for fresh examination . A copy of the decision of CARDINAL DATE was not submitted to ORG .", "On DATE ORG of FAC , again relying on the deputy military prosecutor ’s decision of DATE , found that the use of firearms against the applicant ’s son had been lawful . The court noted that the applicant ’s son had been aware that he was under arrest and had understood the consequences of his attempt to escape , including the possible use of firearms , and that junior sergeant PERSON had had no choice but to follow the rules on the use of firearms laid down by ORG . ORG also dismissed the applicant ’s request for victim status .", "On DATE ORG of ORG upheld the judgment of DATE , endorsing the reasoning of the firstinstance court .", "LAW , adopted by Presidential Decree no . CARDINAL on DATE and in force until DATE , laid down grounds for the imposition of disciplinary penalties on servicemen , including soldiers performing mandatory military service . In particular , ORG permitted detention for DATE of a soldier for a breach of military discipline or public order ( § CARDINAL ) . A decision authorising the detention was to be taken by the commandant or head of the unit involved ( § CARDINAL ) . An inquiry into the circumstances of an alleged disciplinary offence was to precede a decision by which a disciplinary penalty was imposed . The inquiry was to , inter alia , take account of the purpose for which the alleged disciplinary offence was committed , whether the soldier was guilty of the offence , what the consequences of the offence were and whether there were mitigating or aggravating circumstances ( § DATE ) . A decision to impose a disciplinary penalty was ordinarily to be taken within DATE after the commandant had learned about the offence ( § CARDINAL ) .", "The Statute of Military Service of GPE , adopted by LAW as LAW and in force until DATE , contained an exhaustive list of cases in which the use of firearms by servicemen was authorised . In particular , the relevant part of the Statute read as follows :", "“ CARDINAL . While performing military service duties and , if necessary , during out - of - office hours , servicemen have the right to store , carry and use firearms .", "The procedure for storing and using firearms by servicemen is laid down in the present Statute .", "As a measure of last resort , servicemen have the right to use firearms personally or within their military subdivision :", "to repel an attack by a group of persons or an armed person on guarded military or ORG installations , as well as on military units and divisions , buildings and LOC of military units , military echelons , motorcades or single cars and convoy units , if it is impossible to use other means and measures to protect them ;", "to prevent an attempt to take possession , by force , of firearms and military equipment , if it is impossible to use other means and measures to protect them ;", "to protect military personnel and civilians from an attack posing a threat to their lives and limb , if it is impossible to use other means and measures to protect them ;", "to apprehend a person who has committed a crime or is committing a serious or particularly serious criminal offence or an armed person who refuses to comply with lawful orders to disarm , if it is impossible to use other means and measures to suppress the resistance , to apprehend the criminal or to seize the weapon .", "Servicemen performing convoy duty have the right to use firearms in the cases and in line with the procedure established by LAW in ORG of GPE .", "Moreover , a commanding officer has the right to use firearms personally or to order the use of firearms to restore discipline and order in the event of open resistance from a subordinate , when his actions clearly pursue [ the purposes ] of treason or disruption of a military mission in battlefield conditions .", "A warning that a weapon may be used should precede its use . A weapon may be used without a warning [ to repel ] an unexpected and armed attack [ and ] an attack with the use of military equipment , vehicles , aircrafts , sea and river vessels ; [ to prevent ] an escape of an armed [ detainee ] or [ when the escape is effected ] with the use of vehicles or from moving vehicles , at TIME or in other restricted visibility conditions .", "Servicemen have the right to use firearms to make an alert signal or to call for help , as well as [ to use the weapon ] against an animal which threatens the life or health of individuals ... ”", "The Statute of Garrison and Sentry Service in ORG of GPE , in force at the material time , regulated the use of firearms and force in convoy and sentry service . In particular , LAW provided as follows :", "“ A sentry guarding arrestees ( detainees ) in a disciplinary unit must :", "- warn arrestees ( detainees ) attempting to escape with an order : ‘ Stop , or [ I ] will ORG , and if the order is not complied with [ the sentry ] should use a firearm against them . ”" ]

[ "2" ]

[ "2-1" ]

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[ "The applicant was a NORP citizen and was born in DATE . At the material time he lived in the village of PERSON ( district of ORG ) .", "At DATE ORG ( “ the ORG ” – PERSON ) , a ORG body responsible , inter alia , for dam construction , expropriated CARDINAL plots of land belonging to the applicant in the village of PERSON ( Sinop ) .", "Following the construction of the GPE hydroelectric dam in LOC , the land , which had been used for growing crops , was flooded , as was that of CARDINAL families also affected by the scheme .", "After title to the land had been transferred to the authorities on CARDINAL DATE , the ORG paid the applicant a total of MONEY ( TRL ) for the CARDINAL plots of land ( being GPE CARDINAL and TRL CARDINAL respectively ) .", "On DATE the applicant brought , in respect of the expropriation of each plot of land , an action in ORG for increased compensation . The actions were registered under nos . ORG and CARDINAL .", "During the proceedings the court ordered CARDINAL on - site valuations by experts in order to assess whether the amounts fixed by the expropriating authorities were correct . The CARDINAL panels of experts relied on the same criteria in preparing their valuations , namely the criteria set out in PERSON no . ORG on expropriation rules . As , however , they did not use the same methods of calculation , their valuations differed , but both were higher than the amount that had been paid by the ORG on expropriation .", "An application by the parties for a third valuation was dismissed because the court considered that the CARDINAL valuations had been based on criteria complying with the statutory requirements and contained sufficient relevant material to enable it to decide the case .", "Subsequently , the applicant stated in writing that he accepted the lower of the expert valuations . ORG Instance noted his agreement and made an order in those amounts .", "NORP In action no . CARDINAL/CARDINAL , on DATE the court ordered the ORG to pay GPE CARDINAL in additional compensation for expropriation . In action no . CARDINAL/CARDINAL it awarded the applicant an additional GPE CARDINAL on CARDINAL DATE . Those amounts bore simple interest for delay at the statutory rate of PERCENT a year running from CARDINAL DATE ( see paragraph CARDINAL above ) .", "ORG upheld those decisions on DATE and DATE respectively .", "The additional compensation awarded in action no . CARDINAL/CARDINAL was paid to the applicant on DATE . It came to ORG , of which ORG was interest for delay due up to DATE .", "In action no . CARDINAL/CARDINAL the applicant received the sum of GPE CARDINAL on DATE , ORG CARDINAL of which was interest for delay calculated up to DATE .", "The relevant part of LAW , relating to expropriations , provides :", "“ ... Compensation for expropriation shall be paid immediately and in cash ... If deferred payment is permitted by statute ... interest for delay at the maximum rate laid down for ORG debts shall be payable on the part that is not paid immediately ... ”", "At the material time the rate of interest for delay payable on debts owed to the ORG was PERCENT per month ( PERCENT per annum ) ( section CARDINAL of Law no . CARDINAL on the collection of debts due to the ORG and Cabinet Ordinance no . CARDINAL/CARDINAL ) .", "By PERSON no . CARDINAL the rate of interest on overdue State debts is PERCENT per annum .", "Article CARDINAL of LAW ( “ CO ” ) provides :", "“ Where the loss sustained by the creditor exceeds the interest due for delay and the debtor is unable to show that the creditor has been at fault , it is for the debtor to make good the loss .", "If the additional loss can be assessed immediately the court may determine the amount when giving its decision on the merits . ”", "In practice , the loss for which compensation may be claimed under this provision is the loss caused by the lapse of time between the date the debt is due and the date it is paid .", "On DATE ORG ) , which has jurisdiction in cases concerning compensation for expropriation , ruled as follows :", "“ The way in which creditors are compensated for the late payment of debt is through statutory interest . Since creditors are able , when resorting to enforcement measures , to claim the amount due to them plus interest , they are not entitled to claim any other form of compensation ; accordingly , the decision to grant the creditor ’s claim , on the basis that the rate of inflation was high , was ill - founded ... ”", "The Government referred to another judgment delivered by the same division ( judgment no . CARDINAL of DATE ) , in which ORG had allowed an application for compensation under LAW . The decision concerned alleged additional loss resulting from the authorities’ delay in repaying a sum to which they had not been entitled . However , the claims in that case were based on the fact that in order to pay the amount supposedly due the plaintiff had had to close a deposit account before term , thereby losing interest .", "Nonetheless , the practice of ORG and in particular of its Thirteenth ORG ( see judgments LAW . CARDINAL/CARDINAL and CARDINAL ) in cases not concerning expropriation appears to be to allow compensation for losses of that type under LAW in disputes between private individuals . On this point , it should be observed that the presidential committees of ORG , responsible for ensuring that the case - law is consistent , tend to dismiss grounds of appeal based on differences in the practice of the various divisions , as they consider that decisions are made on a case by case basis in the light of the particular facts concerned and consequently do not need to be harmonised .", "In a leading judgment of CARDINAL DATE ORG , sitting as a full court , ruled for the first time on the adverse effects of inflation , holding :", "“ Law no . CARDINAL was approved and came into force when inflation in the country was high with rates well over PERCENT . Notwithstanding that fact , the legislature fixed the rate of interest for delay at PERCENT . In the present case it would therefore be unlawful to award compound interest at a rate PERCENT on the erroneous basis that the rate of interest payable on bank deposits was applicable . ”", "On DATE ORG , sitting as a full court , delivered another leading judgment in which it decided the issue of the applicability of Article CARDINAL CO ( see paragraph CARDINAL above ) to claims for loss sustained as a result of inflation . It held as follows :", "“ ... the rate of interest provided for by PERSON no . CARDINAL ... constitutes lump - sum compensation for damage without the need for proof of loss ... Since the rate of default interest ( interest for delay in payment ) is fixed by statute in the light of the economic problems ( inflation , monetary erosion ... ) the country is experiencing , it is impossible to adduce the same factors ( inflation , monetary erosion ... ) as clear evidence of the additional loss referred to in LAW , or to affirm that the resulting disadvantages constitute the actual damage suffered . Otherwise , the legislature ’s decision that the compensation for those disadvantages would be PERCENT would no longer make any sense . If the legislature , having had regard to all the economic problems , has , by virtue of the legislative power conferred on it by LAW , fixed the rate of compensation for loss resulting from those problems , it can not be accepted that the damage for which compensation is due amounts to PERCENT or PERCENT rather than PERCENT , on the implied ground that the [ legislature ’s ] assessment was unfounded ... It is obvious that inflation , which has a considerable impact in the current economic climate of the country , exceeds [ the rate of ] PERCENT laid down by ... PERSON no . CARDINAL and that [ in consequence ] the creditor ’s loss through late payment is not covered . However , in so far as it exceeds the PERCENT rate fixed by the legislature , that loss does not come within LAW ... As the legislature , pursuant to its legislative power , considered that the loss amounted to PERCENT , a judicial decision applying a higher rate of loss on the ground that inflation exceeds PERCENT would constitute an encroachment on the legislature ’s jurisdiction ... ”", "In practice , leading judgments must be followed by the courts below when those courts decide issues similar to those previously considered by ORG , sitting as a full court .", "NORP In DATE the average exchange rate of the GPE dollar was , according to the exchange rate applied by ORG , ORG and GPE CARDINAL respectively .", "The effects of inflation in GPE are indicated in the lists of the retail price index published by ORG . According to the relevant list , if the base index for DATE and DATE ( when title to the expropriated property was transferred to the authorities and the proceedings were issued in ORG – see paragraphs CARDINAL–CARDINAL above ) is taken as CARDINAL , the inflation index had by DATE ( when the additional compensation in case no . CARDINAL/CARDINAL was paid DATE see paragraph CARDINAL above ) reached CARDINAL and CARDINAL by DATE ( when the additional compensation in case no . PERSON was paid DATE see paragraph CARDINAL above ) ." ]

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[ "On DATE , pursuant to Law no . CARDINAL/CARDINAL , which created ORG and required regional governments , inter alia , to adopt appropriate measures for the prevention , screening and treatment of disabilities , ORG enacted Regional Law no . CARDINAL ( “ LAW ) . LAW authorised local public health services ( PERSON – “ USLs ” ) to grant allowances for DATE after its entry into force to families caring for disabled members of their household directly in their own homes .", "On DATE ORG ( Comitato di gestione ) of ORG no . CARDINAL , applying LAW , decided that CARDINAL persons , including the applicant 's son , satisfied the conditions entitling their families to payment of the allowance . The decision authorised only distribution to qualifying beneficiaries , depending on the date when they had been recognised as PERCENT disabled , of the sum of MONEY ( ITL ) for DATE ; the applicant received ITL CARDINAL in respect of DATE .", "By a notice to pay served on DATE , the applicant asked ORG no . CARDINAL to grant him the allowance . He pointed out that the placing of his son 's name on the list of persons who satisfied the conditions required by LAW for entitlement to the allowance had not been followed by the payment provided for in LAW .", "As the ORG did not reply , the applicant brought proceedings against it in ORG ( “ the ORG ” ) on DATE . Relying on LAW , he sought a declaration that the lack of an answer from the USL – amounting to a refusal – had been unlawful and that he was entitled to the allowance in question for DATE .", "On DATE the applicant requested that a date be fixed for the hearing . On DATE he submitted an urgent request for a hearing date to be fixed , observing , inter alia , that the USLs were to be restructured on CARDINAL DATE and that NORP legislation made no provision for financial continuity between the old entities and the new ones . He was therefore asking for his case to be set down because after DATE he would no longer be able to obtain the allowance he sought .", "In a pleading filed on a date which has not been specified , ORG no . CARDINAL submitted , among other arguments , that it did not have capacity to defend the action ( legittimazione passiva ) , on the ground that only the LOC was required to make available the financial resources needed for payment of the allowance . It maintained that the applicant , who had received the allowance for DATE , within the limits of the budgetary appropriations , should have challenged the decision of CARDINAL DATE , but as he had not done so it had become final and the amount paid could no longer be called into question .", "NORP The case was heard on DATE . In a judgment of DATE and DATE , the text of which was deposited with the registry on DATE , the ORG observed in the first place that the applicant was not required to challenge the decision in issue as it did not contain a refusal to pay the full amount of the allowance . On the contrary , there had been CARDINAL valid alternative ways of interpreting the ORG 's conduct . For example , the applicant could have thought the ORG was making a payment on account , while reserving final determination of the amount to be paid for a later assessment , or that it had decided to pay a larger sum with an initial instalment to be followed by others . On the merits , the ORG held that , once it had been verified that the statutory conditions for entitlement to the allowance had been satisfied , it should be paid in the quantum provided for in LAW . The administrative authority thus had no discretionary power and its role should have been restricted to making a purely arithmetical calculation . The applicant had duly established that he was the father of a PERCENT disabled civilian living with his family ; moreover , his son 's name was the CARDINALth in the list included in the decision of DATE . The ORG should therefore have ruled on his application . However , as ORG had stated when determining a dispute over jurisdiction ( judgment no . CARDINAL of DATE ) , the applicant could not claim to have a “ personal right ” ( diritto soggettivo perfetto ) but only a “ legitimate interest ” ( interesse legittimo ) , that is to say an individual position indirectly protected as far as was consistent with the public interest , which would remain the case until such time as the administrative authority adopted a decision to award the allowance and specified the total amount to be paid . The ORG therefore dismissed the applicant 's action in so far as it concerned recognition of his entitlement to the allowance in question .", "On DATE and DATE respectively ORG no . CARDINAL and ORG appealed to the Consiglio di Stato . By a decision of DATE the PERSON stayed execution of the first - instance judgment .", "On DATE ORG ( LOC ) , the body which had taken the place of the FAC , approved the text of a friendly settlement reached on DATE between the administrative authority and the applicant , among others . Noting that in numerous similar cases the competent courts had nearly always recognised that the plaintiffs were entitled to the allowance for DATE , further noting that the settlement had been signed after it had been verified that the conditions required by LAW had been satisfied , and having regard to the fact that the settlement was about to put an end to a high - profile case which would in all probability have gone against the administrative authority , given the line the courts had taken on the question , so that the public purse would be saved MONEY , the Director - General ordered payment of the allowance . By a judgment of DATE , the text of which was deposited with the registry on DATE , the PERSON took formal note of the friendly settlement the parties had reached and struck the case out of its list .", "The allowance for the families of disabled civilians is governed by LAW no . CARDINAL of DATE , the relevant parts of which provide :", "“ For DATE after the entry into force of the present PERSON , local public health services shall be authorised to grant an allowance to families who undertake to provide direct care for persons suffering from mental or physical disabilities who are incapable of attending to their own primary needs and require constant assistance .", "The allowance shall be granted in pursuance of the following objectives :", "( a ) returning to their families disabled people formerly in full - time institutional care ;", "( b ) encouraging the practice of caring for disabled children within the family ... ;", "( c ) socialising the disabled person and improving his relations with those around him ;", "( d ) improving the lives of the families of disabled persons ;", "( e ) creating a favourable environment for the life of the disabled person ;", "...", "The amount of the family carers ' allowance shall be PERCENT of the DATE charge for attendance on persons hospitalised full - time . ”", "ORG has given a number of rulings on the carers ' allowance in connection with appeals on points of law concerning disputes over jurisdiction .", "For example , in judgment no . CARDINAL of CARDINAL DATE it held that , where the jurisdiction of the ordinary courts had been recognised in a decision which had become final , disputes concerning LAW fell into the category of disputes over mandatory assistance , which came within the jurisdiction of the magistrate 's court , sitting as an employment tribunal .", "In judgment no . CARDINAL of DATE it held that the administrative courts had jurisdiction over disputes about entitlement to the allowance , ruling that the beneficiary could not claim to have a personal right but only a legitimate interest , that is to say an individual position indirectly protected as far as was consistent with the public interest , and that this would remain the case until such time as the administrative authority adopted a decision to award the allowance and specified the total amount to be paid .", "The appellants in these CARDINAL cases were in a similar situation to Mr Mennitto , but had applied to the ordinary courts .", "ORG has upheld on many occasions the claims of other persons caring for disabled relatives .", "In its judgment no . CARDINAL , deposited with the registry on CARDINAL DATE , it ruled :", "“ [ The ORG ] declares that the claimant is entitled to receive the allowance provided for in LAW ] ... ;", "Orders the respondent authority to pay the sum in question ... ”", "In that decision and in others ( such as judgment no . CARDINAL of CARDINAL DATE and judgments ORG . CARDINAL and CARDINAL of DATE and DATE ) the ORG gave the following reasons for its ruling :", "“ [ LAW ] makes adoption of the decision to grant the allowance subject , among other requirements , to verification that beneficiaries satisfy the relevant qualifying conditions . When such verification had been made , determination of the amount to be paid should have required no more than a simple arithmetical calculation ...", "In the light of these principles ... , exercise of the discretionary power pleaded by the ORG has no bearing on the case , since otherwise it would be possible for an administrative decision to replace an assessment already ineluctably made by the legislature ... ”", "After finding that PERSON ( the relative of the claimant in that case ) was PERCENT disabled and required constant assistance , which was why , following tests carried out by the respondent authority , his name had been placed on the list of qualifying beneficiaries , the ORG ruled that there was an obligation to pay the allowance .", "The PERSON , ruling on the question of determination of the amount of the allowance , held that the Region could not be absolved from the obligation to make available to each ORG a sum earmarked for families providing direct care to disabled persons and sufficiently large to ensure that each of these families would be able to receive the amount of allowance prescribed by law ( judgment no . CARDINAL of DATE ) .", "In its judgment no . CARDINAL of CARDINAL DATE the PERSON ruled that the amount of the allowance for families caring directly for disabled persons , in so far as it was fixed by law , could not suffer any reduction by the administrative authority , which in this matter had no discretion whatever with regard to quantum , and that that conclusion was not in contradiction with the nature of the legitimate interest of the disabled person 's family ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a GPE national , who was born on DATE and lives in PERSON , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant applied to ORG for a retirement pension , but was informed , by a letter dated DATE , that the ORG would not consider his claim until DATE before his CARDINAL birthday . At present , women in GPE become eligible for a State pension at DATE , whereas men are not eligible until CARDINAL .", "In their ORG , the ORG submitted that the applicant received a total of GBP CARDINAL per week in ORG benefits , including income support , disability living allowance and invalid care allowance . They claimed that the applicant would be in an identical financial position if he were a woman , the only difference being that part of the money paid to him by the ORG would be paid in the form of retirement pension rather than income support .", "The applicant has not denied the ORG ’s account of his income . He claims , however , that if he were in receipt of ORG pension he would in addition be entitled to other financial benefits , such as a bus pass and discounts in shops , restaurants and hairdressers ." ]

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[ "The first applicant was born in DATE and lives in GPE . The second applicant was born in DATE and lives in GPE and GPE .", "The first applicant came to the GPE in DATE , leaving her CARDINAL sons from a previous relationship , PERSON ( born in DATE ) and PERSON ( born in DATE ) , with her parents . In the GPE she lived with her partner Mr PERSON , who was in paid employment at that time . The first applicant submitted that they had looked into applying for a residence permit allowing her to reside in the GPE with her partner , but that , owing to the unavailability of documents concerning PERSON income , such an application had never actually been made .", "NORP In DATE the first applicant 's son PERSON joined his mother and Mr PERSON . Her other son PERSON remained in GPE with his grandparents .", "On DATE PERSON , the second applicant , was born to the first applicant and PERSON . The first applicant was invested ipso jure with parental authority ( ouderlijk gezag ) over PERSON . PERSON was recognised ( erkenning ) by PERSON on DATE , as a result of which she obtained NORP nationality .", "The first applicant and Mr PERSON split up in DATE . PERSON stayed with her father , who subsequently applied to ORG ( kantonrechter ) seeking to be awarded parental authority over PERSON . ORG granted the application on DATE . The first applicant subsequently appealed to ORG ( arrondissementsrechtbank ) against that decision . ORG requested ORG ( PERSON ) to examine which attribution of parental authority would be in PERSON 's best interests .", "On DATE the first applicant applied for a residence permit which would allow her to reside in the GPE , either DATE depending on the outcome of the proceedings concerning parental authority – with her daughter PERSON , or in order to have access to her . She also made an application on behalf of her son PERSON .", "ORG found , in its report of DATE , that parental authority should remain with PERSON . In view of the likelihood of the first applicant having to return to GPE , awarding her parental authority over PERSON could lead to a break - off in contact between PERSON and her father and also between PERSON and her paternal grandparents , who were very important to her . It was felt that this would be a traumatic experience for PERSON , who had her roots in the GPE and whose bonding with all the persons concerned had taken place in that country .", "In a decision of DATE , ORG nevertheless quashed the decision of ORG and awarded the first applicant parental authority over PERSON . PERSON lodged an appeal on points of law with ORG ( PERSON ) .", "On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the first applicant 's application for a residence permit . The first applicant lodged an objection ( bezwaar ) against this decision . At the hearing on this objection before an official committee ( ambtelijke commissie ) on DATE , it was stated on behalf of the first applicant that she worked ( illegally , as she was not in possession of a residence permit allowing her to do so ) from DATE and that on DATE PERSON stayed either with her father or with her grandparents . PERSON stayed with her mother on DATE .", "On DATE the Deputy Minister of ORG dismissed the objection , holding that , even if account was taken of PERSON 's right to reside in the GPE and to be brought up and educated there , the interests of the economic well - being of the country outweighed the interests of the first applicant . Although the first applicant did not claim welfare benefits , she did not pay taxes or social security contributions either , and there were sufficient numbers of nationals of ORG member GPE or aliens residing lawfully in the GPE available to fill the post she was occupying . The general interest also prevailed over PERSON PERSON 's interest in being able to lead his family life with PERSON in the GPE . In this context it was noted that , at the time Mr PERSON started his relationship with the first applicant , the latter had not been entitled to reside in the GPE . He had thus accepted that family life with PERSON might have to be enjoyed elsewhere or in a different manner . It was further noted that PERSON did not make a substantial financial contribution to PERSON 's care and upbringing since he only took care of those expenses on the days PERSON stayed with him and , as he was in receipt of welfare benefits , those costs were borne by public funds .", "The first applicant lodged an appeal against this decision with ORG of The Hague , sitting in GPE .", "On DATE ORG quashed ORG decision of DATE in the proceedings concerning parental authority and referred the case to ORG ( gerechtshof ) .", "ORG of The Hague , sitting in GPE , dismissed the appeal against the refusal to grant the first applicant a residence permit . In its decision of CARDINAL DATE , ORG held that LAW did not oblige national authorities to ensure that PERSON 's parents would not have to choose between leaving PERSON with her father in the GPE or letting her go to GPE with her mother . Both these options were considered to be feasible . According to ORG , the fact that PERSON would have to be without either her father or her mother was , strictly speaking , the result of the parents ' choice to conceive a child at a time when the first applicant was not allowed to reside in the GPE . No further appeal lay against this decision .", "On DATE a hearing took place before ORG in the proceedings concerning parental authority , during which an officer of ORG told the court that the ORG 's report of CARDINAL DATE remained pertinent and that it was in PERSON 's best interests for the status quo – with PERSON having parental authority over DATE to be maintained . In its decision of DATE ORG upheld the decision of ORG of DATE awarding parental authority over PERSON to PERSON . ORG accepted that Mr PERSON , supported by PERSON 's grandparents , was sufficiently capable of providing PERSON with the necessary upbringing and care , and that he was indeed doing so in practice . It was of the opinion that the submissions made by the first applicant in support of her argument that PERSON 's interests would be better served if parental authority were awarded to her – even if this meant PERSON living in GPE without contact with her father and grandparents – were of insufficient weight compared to the possibilities the father had to offer and was offering . The first applicant lodged an appeal on points of law against this decision , which was dismissed by ORG on DATE .", "Despite having received a letter dated DATE from the local police informing her that she had to leave the GPE within DATE , the first applicant remains in the GPE . She works from DATE . PERSON stays with her at DATE and with her paternal grandparents during DATE . This arrangement is confirmed in a letter dated DATE written by PERSON 's grandparents to the applicants ' legal representative :", "“ The access arrangement we have concluded with [ the first applicant ] , the mother of our granddaughter PERSON , is fully satisfactory for all parties . According to the arrangement , PERSON stays with us during DATE . On DATE TIME we take her to her mother and collect her again late on DATE TIME . No disagreement whatsoever has arisen on this point in DATE . We further confirm that DATE visits of our granddaughter to her mother pass off in a very pleasant fashion and that she enjoys telling us about them . In other words , the close contact with her mother has a beneficial effect on our granddaughter . ”", "In DATE the first applicant applied for a residence permit allowing her to reside in the GPE with her new NORP partner . In this application the first applicant indicated that PERSON was being brought up partly by her grandparents and partly by her new family . The application was rejected on DATE as the first applicant was not in possession of the required temporary residence permit ( machtiging tot voorlopig verblijf ) . The first applicant did not challenge this decision .", "The second son of the first applicant , PERSON , has been living with his mother in the GPE since DATE .", "Parental authority comprises the duty and the right of a parent to care for and bring up his or her child ( LAW ( Burgerlijk Wetboek ) ) . The parent invested with parental authority is the child 's statutory representative ( wettelijk vertegenwoordiger ) and administers the child 's possessions ( LAW ) .", "At the material time , the admission , residence and expulsion of aliens were regulated by LAW DATE ( Vreemdelingenwet DATE ) . On DATE a new Aliens Act came into force , but this has no bearing on the present case .", "NORP The government pursues a restrictive immigration policy due to the population and employment situation in the GPE . Aliens are eligible for admission only on the basis of obligations arising out of international agreements , or if their presence serves an essential national interest , or on compelling humanitarian grounds .", "The admission policy for family reunion purposes was laid down in LAW DATE ( Vreemdelingencirculaire DATE ) . These provided that the spouse , the partner , a minor child born of the marriage or relationship and actually belonging to the family unit ( gezin ) , and a minor child born outside the marriage but actually belonging to the family unit could be eligible for family reunion if certain conditions ( relating to public order , accommodation and livelihood ) were met . In the context of family reunion with other family members ( so - called extended family reunion ) , such other members actually belonging to the family unit might also be eligible if they would otherwise suffer disproportionate hardship .", "The phrase “ actually belonging to the family unit ” ( feitelijk behoren QUANTITY ) used in GPE law only partly overlaps with the term “ family life ” in LAW . The alien in question must belong to the family unit with which he or she intends to live in the GPE" ]

[ "8" ]

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[ "The applicant , PERSON , is a NORP national . He was born in DATE and lives in GPE .", "The applicant lived with another man , Mr PERSON , for DATE . During that period the applicant and Mr PERSON ran a joint household , pooling their income and sharing their expenses . The applicant considered that the nature of their relationship reflected their right to respect for their private and family life since , being homosexual , they could not sanction it by marrying because under NORP law only heterosexual couples could marry .", "On DATE Mr PERSON died in a road accident . The applicant claimed the social - security allowances for the surviving spouse , arguing that he had cohabited with the deceased for DATE . ORG ( “ LOC ” ) granted the applicant ’s claim in respect of an allowance for death expenses , which amounted to MONEY . However , in a decision of DATE , it refused to grant him a survivor ’s pension on the ground that since he had not been married to PERSON , he could not legally be considered as his surviving spouse for the purposes of section CARDINAL ( CARDINAL ) of ORG . The applicant appealed against that decision , but his appeal was dismissed .", "The applicant then appealed to ORG no . CARDINAL . In a judgment of DATE , delivered after a hearing deemed to be inter partes , the court dismissed the appeal . It based its decision on , among other things , the case - law established by a number of judgments of ORG dismissing appeals lodged by heterosexual applicants whose claims for a survivor ’s pension had been dismissed on the ground that they had been able to marry but had freely decided not to . The court held that the case - law in question could be extended to de facto partnerships between homosexuals living together as a married couple in so far as that type of relationship could not be equated with the traditional concept of family and marriage protected by the legislature and LAW . The court also stated that Articles CARDINAL , DATE and DATE of LAW did not guarantee equality of treatment between de facto homosexual partnerships and heterosexual marriages .", "The applicant appealed against that judgment to ORG . In a judgment of DATE that court dismissed the appeal and upheld the reasoning of the lower court . ORG added , however , that it was for the legislature and not for the courts to take a decision regarding the extension of survivors’ pensions to stable de facto partnerships , be they heterosexual or not . Accordingly , ORG held that section CARDINAL ( CARDINAL ) of ORG was compatible both with the LAW and the international treaties to which GPE was a party .", "Relying on Articles CARDINAL ( principle of non - discrimination ) and CARDINAL ( social , economic and legal protection of the family ) of the LAW , the applicant lodged an application for the protection of fundamental rights ( an amparo appeal ) with ORG . In a decision of DATE , in which it referred to its established case - law , that court dismissed the appeal on the ground that it was ill - founded .", "The relevant Articles of the LAW provide :", "“ NORP shall be equal before the law and may not be discriminated against in any way on account of birth , race , sex , religion , opinion or any other condition or personal or social circumstance . ”", "“ CARDINAL . The ORG authorities shall ensure that the family is afforded social , economic and legal protection .", "... ”", "Under section CARDINAL non - marital relationships between men and women do not entitle the survivor to a survivor ’s pension even where the persons concerned have lived together . Accordingly , the award of a survivor ’s pension is conditional on the existence of a lawful marriage between the deceased and the claimant . Marriage shall be deemed to be “ lawful ” where it has been celebrated in accordance with CARDINAL of the forms established by LAW . The only exception to the above rule is that the surviving partner of an unmarried couple who could not marry each other because there was no divorce before DATE may claim a survivor ’s pension ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE , GPE .", "NORP In DATE the applicant instituted proceedings in ORG against ORG of ORG ( the Department ) , seeking to recover additional salary for her time - in - service and healthcare benefits .", "On DATE ORG ordered the ORG to pay the applicant ORG CARDINAL,CARDINAL in compensation . The judgment was not executed due to the ORG ’s lack of funds .", "NORP In DATE the applicant instituted proceedings in ORG against ORG seeking to oblige it to execute the decision of DATE and to receive compensation for moral damage caused by the non - execution of that judgment .", "On DATE ORG rejected these claims as being unsubstantiated . It also found that the judgment was not executed due to the lack of funds in the ORG budget .", "On DATE ORG upheld that decision .", "DATE the applicant unsuccessfully complained to PERSON and ORG of GPE with a view to having supervisory review proceedings initiated in her case .", "On DATE the writ of execution was returned to the applicant unenforced due to the lack of funds on the accounts of the education department .", "On DATE ORG informed the applicant that there were no grounds for initiating supervisory review proceedings upon her complaints .", "On DATE the ORG responsible for the public water supply of ORG ( the “ DPW ” ) instituted proceedings in ORG against Mr PERSON ( “ NORP ” . ) , seeking the payment of UAH MONEY for the water supplied to him and his use of the water mains . On DATE the ORG allowed the ORG ’s claims and ordered V.S.K. to pay the debt . On DATE ORG upheld that decision .", "In DATE the ORG “ Sumyteplocomunenergo ” company ( the “ LOC ” ) instituted proceedings in ORG against V.S.K. , seeking the payment of ORG MONEY for his use of heating facilities . On DATE the ORG allowed the ORG ’s claims and ordered V.S.K. to pay the debt . On DATE ORG upheld that decision .", "On DATE the ORG instituted proceedings in ORG against the applicant , seeking the payment of UAH CARDINAL for the water supplied to her and for her use of the water mains . On DATE the ORG allowed the ORG ’s claims and ordered the applicant to pay the debt . On DATE ORG upheld that decision .", "On DATE the ORG instituted proceedings in ORG against the applicant , seeking the payment of ORG CARDINAL for the use of heating facilities . On DATE the ORG allowed the ORG ’s claims and ordered the applicant to pay the debt . On DATE ORG upheld that decision .", "The relevant domestic law is set out in the judgment of ORG v. GPE ( no . MONEY , § § DATE , DATE ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in ORG . He is represented before the ORG by Mr PERSON and PERSON , lawyers practising in Taganrog .", "On DATE , the applicant was arrested and detained on suspicion of having committed a serious breach of customs regulations .", "On DATE , he was remanded in pre - trial custody by the decision of an investigative officer approved by ORG .", "After CARDINAL extensions of the detention , on DATE , the applicant was released .", "On an unspecified date , the applicant lodged an application to ORG seeking a declaration of the unconstitutionality of ORG and CARDINAL of the Code of Criminal Procedure which empowered investigative authorities to arrest suspects without judicial authorisation . The applicant ’s position was that any period of detention longer than TIME should be ordered by a court , as required by LAW .", "On DATE , ORG dismissed the applicant ’s case as inadmissible under LAW on ORG . The court agreed that LAW made periods of detention longer than TIME possible only if ordered by a judge . However , the LAW enacted in DATE contained a transitional provision preserving the existing procedure for pre - trial detention pending the updating of the relevant laws . The court noted that despite the fact that over DATE had elapsed since the LAW was passed , the lawmaker had failed to bring the detention procedure in line with the basic law of the country . Nevertheless , the applicant had been affected by this situation for only two and a half years – the period between the enactment of the LAW and the applicant ’s arrest DATE and , for this reason , could not be regarded as a victim of the alleged breach .", "On DATE , the applicant filed an application to ORG requesting that criminal proceedings be opened against the investigator who had dealt with his case . It was alleged that the investigator had been aware of the applicant ’s innocence but had abused his authority by initiating an unfounded criminal prosecution .", "As no reply was received from ORG , on DATE , the applicant filed a complaint to ORG . The applicant asked that the subordinate prosecutor be punished for negligence .", "An official of ORG forwarded the applicant ’s complaint to ORG , whose staff on DATE issued an order refusing the applicant ’s initial complaint about the investigator .", "The applicant considered that ORG did not have the right to transmit his complaint to the official complained about and on this ground issued proceedings against ORG . He requested that the decision to transmit be found unlawful and invalidated .", "The case was examined and dismissed on DATE by ORG . The court found that ORG had not breached the law by forwarding the complaint , and that it gave a reply on the substance of the applicant ’s allegations .", "On appeal , this decision was upheld by ORG on DATE .", "According to LAW on ORG of DATE , all applications reaching the court are registered unless they manifestly fall outside the court ’s competence , do not meet formal requirements , are lodged by an improper person or are not accompanied by a fee . The registry of the court may inform an applicant that his or her application is not compatible with the above requirements , but the applicant has the right to insist that a decision to that effect be taken by the court .", "According to LAW of the PERSON , a decision as to whether or not an application should be accepted for consideration ( prinyatie obrashcheniya k rassmotreniyu ) is taken by the court ’s plenary . Only those cases which fall within the court ’s jurisdiction , are not inadmissible in accordance with the PERSON , and do not repeat issues previously addressed by the court , are accepted for consideration .", "Pursuant to LAW , the court ’s final decision on the substance of a case is called a postanovleniye ( a judgment ) . If a judgment declares a law unconsitutional , the effect of the judgment can not be overcome by a re - enactment of the law .", "All other decisions given in the course of constitutional proceedings are called an opredeleniye ( a decision ) ." ]

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[ "The applicant has been involved in politics since the beginning of the democratic changes in GPE in DATE and was an activist of CARDINAL of the major political parties in DATE , ORG ( “ UDF ” ) . He played an active role in the ORG ’s campaign during the parliamentary elections in DATE . After the elections , he grew gradually disenchanted with the ORG ’s policies and some of its leaders . He was particularly disappointed by ORG , a UDF Member of ORG from the ORG constituency and head of the ORG branch in ORG . On DATE the applicant , together with a few other members of the ORG , formed ORG against corruption in the UDF – Pleven ” . In his capacity as chairman of the committee , the applicant wrote to the Prime Minister , who was also leader of the ORG , alleging that PERSON ORG had been heavily involved in political intrigue and corruption .", "On DATE Mr PERSON was reelected as head of the ORG branch of the ORG and on DATE appointed as Minister of ORG .", "On DATE , in an interview discussing the widely publicised trial of CARDINAL NORP nurses facing the death penalty in GPE , Mr PERSON expressed the opinion that GPE was not a “ white ” country . This statement was severely criticised by the press and sparked a protest from the NORP ambassador to GPE . On DATE the DATE newspaper ORG ran an editorial expressing the opinion that with his statement Mr PERSON was “ on his way to being ranked ‘ top idiot’ of the year ” .", "In DATE the applicant , together with some friends and political supporters , founded an initiative committee to campaign for Mr PERSON ’s resignation . On DATE he notified the mayor of ORG that on CARDINAL , DATE and DATE in the centre of GPE supporters would gather signatures calling for the resignation of “ the top idiot of ORG – Teodosiy NORP ” . The organisers planned to gather signatures TIME on DATE at CARDINAL stands placed in front of the town hall , the district police station , the theatre and the Monument to the Unknown Soldier – all in the centre of GPE .", "On DATE the deputy mayor , who at the time was acting as mayor , refused to give permission for the gathering of signatures . His refusal was based on a lack of evidence that the applicant had been authorised to represent the initiative committee . The mayor further reasoned that coordination was necessary in order to ensure “ the safety of citizens and buildings pursuant to Regulation no . CARDINAL on the maintenance and protection of public order and public property in the municipality of LOC ” and invited the applicant , if he insisted on carrying out the action , to discuss where exactly the tables could be placed . On DATE the police tried to apprise the applicant of this refusal but could not find him at his address .", "At TIME on DATE , while on his way to CARDINAL of the signaturegathering stands , the applicant was stopped in front of the district police station by the head of the police department , who informed him about the deputy mayor ’s refusal . The applicant , who was determined to go ahead with his plan , went to the town hall and met with the deputy mayor , but did not reach an agreement with him .", "The applicant decided to complete the planned action . He put in the centre of ORG CARDINAL stands and CARDINAL posters reading “ We , the supporters of the UDF , call for the resignation of the top idiot of the ORG Teodosiy NORP ” . A number of people , including some police officers , gathered around the stands .", "At TIME DATE a police officer warned the applicant in writing that he should remove the stands , pending approval of their locations by the deputy mayor . The applicant refused to take them away , as he considered that the placing of stands on public ground did not amount to a breach of public order and that the law did not require him to seek permission from the mayor for that .", "At TIME another police officer ordered the applicant ’s arrest . The order was based on section CARDINAL(CARDINAL ) of the DATE ORG and Articles CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL § CARDINAL of the DATE LAW ( see paragraphs DATE and CARDINAL below ) . It did not set out the specific acts alleged against the applicant . Immediately after that the police arrested the applicant and seized the CARDINAL posters .", "Later in DATE the police officer who had ordered the applicant ’s arrest instituted a criminal investigation against him for publicly insulting the Minister of ORG in his official capacity , contrary to LAW , and for performing indecent actions , grossly violating public order , and demonstrating overt disrespect for society , characterised by exceptional cynicism and arrogance , contrary to LAW ( see paragraphs CARDINAL and CARDINAL below ) . He did not specify exactly what acts the applicant had carried out .", "The applicant was questioned at TIME He pleaded not guilty and refused to make any statements until the arrival of his counsel .", "On DATE ORG received a complaint by Mr PERSON who requested that criminal proceedings for insult under LAW and for hooliganism under LAW be instituted against the applicant .", "The DATE a prosecutor of ORG , acting on the proposal of the police and pursuant to his powers under LAW of LAW ( see paragraph CARDINAL below ) , ordered that the applicant be detained for TIME , starting at TIME that day , pending a ruling by ORG on whether he should be placed in “ pretrial detention ” . He noted that proceedings had been instituted against the applicant on charges of insult and hooliganism and stated , inter alia , that there was a real risk that he would flee or reoffend . The applicant ’s counsel immediately appealed against the order to ORG . She did not receive a reply .", "On DATE the investigator in charge of the case interviewed Mr PERSON . He said that he had felt very insulted and humiliated by the campaign for his resignation and by the description of him as a “ top idiot ” . He had learned about the events from his son and had immediately telephoned the deputy mayor , the vicechairman of the UDF in GPE and the head of the district police department , insisting that they “ ensure public order ” . The investigator also interviewed CARDINAL police officers who had eyewitnessed the events of DATE .", "On DATE the investigator interviewed the deputy mayor , the vicepresident of the UDF in GPE and the applicant ’s father . The interviews finished at TIME", "At TIME on DATE ORG examined the request for placing the applicant in “ pre - trial detention ” at a public hearing . It heard submissions from the prosecutor and the applicant ’s counsel . It held that , while there were indications that the applicant had committed the offence alleged against him , it was not necessary to place him in “ pre - trial detention ” , because there was no risk that he would abscond or reoffend . The court also noted certain health problems experienced by the applicant . It decided to release him on bail . The applicant apparently paid the bail immediately after the hearing , which finished at TIME , and was released .", "NORP The investigation against the applicant was completed on DATE and the case file was sent to ORG . On DATE it indicted the applicant , accusing him of aggravated hooliganism . The insult charges had apparently been dropped earlier .", "After holding a trial , in a judgment of DATE ORG found the applicant guilty of aggravated hooliganism , contrary to LAW ( see paragraph CARDINAL below ) and sentenced him to CARDINAL months’ imprisonment , suspended for DATE .", "Upon an appeal by the applicant , on DATE ORG quashed the lower court ’s judgment and acquitted him .", "ORG appealed on points of law . The appeal was examined by ORG at a public hearing which took place on DATE . The prosecution , which was represented by a prosecutor of ORG , expressed the opinion that the acquittal was correct and should be upheld .", "In a final judgment of CARDINAL DATE ORG upheld the applicant ’s acquittal in the following terms :", "“ ... The court of first instance failed to give any arguments , but merely declared that [ the applicant ’s ] acts amounted to ‘ a brutal demonstration against the established ORG and had caused ‘ considerable harm’ to this order . ... the testimony of the persons authorised to preserve public order – the [ police officers ] questioned as witnesses , and in particular , [ CARDINAL of them ] , who was specifically asked about this DATE shows that no ‘ disarray , commotion or breach of public ORG had occurred at the place where [ the applicant ] and the other ORG supporters had organised the gathering of signatures in support of the removal from office of the then Minister of Justice PERSON . The only thing which could be characterised as scandalous is the label ‘ top ORG accompanying the name of the witness ORG on the CARDINAL posters explaining the aim of the event . However , there is no evidence whatsoever that the use of these words was intended to discredit PERSON by lowering his prestige and dignity . ”", "The court went on to say that it was public knowledge that DATE before the events of DATE Mr PERSON had made an unacceptable statement in respect of GPE , which , in view of its potentially damaging repercussions for relations between the CARDINAL countries , had been assessed very negatively by the press and had eventually led to the loss of his post . It was the press that had first called Mr PERSON a “ top idiot ” and there was no indication that any newspaper had been called upon to answer for this phrase . It was thus completely natural for the applicant , when calling for the Minister ’s resignation , to use the same phrase , thus expressing the public – and not merely his own – attitude towards Mr PERSON ’s activities . On this basis , the court concluded that :", "“ It is clear from the above , that , as regards the subjective element , no offence under LAW or CARDINAL [ of the DATE LAW ] has been committed , because there were no acts which meant to breach public order or demonstrate overt disrespect for society . The offence alleged against [ the applicant ] was not objectively committed either : there was no public disorder and the presence of police officers at the site was due to the need to prevent possible incidents . The expression of indignation by [ some of the persons who were present there ] , which was an act of political support for T. ORG , can not be seen as a consequence of hooliganism either . ”", "Article CARDINAL § § CARDINAL and CARDINAL of the DATE LAW , as in force at the relevant time , provided :", "“ CARDINAL . Whoever carries out indecent actions which grossly violate public order and show overt disrespect for society shall be punished for hooliganism by DATE imprisonment or by corrective labour , as well as by public reprimand .", "NORP If the actions are accompanied by resistance against [ a law enforcement officer ] , or are characterised by exceptional cynicism or arrogance , the penalty shall be up to five years’ imprisonment . ”", "In a binding interpretative decision made in DATE ( Постановление № CARDINAL от CARDINAL ноември DATE г. по ORG № CARDINAL/CARDINAL г. , GPE на ВС ) , ORG defined the elements of hooliganism . The first element is the perpetration of indecent actions , which are described as actions which are “ improper or impudent , expressed through curses , raving , bad manners or other actions scandalising society ” . Indecent actions must both grossly violate public order and demonstrate overt disrespect for society . Gross violation of public order occurs when “ through his actions the perpetrator makes a brutal demonstration against the established order ” . These actions violate “ important ORG , public or personal interests or substantially affect morality ” . “ Overt disrespect for society ” is present when through his actions the perpetrator “ openly demonstrates a high level of disrespect for the individuals and the rules of society ” .", "According to the decision , “ exceptional cynicism ” within the meaning of paragraph CARDINAL of Article CARDINAL is present when “ the acts of hooliganism are particularly impudent , grossly violate moral values and affect ORG feelings ” . Obscene actions which are performed in public and cause indignation in society are also “ exceptionally cynical ” . “ Exceptional arrogance ” is present when “ the actions gravely and persistently affect public and personal interests and express a disparaging attitude towards public order or other public or personal interests ” . These actions “ scandalize society and demonstrate rude impudence or cause grave insult ” .", "Insult is a criminal offence under LAW . It is aggravated if committed in public and/or in respect of public officials carrying out their duties ( LAW ( CARDINAL ) and ( CARDINAL ) of the LAW ) . DATE it was privately prosecutable save in cases where the victim was a public official ( LAW , as in force before DATE ) . After an amendment to the Code of DATE insult became privately prosecutable in all cases and was no longer punishable with a term of imprisonment . This means that there is no pretrial investigation ( Articles CARDINAL and CARDINAL of the DATE Code of Criminal Procedure and Articles CARDINAL and CARDINAL § CARDINAL of the DATE Code of Criminal Procedure ) and that no preventive measures , such as pretrial detention or bail , may be imposed on the accused , as they are possible solely in respect of publicly prosecutable offences ( LAW and LAW ) . Pretrial detention is not permissible either , as it can only be imposed when the charges concern an offence punishable with a term of imprisonment or a harsher penalty ( LAW and LAW ) .", "Under the DATE ORG , as in force at the relevant time , the police could , on the basis of a written order to that effect ( section CARDINAL(CARDINAL ) ) , arrest an individual who had committed a criminal offence ( section CARDINAL(CARDINAL)(CARDINAL ) ) . An individual taken in police custody was entitled to be assisted by counsel and seek judicial review of his detention ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) . The application had to be examined immediately ( section CARDINAL(CARDINAL ) in fine ) . Police detention under section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL)(CARDINAL ) could not exceed twentyfour TIME ( section DATE in fine ) .", "Police detention under section CARDINAL(CARDINAL)(CARDINAL ) was lawful only if it immediately preceded the opening of a preliminary investigation against the arrestee ( реш. № DATE от CARDINAL ноември DATE г. по адм. д. № DATE г. , ORG , V отд. ) . It was imposed with a view to instituting such a preliminary investigation ( реш. № CARDINAL от CARDINAL април DATE г. по адм. д. № DATE г. , PERSON , V отд. ) . The power to detain was given to the police to assist them in the investigation of crime ( реш. № DATE от CARDINAL февруари DATE г. по адм. д. № DATE г. , ORG , V отд. ; реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , ORG , V отд. ; MONEY от CARDINAL март DATE г. по адм. д. № DATE г. , ORG , V отд. ) . All reported cases under section CARDINAL ) concern publicly prosecutable offences .", "Arrest orders under section CARDINAL were administrative decisions . According to the case - law of ORG ( опр. № DATE от CARDINAL февруари DATE г. по адм. д. № DATE , ORG , V отд. ; реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , PERSON , V отд. ) , the persons affected by them could challenge their lawfulness before a court and , if they were set aside , they could seek damages under LAW ORG ( see paragraph CARDINAL below ) .", "Article CARDINALa of the DATE Code of Criminal Procedure , which governs the procedure for imposing “ pretrial detention ” ( “ задържане под стража ” ) under LAW , was changed in its entirety with effect from DATE , in a bid to bring NORP law in line with LAW ( тълк. реш. № CARDINAL от CARDINAL юни DATE г. по ORG CARDINAL/CARDINAL г. , ORG на ORG ) . The amended paragraph CARDINAL of Article CARDINALa provided that the investigation and the prosecution authorities had to ensure the immediate appearance of the accused before the competent firstinstance court and , if necessary , detain them until TIME . Such detention could not exceed twentyfour TIME if ordered by an investigator and TIME if ordered by a prosecutor . This distinction was apparently intended to ensure compliance with LAW in fine of LAW , which provides that any deprivation of liberty has to be reviewed by an “ organ of the judicial power ” within TIME .", "Section CARDINAL of the DATE ORG to Citizens Act ( “ the ORG ” – „ Закон за отговорността на държавата за вреди , причинени на граждани DATE this was the original title ; on DATE it was changed to the ORG and ORG , „ Закон за отговорността на държавата и общините за вреди “ ) , provided that the ORG was liable for damage suffered by private persons as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties . Section CARDINAL(CARDINAL ) , as in force at the material time , provided that compensation for damage arising from unlawful decisions could be claimed after the decisions concerned had been annulled in prior proceedings .", "Section CARDINAL of the ORG reads , in so far as relevant :", "“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for unlawful :", "NORP pretrial detention , including when imposed as a preventive measure , when it has been set aside for lack of lawful grounds ;", "NORP criminal charges , if the person concerned has been acquitted , or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence ... ”", "According to the ORG caselaw , the ORG is liable for all damage caused by pre - trial detention where the accused has been acquitted ( реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ORG ) or the criminal proceedings discontinued on grounds that the charges have not been proven , the perpetrated act is not an offence , or the criminal proceedings were unlawful from the outset because they were opened after the expiry of the relevant limitation period or an amnesty ( реш. № DATE г. от DATE г. PERSON № DATE г. на ВКС ) .", "In a binding interpretative decision ( тълк. реш. № CARDINAL от CARDINAL април DATE г. на ORG по PERSON № CARDINAL/CARDINAL г. , ORG ) , made on DATE pursuant to the proposal of the President of ORG , the Plenary Meeting of ORG of that court resolved a number of contentious issues relating to the construction of various provisions of the ORG . CARDINAL of the decision it held that compensation awarded in respect of the nonpecuniary damage arising under section CARDINAL(CARDINAL ) or ( CARDINAL ) of the ORG should also cover nonpecuniary damage stemming from unlawful pre - trial detention imposed during the proceedings , whereas compensation for pecuniary damage resulting from such detention should be awarded separately . The reasons it gave for this conclusion were as follows :", "“ Pretrial detention is unlawful when it does not comply with the requirements of [ LAW ] .", "The ORG is liable under section CARDINAL(CARDINAL ) [ of the ] ORG when the pretrial detention has been set aside as unlawful , irrespective of how [ the criminal ] proceedings unfold later . In such cases compensation is determined separately .", "If the person has been acquitted or the criminal proceedings have been discontinued , the ORG is liable under section CARDINAL(CARDINAL ) [ of the ] ORG . In that case , the compensation for non - pecuniary damage has to cover the damage resulting from the unlawful pretrial detention . If pecuniary damage has arisen , compensation for it is not included but has to be awarded separately , taking into account the particular circumstances of each case . ”", "Persons seeking redress for damage resulting from decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the ORG have no claim under general tort law as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; реш. № DATE г. от CARDINAL декември DATE г. , по PERSON № DATE г. на GPE , GPE г.о. ) ." ]

[ "10", "5" ]

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

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .", "The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "The applicant is a NORP national who was born in DATE and currently resides in GPE . He is a lawyer practising in GPE .", "On DATE ORG registered the applicant as the representative of a candidate for the presidency of GPE , PERSON Olexander O. Moroz . The latter was the leader of ORG of GPE at the time .", "NORP On DATE ORG Donetsk ( the “ ORG ” ) conducted a criminal investigation into allegations that the applicant had interfered with the citizens ' right to vote ( LAW of GPE – “ the ORG ” ) .", "On DATE the applicant was apprehended for having disseminated false information about the alleged death of a presidential candidate , the incumbent President Mr PERSON . The applicant had allegedly disseminated this information on CARDINAL and DATE in the form of a statement by the Speaker of PERSON ( ORG ) published in a special nationwide issue of the PERSON newspaper Holos Ukrayiny ( газета “ ORG ) . The text of the article disseminated by the applicant reads as follows :", "Following the applicant 's arrest , ORG carried out a formal criminal investigation into the allegations made against him .", "On DATE ORG decided to detain the applicant on suspicion of having committed a crime under LAW ( see paragraph CARDINAL below ) . The applicant was detained in ORG of GPE . He remained there until DATE .", "On DATE the applicant was formally charged with having committed an offence under LAW ( see paragraph CARDINAL below ) . The prosecution service classified his actions as having been committed by an official .", "On DATE the applicant lodged an application ( dated DATE ) with ORG of Donetsk to be released from detention . On DATE the court dismissed his application .", "On DATE the applicant was transferred to ORG . CARDINAL .", "On DATE the applicant underwent a medical examination . He was found to be suffering from bronchitis and second - degree hypertension . The medical commission recommended that the applicant be hospitalised .", "On DATE ORG completed the pre - trial investigation into the applicant 's case and committed him for trial .", "On DATE the case file was transferred to the court . On DATE the GPE ORG of Donetsk ( the ORG ” ) committed the applicant to stand trial on charges of interference with the citizens ' right to vote , contrary to LAW ( see paragraph CARDINAL below ) . It also decided not to release him from detention .", "In the course of the trial Judge PERSON of ORG on DATE passed a resolution ( постанову ) ordering He also requested the prosecution to reconsider the preventive measure of detention applied in respect of the applicant and to reclassify the charges against him . In particular , he stated :", "On DATE the deputy prosecutor of GPE lodged a protest with the ORG of ORG ( “ the ORG ” ) against the resolution of CARDINAL DATE and requested the initiation of supervisory review proceedings in the applicant 's case . He also sought to set aside the resolution of DATE in which the case had been remitted for additional investigation . The deputy prosecutor considered that there was sufficient evidence to corroborate the applicant 's interference with the citizens ' right to vote ( LAW ) . On the same date the registry of the court acknowledged receipt of the protest .", "On DATE the ORG , composed of its President , ORG , and the judges ORG , P.L.V. , R.L.I. , ORG and GPE , in the presence of a prosecutor , quashed the resolution of DATE and remitted the case for further judicial consideration . In particular , the ORG found that ORG had remitted the case back for additional investigation without a thorough examination of the indictment and of the requisite actus rea and mens rea of the offence with which the applicant had been charged . It had also not mentioned which particular investigative measures the prosecution was required to take . The ORG decided not to release the applicant from detention . In particular , it stated :", "On DATE ORG dismissed a petition filed by the applicant 's lawyer requesting that the case be remitted for additional investigation . It also dismissed the applicant 's application for release from detention .", "On DATE ORG dismissed a further application for the applicant 's release .", "On DATE ORG changed the preventive measure applied in respect of the applicant to an undertaking not to abscond .", "On DATE ORG , chaired by Judge PERSON , who had heard the case on DATE , convicted the applicant of interfering with the citizens ' right to vote for the purpose of influencing election results by means of fraudulent behaviour . ORG sentenced the applicant to DATE imprisonment , which was suspended for a DATE probationary period as the actions of Mr PERSON “ in fact entailed no grave consequences ” . It also ordered the applicant to pay a fine of CARDINAL NORP hryvnyas ( ORG ) . It held as follows :", "On DATE ORG , composed of the judges D.A.D. , ORG , upheld the judgment of DATE .", "On DATE and DATE respectively ORG and ORG of GPE dismissed , as being unsubstantiated , the applicant 's complaints and his request for a supervisory review of his conviction .", "On DATE the ORG annulled the applicant 's licence to practise as a lawyer ( no . DATE , issued on DATE ) . It based its decision on the applicant 's conviction of DATE .", "On DATE the applicant received a new licence to practise as a lawyer ( no . CARDINAL ) , after passing an examination before ORG and paying the sum of ORG CARDINAL . He was allowed to sit exams after the legal effects of his conviction were annulled ( погашена судимість ) .", "In DATE the applicant instituted proceedings in ORG of Donetsk against the prosecution service of GPE and ORG of ORG , claiming compensation for the non - pecuniary and pecuniary damage resulting from his unlawful DATE detention in DATE in ORG ( ORG ) . In particular , it was contended that he should have been held in ORG ) and not in ORG , as his status had been that of a suspect in criminal proceedings .", "On DATE ORG of Donetsk allowed his claims in part . It also ordered the prosecution service of GPE and ORG of ORG to pay ORG MONEY ( EUR CARDINAL ) to the applicant .", "On DATE ORG decided that ORG , and not the prosecution service or ORG , was liable for compensating the applicant . It therefore ordered ORG to pay the applicant ORG CARDINAL,CARDINAL ( EUR CARDINAL ) in compensation for pecuniary and non - pecuniary damage .", "The applicant alleges that this compensation was not paid to him .", "The relevant provisions of LAW read as follows :", "The relevant provisions of LAW of DATE , with subsequent changes and amendments , as in force at the material time , read as follows :", "Section CARDINAL of this LAW provides that any citizen of GPE who has attained DATE CARDINAL and has a minimum of DATE legal experience may become a judge . By section GPE ) , judges are appointed for a maximum initial period of DATE , following an examination by the judicial qualifications commission and a decision of the relevant local authority . In accordance with sections CARDINAL and CARDINAL of the LAW , a judge of the district court may be subject to disciplinary investigation on the basis of a request by the President of the regional court .", "NORP By sections CARDINAL and CARDINAL of this LAW , the qualifications commissions had the power to institute disciplinary proceedings , and to submit conclusions on the feasibility of appointing a candidate for a position as a district - court judge and on the renewal of the judicial term of a judge elected for an initial period of DATE . They could also request an attestation for a judge proposed for a promotion in judicial or administrative rank within the court , or an assessment of his legal knowledge . The presidents of the regional courts could request the qualifications commissions to certify or assess judges ' knowledge and qualifications . In accordance with sections CARDINAL and CARDINAL of the LAW , the presidents of the higher courts were allowed to request the institution of disciplinary proceedings against judges of the district courts .", "The relevant provisions of LAW read as follows :", "The relevant provisions of LAW read as follows :", "The relevant provisions of LAW , LAW , of LAW read as follows :", "The relevant provisions of LAW of LAW provide as follows :", "The relevant provisions of LAW read as follows :", "The relevant provisions of the reservation contained in the instrument of ratification are set out in the judgment of GPE v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .", "The relevant transitional provisions of LAW are set out in the GPE judgment cited above .", "The relevant resolution of ORG of GPE reads as follows :", "In its decision ORG found that ORG had acted unconstitutionally in passing the resolution of DATE ( no . CARDINAL ) that reduced the expenditure of the DATE State budget on the needs of : ORG by PERCENT , the regional courts by PERCENT , the district ( and city ) courts by PERCENT , ORG by PERCENT , the arbitration courts by PERCENT , and the military courts by PERCENT . According to the information issued by ORG ( responsible for the courts ' administration at the material time ) , this expenditure covered PERCENT of the needs of the first - instance courts and PERCENT of the needs of the regional courts . ORG found that ORG no . CARDINAL exerted financial influence on the courts and infringed the citizens ' right to judicial protection .", "ORG , in its Decision no . CARDINAL of DATE , found that the existing procedure for the selection and appointment of candidates for judicial posts , as established by ORG , ORG and the judicial qualifications commissions , was not compatible with the need to form a highly qualified judiciary able to administer justice effectively and independently .", "On DATE ORG no . CARDINAL , finding that the decisions of ORG to lower judicial salaries were contrary to the principle of the independence of the judiciary ." ]

[ "10", "5", "6" ]

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

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[ "The applicant is a limited company specialising in petroleum products . Its predecessor was called NORP petroleum , oil and lubricants – Industrial and commercial limited company ( ORG ) .", "On CARDINAL DATE the applicant company paid the tax authorities MONEY ( GPE ) ( MONEY ( ORG ) ) as an advance payment on the income tax due for DATE . On CARDINAL DATE the tax authorities granted the applicant company a PERCENT reduction on the amount paid , as a bonus for paying the full advance payment due without requesting to pay by instalments . Accordingly , the advance tax payment ultimately paid by the applicant company amounted to GPE CARDINAL ( approximately EUR CARDINAL ) .", "On DATE the applicant company filed its tax return with the tax authorities for DATE . The return showed that the company had sustained a substantial loss of profit , which meant that the authorities had to refund the applicant company the amount paid as an advance payment since it had been unduly paid .", "On DATE and CARDINAL DATE the applicant company sought a refund of GPE CARDINAL from the GPE tax authorities dealing with limited companies , which was the amount levied in income tax for DATE . On an unspecified date the ORG refused to comply with its request .", "On DATE the applicant company brought proceedings against the ORG in ORG . It requested a refund , under section CARDINAL ) of PERSON no . CARDINAL/CARDINAL , of the sum of GPE CARDINAL,CARDINAL,CARDINAL that had been unduly paid in income tax . It also claimed default interest on that amount accruing from DATE , when the ORG had been informed that the tax had been unduly paid , up until payment . The applicant company based its claims on LAW , which provides for the payment of default interest in the event of a pecuniary debt .", "Law no . CARDINAL/CARDINAL was published on DATE . LAW provides that the ORG will pay interest in the event of a refund of tax unduly paid . With regard to cases pending at the time of publication of the PERSON , it provides that interest shall start to accrue on DATE following DATE after its publication .", "On DATE , prior to the hearing in the case listed for DATE , the ORG refunded the applicant company GPE CARDINAL , which corresponded to the tax it had paid . In its submissions before ORG , the applicant company limited its claims to statutory interest for the delay in paying the refund .", "On DATE ORG declared the applicant company ’s application inadmissible ( decision no . CARDINAL ) . On DATE the applicant company appealed .", "On DATE ORG declared the applicant company ’s appeal admissible , but held that it was ill - founded on the ground that at the material time the LAW for ORG did not provide that the ORG was liable to pay interest in the event of a delay in refunding tax unduly paid . Moreover , the court held that LAW did not apply to the present case , since the provision governed only civil - law relations ( decision no . CARDINAL/CARDINAL ) .", "On DATE the applicant company lodged an appeal on points of law .", "On DATE , by judgment no . CARDINAL , ORG dismissed the appeal . It found that the ORG was not bound to pay late - payment interest in the event of tax unduly paid . Such an obligation did not derive from the relevant provisions of LAW relating to late - payment interest because these did not apply to a debt arising from a public - law relationship . Furthermore , ORG pointed out that no such obligation had been incumbent on the ORG prior to PERSON no . CARDINAL/CARDINAL , published on DATE ( see paragraphs CARDINAL and CARDINAL below ) . That judgment was finalised and certified by the court on DATE .", "The relevant Articles of the Civil Code provide :", "“ A creditor of a pecuniary debt is entitled , when serving notice to pay , to claim default interest stipulated by law or by the legal document concerned without having to prove loss . Subject to any contrary statutory provision , a creditor who also establishes other loss is entitled to claim compensation for that as well . ”", "“ A debtor owing a pecuniary debt , even if not served with a notice to pay , shall be liable to pay statutory interest accruing from the date of service of legal proceedings relating to the debt due . ”", "“ Anyone who has been unjustly enriched by means of or to the detriment of another ’s property shall make restitution of the gain . This obligation shall apply , inter alia , in the event of a payment made unduly or a service rendered for a purpose that has not been realised or has ceased to exist or is illegal or immoral . ... ”", "“ Anyone who benefits [ inter alia from unjust enrichment ] shall be subject to the same obligations as if a writ of action had been served on him : ( CARDINAL ) in the event of a claim for an amount unduly received , if he was aware that the debt did not exist or from the time when he became aware ; ( CARDINAL ) in the event of a claim on grounds of an illegal or immoral purpose . ”", "DATE no . PERSON provides :", "“ Debts due and owing from the ORG shall be subject to a late - payment surcharge that shall accrue from DATE following the date on which the debt falls due . The surcharge shall accrue at a rate of PERCENT per month ’s delay . ”", "Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL provided that the ORG was bound to refund tax unduly paid without having to pay interest . LAW no . CARDINAL/CARDINAL amended section CARDINAL ) of PERSON no . CARDINAL/CARDINAL . That provision , as amended , now provides :", "“ Any direct or indirect , principal or additional , tax or duty , or any fine , recognised in a final decision of an administrative court as having been unduly paid ... shall be offset or refunded with interest at the rate applicable to ORG bonds for a DATE period . ... With regard to cases pending at the time of publication of this statute , interest shall start to accrue from DATE following DATE after publication of the said statute . ”", "In CARDINAL judgments ( nos . CARDINAL and DATE ) ORG held that the ORG had an obligation to pay default interest even in respect of cases that were pending , that is , those in which the tax unduly paid had not yet been refunded on the date of publication of PERSON no . CARDINAL/CARDINAL ( DATE ) . According to ORG , that obligation was incumbent on the ORG from the date on which proceedings were brought in the relevant courts ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE he was arrested on suspicion of setting up a criminal organisation , namely ORG ) . On DATE he went through a medical examination at ORG . The medical report drafted following that examination noted that there was no sign of ill - treatment on his body .", "During his time at police custody , on DATE , the applicant was examined once more , this time at ORG . The second report drawn up there also indicated that there existed no sign of ill - treatment on his body .", "The applicant was released on CARDINAL DATE . Immediately after his release , he went through CARDINAL more medical examinations at CARDINAL different institutions , namely ORG and ORG . The reports drawn up after each examination indicated once again the lack of any sign of ill - treatment on his body .", "The first CARDINAL medical reports were issued in respect of the applicant together with some other persons , who were also arrested on suspicion of having committed the same offence .", "On DATE the public prosecutor at ORG filed an indictment with that court , accusing the applicant , together with several others , of setting up and running a criminal organisation . Subsequently , on DATE the applicant was placed in pre - trial detention . DATE , on DATE he was heard by ORG and released pending trial .", "In DATE , following a constitutional amendment , state security courts were abolished and the case was transferred to ORG .", "NORP On DATE ORG discontinued the proceedings as the statutory time - limit for prosecuting the offence of setting up a criminal organisation had expired .", "On DATE ORG upheld the judgment of ORG .", "On an unspecified date in DATE the applicant filed a complaint , together with the others , against several police officers , claiming that he had been subjected to ill - treatment during his time in police custody . According to his submissions , his testicles had been squeezed and he had been beaten , handcuffed to a chair and insulted .", "On DATE the ORG public prosecutor issued a decision not to prosecute .", "On DATE ORG rejected the applicant ’s objection to the public prosecutor ’s decision .", "Nevertheless , on DATE , following an objection filed by CARDINAL of the other complainants , the same court decided to extend the scope of the investigation and requested medical reports from ORG .", "Subsequently , on DATE , although the medical reports had not yet been submitted , the court annulled the decision of the ORG public prosecutor and held that criminal proceedings would be brought against the police officers involved .", "Accordingly , on DATE the GPE public prosecutor filed an indictment with ORG , accusing the police officers of torture pursuant to LAW no . CARDINAL ) as he considered that provision to be more favourable for the accused .", "During the course of the proceedings against the police officers , the Head of ORG examined the applicant . In her report dated DATE she noted that the applicant had complained that , during his police custody in DATE and his pre - trial detention in DATE , his testicles had been squeezed and he had been beaten , insulted and forced to perform physical activities which would overstrain his body . After examining the medical reports which had been issued in respect of the applicant in DATE , she reported that although those reports had indicated no sign of ill - treatment on the applicant ’s body , none of them had been drafted in compliance with the general principles of forensic medicine set forth by ORG . In this connection , she stated that each report had been issued in respect of several individuals and it was not clear whether the patients had been under psychological duress at the time or what kind of examinations had been conducted by the doctors . She concluded , therefore , that the reports issued immediately after the applicant ’s release from police custody could not be accepted as proof against his allegation of ill - treatment .", "On DATE ORG submitted a report to ORG upon the request of the latter . That report maintained that some lesions and problems in the applicant ’s meniscus had been found in DATE . It added also that he appeared to be suffering from post - traumatic stress disorder . The report noted however that it was not possible to conclude that those conditions resulted from the alleged illtreatment inflicted on the applicant in DATE .", "On DATE ORG drafted another report following the court ’s request . According to that report , the first CARDINAL medical reports , which stated that there was no sign on the applicant ’s body , were unclear as each of them had been drawn up in respect of several individuals .", "ORG conducted CARDINAL hearings during which it heard the statements of the complainants , the accused and the witnesses . It also evaluated medical reports in respect of each complainant as well as the above - mentioned expert reports . The proceedings are still pending before that court .", "Article CARDINAL § CARDINAL of the former LAW ( Law no . CARDINAL ) which regulated torture committed by civil servants read as follows :", "“ Any public official who , in order to extract a confession of guilt in respect of a criminal offence , tortures or ill - treats a person , engages in inhuman conduct or violates human dignity , shall be punished by DATE imprisonment and disqualified from holding public office temporarily or for life . ”" ]

[ "3", "6" ]

[ "6-1" ]

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[ "3" ]

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[ "The applicant is a NORP national , born in DATE and living in GPE .", "The applicant , a police commissioner , was suspected of involvement in a conspiracy to smuggle non - ferrous metals in view of his alleged failure to investigate properly the activities of certain smugglers in DATE . He was arrested on DATE in the context of criminal proceedings instituted in DATE . There were CARDINAL co - accused in the case , including the applicant .", "On DATE he was charged with obtaining property by deception ( sukčiavimas ) under LAW , abuse of office ( piktnaudžiavimas tarnyba ) under LAW , and official forgery ( tarnybinis suklastojimas ) LAW . On DATE the prosecution dropped the last charge .", "From DATE to DATE the co - accused had access to the case - file . On DATE a prosecutor confirmed the bill of indictment whereby the applicant was indicted for offences under ORG CARDINAL and CARDINAL of LAW . On DATE the case was transferred to ORG .", "On DATE a judge of ORG ordered additional investigations and requested that the prosecution supplement the charges under ORG CARDINAL and CARDINAL of LAW . On DATE ORG quashed the decision , finding that ORG was able to consider the question of committal for trial without further investigation measures . ORG also ordered the applicant ’s release on bail . He was released in open court . On DATE ORG remitted the case to ORG .", "On DATE the judge of ORG committed the applicant for trial on the charges under ORG CARDINAL and CARDINAL of LAW .", "During the trial hearing on DATE the judge stated :", "“ ... the charge of cheating may be supplemented ... [ and ] the charge under LAW [ of LAW ] may be amended by adding the ‘ selfish interest’ ... . ”", "During the trial hearing on CARDINAL DATE the judge said :", "“ ... the charge under LAW may be supplemented ... with alleged breaches of [ the specific provisions ] of LAW ... . ”", "During that hearing the trial judge informed the parties that she would pronounce the judgment on CARDINAL DATE .", "On CARDINAL DATE ORG acquitted the applicant on the count of obtaining property by deception under LAW . In connection with the charge under LAW the court held : “ the charge of abuse of office can not be sustained ... . However , [ the applicant ] , being a ORG official , improperly performed his functions because of negligence ” in that he had failed to ensure proper investigation and control of the smuggling case . Since this failure amounted to a breach of certain provisions of LAW , the judge found the applicant guilty of official negligence ( tarnybos pareigų neatlikimas dėl nerūpestingumo ) under LAW . He was sentenced to DATE imprisonment and deprived of the right to occupy an official position in the system of law enforcement . The judge reduced the custodial sentence by CARDINAL pursuant to an amnesty law , and found that the applicant had completed the sentence on account of the time spent in detention on remand .", "The applicant appealed against the judgment of CARDINAL DATE , stating that ORG had convicted him of an offence not covered by the initial charges and in respect of which he had not been in a position to defend himself . He noted in particular that during the trial the judge had in no way indicated that the charge of abuse of office could be replaced by CARDINAL of official negligence .", "On DATE ORG held an appeal hearing on questions of fact and law in the presence of the applicant and his defence lawyer . The appeal court heard addresses by the applicant and a prosecutor . ORG dismissed the applicant ’s appeal on the ground inter alia that :", "“ the allegation that the reclassification was not permitted is unfounded . Both ORG [ CARDINAL and FAC of LAW ] punish offences against ORG office . The [ first instance court ] court only established that [ the applicant ] improperly performed his functions as an officer because of negligence , but that he did not deliberately take advantage of his official position contrary to the interests of his office . The [ original ] charge did not refer to breaches [ by the applicant ] of specific provisions of LAW . In accordance with Articles CARDINAL § CARDINAL and CARDINAL of the Code of Criminal Procedure , the court warned [ the applicant ] that the charge could be supplemented with breaches of [ the specific provisions ] of LAW . An adjournment was offered for the preparation of the defence , but the parties did not request such an adjournment ... . The allegation that [ the applicant ] could not defend himself against the charges is therefore dismissed . ”", "The applicant filed a cassation appeal with ORG , complaining inter alia that the reclassification of the charge had breached his right to defend himself . On DATE ORG dismissed the appeal , upholding the decisions of the lower courts . The cassation court held inter alia that the first instance court had reclassified the offence of abuse of office with that of official negligence in accordance with Articles CARDINAL § CARDINAL and CARDINAL of the Code of Criminal Procedure as the appeal court had replaced the initial charge with a lesser one , merely drawing the legal conclusions consistent with the facts laid before it .", "PERSON . RELEVANT DOMESTIC LAW AND PRACTICE", "Article CARDINAL creates liability for deliberate abuse of office which may be punished by up to CARDINAL years’ imprisonment or a fine .", "Article FAC punishes improper performance by ORG officials of their functions because of negligence with a custodial sentence of DATE imprisonment or a fine .", "Disqualification from holding certain public offices may also be imposed as a supplementary penalty for these offences .", "At the material time , LAW allowed a court to replace a charge with another one during the trial . Pursuant to LAW , a court was entitled to replace a charge with a less severe one , provided that the facts on which the new charge was based did not , in principle , differ from those of the initial one . Under LAW § § CARDINAL and CARDINAL , the court could also replace a charge with a more severe one . In the latter case , on the defendant ’s request , the court could adjourn the trial to enable a revision of the defence .", "On DATE ORG ruled that the provisions of LAW were compatible with the principles of a fair trial and defence rights guaranteed by LAW . ORG also ruled that LAW and CARDINAL of the LAW , to the extent that it permitted the court to replace a charge with a more severe one , was incompatible with the LAW .", "Pursuant to LAW , if an appeal is filed against a judgment of the first instance court , the judgment becomes effective upon the determination of the appeal . In accordance with ORG CARDINAL - CARDINAL , the competence of the appeal court extends to all questions of fact and law established by the first instance court , and the appeal court has the power to take a decision quashing or amending the conviction , or to pronounce a new judgment . Under LAW an appeal hearing is obligatory , and it must be conducted in the presence of the parties . Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL provide that the decision of the appeal court becomes effective when it is pronounced .", "Under Articles CARDINAL - CARDINAL of the Code , a cassation appeal can be submitted to ORG against a judgment which has become effective . The competence of the cassation court extends to questions of fact and law , and it has the power to quash or amend lower decisions ." ]

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[ "6" ]

[ "6-3" ]

[ "6-3-a" ]

[ "The first applicant was born in DATE and lives in GPE .", "On DATE , following a surveillance and undercover operation , he was arrested in a van in the company of an undercover police officer known only as “ PERSON ” . In the van was a briefcase containing QUANTITY of PERCENT pure heroin . On DATE the applicant was convicted in ORG of possessing a Class A drug with intent to supply and was sentenced to DATE imprisonment .", "The first applicant ’s defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery . He alleged that his participation had been organised by a man named PERSON GPE , whom he had met DATE while both were detained on remand in FAC . According to the applicant , DATE before his arrest PERSON had introduced him to a man called PERSON and a man introduced to him only as “ PERSON ” . DATE before the arrest , the applicant was contacted by GPE and asked if he would be interested in going to GPE in connection with a jewellery deal in which GPE was acting as intermediary to PERSON . He would be given a cut of the purchase price . The applicant agreed that ORG would pick him up from his home DATE .", "The following morning he was told that the plans had changed , as PERSON was now coming to GPE . The first applicant agreed to accompany ORG to a public house where , at TIME , a red ORG and a white van drew up . The driver of the ORG was introduced to the applicant as “ PERSON ; he was accompanied by a man and a woman , subsequently addressed as “ PERSON and “ PERSON . The driver of the van was introduced as “ PERSON ” . PERSON gave PERSON a briefcase containing MONEY ( GBP ) . They all then left in convoy for FAC , FAC , where they were to meet PERSON .", "At the hotel , ORG decided to stay with the money in the car and asked the applicant to see if PERSON had arrived . The applicant therefore went into the hotel where he met PERSON , who told him that the arrangements had changed again as PERSON was now in GPE . GPE and PERSON asked the applicant to take a taxi to FAC and ask PERSON to return with him to ORG . The applicant followed these instructions and found PERSON , who told him he had to leave immediately for another meeting . PERSON , having spoken to PERSON or PERSON on a mobile phone , gave the applicant the key to a room in the nearby FAC , and explained that the “ goods ” were in a briefcase in the room .", "According to the applicant , PERSON came from LOC in his van and met the applicant outside FAC . PERSON then suggested that the applicant should accompany him up to the room and offered to give him a lift back to ORG afterwards . In the hotel room , PERSON forced the lock on the case while the applicant was in the bathroom , and when he came out PERSON was ready to go . They returned to the van , where the briefcase was opened , and within moments the applicant was arrested .", "Of all the participants in the above transaction , only the applicant was arrested and charged . The applicant suspects that the other participants were undercover police officers or informers acting on police instructions , but their identities and status have never been revealed to him . In this regard , he considers it relevant that , at the time of the alleged dealings , GPE was on bail to ORG in respect of a large - scale conspiracy to supply cannabis . One of the conspirators was a former ORG detective . It was known to the applicant that PERSON had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant ’s case had also investigated the conspiracy for which FAC was on bail . The applicant believes that sentencing in GPE ’s trial was deliberately postponed until DATE , DATE after the conclusion of the applicant ’s own trial , as a disincentive for GPE to come forward and give evidence concerning the true nature of the transaction .", "Prior to the commencement of the applicant ’s trial , the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in NORP v. PERSON , PERSON and PERSON ( see paragraph CARDINAL below ) . Judge PERSON , who considered the material in the absence of the defence , concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it . This ruling was subsequently reconsidered by the trial judge , who had the benefit of a document prepared by the defence outlining the issues in the case , as well as of the oral submissions of defence counsel . In the course of the proceedings before ORG , the Government revealed for the first time that the material placed before the trial judge had included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation . The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings , either at first instance or on appeal . The trial judge , who directed himself in accordance with the approach set out by ORG in NORP v. PERSON ( see paragraph CARDINAL below ) , decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non - disclosure .", "Following the ruling on disclosure , the defence made an application to the trial judge under section CARDINAL of ORG PACE – see paragraph CARDINAL below ) to exclude the evidence of PERSON , on the basis that the applicant had been entrapped into committing the offence . These submissions were rejected . The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section CARDINAL on grounds of entrapment . He continued that , if he had seen or heard any such material , he would have ordered disclosure .", "Apart from the applicant , PERSON was the only participant in the offence to give evidence at the trial . He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room . Although PERSON claimed to have made a full note of the alleged conversations , these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers . According to the applicant , it was , however , difficult for the defence to undermine PERSON ’s credibility because his full name and other identifying details were not disclosed .", "Following his conviction , the applicant appealed to ORG on the ground , inter alia , that the judge had been wrong to refuse to order disclosure . Dismissing the appeal on DATE , ORG , having itself examined the undisclosed evidence , observed that “ each one of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial ; indeed quite the reverse ” .", "The second applicant was born in DATE and lives in GPE . Prior to the events in question , he had been of good character and employed as accounts director in a firm which had gone into liquidation DATE . At the time of his arrest in DATE , he was unemployed and in considerable debt .", "NORP The applicant ’s version of events , which he maintained from the time of his first interview with the police , was that he had been introduced to a man named “ PERSON ” by an acquaintance , PERSON , since PERSON appeared interested in purchasing from the applicant some bankrupt stock . At a meeting in DATE , PERSON had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction . Although the applicant had never hitherto been involved with counterfeit currency , he did have a contact , “ PERSON , who was able to supply forged banknotes .", "PERSON went on to introduce the applicant to CARDINAL men called “ NORP ” and “ Jazz ” . At a third meeting on DATE , PERSON turned up with “ PERSON ” , who was subsequently revealed to be an undercover police officer , and an order for a large amount of currency was placed . It appears from the transcript of covert tape recordings made during this meeting that , while the applicant was not unwilling to become involved , he was actively encouraged to do so by PERSON and PERSON , who put a certain amount of pressure on him to supply more notes of a higher denomination than had at first been agreed . On DATE the applicant met PERSON and another undercover officer , “ PERSON , in a public house car park . He showed them some counterfeit notes , and was immediately arrested by uniformed officers . More counterfeit notes were found when his house was searched .", "The applicant maintained that he had been entrapped by undercover police officers and/or participating informers into committing the offences . On DATE he applied to ORG judge for an order that the indictment should be stayed on the grounds that , as a result of the covert activities of undercover police officers and/or participating informers , ( a ) it was not possible for him to have a fair trial and ( b ) the moral integrity of the criminal proceedings had been impaired . He also requested the judge to order the prosecution to provide more information and documents , including information relating to the question whether PERSON , PERSON or “ GPE , GPE or PERSON were participating informers or undercover police officers .", "Prior to making his ruling on the defence application , the judge heard , ex parte , an application by the prosecution to withhold certain material evidence on grounds of public interest immunity . The judge refused to grant a stay or to order further disclosure , indicating that most of the information sought was subject to public interest immunity . He also ruled that , while it was clear that PERSON had been coaxing the applicant , there was no evidence of pressure having been applied .", "A second submission was then made on the applicant ’s behalf to exclude the evidence of undercover police officers under section CARDINAL of PACE . However , before evidence was called from the officers in question – PERSON and PERSON –defence counsel sought guidance from the judge as to the areas of cross - examination which would or would not be allowed , given that certain issues relating to the investigation were covered by public interest immunity . It became apparent that most of the areas of cross - examination necessary to develop the submission were not to be allowed . Accordingly , the submission was withdrawn and the applicant entered guilty pleas to the indictment on DATE .", "On DATE he was sentenced to a total of DATE imprisonment .", "On DATE counsel advised that the applicant had no prospects of success in appealing against conviction , since he would have to demonstrate that the convictions were unsafe before an appeal could succeed . This would be impossible given that , on his own account , he had been motivated by money to enter into the deal to sell counterfeit currency . Counsel also expressed the view that :", "“ Had there been anything within the [ public interest immunity ] material which could have assisted the Defendant in developing his case to exclude the evidence under s.CARDINAL PACE I am confident the Judge would have released it . In those circumstances , I advise that there are no grounds of appeal against conviction . ”", "The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under LANGUAGE law . The judge does , however , have a discretion to order a stay of a prosecution where it appears that entrapment has occurred , as ORG affirmed in PERSON ; Attorney - General ’s Reference ( no . CARDINAL of DATE ) ( [ DATE ] ORG DATE ) , a judgment which followed and approved earlier case - law , including case - law which applied at the time of the applicants’ trials ( for example , the judgment of ORG in NORP v. PERSON [ DATE ] CARDINAL Weekly Law Reports ORG ) .", "In GPE , Lord PERSON of GPE explained ( § CARDINAL ) :", "“ My ORG , every court has an inherent power and duty to prevent abuse of its process . This is a fundamental principle of the rule of law . By recourse to this principle courts ensure that executive agents of the ORG do not misuse the coercive , law - enforcement functions of the courts and thereby oppress citizens of the ORG . Entrapment ... is an instance where such misuse may occur . It is simply not acceptable that the ORG through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so . That would be entrapment . That would be a misuse of ORG power , and an abuse of the process of the courts . The unattractive consequences , frightening and sinister in extreme cases , which ORG conduct of this nature could have are obvious . The role of the courts is to stand between the ORG and its citizens and make sure this does not happen . ”", "In addition , the court has a discretion , under section CARDINAL of ORG , to exclude evidence obtained by an undercover police officer where , inter alia , the defendant would not have committed the offence without police incitement ( see NORP v. PERSON ; NORP v. PERSON ( DATE ) CARDINAL Criminal Appeal Reports CARDINAL , judgment of ORG ; and PERSON , cited above ) . Of the CARDINAL remedies , the grant of a stay , rather than the exclusion of evidence , is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court ’s process and should not have been brought in the first place .", "In GPE , ORG agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “ ORG - created crime ” . In each case it was for the judge , having regard to all the circumstances , to decide whether the conduct of the police or other law - enforcement agency was so seriously improper as to bring the administration of justice into question . Factors to be taken into account included the nature of the offence , the reason for the particular police operation , the possibility of using other methods of detection and the nature and extent of police participation in the crime ; the greater the inducement offered by the police , and the more forceful and persistent the police overtures , the more readily a court might conclude that the police had overstepped the boundary , since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind . The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing , and the police operation should be properly supervised . The defendant ’s criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police ( per Lord PERSON , § § DATE ; Lord PERSON , § § DATE ) .", "At common law , the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged . This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence .", "NORP In DATE the Attorney - General issued guidelines , which did not have force of law , concerning exceptions to the common - law duty to disclose to the defence evidence of potential assistance to it ( ( DATE ) CARDINAL Criminal Appeal Reports DATE “ the Guidelines ” ) ) . According to the Guidelines , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was “ sensitive ” material which , because of its sensitivity , it would not be in the public interest to disclose . “ Sensitive material ” was defined as follows :", "“ ... ( a ) it deals with matters of national security ; or it is by , or discloses the identity of , a member of ORG who would be of no further use to those services once his identity became known ; ( b ) it is by , or discloses the identity of , an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ( c ) it is by , or discloses the identity of , a witness who might be in danger of assault or intimidation if his identity became known ; ( d ) it contains details which , if they became known , might facilitate the commission of other offences or alert someone not in custody that he is a suspect ; or it discloses some unusual form of surveillance or method of detecting crime ; ( e ) it is supplied only on condition that the contents will not be disclosed , at least until a subpoena has been served upon the supplier – e.g. a bank official ; ( f ) it relates to other offences by , or serious allegations against , someone who is not an accused , or discloses previous convictions or other matters prejudicial to him ; ( g ) it contains details of private delicacy to the maker and/or might create risk of domestic strife . ”", "In NORP v. Ward ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity . It explained that “ ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed ” .", "In NORP v. PERSON , PERSON and PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity , and outlined CARDINAL different procedures to be adopted . The first procedure , which had generally to be followed , was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held . The defence would then have the opportunity to make representations to the court . Secondly , however , where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed , the prosecution should still notify the defence that an application to the court was to be made , but the category of the material need not be disclosed and the application should be ex parte . The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question . In such cases the prosecution should apply to the court ex parte without notice to the defence .", "ORG observed that although ex parte applications limited the rights of the defence , in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute , and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest . It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that , even in cases in which the sensitivity of the information required an ex parte hearing , the defence had “ as much protection as can be given without pre - empting the issue ” . Finally , it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed . Issues might emerge during the trial which affected the balance and required disclosure “ in the interests of securing fairness to the defendant ” . For this reason it was important for the same judge who heard any disclosure application also to conduct the trial .", "The leading case on disclosure at the time of the applicants’ trials was the judgment of ORG in NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) . The Lord Chief Justice , giving the judgment of the court , held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity . “ Material ” evidence was defined as evidence which could be seen , “ on a sensible appraisal by the prosecution : ( CARDINAL ) to be relevant or possibly relevant to an issue in the case ; ( CARDINAL ) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use ; ( CARDINAL ) to hold out a real ( as opposed to fanciful ) prospect of providing a lead on evidence which goes to ( CARDINAL ) or ( CARDINAL ) ” .", "Once the judge was seized of the material , he or she had to perform the balancing exercise between the public interest in non - disclosure and the importance of the documents to the issues of interest , or likely to be of interest , to the accused . If the disputed material might prove the defendant ’s innocence or avoid a miscarriage of justice , the balance came down firmly in favour of disclosing it . Where , on the other hand , the material in question would not be of assistance to the accused , but would in fact assist the prosecution , the balance was likely to be in favour of non - disclosure .", "In the case of NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG returned to the balancing exercise , stating , inter alia :", "“ Since NORP v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants’ names and roles , alleging that those details are essential to the defence . Defences that the accused has been set up , and allegations of duress , which used at one time to be rare , have multiplied . We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care . They will need to be astute to see that assertions of a need to know such details , because they are essential to the running of the defence , are justified . If they are not so justified , then the judge will need to adopt a robust approach in declining to order disclosure . Clearly , there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will . Again , there will be cases where the informant is an informant and no more ; other cases where he may have participated in the events constituting , surrounding , or following the crime . Even when the informant has participated , the judge will need to consider whether his role so impinges on an issue of interest to the defence , present or potential , as to make disclosure necessary ... ”", "The requirements of disclosure have since been set out in a statutory scheme . Under the Criminal Procedure and Investigations Act DATE ( ORG ) , which came into force in GPE and GPE immediately upon gaining FAC on DATE , the prosecution must make “ primary disclosure ” of all previously undisclosed evidence which , in the prosecutor ’s view , might undermine the case for the prosecution . The defendant must then give a defence statement to the prosecution and the court , setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution . The prosecution must then make a “ secondary disclosure ” of all previously undisclosed material “ which might reasonably be expected to assist the accused ’s defence as disclosed by the defence statement ” . Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court .", "Following the judgments of ORG in PERSON v. GPE ( DATE , Reports of Judgments and Decisions DATE ) and ORG and Others and PERSON and Others v. GPE ( DATE , Reports CARDINAL ) , the GPE introduced legislation making provision for the appointment of a “ special counsel ” in certain cases involving national security . The provisions are contained in ORG Act DATE ( “ the CARDINAL Act ” ) and LAW DATE ( “ the DATE LAW ) . Under this legislation , where it is necessary on national security grounds for the relevant tribunal to sit in camera , in the absence of the affected individual and his or her legal representatives , the Attorney - General may appoint a special counsel to represent the interests of the individual in the proceedings . The legislation provides that the special counsel is not however “ responsible to the person whose interest he is appointed to represent ” , thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which can not be disclosed . The relevant rules giving effect to the DATE and CARDINAL Acts are set out in the ORG ’s judgment in GPE v. GPE ( [ ORG ] , no . CARDINAL , § DATE , DATE ) .", "In DATE the government commissioned a comprehensive review of the criminal justice system , under the chairmanship of a senior ORG judge , Sir PERSON . The report , published in DATE after extensive consultation and entitled “ The Review of the Criminal Courts in England and GPE ” ( “ the Auld Report ” ) , recommended , inter alia , the introduction of a “ special counsel ” scheme in cases where the prosecution wished to seek , ex parte , non - disclosure on grounds of public interest immunity . The recommendation was explained in ORG as follows ( footnotes omitted ) :", "“ CARDINAL . The scheme [ developed by the common law since NORP v. Ward and reflected in the Criminal Procedure and Investigations Act DATE : see above ] is an improvement on what went before and has been generally welcomed on that account . But there is widespread concern in the legal professions about lack of representation of the defendant ’s interest in the [ ex parte ] forms of application , and anecdotal and reported instances of resultant unfairness to the defence . ... A suggestion , argued on behalf of applicants in GPE and widely supported in the ORG , is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a ‘ special independent ORG . He would represent the interest of the defendant at first instance and , where necessary , on appeal on a number of issues : first , as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim ; second , on the strength of the claim to public interest immunity ; third , on how helpful the material might be to the defence ; and fourth , generally to safeguard against the risk of judicial error or bias .", "In my view , there is much to be said for such a proposal , regardless of the vulnerability or otherwise of the present procedures to LAW . PERSON , in a paper prepared for the ORG , has argued powerfully in favour of it . It would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications . It should not be generally necessary for special counsel to be present throughout the trial . Mostly the matter should be capable of resolution by the court before trial and , if any question about it arises during trial , he could be asked to return . If , because of the great number of public interest immunity issues now being taken in the courts , the instruction of special counsel for each would be costly , it simply indicates , as PERSON has commented , the scale of the problem and is not an argument against securing a fair solution .", "NORP The role would be similar to that of an amicus curiae brought in to give independent assistance to a court , albeit mostly on appeal . In rape cases , where an unrepresented defendant seeks to cross - examine a complainant , the court must inform him that he may not do so , and should he refuse to instruct counsel , the court will appoint and instruct one . After the decisions of ORG in PERSON and PERSON , the government introduced such a procedure in immigration cases involving national security . Although such cases are extremely rare , it is sufficient that the principle of a ‘ ORG or ‘ special’ counsel being instructed on behalf of a defendant has been conceded in a number of areas .", "The introduction of a system of special independent counsel could , as PERSON has also noted , in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in ORG , to which LAW and supporting Rules do not apply . Where there has been a breach of LAW because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction , ORG has held that the breach can not be cured by a hearing before ORG in the absence of the appellant . The ORG ’s reasons for so holding were that the appeals court is confined to examining the effect of non - disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury ’s verdict into underestimating the significance of the undisclosed material .", "NORP However , even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure , whether out of incompetence or dishonesty , to indicate to the prosecutor the existence of critical information . Unless , as I have recommended , the police significantly improve their performance in that basic exercise , there will be no solid foundation for whatever following safeguards are introduced into the system .", "I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non - disclosure of sensitive material . ”", "In NORP v. H. ; PERSON ] ORG DATE , decided on DATE after the ORG judgment in the present case , ORG of ORG held , inter alia :", "“ DATE since the decision in PERSON see paragraph CARDINAL above ] and the enactment of the ORG [ see paragraph CARDINAL above ] have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who can not ( either personally or through his legal representative ) , for security reasons , be fully informed of all the material relied on against him . The procedure is to appoint a person , usually called a ‘ special advocate’ , who may not disclose to the subject of the proceedings the secret material disclosed to him , and is not in the ordinary sense professionally responsible to that party but who , subject to those constraints , is charged to represent that party ’s interests . ...", "There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent , as an advocate in ORG [ public interest immunity from disclosure ] matters , a defendant in an ordinary criminal trial ... But novelty is not of itself an objection , and cases will arise in which the appointment of an approved advocate as special counsel is necessary , in the interests of justice , to secure protection of a criminal defendant ’s right to a fair trial . Such an appointment does however raise ethical problems , since a lawyer who can not take full instructions from his client , nor report to his client , who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer - client relationship , is acting in a way hitherto unknown to the legal profession . While not insuperable , these problems should not be ignored , since neither the defendant nor the public will be fully aware of what is being done . The appointment is also likely to cause practical problems : of delay , while the special counsel familiarises himself with the detail of what is likely to be a complex case ; of expense , since the introduction of an additional , high - quality advocate must add significantly to the cost of the case ; and of continuing review , since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure , unless the special counsel is present throughout or is instructed from time to time when need arises . Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction , and any new procedure can offer opportunities capable of exploitation to obstruct and delay . None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it . But the need must be shown . Such an appointment will always be exceptional , never automatic ; a course of last and never first resort . It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant . ... ”" ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Efraym Caliskan , is a NORP national of NORP origin , born in DATE and , at the time of introduction of the application , he was detained in the GPE for expulsion purposes . He is represented before the ORG by Ms G.E.M. Later , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE , following the apprehension of the NORP leader PERSON by the NORP authorities , a protest demonstration took place in GPE in the course of which protesters occupied the residence of the NORP Ambassador and members of the Ambassador 's household were prevented from leaving the LOC . On DATE , the applicant was arrested and subsequently detained in police custody ( inverzekeringstelling ) on suspicion of having been involved in the events in the residence of the NORP Ambassador .", "The applicant was released from custody on DATE after having been served with an indictment to stand trial on charges in relation to the events in the NORP Ambassador 's residence . On DATE , he was handed over to the aliens ' police ( vreemdelingenpolitie ) . He was subsequently placed in aliens ' detention for the purposes of expulsion ( vreemdelingenbewaring ) under LAW ( a ) of LAW ( Vreemdelingenwet ) .", "At some unspecified point in time , the applicant applied for asylum or , alternatively , a residence permit on humanitarian grounds . This request was rejected by the ORG Secretary of ORG ( ORG ) at an unspecified point in time . The applicant filed an appeal with ORG ( ORG ) against the ORG Secretary 's refusal of his request for asylum . As the applicant had been placed in aliens ' detention he was not required , like asylum seekers not placed in such detention , first to file an objection ( bezwaarschrift ) with the ORG Secretary of ORG before filing an appeal with ORG . The applicant further requested ORG for an injunction on his expulsion pending the appeal proceedings .", "In a decision taken on DATE , ORG rejected an appeal filed by the applicant against his placement in alien 's detention .", "On DATE , the applicant filed a second appeal with ORG against his placement in aliens ' detention .", "On DATE , ORG rejected the applicant 's appeal against the ORG Secretary 's decision to reject his request for asylum . It further rejected the applicant 's request for an injunction on his expulsion .", "On DATE , following a hearing held on DATE , ORG rejected the applicant 's second appeal against his placement in aliens ' detention . Insofar as relevant , it held :", "“ ORG considers at the outset that the lawfulness of the measure of placement in aliens ' detention has , as such , already been determined in its decision of DATE . The present appeal concerns the question whether , after a balancing of all interests involved , a further continuation of the placement should reasonably be considered as unjustified .", "ORG is of the opinion that it can not be said that there are no real prospects for expulsion within a reasonable time . On behalf of the < ORG Secretary > it has been submitted that the alien will be presented to the NORP < consular > authorities at short notice , given that his request for an injunction in connection with his request for entry to the GPE as a refugee or on humanitarian grounds was rejected on DATE and the appeal ... declared illfounded . ORG sees no reason to find that < the ORG Secretary > is proceeding with insufficient diligence . ORG further finds that < the ORG Secretary > , pending the alien 's presentation to the NORP authorities , can reasonably adopt the position that the alien 's placement in aliens ' detention should be maintained .", "As to the complaint of the alien 's representative that < the ORG Secretary > has given undertakings to the effect that the issue of expulsion of NORP who are being prosecuted for their alleged participation in the occupation of the NORP Ambassador 's residence in GPE will only be addressed once the criminal proceedings have come to an end , ORG considers as follows . It appears neither from the case - file nor the oral submissions in the present case that < the ORG Secretary > has made solid and legally binding undertakings as to the expulsion of persons who occupied the NORP Ambassador 's residence . Neither can such an undertaking be read into the replies given by < the ORG Secretary > to questions of members of ORG of ORG . ORG further does not perceive a need for the alien who has been placed in aliens ' detention to be allowed to remain in the GPE pending his trial . After his expulsion , the alien may apply for a visa in order to attend his trial , as has been indicated at the hearing by the representative of < GPE", "Having regard to the above , ORG considers that the appeal is illfounded . The placement in aliens ' detention will not be lifted . Having regard to Article PERSON of LAW there is no reason to award compensation . ”", "On DATE , the ORG Secretary informed ORG that , in view of reports on what had happened to CARDINAL asylum seekers who had been expelled to GPE , a policy decision had been taken to suspend temporarily the expulsions of NORP nationals of NORP origin . On DATE , the applicant was released from aliens ' detention .", "On DATE , the applicant 's representative informed the ORG that the applicant , following his release on DATE , had gone to GPE for a family visit . The applicant 's representative further stated that the applicant had been apprehended , detained and expelled from GPE to GPE despite the fact that there were asylum proceedings ongoing in the GPE . According to his representative , the applicant was detained in GPE and tortured for DATE .", "LAW , insofar as relevant , provides :", "“ CARDINAL . If the interests of public order , public policy or national security so require , the following categories of aliens may be detained :", "a. aliens whose expulsion has been ordered ;", "b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered ;", "c. aliens who are not allowed to reside in the GPE by virtue of any of the provisions contained in ORG CARDINAL - CARDINAL < of LAW > , pending the decision on an application for a residence permit , a permanent residence permit or leave to enter as refugees .", "An alien shall not be detained when , and detention shall be terminated as soon as , he intimates that he wishes to leave the GPE and is in fact in a position to do so .", "Detention for the reasons set out in the first sentence of paragraph CARDINAL and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than DATE .", "... ”", "An alien whose expulsion has been ordered can , in principle , remain in aliens ' detention for an unlimited period of time . The lawfulness of a placement in aliens ' detention can , however , be challenged before a court . Where the court is of the opinion that there are no prospects of expulsion within a reasonable time , it can order that the measure of placement in aliens ' detention be terminated .", "It has been established in the case - law of ORG ( ORG ) of ORG that the interest of an alien to be released from aliens ' detention increases with the passage of time . Where a placement in aliens ' detention exceeds a period of DATE , it is generally held that the alien 's interest in being released is greater than the interest to keep him in detention for the purposes of expulsion . Depending on the specific circumstances of each case , this point in time may also be reached before or after DATE have passed . It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control .", "Although no appeal lies against a decision by ORG in proceedings concerning requests for release from detention for expulsion purposes , an appeal to ORG ( Gerechtshof ) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes . Furthermore , an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected ( cf . ORG , CARDINAL DATE , PERSON , nr . CARDINAL )", "There is no time - limit for the filing of an appeal against a decision of placement in aliens ' detention and in principle a person placed in aliens ' detention may file as many appeals against this decision as he sees fit . When the lawfulness of a decision of placement in aliens ' detention has been determined for a first time , the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens ' detention as from DATE last judicial decision taken on this point .", "On DATE , the ORG Secretary of ORG requested ORG to suspend until DATE its examination of appeals , including requests for injunctions on expulsions , filed by asylum seekers of NORP origin , in view of a recent report of CARDINAL such asylum seeker having encountered serious problems after his expulsion to GPE . As the veracity of this report was not certain , the Minister of ORG had been requested to investigate the matter and to submit his findings as to the origin , background and veracity of the report before DATE .", "On DATE , the ORG Secretary informed ORG that , in view of reports on what had happened to CARDINAL asylum seekers who had been expelled to GPE , a policy decision had been taken to suspend temporarily the expulsion of NORP nationals of NORP origin .", "On DATE , the ORG Secretary informed ORG that the results of an investigation into the facts on the basis of which the expulsion of NORP nationals of NORP origin had been temporarily suspended had led to the lifting of that suspension ." ]

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[ "The applicant , PERSON , was born on DATE in GPE and lives in GPE .", "The applicant first arrived in GPE on DATE as a tourist . On DATE she was arrested on suspicion of shoplifting . The next day she accepted a summary fine ( forelegg ) for theft of goods to the estimated value of ORG CARDINAL,CARDINAL ( EUR CARDINAL ) . On DATE it was decided to deport her and to prohibit her from re - entry for DATE . The deportation was effected on DATE .", "DATE , on DATE , the applicant returned to GPE with a different passport , according to which her name was GPE , she was born on DATE and indicating a different identity number from that in her previous passport . On DATE she married a NORP national and on DATE she applied for a residence permit . In her application she stated that she had not previously visited GPE and that she had no previous criminal convictions . She was granted a work permit on DATE for a period of DATE , which was renewed a number of times . On DATE she was granted a settlement permit .", "On DATE she applied for NORP citizenship , but the processing of her application was discontinued as her husband on DATE applied for a separation .", "In the course of DATE , the applicant started co - habiting with Mr O. , who also originated from GPE and who had held a settlement permit since DATE . Together , the couple had CARDINAL daughters , born on DATE and DATE , respectively .", "In the meantime , in DATE the police received information from a source that the applicant had previously been in GPE under the name PERSON . On DATE the police apprehended her while she was working in a hairdressing salon . After first denying having previously been in GPE under a different name she later admitted it . She explained that the name in the passport the second time she came to GPE had not been an incorrect name but had been her father ’s , whilst the name in the first passport had been her mother ’s . The difference in birth dates could be explained by the fact that it was her father who had arranged for the second passport . She admitted having used the second passport deliberately to avoid the prohibition on re - entry ( see paragraph CARDINAL above ) .", "In view of the above , after having put the applicant on notice on DATE that it was considering revoking her work- and settlement permits , on DATE ORG revoked her permits . In DATE ORG rejected her appeal against this decision .", "On DATE the ORG decided that the applicant should be expelled and prohibited from re - entry for DATE , applying section CARDINAL(CARDINAL)(a ) of LAW DATE ( according to which an alien may be expelled if he or she has committed serious or repeated violations of CARDINAL or more provisions of the LAW ) and finding that her expulsion would not be disproportionate for the purposes of section PERSON ) .", "On DATE ORG refused a request by the applicant to stay the implementation of her expulsion . However , on DATE it confirmed that she had a right to such stay .", "The applicant ’s appeal to ORG was rejected on DATE . Its reasoning included the following considerations . The applicant had violated sections CARDINAL ( on visa requirements ) and CARDINAL ( CARDINAL ) ( according to which the provision with intent or gross negligence of essentially false or manifestly misleading information in a matter falling within the LAW is punishable by fines or CARDINAL months’ imprisonment or both ) , with reference to section CARDINAL ( on identity document requirements ) of LAW DATE . She had travelled to GPE DATE after having been expelled from GPE with DATE re - entry ban . In practice , unlawful travel to the country would always be considered a serious breach of LAW . The ORG further noted that the applicant had requested a residence permit by using a false identity and false documents in order to obtain such a permit . The applicant had violated LAW seriously and repeatedly . In the ORG ’s view the applicant ’s expulsion would not be a disproportionate measure either with regard to the applicant or her closest family members . In this connection the ORG had regard to the serious nature of the applicant ’s offences and the general preventative interests in expelling her , her personal links to GPE as compared to her home country as well as her relationship with her children . The latter could not be decisive .", "The Board observed inter alia :", "“ ORG notes that the children , who are NORP nationals , are not registered in the Immigration authorities’ computer system with any permit . Nor is there any registered application for a residence permit in GPE for the children . Pursuant to section CARDINAL(CARDINAL ) of LAW DATE all foreigners , also children , who reside in GPE must hold a permit . This applies also to children of foreign parents . As long as the children do not hold a permit to reside in GPE they are obliged to leave the country . Whether or not [ the applicant ] and Mr O. opt to submit an application for family reunion with Mr O. is up to them and is in any event of no importance for the applicant ’s case . ORG also notes that it has been submitted that the father has periodically had DATE contact with his children and that he currently has contact visits DATE and an TIME visit during DATE when he does not have weekend visits .", "The ORG further refers to the fact that the children , born in DATE and DATE , are relatively young and their links to GPE can not be said to be very strong . It is assumed that their strongest ties are those with their close family , their mother and father . Whether the children remain in GPE or accompany their mother to her country of origin has no decisive significance for the outcome of the case .", "The [ applicant ] ’s children , born respectively in DATE and DATE , were conceived and born during the [ applicant ] ’s unlawful stay in GPE . She used a false identity to gain entry to GPE and to obtain permits ( subsequently revoked ) . On this basis , the [ applicant ] can not be said to have had a legitimate expectation of establishing a family life in GPE , and to stay here .", "The connection developed under the above circumstances is thus ascribed little weight in the assessment of proportionality .", "[ ... ]", "ORG has considered [ ... ] whether the [ applicant]s expulsion would be contrary to LAW and has found that this is not the case .", "[ ... ]", "[ ... ]", "for the purposes of section CARDINAL(CARDINAL ) of LAW , cf . LAW .", "[ ... ]", "The applicant is to be expelled from GPE for a period of DATE in accordance with section PERSON ) of LAW .", "The decision of expulsion will prevent her return to GPE for as long as the prohibition on re - entry applies . A breach of the prohibition on re - entry is a punishable offence under section CARDINAL(CARDINAL ) ( a ) of LAW and Article CARDINAL(CARDINAL ) of LAW .", "Under section CARDINAL(CARDINAL ) of LAW a person who has been expelled may apply for permission to enter the country , but this is normally not granted until DATE have elapsed from leaving the country . ”", "In the meantime , in DATE , the applicant and Mr O. separated . She then assumed the DATE care of the children whilst arrangements were made for him to receive them for contact visits .", "On DATE ORG granted PERSON , who then lived in GPE , the sole parental responsibilities and the daily care of the children until the applicant ’s return to GPE after the end of her expulsion . ORG granted the applicant a right of contact to the children . Until a possible expulsion this was to comprise a visit of the applicant at her residence in GPE from DATE . Thereafter the contact visits were to take place for DATE during the children ’s DATE and DATE during DATE . The father was to assume DATE care and the sole parental responsibilities until final judgment .", "The City Court based itself on the assumption that relatively speaking there was little probability that the applicant would succeed in obtaining a reversal of the decision to expel her . In accordance with the assessment of the court appointed expert , it found that the father was the parent best suited to assume the care for the children and that it would be best for the children to live in GPE since their mother was sure that she would wish to return to GPE after the expulsion period . The children ’s contact with both parents would be optimised if the care was granted to the father . The applicant lodged an appeal against this judgment to ORG , the examination of which was at her request discontinued pending the outcome of the expulsion proceedings .", "On DATE the applicant requested ORG to reconsider its decision of DATE regarding her expulsion . She argued that the measure could entail a permanent separation between the applicant and the children , that she had not been guaranteed any right to return to GPE after expiry of the prohibition on re - entry and that the father was unlikely to enable the applicant to exercise contact rights in her home country . She conceded that her offences when seen in isolation could provide a basis for expulsion . However , she disputed that the measure would be proportionate in that insufficient weight had been attached to the fact that her expulsion would lead to a separation between her as a main carer and her CARDINAL small children . On DATE the ORG refused to alter its earlier decision .", "On DATE the applicant ’s judicial appeal against ORG decision of DATE was rejected by ORG . But on DATE the ORG unanimously quashed the ORG ’s decision of CARDINAL DATE . While it was undisputed that the conditions in section CARDINAL(CARDINAL)(a ) had been fulfilled and ORG found that the measure would not be disproportionate vis - à - vis the applicant , it did find that they would be disproportionate vis - à - vis the children , though it assumed that the decision of CARDINAL DATE was not incompatible with LAW", "High Court held inter alia :", "“ In this concrete case expulsion can not be said to be a disproportionate measure vis - à - vis the [ applicant ] . [ She ] had been fully aware that she returned to GPE with a false identity and has been aware of the consequences this could have for her . In such cases expulsion would be an ordinary reaction . The fact that criminal punishment was not added to the reaction can not be taken to mean that the offence was less serious [ ... ] .", "However , the wording of the statute does not solely cover the immigrant personally but encompasses also closest family , in this instance [ the applicant ] ’s CARDINAL daughters .", "ORG has found that the weight of their interests is such as to make the expulsion decision disproportionate and thereby invalid .", "The daughters are respectively CARDINAL and DATE . [ The applicant ] has lived together with them since their birth and it must be assumed that she has been their main care person since the break up of her relationship with the children ’s father in DATE until DATE when a judgment was delivered at first instance in the custody case . As stated above , the children now live with their father in GPE . Until an eventual expulsion contact visits are to take place from DATE . [ The applicant ] will then receive the children at her place in GPE . After expulsion , the contact visits should extend to DATE during DATE and DATE during DATE , according to point CARDINAL of the operative provision in the child custody case .", "The fact that [ the applicant ] lost the custody case in ORG is closely connected to the decision on expulsion . ORG found it best for the children to be able to stay in GPE . In light of what was stated in ORG judgment about the statement given by the expert witness , it seems that also the latter ’s statement in favour of the father was justified by the children being able to remain in GPE were he to be granted the daily care . In other words , the fact that [ the applicant ] lost the custody case in ORG does not mean that there was not a close and good relationship between her and the children . Also , the reason why ORG had prescribed limited access rights was the presumption that she would be expelled .", "If the final outcome in the custody case were to be as decided by ORG , the expulsion would entail a breaking off of the contact between [ the applicant ] and the children . It would no longer be an alternative that the children should accompany her to GPE . The duration of the separation is uncertain . It is most probable that [ the applicant ] would not come to GPE as long as the prohibition on re - entry applies . Whether or not she would be able to obtain a visa or a residence permit in GPE after having been separated from her children for DATE is difficult to predict , but appears hardly probable in light of the fact that she had previously entered the country with a false passport . In other words , in the worst case , the separation between mother and children could become permanent .", "The High Court finds that a long lasting separation between the mother and the children would have very serious consequences for the children . In DATE to come they would need close and frequent contact with both parents . It has not been submitted that the children have any relatives or close persons other than their parents , in GPE . This would mean that they would be particularly vulnerable should anything happen that make their father no longer able to assume parental responsibilities completely .", "The negative consequences that an expulsion of [ the applicant ] would have for the children must be weighed against the interests of immigration control and the importance of effective implementation of expulsion decisions . Particular weight – normally a decisive DATE ought to be attached to the latter consideration . However , in the present case ORG has found that the interests of the children should carry more weight . ORG finds that there are relatively few persons who are in the same situation as [ the applicant ] , with DATE of illegal stay in GPE and children who were born in this country and where there is hardly any prospect that the children will accompany [ the applicant ] if her expulsion were to be implemented . ”", "On an appeal by the ORG to ORG , the latter , by a judgment of DATE , upheld ORG judgment , by CARDINAL votes to CARDINAL .", "Mr Justice PERSON gave the following reasons which in the main were endorsed by the CARDINAL other members of the majority :", "“ ( CARDINAL ) I have concluded that the appeal must succeed .", "( DATE ) The expulsion order under review was made pursuant to section CARDINAL ) , of LAW , whereby a foreign national may be expelled when the person concerned has ‘ grossly or repeatedly contravened one or more provisions of this Act’ . In the present case , there is no doubt that these conditions are met .", "( CARDINAL ) However , the issue is whether the decision satisfies section CARDINAL ) , which reads :", "‘ Expulsion pursuant to the first paragraph , ( a ) , ( b ) , ( c ) , ( e ) and ( f ) shall not be ordered if in consideration of the seriousness of the offence and the foreign national ’s connection with the realm , this would be a disproportionately severe reaction against the foreign national [ in question ] or the closest members of the latter ’s family.’", "( CARDINAL ) This provision suggest that the seriousness of the offence should be weighed against the foreign national ’s links to GPE . This is a matter of discretionary application of the law , where the courts have full power of judicial review , see PERSON ( “ FAC ) DATE - CARDINAL , paragraph CARDINAL .", "( CARDINAL ) I will first examine the seriousness of the offence .", "( CARDINAL ) As stated , [ the applicant ] is guilty of repeated and gross breaches of LAW . She came to GPE in contravention of a DATE prohibition on re - entry , cf . sections CARDINAL and CARDINAL(CARDINAL ) of LAW , as it was then worded . Moreover , she provided incorrect and misleading information concerning her identity , her previous residence in GPE and whether she had previously been sentenced , cf . sections DATE and CARDINAL of the Act . Finally , she has resided and worked here unlawfully , cf . section CARDINAL ( CARDINAL ) and ( CARDINAL ) , and section CARDINAL(CARDINAL ) ( CARDINAL ) , of the LAW .", "( DATE ) When assessing the seriousness of these offences , one should not attach considerable weight to the assessment of criminal liability . The breaches of LAW must rather be viewed in an administrative law perspective . A major purpose of LAW is to ‘ provide a basis for control of entry and exit of foreign nationals and of their presence in the realm in accordance with NORP immigration policy’ , cf . section CARDINAL(CARDINAL ) . In view of the large number of applications submitted pursuant to the LAW , the authorities must to a great extent base their control on the assumption that those who apply provide correct information and otherwise abide by the law and decisions taken under it . The system is thus based on trust . Regard for general deterrence therefore indicates that breaches should have consequences for applicants’ possibility of obtaining the rights to which the law applies .", "( CARDINAL ) The views referred to are stated in Proposition No . DATE ( CARDINAL–CARDINAL ) to the PERSON [ the larger division of ORG ] on [ ... ] the ( ORG ] ) . The following is stated on page CARDINAL :", "‘ In the view of the Ministry , it is important to be able to respond with expulsion to cases of repeated and/or gross contraventions of LAW . Although such contraventions may normally also lead to criminal liability , from the point of view of procedural economy , it would be advantageous if an expulsion order could be made even in the absence of a legally enforceable criminal conviction and sentence . This would also enable a rapid reaction . It is noted that it would not be possible for the authorities to exercise effective control of all foreign nationals’ entry to and presence in GPE . The system must to a great extent be based on trust that LAW is complied with by those to whom it applies , including that persons who need a residence permit submit an application and provide correct information to the authorities . Unlawful entry , residence or employment without the requisite permits or the provision of incorrect information breaches this relationship of trust and renders the authorities’ enforcement of NORP immigration policy more difficult . If gross or repeated contraventions of LAW were to be left without consequences it may undermine respect for the legislation and have an unjust effect on those who abide by the law . Since an application would in any event be rejected if a foreign national does not fulfil the conditions for residence in GPE , a negative decision would not in itself constitute a sanction against the provision of incorrect information . The Ministry therefore regards it as important in the interest of general deterrence to be able to respond to cases of gross or repeated contravention of LAW with expulsion.’", "( CARDINAL ) [ The applicant ] ’s contravention of LAW gravely affects the control considerations that the LAW is intended to safeguard . In my view , her offences must therefore be characterised as very serious .", "( CARDINAL ) I will now examine whether there exists such a ‘ connection with ORG that the expulsion is nevertheless disproportionate .", "( CARDINAL ) [ The applicant ] has resided continuously in GPE since DATE . It is nevertheless clear that the attachment she has thereby acquired to GPE does not make the expulsion a disproportionate measure in relation to her . The attachment has been established on the basis of unlawful residence and she has never had any legitimate expectation of being able to stay here . On this point , I find it sufficient to refer to PERSON GPE ORG ) CARDINAL “ GPE utlendingslov ” ( “ QUANTITY ) , page CARDINAL , where the following is stated :", "‘ In legal and administrative practice it is assumed that significant weight can not be placed on an attachment developed after the foreign national was aware that he or she could be expelled.’", "( DATE ) CARDINAL and a half years elapsed from the [ applicant ] ’s arrest until ORG took its decision to order her expulsion . The long processing time was particularly due to the fact that the expulsion case was not dealt with until her work permit and residence permit had been revoked . If the processing had been conducted in parallel , the time could have been reduced considerably . However , I do not find that this entails that the expulsion is a disproportionate measure in relation to [ the applicant ] herself .", "( DATE ) I will now examine the interests of the children .", "( CARDINAL ) From section CARDINAL ) of LAW it appears that an expulsion must not constitute a disproportionately severe measure vis - à - vis ‘ the closest members of the foreign national ’s family’ . As the case now stands , it must be assumed that the children will remain in GPE with the father , and that they will have a considerably reduced contact with the mother during the period which the expulsion applies .", "( CARDINAL ) ORG CARDINAL LAW [ GPE utlendingslov ] states on page CARDINAL that considerable weight ought to be attached to the interests of the children . After affirming that one could not place significant weight on a marriage contracted after the foreign national has become aware that he or she could be expelled , the following is added :", "‘ However , if the expelled person has a child of the new relationship , the proportionality assessment may have a different outcome , primarily out of regard for the child , but this question too must depend on a concrete assessment of all relevant considerations.’", "( CARDINAL ) The committee proposed that it be clearly stated in the text of the LAW that the best interests of the child should be a primary consideration . This was approved by ORG . In Proposition No . DATE ( CARDINAL–CARDINAL ) to the PERSON on ... the [ new ] LAW , the following is stated on page CARDINAL :", "‘ In cases affecting children , the best interests of the child must be a primary consideration . The proposal to include a clarification to this effect in the text of the LAW has been supported by several instances consulted . ORG has pointed out that there is a danger of giving a distorted impression of relevance and importance by focusing on CARDINAL of the considerations that ought to be included in an overall assessment . It is nevertheless the ORG ’s view that it is correct to stress the regard for the best interests of the child in the text of the LAW in order to ensure particular awareness of this . This involves no change in relation to current law , but may have a pedagogical significance.’", "( CARDINAL ) Such a formulation has now been included in section CARDINAL ) , last sentence , of the new LAW .", "( CARDINAL ) That the best interests of the child shall be a primary consideration is also stated in LAW [ providing that the best interests of the child shall be a primary consideration ] which , pursuant to section CARDINAL ( CARDINAL ) of LAW , is applicable as NORP law . At the same time , it is clear that the Convention does not in itself prevent an expulsion order from being made , although this results in separation of the parents from the children . In ORG CARDINAL LAW , the following is stated at page CARDINAL :", "‘ However , none of the provisions of LAW on the Rights of the Child in itself prevents an expulsion order from being made . On the contrary , Article CARDINAL ) assumes that the GPE may make expulsion orders even though this would result in the child being separated from its father or mother.’", "( CARDINAL ) So far , the sources of law show that the interests of the children are primary , but not necessarily decisive .", "( CARDINAL ) ORG has previously considered the significance of the strain that children are subjected to by expelling one of their parents . The case , Rt-CARDINAL - CARDINAL , concerned the proportionality assessment pursuant to section CARDINAL(CARDINAL ) of LAW . The foreign national concerned had committed what was characterised as ‘ very serious crime’ . With regard to the question of the applicant ’s children , the second voting judge stated DATE for the majority – that", "‘ it is normal for an expulsion to interfere with established family life in a manner involving strain , particularly when one must assume that the family will be separated as a result of the expulsion . However , in order for an expulsion to be deemed a disproportionate measure it must involve an extraordinary burden.’", "( CARDINAL ) In Rt-CARDINAL - CARDINAL , ORG unanimously concluded that this view must also be adopted in relation to section CARDINAL(CARDINAL ) . In paragraph CARDINAL of the judgment it was stated :", "‘ I find these assumptions also to be applicable in relation to the provision in section CARDINAL ) of the LAW . When a foreign national has committed very serious crime , expulsion is only disproportionate when it results in an extraordinary burden.’", "( CARDINAL ) Paragraph CARDINAL of the judgment further stated :", "‘ It is normal for an expulsion to interfere with established family life in a manner involving a burden financially as well as emotionally and socially , and it may easily lead to psychological problems . This applies not least when a family is separated as a result of the expulsion . Such strain is not in itself a sufficient argument for finding an expulsion to be a disproportionate measure.’", "( CARDINAL ) As has been shown , both of the cases referred to above concerned expulsion on grounds of very serious crime . However , in line with my view regarding the seriousness of the contraventions of LAW , I find that a corresponding approach should apply in the present case .", "( CARDINAL ) I note that such an interpretation is consistent with LAW of LAW . The case of PERSON v. the GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) concerned a question corresponding to that of the present case . ORG held :", "‘ In the present case the ORG takes into consideration that the applicant was never given any assurances that he would be granted a right of residence by the competent GPE authorities . He was allowed to await the Deputy Minister ’s decision on his asylum request in the GPE . After asylum was denied him , his request for a stay of expulsion was refused by the competent court on DATE . From then onwards , the applicant ’s residence in the GPE , which was already precarious , lost what little foundation it had had until then . Family life between the applicant and his GPE national partner DATE and later , with their child – was developed after DATE . ORG is of the opinion that in these circumstances the applicant could not at any time reasonably expect to be able to continue this family life in the GPE .... ’", "( CARDINAL ) In its subsequent case - law , ORG has stuck to this approach ( see for example the judgment of DATE in the case of and PERSON and PERSON v. the GPE no . CARDINAL/CARDINAL , § DATE , ECHR DATE ) . I refer also to ORG judgment in Rt-CARDINAL - CARDINAL , paragraph CARDINAL .", "( DATE ) As has been shown above , my view is also consistent with LAW of LAW on the Rights of the Child , cf . Official NORP Report CARDINAL , page CARDINAL .", "( CARDINAL ) I will now carry out a concrete assessment of whether the burden will be extraordinarily great for [ the applicant ] ’s children . I agree with the ORG that this assessment must take into consideration that [ the applicant ] is to be expelled for a period of DATE . When this period has elapsed , she may – like other people – apply for a residence permit . In my view , an evaluation of the probable outcome of such an application is not relevant to the current review . However , she would have the possibility to obtain judicial review of any rejection .", "( CARDINAL ) As already mentioned , it must be assumed that the children will continue to reside with Mr O .. They have lived with him since ORG by judgment of CARDINAL DATE granted him the DATE care and parental responsibilities in respect of the children . In its judgment , ORG placed great emphasis on the expulsion case , but added :", "‘ Like the expert witness , ORG has formed a reasonably good impression of the father , and considers that he is the parent who is best suited to take care of the children in the present situation . In the view of this court , there is much to indicate that the father , regardless of whether the mother after DATE obtains permission to return to GPE , is the party best suited to take care of the children . The father appears more outgoing than the mother . He speaks good NORP , is in employment and seems , to a greater extent than the mother , to be capable of stimulating the children and taking care of them.’", "( CARDINAL ) It is further stated in the judgment that Mr O. has stated that he will arrange for the children to have access to [ the applicant ] , also if she is expelled . He envisages that this might be possible during DATE . I have no grounds for assuming that it should not be possible to maintain contact between the children and [ the applicant ] during the expulsion period .", "( DATE ) In view of this , I find it established that the children ’s care situation will be satisfactory even if the [ disputed ] decision is upheld . In any event , it will not differ from what is normal in instances where CARDINAL of the parents is expelled from the country . Nor is there anything in the case to indicate that the children are more closely attached to their mother than to their father .", "( CARDINAL ) I add that there is no reason to believe that PERSON ability to assume care will be reduced in the nearest future . If this nevertheless were to occur , it would be possible to grant a dispensation from the prohibition of entry under LAW ( CARDINAL ) , third sentence , of LAW .", "( CARDINAL ) There is no information in the case suggesting that the children have a special need for care . Little evidence has been adduced regarding the manner in which the expulsion case has affected the children , though it can not be excluded that it has caused a strain on them too . However , I do not find a basis for assuming that any such burden has been greater than ordinary .", "( CARDINAL ) In the above - mentioned decision reported in Rt-CARDINAL - CARDINAL , ORG concluded that the burden on the children had been so great as to make their father ’s expulsion a disproportionate measure . However , in that case , the children had special care needs . There was moreover uncertainty regarding the mother ’s ability to assume care . Paragraph CARDINAL of the judgment stated :", "‘ What is particularly significant in the present case is that both parents have been separated from the children on CARDINAL occasions owing to the circumstances that now constitute the grounds for expulsion , first in connection with their detention on remand and then in connection with their serving their sentences . ORG held that the children ‘ according to the evidence adduced , have already been frightened by what has happened and by their parents absence during the remand and subsequent imprisonment . This burden would be reinforced by a new absence of the ORG . On the basis of the information received concerning the health of the spouse , there must in my view be a significant risk that she will neither be capable of dealing with the problems that expulsion of A would entail for the children nor with taking care of them . The fact that she will probably be able to obtain some help from her family is unlikely to significantly reduce the strain on the children , which ORG ... finds to be abnormally great.’", "( DATE ) The first voting judge found the weighing of interests ‘ particularly difficult’ , but concluded ‘ not without PERSON that the strain on the children was so great as to make the expulsion disproportionate .", "( CARDINAL ) As has been shown above , there are no corresponding circumstances in the present case . On the contrary , we are here faced with a normal situation . I therefore have difficulty in accepting that the strain on the children is so great as to make the expulsion a disproportionate measure .", "( CARDINAL ) The long processing time has also been raised in relation to the children . However , I can not see that this should be of significance in relation to their interests .", "( CARDINAL ) I add that , should the expulsion in the present case be regarded as disproportionate , it would be difficult to envisage when it should be possible to expel a foreign national who has a child with a person holding a residence permit . It would have the consequence that a foreign national in such a situation would normally be protected against expulsion . It would imply a change in current practice , and would moreover have clearly undesirable aspects . In the judgment reported in CARDINAL , the first voting judge expressed corresponding views . Paragraph CARDINAL of the judgment stated , inter alia :", "‘ As a general view , I note that , should it be deemed sufficient for obtaining the revocation of an expulsion order that the person concerned seeks political asylum and gives birth to a child here in GPE , the effectiveness of the expulsion order would be considerably undermined.’", "( CARDINAL ) I concur with this view . ”", "Mrs Justice PERSON gave the following reasons which in the main were endorsed by the other member of the minority :", "“ I have found that the appeal should be rejected . Like ORG , I hold the view that the decision to expel [ the applicant ] with a DATE prohibition on re - entry is disproportionate and thereby invalid .", "( CARDINAL ) I concur with the first voting judge that the proportionality assessment must consist of a balancing , on the one hand , of considerations pertaining to the seriousness of the offences of LAW committed by [ the applicant ] and , on the other hand , the interests of [ the applicant ] ’s CARDINAL children . The [ the applicant ] ’s own interests are not such as to make the decision disproportionate .", "( CARDINAL ) In judgments delivered by ORG in cases concerning expulsion on grounds of serious crime , cf . section CARDINAL ) or section CARDINAL ) of LAW , it has been held that strain owing to the splitting up of families as a result of expulsion is not in itself sufficient to make expulsion a disproportionate measure , cf . for example Rt-CARDINAL - CARDINAL , paragraph CARDINAL . It has furthermore been established that the more serious the criminal offence , the stronger the attachment must be in order to hinder expulsion , see paragraph CARDINAL of the same judgment .", "( DATE ) It is not certain how one is to judge the seriousness of [ the applicant ] ’s contraventions of LAW in relation to this case - law . I concur with the first voting judge that the prescribed penalty scale is not decisive . Regard must be had to the consideration that the purpose of LAW is to provide a basis for control of entry and exit of foreign nationals and of their presence in GPE in compliance with NORP immigration policy , cf . section CARDINAL of the Act . [ The applicant ] ’s entry DATE prior to expiry of the prohibition on re - entry and her subsequent continued presence in GPE were made possible by her use of a passport stating a different identity than that used in connection with her first entry and by her concealment of her conviction [ forelegget ] and prohibition on re - entry . This constituted serious contraventions of the legislation designed to safeguard these purposes . On the other hand , it can in my view hardly be correct to place these breaches of LAW on an equal footing with very serious crime .", "( CARDINAL ) As regards the interests of the children , a natural point of departure is LAW , which lays down that the best interests of the child shall be a primary consideration , inter alia , in cases where children are affected by the exercise of public authority . When assessing the weight to be attached to this consideration in expulsion cases , it is of interest that LAW , which will enter into force from DATE , contains a provision on proportionality , corresponding to that of section CARDINAL ) of LAW [ DATE ] , which states expressly that the best interests of the child shall be a primary consideration in cases affecting children . In Proposition No . DATE ( CARDINAL–CARDINAL ) to the PERSON , the ORG has stated at page CARDINAL that the proportionality provision is a continuation of the law as currently applicable , but that the addition concerning the best interests of the child is intended to ensure particular awareness of this factor . The majority of ORG which considered the bill , stressed the need to ensure that sufficient regard be had to the best interests of the child in cases concerning expulsion , and requested ORG to consider issuing regulations to ensure that the best interests of the child be safeguarded to an even greater extent in connection with expulsion cases , cf . ORG Recommendation No . DATE ( CARDINAL–CARDINAL ) , point CARDINAL .", "( CARDINAL ) No evidence has been presented concerning the effects on young children of separation for DATE from their primary caregiver during early childhood . However , I would mention that ORG on the Rights of the Child in paragraph CARDINAL of its General Comment No . DATE ) points out that young children , i.e. children DATE , are especially vulnerable to adverse consequences of separations from their parents . It states inter alia :", "‘ PERSON children are especially vulnerable to adverse consequences of separations because of their physical dependence on and emotional attachment to their parents / primary caregivers . They are also less able to comprehend the circumstances of any separation . Situations which are most likely to impact negatively on young children include ... situations where children experience disrupted relationships ( including enforced separations ) , ... ’", "( CARDINAL ) The present case involves CARDINAL girls who are now respectively DATE and DATE . They were born in GPE and have lived there their entire lives . [ The applicant ] was their primary carer from the children ’s birth until the father – as a result of the expulsion case DATE was granted custody DATE . Since then [ the applicant ] has had an extended right of contact with the children . It must be assumed that [ the applicant ] , besides the father , is the most important person in the children ’s lives .", "( CARDINAL ) No assessment has been adduced regarding the children ’s problems or needs . However , in my view , it must be assumed that they are vulnerable . They have grown up in a family that has lived DATE of stress owing to the threat of expulsion of their mother . The children have experienced the GPE separation and subsequently their being moved from the mother to the father , and are now at an age where separation from the mother will be difficult to understand , cf . the above quotation from General Comment No . CARDINAL . Nor have the children any other relatives or close family in GPE . There can be no doubt that expulsion of [ the applicant ] with a CARDINAL years’ prohibition on re - entry will be a particularly far - reaching measure for the children . In this connection , I would mention that ORG has assumed it to be most unlikely that [ the applicant ] will come to GPE during the period of prohibition on re - entry , and that it is very uncertain that the children will have the opportunity to visit her outside GPE . What will happen when DATE have elapsed is uncertain .", "( CARDINAL ) A survey has been submitted of ORG decisions to expel foreign nationals who have children on the ground of their having submitted incorrect information to the immigration authorities . Counsel for the ORG has referred particularly to CARDINAL decisions from DATE . In both cases , the prohibition on re - entry was reduced to DATE by ORG . The survey does not include such detailed information as to make it possible to see whether a decision in [ the applicant ] ’s favour would constitute a departure from these decisions , and I feel somewhat in doubt that these cases involved bonds of equal duration and closeness . Should there be question of a departure , this would be a result of increased emphasis being made on the needs of the children , in my view , in accordance with the indications provided in connection with adoption of the new LAW .", "( CARDINAL ) The first voting judge has stated that , if the expulsion in the present case were held to be disproportionate , it would be difficult to envisage when it should be possible to expel a foreign national who has children together with a person holding a residence permit . I do not agree with this . A concrete assessment must be made balancing the seriousness of the offence against the bonds between the foreign national concerned and the child , and having regard to the child ’s situation on the whole . A central factor in this case is the long - term bonds between the children and their mother and the strain to which they have been subjected . In such a situation , it is in my view difficult to reconcile the condition that the best interests of the child shall be a primary consideration with the view that expulsion of the children ’s mother is a proportionate measure vis - à - vis the children . ”", "Section CARDINAL(CARDINAL)(a ) of LAW DATE ( Act of DATE Nr CARDINAL , PERSON om utlendingers adgang til riket og deres opphold her – utlendingsloven - applicable at the material time and later replaced by LAW ) read :", "“ Any foreign national may be expelled", "a)when the foreign national has seriously or repeatedly contravened CARDINAL or more provisions of the present LAW or evades the execution of any decision which means that the person concerned shall leave the realm . ”", "Even when the conditions for expulsion pursuant to section CARDINAL of LAW were satisfied , expulsion could not take place if it would be a disproportionate measure against the foreign national or the closest members of his or her family . LAW of LAW DATE provided :", "“ Expulsion pursuant to the first paragraph , sub - paragraphs ( a ) , ( b ) , ( c ) , ( e ) and ( f ) of this section , shall not be ordered if , having regard to the seriousness of the offence and the foreign national ’s links to the realm , this would be a disproportionately severe measure vis - à - vis the foreign national in question or the closest members of this person ’s family . ”", "According to section ORG ) , an expulsion order may be accompanied by a prohibition on re - entry into GPE . However , the person expelled may , on application , be granted leave to enter GPE . Furthermore , according to well - established administrative practice , when considering an application for leave to enter under section PERSON ) , ORG was under an obligation to consider the proportionality of its decision on prohibition on re - entry . The provision read :", "“ Expulsion is an obstacle to subsequent leave to enter the realm . Prohibition on entry may be made permanent or of limited duration , but as a general rule not for a period of DATE . On application the person expelled may be granted leave to enter the realm , but as a rule not until DATE have elapsed since the date of exit . ”", "Section CARDINAL(CARDINAL ) provided inter alia :", "“ Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit . If the order is not complied with or it is highly probable that it will not lead to the foreign national ’s leaving the realm , the police may escort the foreign national out . [ ... ] Any decision which applies to implementation is not considered to be an individual decision , cf . section CARDINAL ( CARDINAL)(b ) , of LAW . ”" ]

[ "8" ]

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[ "The applicant , PERSON , is a NORP national , who was born in DATE and currently resides in the village of GPE , ORG region . ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a former member and employee of “ GPE ” , an agricultural production co - operative ( hereinafter “ the ORG ” ) .", "In DATE , upon the Decree of the President of GPE “ On immediate measures for acceleration of reform in agriculture ” of DATE , the members of the ORG decided to divide it into property and land shares ( земельні і майнові паї ) , following which in DATE the applicant received a land ownership certificate ( land certificate , transformed on DATE into the ORG act on land ownership ) .", "On DATE the applicant instituted proceedings in the ORG of Cherkassy Region ( “ the ORG ” ) against the ORG seeking to receive compensation for unpaid salary and to be paid the value of her property share .", "On DATE ORG allowed her claims and ordered the ORG to pay her ORG CARDINAL in compensation for salary arrears and for her property share .", "The execution proceedings were initiated on DATE .", "On DATE the ORG was re - organised in a joint stock company “ GPE ” .", "In DATE the applicant instituted proceedings in ORG against ORG , seeking compensation for damage caused by its failure to execute the judgment of CARDINAL DATE , and requesting the court to oblige the ORG to execute that judgment .", "On DATE ORG rejected her claims as being unsubstantiated . The applicant did not appeal against this decision .", "On DATE the ORG of Justice informed the applicant that the judgment of CARDINAL DATE could not be executed due to the debtor ’s lack of funds .", "On DATE ORG seized from the debtor UAH CARDINAL , and on DATE the applicant was paid ORG .", "On DATE ORG discontinued the enforcement proceedings due to the debtor ’s lack of funds . The applicant did not challenge that decision before the domestic courts .", "The Law of GPE of DATE “ On privatisation of property in agriculture ” provided for privatisation of the ORG - owned collective farms and enterprises through their transformation into collective agricultural companies or joint stock companies .", "The Decree of the President of GPE DATE “ On immediate measures for acceleration of reform in agriculture ” provided for a possibility for members of collective agricultural companies to receive in kind their land and property shares and to establish private farms or other privately owned agricultural enterprises ." ]

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[ "Mr PERSON , a NORP national , was born in DATE and died on CARDINAL DATE . He worked as a sales representative and lived in GPE , at ORG ) . His widow , PERSON , née PERSON , is NORP and lives in GPE .", "On DATE CARDINAL GPE customs officers , accompanied by a senior police officer ( officier de police judiciaire ) , went to the house of the applicant and his wife to obtain \" particulars of their assets abroad \" ; they were acting on information received from the tax authorities in GPE .", "Mr PERSON admitted having , or having had , several bank accounts abroad for professional and family reasons and said that he did not have any bank statements at his home .", "The customs officers searched the LOC from TIME to CARDINAL.CARDINAL TIME , and discovered statements and cheque - books from foreign banks , together with a NORP car - repair bill and CARDINAL cameras . They seized all these items and on DATE drew up a report .", "The customs ORG search and the seizures did not lead to any criminal proceedings for offences against the regulations governing financial dealings with foreign countries . They did , however , give rise to parallel proceedings for disclosure of documents and for interim orders .", "During their search on DATE the customs officers asked the applicant to produce the statements for DATE is to say DATE , DATE and DATE - of his accounts at the ORG in GPE , the ORG in GPE , ORG suisse in GPE and ORG in GPE and of his house - purchase savings plan at FAC in GPE and , lastly , his share portfolio at ORG in GPE .", "Mr PERSON undertook to do so but later changed his mind .", "On CARDINAL DATE the customs authorities summoned him before the GPE police court seeking to have him sentenced to a fine ( amende ) and a further penalty ( astreinte ) of MONEY ( ORG ) a day until such time as he produced the bank statements ; they also made an application to have him committed to prison .", "On DATE the court imposed a fine of ORG CARDINAL on the applicant and ordered him to produce to the customs authorities the bank statements of his accounts at ORG suisse in GPE , the ORG in GPE and ORG in GPE and of his savings account at ORG in GPE and all documents concerning the financing of the flat he had bought at GPE ( GPE ) , on penalty of ORG CARDINAL per day ’s delay .", "The reasons given for its judgment were the following :", "\" ...", "On CARDINAL Mr Funke told ORG that he was unable to make available the documents that he had undertaken to produce .", "He has provided no reason for this and has submitted no correspondence that would show he took the necessary steps to obtain the required documents or would prove that the foreign banks refused to supply him with any such document .", "Mr PERSON acknowledged that , together with his brother , he bought a bedsitter at GPE ( GPE ) and produced photocopies of the contract of sale and of the entry in the land register ; but he refused to produce documents concerning the financing of the purchase .", "LAW provides : ‘ ORG officers with the rank of at least inspector ... may require production of papers and documents of any kind relating to operations of interest to their ORG .", "It appears from the present proceedings taken by the customs authorities that the prosecuting officer has the rank of inspector .", "The documents sought , namely the bank statements and the documents relating to the financing of the purchase of the flat , can be brought within the category of documents covered by LAW .", "The same LAW provides in paragraph CARDINAL(i ) that such requests for production may be made ‘ on the premises of ( chez ) any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of the ORG Service’ .", "In this context the term ‘ chez’ must not be restricted to ‘ at the home of’ ( au domicile de ) but must be construed as meaning ‘ wherever ... may be’ ( auprès de ) .", "Any other construction would enable the person concerned to evade ORG investigations by keeping any compromising papers elsewhere than at his home .", "The house search and Mr PERSON ’s own statements provided sufficient evidence that there were bank accounts and financing operations concerning the defendant to enable ORG to exercise their right of inspection in relation to the relevant documents notwithstanding that these were not at Mr PERSON ’s home .", "As the holder of an account used abroad , PERSON , like any account - holder , must receive statements following any transaction on the account . A statement is an extension , a reflection of the situation , of an account at a given time . The holder of the account is the owner of his statements and may at any time ask for them from his bank , which can not refuse them . \"", "Appeals were brought by PERSON , the public prosecutor and the customs authorities . On DATE ORG upheld the judgment of the court below other than as regards the inspection of documents relating to the flat at Schonach , and increased the pecuniary penalty to ORG CARDINAL per DATE ’s delay .", "It dealt with Mr PERSON ’s argument based on the ORG as follows :", "\" Article CARDINAL bis of LAW , which applies to financial dealings with foreign countries by virtue of LAW , makes any refusal to produce documents and any concealment of documents in the cases provided for , inter alia , in LAW aforementioned code punishable by imprisonment for a period ranging from DATE to DATE and a fine of ORG CARDINAL to CARDINAL .", "Under DATE , customs officers may require production of documents of any kind relating to operations of interest to their department , in general , on the premises of any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of ORG .", "In the instant case PERSON is liable only to a fiscal penalty : to a fine , therefore .", "It does not appear that the power conferred by the aforementioned provisions on a revenue authority conflicts with the protection of human rights and fundamental freedoms which it is the purpose of the instrument of international law relied on to guarantee .", "The defendant had a fair hearing .", "Obviously , no offences which performance of the duty to produce documents may disclose are yet before the courts ; that being so , ORG objections of principle are premature .", "Moreover , while everyone charged with a criminal offence is to be presumed innocent until proved guilty according to law , Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW does not otherwise restrict the type of evidence which the lex fori places at the disposal of the prosecuting party in order to satisfy the court .", "Lastly , the obligation on a defendant to produce in proceedings evidence likely to be used against him by the opposing side is not a special feature of customs or tax proceedings since it is enacted in LAW likewise .", "On the other hand , while LAW article CARDINAL) of the LAW provides that everyone has the right to respect for his private life and his correspondence , there may be interference by a public authority with the exercise of this right so long as it is in accordance with the law and amounts to a measure which is necessary in a NORP society , inter alia in the interests of the economic well - being of the country or for the prevention of disorder or crime .", "In most of the countries signatories to the LAW , moreover , the customs and revenue authorities have a right of direct investigation in banks . \"", "On DATE ORG ) dismissed an appeal on points of law by PERSON . The third and final ground , in which Articles DATE and CARDINAL ( article CARDINAL , article CARDINAL) of the Convention were prayed in aid , was rejected in the following terms :", "\" ORG held that , while everyone charged with a criminal offence was to be presumed innocent until proved guilty according to law , Article CARDINAL ( article CARDINAL ) of the Convention ... did not otherwise restrict the types of evidence that the lex fori placed at the disposal of the prosecuting party in order to satisfy the court ; and that while it was true that LAW article CARDINAL) of the LAW provided that everyone has the right to respect for his private life and his correspondence , there might ... be interference by a public authority with the exercise of this right so long as the interference was in accordance with the law and amounted to a measure which was necessary in a NORP society , inter alia in the interests of the economic well - being of the country or for the prevention of disorder or crime .", "In so stating , and irrespective of any superfluous reasoning , ORG justified its decision and the ground therefore can not be upheld . \"", "In a report on CARDINAL DATE the customs authorities noted Mr PERSON ’s refusal to comply with ORG judgment of DATE ( see paragraph CARDINAL above ) .", "On DATE they served a garnishee notice on the applicant ’s bank requiring it to pay a sum of ORG CARDINAL , representing the amount of the penalties owed by its customer for the period from DATE to DATE .", "On an application by PERSON , ORG upheld the notice in question on DATE , holding that the customs authorities were entitled to recover the sum owed in respect of a pecuniary penalty resulting from an enforceable court decision in the same way as a customs fine and notwithstanding that an application ( which did not have any suspensive effect ) had been made to ORG .", "On an appeal by PERSON , ORG delivered a judgment on DATE reversing the lower court ’s judgment of CARDINAL DATE and quashing the garnishee notice .", "An appeal on points of law by the customs authorities was dismissed by ORG on DATE . Like ORG , ORG held that the amount of the customs penalty could not be recovered by means of a garnishee notice .", "Following this judgment , the customs authorities made no further attempt to collect payment of the penalty in question .", "On DATE the customs authorities applied for an order from the presiding judge of ORG for attachment of Mr PERSON ’s movable and immovable property to the value of ORG . CARDINAL of this sum was to be in lieu of confiscation of the undeclared funds , while the other CARDINAL corresponded to the fine payable . Relying on LAW ( see paragraph CARDINAL below ) and LAW , the customs authorities stated that they already had a definite right to payment from the applicant . The documents seized at ORG showed that he had contravened LAW of CARDINAL DATE , which provided that any payment made abroad by persons resident in GPE had to be effected through an approved intermediary ( bank or post office ) established in GPE .", "ORG made an order granting the application on DATE .", "On DATE it delivered a judgment dismissing an objection lodged by Mr Funke ( Article CARDINAL of the local ORG ) .", "On DATE ORG dismissed PERSON appeal against that judgment , holding that unless attachment orders were granted , it was to be feared that enforcement of the decision to be expected in the criminal trial would become impossible or much more difficult ; furthermore , the creditor had made his claim credible by producing reports ( ORG and CARDINAL of the local ORG ) .", "The applicant did not appeal on points of law .", "On CARDINAL DATE PERSON made an application for discharge of the attachment order ( LAW ) ; by this means she wanted to compel the customs authorities to bring to trial the issue of the existence of the right to payment which had provided the justification for the attachment order . She also sought leave to sell a property .", "In an order made on DATE the ORG gave ORG DATE in which to bring proceedings on the merits .", "The customs authorities decided not to do so and in DATE agreed to the discharge of the attachment orders and of the associated mortgage .", "The criminal provisions of customs law in GPE are treated as a special body of criminal law .", "CARDINAL provisions of LAW are relevant as regards these officials :", "\" The officials designated below shall be empowered to establish offences against the legislation and regulations governing financial dealings with foreign countries :", "customs officers ;", "other officials of ORG with the rank of at least inspector ;", "senior police officers ( officiers de police judiciaire ) .", "The reports made by senior police officers shall be forwarded to the Minister for ORG and Finance , who shall refer cases to the prosecuting authorities if he thinks fit . \"", "\" The officials referred to in the preceding Article shall be empowered to carry out house searches in any place as provided in LAW code . \"", "When the house search was made ( DATE ) , LAW was worded as follows :", "\" CARDINAL . When searching for goods held unlawfully within the customs territory , except for built - up areas with a population of CARDINAL , and when searching in any place for goods subject to the provisions of LAW hereinafter , customs officers may make house searches if accompanied by a local municipal officer or a senior police officer ( officier de police judiciaire ) .", "In no case may such searches be made during TIME .", "ORG officers may act without the assistance of a local municipal officer or a senior police officer", "( a ) in order to make searches , livestock counts , and inspections at the homes of holders of livestock accounts or owners of rights of pasture ; and", "( b ) in order to look for goods which , having been followed and kept under uninterrupted surveillance as provided in LAW hereinafter , have been taken into a house or other building , even if situated outside the customs zone .", "If entry is refused , customs officials may force an entry in the presence of a local municipal officer or a senior police officer . \"", "ORG DATE ( section CARDINAL and II ) and DATE ( section CARDINAL-III , CARDINAL ) amended LAW , which now provides :", "\" CARDINAL . In order to investigate and establish the customs offences referred to in ORG CARDINAL - CARDINAL and CARDINAL of this code , customs officers authorised for the purpose by the Director- General of ORG and Excise may make searches of all LOC , even private ones , where goods and documents relating to such offences are likely to be held and may seize them . They shall be accompanied by a senior police officer ( officier de police judiciaire ) .", "( a ) Other than in the case of a flagrant offence ( flagrant délit ) , every search must be authorised by an order of the President of the tribunal de grande instance of the locality in which the customs headquarters responsible for the department in charge of the proceedings is situated , or a judge delegated by him .", "Against such an order there shall lie only an appeal on points of law as provided in LAW ; such an appeal shall not have a suspensive effect . The time within which an appeal on points of law must be brought shall run from the date of notification or service of the order .", "The order shall contain :", "( i ) where applicable , a mention of the delegation by the President of the tribunal de grande instance ;", "( ii ) the address of the premises to be searched ;", "( iii ) the name and position of the authorised official who has sought and obtained leave to make the searches .", "The judge shall give reasons for his decision by setting out the matters of fact and law that he has accepted and which create a presumption in the case that there have been unlawful activities of which proof is sought .", "If , during the search , the authorised officials discover the existence of a bank strongbox which belongs to the person occupying the LOC searched and in which documents , goods or other items relating to the activities referred to in paragraph CARDINAL above are likely to be found , they may , with leave given by any means by the judge who made the original order , immediately search the strongbox . Such leave shall be mentioned in the report provided for in paragraph CARDINAL(b ) below .", "The judge shall take practical steps to check that each application for leave made to him is well - founded ; each application shall contain all information in the possession of the customs authorities that may justify the search .", "He shall designate the senior police officer responsible for being present at the operations and keeping him informed of their progress .", "The search shall be carried out under the supervision of the judge who has authorised it . Where it takes place outside the territorial jurisdiction of his tribunal de grande instance , he shall issue a rogatory letter , for the purposes of such supervision , to the President of the tribunal de grande instance in the jurisdiction of which the search is being made .", "The judge may go to the scene during the operation .", "He may decide at any time to suspend or halt the search .", "The judicial order shall be notified orally to the occupier of the LOC or his representative on the spot at the time of the search , who shall receive a complete copy against acknowledgement of receipt or signature in the report provided for in paragraph CARDINAL(b ) below . If the occupier of the LOC or his representative is absent , the judicial order shall be notified after the search by means of a registered letter with recorded delivery . Notification shall be deemed to have been made on the date of receipt entered in the record of delivery .", "Failing receipt , the order shall be served as provided in Articles CARDINAL et seq . of LAW .", "The time - limits and procedures for appeal shall be indicated on notification and service documents .", "( b ) Searches may not be commenced before TIME or after TIME They shall be made in the presence of the occupier of the LOC or his representative ; if this is impossible , the senior police officer shall requisition CARDINAL witnesses chosen from persons not under his authority or that of the customs .", "Only the customs officers mentioned in paragraph CARDINAL above , the occupier of the LOC or his representative and the senior police officer may inspect documents before they are seized .", "The senior police officer shall ensure that professional confidentiality and the rights of the defence are respected in accordance with the provisions of the third paragraph of LAW ; LAW of that code shall apply .", "The report , to which shall be appended an inventory of the goods and documents seized , shall be signed by the customs officers , the senior police officer and the persons mentioned in the first sub - paragraph of this section ( b ) ; in the event of a refusal to sign , mention of that fact shall be made in the report .", "Where an on - the - spot inventory presents difficulties , the documents seized shall be placed under seal . The occupier of the LOC or his representative shall be informed that he may be present at the removal of the seals , which shall take place in the presence of the senior police officer ; the inventory shall then be made .", "A copy of the report and of the inventory shall be given to the occupier of the LOC or his representative .", "A copy of the report and the inventory shall be sent to the judge who made the order within DATE of its being drawn up .", "ORG officers may act without the assistance of a senior police officer", "( a ) in order to make searches , livestock counts and inspections at the homes of holders of livestock accounts or owners of rights of pasture ; and", "( b ) in order to look for goods which , having been followed and kept under uninterrupted surveillance as provided in LAW hereinafter , have been taken into a house or other building , even if situated outside the customs zone .", "If entry is refused , customs officers may force an entry in the presence of a senior police officer . \"", "Article CARDINAL of the ORG Code gives the customs authorities a special right of inspection :", "\" ORG officers with the rank of at least inspector ( inspecteur or officier ) and those performing the duties of collector may require production of papers and documents of any kind relating to operations of interest to their department ;", "...", "( i ) ... in general , on the premises of any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of ORG . \"", "Anyone refusing to produce documents is liable to imprisonment for a period ranging from DATE to DATE and to a fine of ORG CARDINAL ( Article CARDINAL bis-CARDINAL of ORG ) .", "Furthermore , a pecuniary penalty of not less than FRF DATE delay may be imposed on him ( Article CARDINAL ) and he may be committed to prison for non - payment ( Article CARDINAL ) .", "Article CARDINAL bis-CARDINAL of the ORG Code provides :", "\" ORG reports , where they are conclusive unless challenged as forgeries , shall be a warrant for obtaining , in accordance with the ordinary law , leave to take any necessary interim measures against persons liable in criminal or in civil law , for the purpose of securing customs debts of any kind appearing from the said reports . \"", "Article CARDINAL of the ORG Code provides :", "\" Offences against the legislation and regulations governing financial dealings with foreign countries may be prosecuted only on a complaint by the Minister for ORG and ORG or CARDINAL of his representatives authorised for the purpose . \"" ]

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[ "The first applicant , First Sofia Commodities EOOD , is a singlemember limited liability company whose registered office is in GPE , GPE . The second applicant , Mr PERSON Koes ORG , is a NORP national born in DATE , who is the applicant company ’s sole member and manager . The applicants were represented before the ORG by Ms S. Ganeva and PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON , of ORG .", "On DATE the President of ORG decided that notice of some of the complaints raised by the applicant company should be given to the Government . The Government were not given notice of any complaints raised by the second applicant .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "PERSON set up the applicant company in DATE in GPE , with the intention of providing brokerage services for futures at foreign commodity exchanges . In DATE the company actively sought new clients and managed to open CARDINAL client accounts .", "On DATE the company ’s lawyers wrote to ORG ( “ the Commission ” ) , enquiring whether the company ’s activity was subject to regulation by it . On DATE the Commission replied that the company ’s activity fell outside its mandate , because commodity futures were not investment securities within the meaning of the applicable law . It referred the applicant company ’s query to ORG , which also informed the company that brokers at foreign commodity exchanges fell outside its purview .", "On DATE the chairman of the ORG ordered an inquiry into the applicant company ’s activities .", "While the inquiry was underway , several newspapers ran negative articles about the company .", "On DATE the inquiry concluded that the company was publicly offering investment securities without making full disclosure , drawing up a prospectus and submitting it for approval to the Commission , as required under the applicable law . The same day the Commission recommended that the company cease its activities .", "NORP However , as the company did not comply and continued contacting prospective clients , on DATE the Commission opened a procedure for imposing restrictions on its activity . In the course of the proceedings the company filed an objection , saying that its activity was not subject to regulation by the Commission . In a decision of DATE the ORG rejected the objection , reasoning that the contracts offered by the company were investment securities . It went on to say that those securities were being offered to the public in breach of the requirements of the law , and ordered the company to desist from making further offers immediately and to unwind its existing contracts within DATE . The decision said that it was immediately enforceable and that any application for its judicial review would not have suspensive effect .", "On DATE the company sought judicial review of the decision . On DATE ( реш. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № ORG г. , PERSON , GPE о. ) a threemember panel of ORG quashed it . The court found that the contracts between the company and its clients were not investment securities within the meaning of the applicable law . It had therefore not acted unlawfully by offering those contracts without the prospectus required for investment securities . Since it had not breached the law , there were no grounds to order it to cease its activity .", "On an appeal by ORG , in a final judgment of DATE ( реш. № CARDINAL от DATE г. по адм. д. № DATE г. , PERSON , петчленен състав ) a fivemember panel of ORG upheld that judgment , fully agreeing with its reasoning .", "Following the successful outcome of the proceedings , the company wished to claim compensation for the damage sustained as a result of the provisional enforcement of the ORG ’s decision . However , having received legal advice that such a claim would not stand any prospect of success , it decided not to bring CARDINAL .", "DATE LAW provides that the ORG is liable for damage caused by the unlawful decisions or actions of its organs and servants . In a binding interpretative decision of DATE ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по т. гр. д. № CARDINAL г. , ORG на ВКС ) ORG , confirming the ORG earlier caselaw , said that that Article did not provide a direct avenue of redress , but merely laid down a general principle whose implementation was to be effected through a statute . As no such statute had been enacted after the LAW came into force in DATE , that function was being served by ORG ( DATE ) ( ORG за отговорността на държавата за вреди , причинени на граждани ) , in force since DATE . ( On DATE it was renamed the ORG and ORG ( ORG за отговорността на държавата и общините за вреди ) – “ the DATE LAW ) . The former ORG and ORG have held that the LAW created a substantive right to claim damages , and has no retroactive effect ( реш. № PERCENT от CARDINAL декември DATE г. по гр. д. № CARDINAL г. , ORG , PERSON г. о. ; реш. № DATE от CARDINAL февруари DATE г. по гр. д. № DATE г. , ORG ; реш. № CARDINAL от DATE г. по гр. д. № CARDINAL/CARDINAL г. , ORG ) .", "Section CARDINAL(CARDINAL ) of the LAW , as originally enacted and in force until DATE , provided that the ORG was liable for damage suffered by individuals ( граждани ) as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties . LAW ) provides that compensation for damage flowing from unlawful decisions may be claimed after those decisions have been quashed in prior proceedings . ORG caselaw ( реш. № DATE от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG ; реш. № DATE от DATE г. по гр. д. № MONEY г. , ORG ; реш. № DATE от CARDINAL октомври DATE г. по гр. д. № DATE г. , ORG , V г. о. ) , confirmed in point CARDINAL of the interpretative decision mentioned in paragraph CARDINAL above , was that solely individuals , not legal persons , could claim compensation under that provision . The interpretative decision explained that the wording of section CARDINAL(CARDINAL ) was a result of the fact that during the communist regime , when the LAW had come into force , all legal persons had been outfits set up by the ORG . It had therefore been evident that only individuals would need to be compensated for unlawful administrative action .", "Section CARDINAL(CARDINAL ) provides that those seeking redress for damage occasioned in circumstances falling within the scope of the LAW have no claim under the general law of tort . The courts have said that the LAW is a lex specialis and excludes the application of the general regime ( реш. № PERCENT от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG , GPE г.о. ; реш. от CARDINAL юли DATE г. по гр. д. № CARDINAL г. , ORG , ORG , ІVб отд. ) . ORG has said that liability under section CARDINAL(CARDINAL ) of the LAW is a special case of vicarious liability under section CARDINAL of the DATE LAW ( see paragraph CARDINAL below ) ( реш. № CARDINAL от CARDINAL ноември DATE г. по т. д. № CARDINAL/CARDINAL г. , ORG , I т. о. ) .", "On DATE CARDINAL members of parliament introduced a bill for the amendment of the LAW , proposing to add legal persons to those entitled to claim damages under its section CARDINAL(CARDINAL ) . In the explanatory note to the bill they said that the express wording of that provision deprived legal persons of the possibility of suing the ORG . They also pointed out that the ORG caselaw was categorical on the point that legal persons who had suffered damage could sue the authorities only under section CARDINAL et seq . of the DATE LAW ( see paragraph CARDINAL below ) . However , a claim under those provisions would be difficult to prosecute in practice . The bill was not adopted . Another group of members of parliament introduced a similar bill in DATE .", "On DATE , when adopting the new ORG ( Данъчноосигурителен процесуален кодекс ) , parliament decided to amend LAW by adding “ legal persons ” to the category of those entitled to bring a claim ( paragraph CARDINAL of the Code ’s transitional and concluding provisions ) . The amendment was published in ORG on DATE and came into force on DATE . In their ensuing caselaw ORG and ORG have held that it conferred on legal persons a substantive right to claim damages , and has no retroactive effect ( опр. № DATE от CARDINAL октомври DATE г. по адм. д. № DATE г. , PERSON , ORG ; опр. № CARDINAL от DATE г. по гр. д. № CARDINAL г. , ORG , ORG г. о. ; опр. № CARDINAL от DATE г. по гр. д. № DATE г. , ВКС , III г. о. ; реш. № CARDINAL от CARDINAL май DATE г. по гр. д. № DATE г. , ВКС , III г. о. ; реш. № CARDINAL от CARDINAL юни DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ) .", "The general rules of the law of tort are set out in sections CARDINAL to CARDINAL of the DATE LAW ( ORG за задълженията и договорите ) . Section CARDINAL(CARDINAL ) provides that everyone is obliged to make good the damage which they have , through their fault , caused to another . Section DATE provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job . Legal persons can not incur liability under section GPE ) , as they can not act with mens rea . They may , however , be vicariously liable under section DATE for the tortuous conduct of individuals employed by them ( пост. № CARDINAL от CARDINAL декември DATE г. , GPE на ВС ) . In the interpretative decision mentioned in CARDINAL above , ORG said that legal persons who had sustained damage from unlawful administrative action could vindicate their right to damages under those provisions . On DATE the ORG allowed a claim under section DATE brought by a company against ORG in relation to events which had taken place in DATE . Its ruling was upheld by ORG on DATE , and by ORG on DATE ( реш. № CARDINAL от CARDINAL февруари DATE г. по гр. д. № CARDINAL г. , ORG , ORG г. о. ) . In a judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL май DATE г. по гр. д. № DATE г. , ВКС , III г. о. ) ORG examined a claim which the lower courts had characterised under section CARDINAL(CARDINAL ) of the DATE Act and rejected because it had been brought by a legal person and concerned events preceding the entry of the DATE amendment into force . The court recharacterised the claim as CARDINAL under LAW of the DATE LAW , and allowed it .", "Section CARDINAL of the CARDINAL Act , which is also applicable to proceedings under LAW ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по т. гр. д. № CARDINAL/CARDINAL г. , ORG на ВКС ; реш. № CARDINAL от DATE г. по адм. д. № DATE г. , PERSON , ORG ) , provides that the limitation period for all claims is DATE . In the interpretative decision mentioned in CARDINAL above ORG said that , in so far as voidable administrative decisions are concerned , time starts running when the judgments quashing them become final ." ]

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[ "The applicant was born in DATE and lives in PERSON .", "On DATE the applicant 's husband filed a complaint with the police alleging that the applicant had beaten and wounded him on DATE .", "On DATE the police department in ORG issued a decision by which it dropped the case on the ground that the applicant 's husband did not agree to criminal proceedings being brought against her . The decision stated that although the police “ investigation ” had established that the applicant had committed a criminal offence , criminal prosecution was barred as the victim , the applicant 's husband , had not given his consent as required under LAW . The applicant was not notified of this decision , nor is there any evidence in the case file that she was questioned or otherwise made aware of her husband 's complaint .", "On DATE a health insurance company wrote to the applicant asking her to reimburse the costs of her husband 's medical treatment . According to the letter , the applicant 's husband had been treated in a hospital on DATE as a result of injuries which the applicant had inflicted on him . Reference was made , inter alia , to the decision issued by the police department in ORG on DATE .", "In a letter dated DATE the insurance company explained the position to the applicant in reply to her request . A copy of the police decision of DATE was enclosed with the letter which was delivered to the applicant 's lawyer on DATE . The relevant part of the decision of DATE read as follows :", "“ The investigation showed that [ the applicant 's ] action met the constituent elements of the offence of causing injury to health pursuant to LAW in that she had deliberately inflicted an injury on another person . ”", "On DATE the applicant informed the competent police department in ORG that the text of its decision violated her right to be presumed innocent . She requested an apology and that the police inform the health insurance company of this breach . On DATE the director of the police department replied to the applicant , stating that the above decision had been given in accordance with the relevant law .", "In a letter of DATE the applicant requested that PERSON ORG quash the police decision of DATE . On DATE the applicant was informed that the decision was not contrary to constitutional principles . The letter stated , in particular , that the task of the police had been to determine whether a justified reason existed to consider that a particular person had committed the offence in issue . The relevant text of the contested decision had been drafted and was to be read in that context .", "On DATE the applicant filed a complaint with ORG . She alleged , inter alia , that by issuing its decision of DATE , the police department in ORG had violated her constitutional rights to be presumed innocent and to respect for her honour and reputation .", "On DATE ORG rejected the complaint as having been filed outside the statutory DATE time - limit . The decision referred to section CARDINAL ( CARDINAL ) of LAW of DATE , which provided that the time - limit was to be counted from DATE on which the plaintiff learned or could have learned about the contested measure . In rejecting the applicant 's complaint as out of time , ORG took DATE , the date on which the police decision was issued , as the key date .", "Article CARDINAL CARDINAL of LAW provides that “ Every defendant against whom criminal proceedings are pending shall be considered innocent until the court establishes his / her guilt by a final judgment . ”", "LAW , as in force at the relevant time , provided as follows at LAW :", "“ A defendant against whom criminal proceedings have been instituted must not be considered guilty until the court establishes his / her guilt by a final judgment . ”", "Article CARDINAL ( a ) ( CARDINAL ) required the victim 's consent for a criminal prosecution to be pursued for a listed number of offences , including the offence of causing bodily injury , in cases in which the perpetrator was a relative of the victim .", "LAW ( h ) provided that a criminal prosecution could not be initiated , and if already initiated , could not be continued and had to be discontinued , in the event that consent as required LAW CARDINAL ( a ) ( CARDINAL ) was not given or subsequently withdrawn .", "The Civil Code in its relevant provisions reads as follows :", "“ Every natural person shall have the right to protection of his or her personal integrity , in particular his or her life and health , civil and human dignity , privacy , reputation and expressions of a personal nature . ”", "“ CARDINAL . Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity , an order cancelling out the effects of such interference and an award of appropriate compensation .", "NORP If the satisfaction afforded under paragraph CARDINAL of this Article is insufficient , in particular because the injured party 's dignity or social standing has been considerably diminished , the injured party shall also be entitled to financial compensation for nonpecuniary damage .", "When determining the amount of compensation payable under paragraph CARDINAL of this Article , the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred . ”", "“ A person who caused damage by infringement of the right to protection of personal integrity , shall be liable for such damage under provisions of this law on liability for damage . ”", "Article CARDINAL of LAW provides the following :", "“ Letters issued by the courts of GPE or by other state authorities within the limits of their powers , as well as letters which were declared public upon special regulation , confirm that it is an order or declaration of an authority which issued the letter , and unless the contrary is proved , also the verity of what is to be approved or confirmed therein . ”", "Section CARDINAL ( CARDINAL ) of LAW of DATE provides that a complaint to ORG can be filed within DATE from the final effect of a decision or from the date of a contested measure or notification of another interference with a person 's rights . In the case of measures or other interferences , the time - limit is to be counted from the date on which the plaintiff learned or could have learned about the contested measure or other interference complained of . Section CARDINAL ( CARDINAL ) provides that a copy of the legal decision , measure or any evidence proving another kind of interference shall accompany a complaint ." ]

[ "8" ]

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[ "The applicants , Mr PERSON and ORG , are NORP nationals who were born in DATE and DATE respectively and live in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .", "Following the unlawful criminal prosecution of the applicants , they instituted civil proceedings against the ORG and claimed non - pecuniary compensation .", "By a final judgment of DATE ORG ordered ORG to pay each of them CARDINAL Moldovan lei . On DATE the applicants formally requested the enforcement of that judgment and the money was paid to them on DATE .", "The applicants did not inform the ORG about the enforcement of the judgment in their favour , even in their post - communication correspondence . It was only through the Government ’s observations that the ORG learned about the enforcement of the judgment in DATE ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant ’s wife stopped living with the applicant . She moved to her GPE house together with her and the applicant ’s son who was born on DATE .", "On DATE the applicant sought the determination of his right to meet his son . His wife counter - claimed that the applicant should be prohibited from meeting the boy .", "On DATE the applicant requested PERSON ORG to issue an injunction granting him the right to meet his son DATE . On DATE ORG dismissed that request . On DATE the court of appeal upheld that decision . It noted that the request was premature as no decision had yet been given as regards the custody of the child .", "On DATE the Bratislava III ORG granted a divorce to the applicant and his wife . The latter was given custody of their son and the applicant was obliged to contribute to his maintenance .", "On DATE the applicant , with reference to the above judgment , informed ORG that he wished to withdraw his action . His former wife withdrew her counter - claim . GPE ORG therefore discontinued the proceedings on CARDINAL DATE .", "In an action filed on DATE before GPE ORG the applicant claimed the right to meet his son .", "A hearing was held on DATE . On CARDINAL DATE the child ’s mother counter - claimed that the applicant should be prohibited from meeting their son on the ground that the applicant drank and had behaved in an aggressive manner . At a hearing held on DATE ORG decided to examine jointly the claims of both parents .", "On DATE neither the child ’s mother nor her lawyer appeared before ORG . The mother did not appear on DATE either , and ORG imposed a procedural fine on her . On DATE the police informed the court that they had been unable to serve a document on the applicant ’s former wife in person .", "A hearing was held on DATE .", "On DATE the Bratislava III ORG appointed an expert and instructed her to submit an opinion .", "On DATE the court requested the applicant to pay an advance on the expert ’s fee . The applicant paid the sum on DATE .", "On DATE the expert asked to be excused from the case as she was ill .", "On DATE ORG excused the expert . At the same time it appointed a different expert and instructed her to submit an opinion within DATE .", "On DATE the new expert asked to be excused as she could not assess the case in an impartial manner .", "On DATE another person was instructed to submit an expert opinion . On DATE that person informed the court that he no longer worked as a court expert . According to a note of DATE drafted by the judge dealing with the case , the person in question was still registered as an expert .", "On DATE , in reply to the applicant ’s complaint , the president of ORG admitted that there had been undue delay in the proceedings DATE and DATE . Otherwise , the judge had dealt with the case in an orderly manner , holding hearings at regular intervals .", "On DATE a fourth expert was appointed . On DATE the court urged the expert to submit an opinion . It was submitted on DATE .", "On DATE the applicant appealed against the decision of CARDINAL DATE concerning the expert ’s fees . The appeal was submitted to ORG on DATE . ORG dismissed the appeal on DATE .", "At the hearing held on DATE ORG heard the expert . The applicant requested that the expert be excluded from the case on grounds of bias . On DATE ORG requested the expert to comment on the applicant ’s request . The expert replied on DATE . On DATE ORG found that the expert was not biased . The applicant appealed on DATE .", "In the meantime , on DATE the applicant appealed against ORG decision of DATE on the expert ’s fees .", "On DATE and on DATE the applicant made further written submissions to ORG .", "In DATE the case was submitted to ORG for a decision on the applicant ’s appeals against the above - mentioned procedural decisions .", "On DATE the child ’s mother sought an interim measure ordering the applicant to abstain from any contact with their son . She submitted that the applicant had attacked her and the boy on their way to school .", "On DATE ORG asked ORG to return the file to it so that it could decide on the request for an injunction .", "On DATE ORG returned the file to ORG after it had upheld the first - instance decisions challenged by the applicant .", "On DATE ORG asked the expert to answer additional questions . The court dismissed the mother ’s request for an injunction . The decision stated that extensive expert evidence was being taken with a view to establishing in a reliable manner whether or not the applicant ’s contacts with the child could threaten the latter ’s physical and mental health . At that time , it had not yet been established that the injunction which the mother sought to obtain was required to protect the interests of the child .", "The child ’s mother appealed on DATE .", "On DATE ORG in GPE upheld the first - instance decision . It underlined that the mother ’s fear of the applicant ’s negative impact on the child did not , as such , justify the injunction requested . The court also noted that , because of the mother ’s behaviour , the applicant had been unable to participate in the education of his son .", "On DATE ORG appointed a guardian to represent the child in the injunction proceedings . On DATE the file was sent to ORG which dealt with the applicant ’s complaint about the length of the proceedings . The file was returned to ORG on DATE .", "On DATE an administrative authority submitted observations to ORG .", "As indicated above , on DATE the court of appeal upheld the decision of CARDINAL DATE on the mother ’s request for an injunction . The file was returned to ORG on DATE .", "On DATE ORG asked the applicant to explain one of his earlier submissions . The applicant replied on DATE . Between DATE and DATE the case was submitted to the court of appeal . The latter found that no request for the exclusion of the judge of the first - instance court had been filed .", "On DATE ORG found that the expert was not to be excluded .", "On DATE ORG ordered the assessment of the applicant ’s mental health . The expert ’s opinion was submitted on DATE . On DATE the opinion was sent to the parties . On DATE the expert who had submitted an opinion on DATE was requested to supplement it . On DATE that expert informed the court that the child ’s mother had refused to co - operate with him . Subsequently , the mother and the child appeared before the expert and he submitted his opinion on CARDINAL DATE . The opinion was sent to the parties on CARDINAL DATE .", "ORG scheduled a hearing in the case for DATE .", "The ORG has received no information about any further development in the case .", "On DATE the applicant complained to ORG about undue delays in GPE ORG proceedings . He requested that ORG find as follows :", "“ GPE ORG violated the applicant ’s right under Article CARDINAL ) of the LAW to a hearing without unjustified delay in proceedings CARDINAL P CARDINAL .", "[ ORG ] awards the applicant CARDINAL NORP korunas by way of just satisfaction as well as CARDINAL NORP korunas for costs and expenses . ”", "In the reasons for his complaint the applicant also mentioned LAW submitting that he had been prevented from meeting his son for DATE . However , as the applicant did not include this particular complaint in the text of the finding which he requested ORG to make , the relevant domestic law prevented ORG from expressing its view on that issue ( see paragraphs CARDINAL below ) .", "On DATE ORG found that the applicant ’s right under LAW ) of the LAW had not been violated .", "ORG held , in particular , that the case was complex . The applicant had contributed to the length of the proceedings in that he had repeatedly challenged the expert and the decisions on the expert ’s fees , thus prolonging the period for an overall period of DATE . ORG also took into account that the applicant had belatedly paid the advance on the expert ’s fees .", "As to the conduct of ORG , ORG held that the judge had displayed due diligence when dealing with the case . The length of the proceedings was substantially due to difficulties in obtaining an expert opinion . However , the fact that the CARDINAL experts appointed were unable to submit an opinion could not have been foreseen and no unjustified delays could be imputed to ORG on that account . The fact that the judge had not urged the first expert to submit the opinion after the expiry of the time - limit set could not affect the position .", "Pursuant to Article ORG ) , courts can issue an interim measure when there is a need to regulate the parties’ situation in a temporary manner or where it is feared that the execution of a judicial decision could be jeopardised .", "Article GPE ) provides that a court shall issue an interim measure upon request . Such a request is not necessary where an interim measure concerns proceedings which courts can start of their own motion .", "Under LAW courts can start proceedings even in the absence of a request in matters concerning , inter alia , the care of minors .", "Section CARDINAL(CARDINAL ) of LAW of DATE provides that a complaint to ORG must indicate , inter alia , the decision which the plaintiff seeks to obtain . Under paragraph CARDINAL of section CARDINAL , ORG is bound by a plaintiff ’s proposal for proceedings to be initiated unless this LAW explicitly provides otherwise .", "Pursuant to section CARDINAL(CARDINAL)(a ) , a complaint must indicate , in addition to the information mentioned in LAW , the fundamental rights or freedoms the violation of which the plaintiff alleges .", "ORG has declared itself bound , in accordance with section CARDINAL(CARDINAL ) of LAW , by a party ’s submission aimed at initiating proceedings before it . ORG has expressly stated that the above was particularly relevant as regards the order which parties seek to obtain as it can only decide on matters which a party requests to be determined ( see , for example , decisions III . ÚS CARDINAL of DATE or III . ÚS CARDINAL of DATE ) ." ]

[ "6" ]

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[ "ORG The applicant , a NORP citizen born in DATE , lives at GPE Wells in GPE .", "ORG At birth the applicant possessed all the physical and biological characteristics of a child of the female sex , and was consequently recorded in the register of births as a female , under the name PERSON . However , already from a tender age the child started to exhibit masculine behaviour and was ambiguous in appearance . In DATE , after learning that the transsexual state was a medically recognised condition , she sought treatment . She was prescribed methyl testosterone ( a hormonal treatment ) and started to develop secondary male characteristics .", "ORG In DATE , the applicant - who will henceforth be referred to in the masculine - changed his name to PERSON and subsequently , in DATE , to PERSON . He has been living as a male ever since . After the change of name , the applicant requested and received a new passport containing his new names . The prefix \" Mr. \" was , however , at that time denied to him .", "Surgical treatment for physical sexual conversion began in DATE with a bilateral masectomy and led to the removal of feminine external characteristics . The costs of the medical treatment , including the surgical procedures , were borne by ORG .", "ORG The applicant made several unsuccessful efforts from DATE onwards to persuade Members of ORG to introduce a Private Member ’s PERSON to resolve the problems of transsexuals . Representations were also made by him , and by a number of Members of ORG on his behalf , to ORG to secure the alteration of his birth certificate to show his sex as male , but to no avail .", "ORG On DATE his solicitor wrote to the Registrar General making a formal request under ORG ) of ORG , on the ground that there had been \" a mistake in completing the Register \" . In support of his request , the applicant submitted a medical report by Dr. PERSON . The report stated that , in Dr. PERSON ’s opinion , of the CARDINAL criteria of sex - namely chromosomal sex , gonadal sex , apparent sex ( external genitalia and body form ) and psychological sex , the last was the most important as it determined the individual ’s social activities and role in adult life , and it was also , in his view , pre - determined at birth , though not evident until later in life . Dr. PERSON considered that as the applicant ’s psychological sex was male , he should be assigned male .", "On DATE the Registrar General refused the application to alter the ORG . He stated that the report on the applicant ’s psychological sex was not decisive and that , \" in the absence of any medical report on the other agreed criteria ( chromosomal sex , gonadal sex and apparent sex ) \" , he was \" unable to consider whether an error ( had been ) made at birth registration in that the child was not of the sex recorded \" . No further evidence in support of the applicant ’s request was subsequently submitted .", "ORG The applicant considers himself a man and is socially accepted as such . Except for the birth certificate , all official documents DATE refer to him by his new name and the prefix \" Mr. \" , where such prefix is used . The prefix was added to his name in his passport in DATE .", "ORG In the GPE sexual reassignment operations are permitted without legal formalities . The operations and treatment may , as in the case of Mr. PERSON , be carried out under ORG .", "ORG Under LANGUAGE law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities , except in connection with the practice of some professions where the use of the new names may be subject to certain formalities ( see , inter alia , GPE ’s ORG , CARDINALth ed . , vol . CARDINAL , para . CARDINAL ) . For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve , the person concerned very frequently makes , as did Mr. PERSON , a declaration in the form of a \" deed poll \" which may be enrolled with ORG .", "The new names are valid for purposes of legal identification ( see GPE ’s ORG , loc . cit . , para . CARDINAL ) and may be used in documents such as passports , driving licences , car registration books , national insurance cards , medical cards , tax codings and social security papers . The new names are also entered on the electoral roll .", "Civil status certificates or equivalent current identity documents are not in use or required in GPE . Where some form of identification is needed , this is normally met by the production of a driving licence or a passport . These and other identity documents may , according to the prevailing practice , be issued in the adopted names of the person in question with a minimum of formality . In the case of transsexuals , the documents are also issued so as to be in all respects consistent with the new identity . Thus , the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix \" Mr. \" , \" Mrs. \" , \" Ms. \" or \" Miss \" , as appropriate , before his or her adopted names .", "ORG The system of civil registration of births , deaths and marriages was established by statute in GPE and GPE in DATE . Registration of births is at present governed by ORG \" the CARDINAL LAW \" ) . The entry into force of this LAW entailed no material change to the law in force in DATE , the date of the applicant ’s birth . The DATE Act requires that the birth of every child be registered by ORG for the area in which the child is born . The particulars to be entered are prescribed in regulations made under LAW .", "A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register . A certificate of the latter kind , known as a \" short certificate of birth \" , is in a form prescribed and contains such particulars as are prescribed by regulations made under LAW . The particulars so prescribed are the name and surname , sex , date of birth and place of birth of the individual .", "An entry in a birth register and the certificate derived therefrom are records of facts at the time of the birth . Thus , in GPE and GPE the birth certificate constitutes a document revealing not current identity , but historical facts . The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession , legitimate descent and distribution of property . The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth , medical and fertility research and the like .", "ORG The DATE LAW provides for the correction of clerical errors , such as the incorrect statement or omission of DATE of the birth , and for the correction of factual errors ; however , in the latter case , an amendment can be made only if the error occurred when the birth was registered . The birth register may also , within DATE from the date of registration , be altered to give or change the name of a child and re - registration of a birth is permitted where the child has been legitimated . In addition , under LAW , where a child is adopted , the register of births is to be marked with the word \" adopted \" ; the adoption is also registered in LAW and a short certificate of birth may be obtained which contains no reference to parentage or adoption .", "ORG The criteria for determining the sex of the person to be registered are not laid down in the DATE Act nor in any of the regulations made under it . However , the practice of ORG is to use exclusively the biological criteria : chromosomal , gonadal and genital sex . The fact that it becomes evident later in life that the person ’s \" psychological sex \" is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and , accordingly , any request to have the initial entry changed on this ground will be refused . Only in cases of a clerical error , or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex , i.e. cases in which the biological criteria are not congruent , will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect . However , no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex .", "ORG The birth registers and the indexes of all the entries are public . However , the registers themselves are not readily accessible to the general public as identification of the index reference would require prior knowledge not only of the name under which the person concerned was registered , but also of the approximate date and place of birth and LOC .", "ORG The law does not require that the birth certificate be produced for any particular purpose , although it may in practice be requested by certain institutions and employers .", "In particular , a birth certificate has in general to accompany a first application for a passport , although not for its renewal or replacement . A birth certificate is also generally ( though not invariably ) required by insurance companies when issuing pension or annuity policies , but not for the issue of motor or household policies nor , as a rule , for the issue of a life insurance policy . It may also be required when enrolling at a university and when applying for employment , inter alia , with the Government .", "ORG In LANGUAGE law , marriage is defined as a voluntary union for life of CARDINAL man and CARDINAL woman to the exclusion of all others ( per Lord GPE in PERSON ( DATE ) Law Reports CARDINAL Probate and Divorce CARDINAL , CARDINAL ) . LAW DATE gives statutory effect to the common - law provision that a marriage is void ab initio if the parties are not respectively male and female .", "ORG According to the decision of ORG in PERSON v. PERSON ( DATE ) Probate Reports CARDINAL , sex , for the purpose of contracting a valid marriage , is to be determined by the chromosomal , gonadal and genital tests where these are congruent . The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies . The entry in the birth register is prima facie evidence of the person ’s sex . It may , however , be rebutted if evidence of sufficient weight to the contrary is adduced .", "ORG If , for the purpose of procuring a marriage or a certificate or licence for marriage , any person knowingly and wilfully makes a false oath or makes or signs a false declaration , notice or certificate required under LAW relating to marriage , he is guilty of an offence under LAW ( CARDINAL ) of LAW . However , a person contracting a marriage abroad is not liable to prosecution under LAW .", "ORG The biological definition of sex laid down in PERSON v. PERSON has been followed by LANGUAGE courts and tribunals on a number of occasions and for purposes other than marriage .", "The applicant has drawn the ORG ’s attention to the following cases . In CARDINAL case concerning prostitution , a male to female transsexual , who had undergone both hormone and surgical treatment , was nevertheless treated as a male by ORG for the purposes of LAW DATE and LAW ( GPE v. PERSON and Others DATE , [ DATE ] CARDINAL All England Law Reports CARDINAL ) . In CARDINAL cases concerning social security legislation , male to female transsexuals were considered by ORG Commissioner as males for the purposes of retirement age ; in the first case the person in question had only received hormone therapy , in the second he had involuntarily begun to develop female secondary characteristics at DATE , which developments were followed by surgery and adoption of a female social role DATE ( cases R ( P ) CARDINAL and R ( P ) CARDINAL in the DATE Volume of ORG ) . Lastly , in a case before an ORG a female to male transsexual , who had not undergone any sex change treatment , was treated as a female by the ORG for the purposes of LAW DATE ; the person in question had sought and received employment in a position reserved for men under LAW , but was dismissed after discovery of her biological sex ( NORP v. ORG [ DATE ] ORG p. CARDINAL ) ." ]

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[ "12", "8" ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On CARDINAL DATE the applicant was arrested and taken into custody . On DATE he was remanded in custody .", "On DATE the public prosecutor at ORG filed a bill of indictment with the latter , accusing the applicant of membership of an illegal organisation . He requested that the applicant be convicted and sentenced under LAW .", "On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . This judgment was quashed by ORG on DATE .", "On DATE the applicant was released from detention .", "Subsequent to promulgation of PERSON no . CARDINAL on DATE , which abolished the jurisdiction of ORG , ORG acquired jurisdiction over the applicant 's case .", "On DATE ORG ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time limit under ORG CARDINAL and ORG of LAW had expired . At the time of this decision the applicant was not represented by a lawyer before this court . However , this judgment was erroneously notified to Mr GPE ( the legal representative of another co - accused , who bore the same name and surname as the applicant , during the proceedings before ORG ) and became final on DATE .", "The applicant inquired about the developments in his case on DATE . As the judgment was in his favour , the applicant did not lodge an appeal with ORG ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The applicant , in his capacity as a member of the management board of a stock corporation established under NORP law , was involved in the preparation and conclusion of an agreement between the corporation and ORG in DATE on the delivery of CARDINAL tanks to GPE .", "In DATE the GPE public prosecution authorities initiated an investigation against the applicant on charges of breach of trust and evasion of income tax in connection with the said deals ( file No . CARDINAL KLs CARDINAL GPE DATE ) . He was suspected of having accepted for his own benefit - within the scope of a so - called kick - back procedure on the basis of a collusive agreement with a separately prosecuted arms lobbyist - the return flow of part of the commission payments made by the corporation and affiliated companies to an enterprise of which the said arms lobbyist was the beneficial owner ( wirtschaftlicher PERSON ) . He had thereby allegedly acted in breach of his fiduciary duties vis - à - vis his employer and without declaring the funds received in his income tax return .", "In the course of the investigations the suspicion arose that in the period from DATE further executive staff of the said stock corporation and affiliated companies , including the applicant , had jointly evaded corporate and trade tax ( Körperschafts- und GPE ) by declaring commission payments as deductible expenses in breach of applicable tax law . The GPE public prosecution authorities severed this part of the investigations and they were subsequently conducted by the local public prosecution authorities with jurisdiction at GPE ( file No . CARDINAL Js CARDINAL/CARDINAL ) . In the course of the severed preliminary proceedings ( ORG ) documents were confiscated from the corporation 's and affiliated companies ' LOC as well as from the applicant , on the basis of a search warrant of ORG dated DATE .", "By a decision of CARDINAL October CARDINAL ORG ( Landgericht ) ordered the seizure of the documents that had previously been confiscated by the GPE public prosecution authorities in the separate preliminary proceedings . ORG provided some of the documents , including analysis reports .", "On DATE the main hearing against the applicant and a co - accused member of the managing board on charges of income tax evasion and breach of trust was opened before ORG ( file No . CARDINAL ORG ) . On the same date defence counsel lodged a first application to obtain the entire file in the separately conducted investigation proceedings from the GPE public prosecution authorities and requested that the hearing be adjourned .", "On DATE ORG refused to adjourn the hearing , and dismissed the applicant 's request to obtain the file in the parallel proceedings as premature .", "On DATE defence counsel again lodged an application to obtain the file in the parallel proceedings . He claimed that the content of the file would demonstrate that the applicant had not played a significant role in the transactions at issue . He further pointed out that further members of the management of the affiliated group who were suspects in the parallel proceedings together with the applicant had been summoned as witnesses in the proceedings before ORG . Effective questioning of these witnesses would only be possible if the defence was previously granted access to the file in the parallel proceedings . By a decision of DATE ORG ordered that the file be obtained .", "By a letter dated DATE ORG stated that while there was no concern about granting the acting ORG at ORG access to the file , the request for the applicant 's counsel to have access to it had to be dismissed pursuant to LAW below ) on the ground that the preliminary investigations in the separate proceedings were ongoing and disclosure of the remaining documents might put the purpose of the investigations at risk . This was particularly the case because defence counsel was representing the applicant in both proceedings . ORG therefore refrained from obtaining the file .", "On the occasion of hearings that took place on DATE and CARDINAL and DATE the applicant 's counsel lodged further applications for an adjournment of the hearing of the witnesses who were at the same time suspects in the parallel preliminary proceedings until the defence had had the opportunity to examine the file in those proceedings . He claimed that this was necessary with a view to preparing the questioning of the witnesses and in order to determine the scope of the witnesses ' privilege to refuse evidence and not to incriminate themselves on the ground that they were also suspects in the parallel preliminary investigations . Referring to the GPE public prosecution authorities ' refusal of access to the file , ORG rejected these requests and heard the witnesses . The ORG pointed out that it would always be possible to summon the witnesses again at a later stage .", "On DATE ORG dismissed requests lodged on DATE by the applicant and the co - accused member of the management board for the file in the parallel proceedings to be seized . ORG held that it followed from the legal principle established in LAW read in conjunction with LAW ( Grundgesetz - see Relevant domestic law below ) that a seizure of the files would only be possible in the event the public prosecution authorities had not sufficiently reasoned their refusal of access to the file . However , in the case at hand the GPE public prosecution authorities had based their decision on LAW , stipulating that counsel may be denied access to files in ongoing preliminary investigations if their disclosure might put the purpose of the investigations at risk . This provision constituted a lex specialis in relation to LAW . Furthermore , there was nothing to establish that the decision of ORG to deny access had been arbitrary or unlawful . Given ORG refusal to make the file available to defence counsel , ORG had refrained from obtaining the file altogether , specifying that consultation of the file by the court alone would be in breach of the rights of the defence .", "A further application to adjourn the hearing lodged on DATE by the applicant was rejected by ORG on DATE . The court held that the fact that it was not possible to obtain the entire file did not justify an adjournment of the hearing , since the GPE proceedings related to different tax evasion charges and different tax debtors . ORG however pointed out that while it was not possible to obtain the entire file in the parallel proceedings , nothing prevented the applicant and the prosecution authorities from lodging applications in line with the formal requirements to obtain specific documents and other means of evidence included in the file .", "On DATE the applicant again requested the seizure of the entire file in the parallel proceedings , but this time alternatively limited his request to those documents that had been seized from the applicant on the basis of the search warrant issued by ORG on DATE , as well as all documents compiled within the scope of an independent investigation of the case by an accounting firm and a law firm . By a decision of CARDINAL DATE ORG granted the applicant 's alternative application and asked the GPE public prosecution authorities to examine whether disclosure of the said documents was possible .", "On DATE the ORG agreed to disclose the requested documents and further announced that access to the entire file and residual documents would be granted in DATE .", "By a decision of DATE ORG ordered the seizure of the documents specified in its decision of DATE on the ground that they could be of importance as evidence in the proceedings and counsel subsequently had the opportunity to examine the requested documents .", "By a judgment of DATE ORG convicted the applicant of tax evasion in CARDINAL cases as well as of breach of trust and sentenced him to DATE imprisonment .", "By written submissions of DATE and CARDINAL DATE the applicant appealed against ORG judgment to ORG ( ORG ) . He complained , inter alia , that ORG refusal to seize the file and to adjourn the proceedings until the entire file had been made available prevented him from effectively defending himself in breach of his right to a fair trial as guaranteed by LAW . Pursuant to LAW , ORG would have been under an obligation to obtain a decision by ORG of the GPE in its capacity as ORG superior authority on whether the refusal of access to the file was justified . LAW CARDINAL of LAW did not deal with a refusal of access in separately conducted proceedings and was not applicable in the case at hand . The question of whether LAW was lex specialis in relation to its LAW was of significant importance . He further alleged that the information contained in the file would have demonstrated that the applicant had not played a responsible role in the transactions at issue , contrary to what had been established in ORG judgment .", "By a decision of DATE ORG ( file No . CARDINAL StR CARDINAL ) , following a statement by ORG ( ORG ) , quashed ORG verdict as regards the assessment of the scope of the applicant 's guilt ( GPE ) and to this extent remitted the case to ORG . At the same time ORG dismissed , inter alia , the applicant 's complaint that due to the failure to obtain the file in the parallel proceedings his defence had been restricted in a decisive point as ill - founded .", "It found that it was doubtful whether the applicant had sufficiently substantiated this complaint pursuant to LAW CARDINAL in conjunction with LAW of LAW . The applicant had not established that there was a link between the alleged procedural flaw and the grounds on which the judgment of ORG had been based . Once the applicant had been granted access to part of the files he would have been under an obligation to specify what missing information would be significant for his defence . Furthermore , defence counsel would have been under an obligation to continue his efforts for a disclosure of the entire file within the time - limit for lodging his appeal on points of law with a view to establishing in his submissions to ORG that the non - disclosed parts of the file contained information that was significant for the defence . However , the applicant 's submissions contained only theoretical conclusions on the possibly relevant content of the file .", "ORG further confirmed that LAW was lex specialis in relation to LAW of LAW . When taking a decision on whether to grant access to files ORG had to weigh the interest of the accused to effectively defend himself in the proceedings before ORG against the necessity to keep the file in the preliminary investigations secret and might for instance grant access to parts of the file . In the case at hand a judicial review of the prosecution authorities ' denial to grant access to the files in analogous application of , inter alia , LAW might be considered . ORG on itsRegional Court until disclosure of the entire file .", "By a decision of DATE ( file No . CARDINAL BvR CARDINAL/CARDINAL ) which was served on the applicant on DATE ORG declined to consider the applicant 's constitutional complaint .", "It found that his complaint about ORG refusal to seize the documents retained by ORG was inadmissible since the applicant had not exhausted the appropriate procedural domestic remedies in this respect . He had failed to lodge applications for the taking of particular evidence , even though ORG had indicated this possibility and even though the applicant had been granted access to parts of the files by ORG . He had in particular been able to consult all the documents which had been the subject of his requests dated CARDINAL DATE and DATE . From the material that had been made available to him he must have been in a position to reason what other specific means of evidence would be needed for his defence . Given the fact that the proceedings had lasted until DATE he could have lodged further corresponding applications for the taking of evidence . However , allegations in respect of specific means of taking evidence had been made by the applicant for the first time during the proceedings before ORG .", "ORG further pointed out that the GPE public prosecution authorities had announced that the entire file would be released in DATE and that the judgment of ORG had been pronounced on DATE . The applicant would have had the opportunity to lodge an application for an adjournment of the hearing of DATE thereby avoiding the alleged violation of his basic rights instead of subsequently lodging an appeal against the first - instance judgment .", "In addition , ORG found that the applicant 's complaint was inadmissible on the ground that he had not established that the contested judgment was based on the alleged violation of his basic rights as required by Sections CARDINAL § CARDINAL and LAW ( Bundesverfassungsgerichtsgesetz ) . In his submissions before ORG and ORG he had not sufficiently substantiated that the consideration of the parts of the file that had not been available during the proceedings before ORG would have led to a different assessment of the case by the latter , even though he obviously had access to the retained parts of the file after termination of the main proceedings before ORG .", "The separately conducted preliminary proceedings regarding the evasion of corporate and trade tax ( file No . CARDINAL PERSON ) were stayed by the GPE public prosecution authorities on DATE .", "Following remittal of the proceedings concerning the charges on breach of trust and evasion of income tax as regards the assessment of the scope of the applicant 's guilt by ORG , ORG , by a judgment of DATE ( file No . CARDINAL ORG ) reduced the applicant 's sentence to DATE and DATE imprisonment .", "Following a further appeal lodged by the applicant , ORG by a decision of DATE amended ORG judgment of DATE and reduced the applicant 's sentence to DATE imprisonment on probation . It dismissed the remainder of the applicant 's appeal as ill - founded .", "By written submissions of DATE the applicant lodged a constitutional complaint alleging , inter alia , a violation of his right to a fair trial on grounds different from those being the subject of the instant application . The latter proceedings are still pending before ORG .", "Pursuant to LAW all federal and authorities of the Länder shall render legal and administrative assistance to one another .", "LAW stipulates that access to files or other documents kept by public authorities or public servants may not be requested if their superior authority declares that the publication of these files or documents would be detrimental to the welfare of the Federation or of a NORP Land .", "LAW provides that defence counsel is entitled to consult the files which have been presented to the trial court or which would have to be presented to the trial court in case of indictment and to inspect the exhibits . LAW of this provision allows access to part or all of the files or to the exhibits to be refused until the preliminary investigation has ended if it might otherwise be at risk . Pending the termination of the preliminary investigation , it is for ORG to decide whether to grant access to the files or not ; thereafter it is for the president of the trial court ( LAW ) .", "Pursuant to LAW be considered to be based on a violation of the law if the defence has been inadmissibly restricted by a decision of the court on a topic which was decisive for the judgment . Pursuant to LAW , in the event an applicant complains of procedural flaws , he has to establish the facts as regards such flaws .", "Section CARDINAL of ORG requires that applications for the institution of proceedings lodged with ORG must be lodged in writing , state the reasons for the complaint and specify the requisite evidence . LAW stipulates that the right which has allegedly been violated has to be specified , as well as the action or omission of the organ or authority which has allegedly been at the origin of the violation ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is the editor and owner of ORG ( NORP ORG ) , a DATE political magazine . At TIME on DATE , with a search warrant issued by ORG , police officers from ORG of ORG conducted a search of the journal ’s office . An identity check was carried out and the police arrested CARDINAL persons , including the applicant , who were present in the office at the time . According to the search and arrest report signed by CARDINAL police officers , the applicant resisted the officers . He was subsequently handcuffed and put in a minibus to be taken to the ORG building . The applicant alleged that he had been beaten and insulted in the car by CARDINAL police officers . In particular , he stated that QUANTITY officer , ORG , had head - butted him and broken his nose .", "At TIME the applicant was taken to ORG where he was examined by a doctor . In his report , the doctor noted bruises under the applicant ’s eyes and swelling on the bridge of his nose . The applicant was transferred to the Ear , Nose and ORG for consultation . The doctor examined the applicant at TIME , noted the injury to the applicant ’s nose and requested an X - ray .", "On DATE the X - ray of the applicant ’s nose revealed that it was broken .", "On DATE the applicant was examined once again at ORG branch of ORG . The doctor who examined him explained in his report that the applicant had complained that he had been subjected to ill - treatment in police custody . It was reported that the applicant had stated that he was beaten up in the minibus while he was being taken to ORG , and that he had been under psychological pressure while he was in police custody . Referring to the Xray of DATE , which showed that the applicant ’s nose had been broken , the doctor concluded that he was unfit to work for DATE .", "On DATE the applicant was released by order of the public prosecutor .", "On an unspecified date , the applicant lodged a criminal complaint with ORG , alleging that he had been ill - treated while in police custody .", "On DATE the applicant was examined once again at the ORG branch of ORG . It was noted that he had bruising under his eyes and swelling on his nose . In a final report of DATE , the LOC branch of ORG , with reference to the X - ray of DATE , concluded that the applicant ’s nose had been broken , and stated that he was unfit to work for DATE .", "On DATE ORG declared lack of jurisdiction and transferred the case file to ORG . ORG conducted CARDINAL separate investigations into the applicant ’s complaints . In file no . CARDINAL/CARDINAL , an investigation was commenced in respect of CARDINAL police officers who had been on duty at FAC of ORG on DATE of the applicant ’s arrest . In connection with this investigation , the public prosecutor gave a decision on DATE that he would not prosecute these CARDINAL officers , for lack of evidence .", "In file no . DATE , ORG conducted an investigation into the events which took place during the applicant ’s arrest and his transfer to the ORG building . On DATE the ORG decided to transfer the case back to ORG . Accordingly , on DATE , ORG filed an indictment with ORG against CARDINAL police officers , accusing them of ill - treating the applicant under LAW . The applicant joined the proceedings as a civil party .", "During the proceedings , the applicant lodged an objection , stating that the case should be dealt with by ORG , as the police ORG actions had amounted to torture . On DATE ORG declared that it did not have jurisdiction and transferred the case to ORG . In a hearing held on DATE , the applicant identified police officer GPE as the person who had broken his nose .", "On DATE , on the basis of medical reports and witness statements , ORG found it established that Officer PERSON had broken the applicant ’s nose by head - butting him . Considering that the use of force had not been proportionate , the court found the police officer guilty of ill - treating the applicant under LAW . Having regard to the duration of the treatment , the court decided that the act did not amount to torture , since it had not been systematic . In conclusion , ORG was sentenced to CARDINAL months’ imprisonment and banned from public service for DATE . The court then converted his sentence to a fine , having had regard to the fact that he did not have a criminal record . Furthermore , the court decided to suspend his sentence under PERSON no . CARDINAL , considering that he was unlikely to break the law again . The other CARDINAL police officers were acquitted of the charges against them .", "The applicant appealed against this decision .", "On DATE ORG , noting that the statutory time - limit for the offence had expired , decided to drop the criminal proceedings against the accused police officer .", "A description of the relevant domestic law and practice in force at the material time can be found in NORP v. GPE ( no . CARDINAL , § § DATE , ORG CARDINALXII ( extracts ) ) , and PERSON and Others v. GPE ( nos . LOC and QUANTITY , § § CARDINAL , ORG CARDINALIV ( extracts ) ) ." ]

[ "3" ]

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[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The NORP Government ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "According to the applicant , he came to GPE in DATE with the intention of settling permanently in PERSON . He worked in the leather business and established CARDINAL private companies in DATE and DATE .", "The applicant was recognised as a victim in CARDINAL different sets of criminal proceedings which ended in DATE and DATE , respectively . According to the relevant judgments , the convicted defendants had to pay the applicant MONEY ( ORG ) and ORG CARDINAL as compensation for damage . The defendants failed to pay and the applicant applied to the domestic authorities asking for the execution of the court judgments and payment of the debts . According to the applicant ’s submission , he was also owed large amounts of money by CARDINAL other private individuals .", "During a standard passport check on DATE , officers of ORG discovered that the applicant had been living in GPE without a valid residence permit or passport .", "On DATE ORG drew up a record for an administrative offence ( inzibati xəta haqqında protocol ) , by which the applicant was found to be in breach of LAW ( “ the ORG ” ) . It decided to fine him in the amount of CARDINAL old NORP manats ( equivalent to CARDINAL new NORP manats ) and to deport him from GPE .", "The applicant gave a handwritten explanation , in the section of the report designed for this purpose , that his passport was at ORG at the time . He made no reference to the residence permit . He then confirmed that he had read the report , by signing it in CARDINAL different places .", "It appears that at DATE the applicant received his passport back from the ORG and presented it to ORG .", "By a letter dated DATE ORG forwarded the applicant ’s passport and other documents to ORG , informing them that it had been decided to deport the applicant and requesting the ORG ’s assistance with the deportation .", "According to the applicant , he was deported from GPE on DATE without any explanation .", "According to the Government , the applicant was deported on CARDINAL DATE pursuant to the decision of DATE .", "According to the applicant , after his deportation , he applied for a visa to ORG in GPE . On DATE he was granted a DATE - long NORP visa by the consulate . However , he was refused entry to GPE on DATE at the NORP - NORP border and again on DATE at the NORP - Azerbaijani border .", "NORP In DATE the applicant applied to ORG , complaining that he had been deported from GPE because he had asked the domestic authorities to ensure the payment of unpaid debts . On DATE ORG informed the applicant that his complaint had been sent to the NORP authorities in the form of a diplomatic note . By a letter dated DATE , ORG informed the applicant that , according to the information provided by the NORP authorities , he had been deported on DATE under LAW ORG for residing on the territory of GPE without the relevant residence permit .", "The relevant provisions of LAW ( “ the CAO ” ) , in force at the material time , read as follows :", "Article CARDINAL . Residence without registration or unlawful stay in GPE of foreign nationals or stateless persons", "“ Foreign nationals or stateless persons who reside on the territory of GPE without registration or ... stay without an official permit or visa shall be fined ... and deported outside the borders of GPE under the administrative procedure . ”", "Article CARDINAL . The right to lodge a complaint or appeal against a decision on administrative offences", "“ CARDINAL . A person against whom an administrative decision has been taken , ... as well as his or her counsel or representative , may lodge a complaint against the decision .", "A complaint ... against a decision on an administrative offence is lodged according to the following procedure :", "...", "NORP against a decision taken by the competent authority or official – to the superior authority or official , or to court . ”", "According to LAW into and Departure from the Country and on Passports , as in force at the material time , a foreign national could be refused entry into the country if he or she had breached the requirements of NORP law during his or her previous stays in the country ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE the applicant was arrested on suspicion of killing PERSON , his fiancée .", "On DATE ORG ( Sąd Rejonowy ) ordered his detention . It considered that placing the applicant in custody was justified by the existence of strong evidence against him and the gravity of the charges . Since he had attempted to flee , his detention was necessary to ensure the proper course of the proceedings .", "The applicant ’s detention was subsequently prolonged several times by ORG ( PERSON ) . Each time the court repeated the reasons it had previously given .", "On DATE the applicant lodged an application for release with ORG ( Prokurator Rejonowy ) . The prosecutor dismissed the application on DATE .", "On DATE ORG lodged a bill of indictment with ORG . The applicant was charged with murder ( he had strangled his fiancée ) and fraud .", "On DATE the ORG convicted him as charged and sentenced him to CARDINAL years’ imprisonment .", "The Poznań Court of Appeal quashed that judgment and remitted the case on DATE .", "NORP The applicant remained in custody .", "On DATE the ORG ( Sąd Apelacyjny ) ordered that the applicant remain in detention until DATE .", "On DATE the court refused his application for release .", "Subsequently , the applicant ’s detention was extended DATE by ORG , for the same reasons as before .", "The applicant lodged numerous unsuccessful applications for release with ORG .", "On DATE ORG convicted the applicant of murder and sentenced him to DATE imprisonment . The court stressed the depraved nature of the crime and maintained that there were no mitigating circumstances in the case .", "The Poznań Court of Appeal upheld the first - instance judgment on DATE .", "On DATE ORG ( Sąd Najwyższy ) dismissed the applicant ’s cassation appeal .", "The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .", "Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :", "“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused ’s committing another , serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . ”", "Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :", "“ 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 his identity can not be established or when he has no permanent abode [ in GPE ] ;", "( CARDINAL ) there is a justified fear that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;", "NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”", "The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :", "“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”", "Article CARDINAL , in its relevant part , reads :", "“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :", "( CARDINAL ) seriously jeopardise his life or health ; or", "( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”", "The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .", "Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :", "“ CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .", "The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .", "The court of appeal within whose jurisdiction the offence in question has been committed may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”" ]

[ "5" ]

[ "5-3" ]

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[ "The applicant is a NORP national , born in DATE and living in GPE . The respondent Government are represented by PERSON , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant , who is not a member of ORG , requested in his tax returns for the income DATE to be exempted from church tax . He claimed that the levying of church tax on a nonmember of ORG contravened , inter alia , LAW and LAW . He also stated that the municipality of GPE and not the relevant parish of the Church , PERSON , was financing the construction and maintenance of burialgrounds and the maintenance of churchyards in the area where he lived .", "The tax authorities rejected the applicant ’s request and decided to charge him CARDINAL , CARDINAL and MONEY ( SEK ) respectively for DATE in church tax , CARDINAL SEK CARDINAL,CARDINAL . This corresponded to CARDINAL per cent of his taxable income for DATE and MONEY for DATE and DATE . The decision was taken in accordance with LAW Not Members of ORG om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan , CARDINAL:CARDINAL ; hereinafter “ LAW ” ) which provided that , of the ordinary church tax , a non - member of ORG should pay MONEY for DATE and MONEY for DATE and DATE .", "The applicant appealed to ORG ( länsrätten ) of GPE but did not request an oral hearing . On DATE the ORG rejected his appeal as far as it concerned DATE and , on DATE , it rejected his appeal with regard to DATE and DATE .", "The applicant appealed to ORG ( kammarrätten ) in GPE . Again , he did not request an oral hearing . On DATE his appeals were rejected .", "On DATE ORG ( Regeringsrätten ) refused the applicant leave to appeal . In his appeal to that court he had requested an oral hearing .", "According to LAW , CARDINAL ) , the parishes within ORG are obliged to construct and maintain public burial - grounds , unless the Government decide in the case of a specific municipality that this task shall be performed by the municipality itself ( chapter CARDINAL , section CARDINAL ) . The right to be buried in a public burial - ground is not dependent on the deceased being a member of a particular religious community ( chapter CARDINAL , section CARDINAL ) . However , the responsible organ , whether it be the local parish or the municipality , is obliged to provide for separate burial - grounds for those who are not members of any NORP community . The construction and maintenance of such burial - grounds are done in consultation with the religious communities concerned ( chapter CARDINAL , section CARDINAL ) . Decisions taken under the LAW by the parish or the municipality may be appealed against to ORG ( länsstyrelsen ) ( previously regulated in chapter LAW , now in LAW ) . In the municipality where the applicant was liable to pay tax the burial administration was DATE and still is – the responsibility of the municipality .", "When the responsibility for the keeping of population records was transferred from ORG to the local tax authorities in DATE ( see further below ) , it was decided that the parishes should take care of population records made before that date until these old records have been transferred to the ORG archives ( section CARDINAL of LAW ; GPE om införande av folkbokförings - lagen , CARDINAL:CARDINAL ) . It was estimated that it would take DATE before all old records had been so transferred .", "LAW , DATE ) also specifically stipulated that a parish may , inter alia , use its financial means to acquire and maintain church buildings and other ecclesiastical property .", "At the material time , a church tax was collected together with the ordinary municipal tax . LAW , LAW referred in this respect to the provisions of LAW ( ORG , MONEY ) . The rate was determined by the local parish council which , under the transitional provisions of LAW ( Regeringsformen ) , had a status similar to that of the municipalities , including the right of taxation . This system had a long tradition , based on the fact that ORG is the established church . In DATE the rates applied by the parishes varied between CARDINAL and MONEY of the taxpayer ’s taxable income . The lowest rates were applied by the parishes of GPE where it is the municipality DATE and not the parishes – that has the responsibility for the burial administration ( cf . NORP kyrkans ekonomi , ORG CARDINAL:CARDINAL , p. CARDINAL , a report on the economy of ORG made by ORG ) . In DATE , the relevant DATE in the present case , the rate applied in the parish of PERSON , where the applicant lived , was MONEY .", "LAW stipulated that a person who was not a member of ORG should pay a reduced church tax , the so - called dissenter tax . The reduction was motivated by the fact that non - members , referred to as dissenters , should pay the share of the tax that corresponded to the costs relating to the civil , i.e. non - religious , activities of the parish . The dissenter tax , like the church tax , was collected by the local tax authority and forwarded to the relevant parish .", "Originally , the dissenter tax amounted to MONEY of the ordinary church tax . In DATE it was reduced to MONEY of what the members of ORG had to pay . The rationale behind this change was that the share of the costs for the civil tasks performed by ORG the keeping of population records and the maintenance of churchyards and public burial - grounds – amounted on average to MONEY of the ORG ’s total costs ( cf . Government PERSON , pp . CARDINAL ) .", "On DATE the responsibility for the keeping of population records was transferred to the local tax authorities . With effect as from DATE , the dissenter tax was consequently further decreased , this time to MONEY of the amount paid by the members of ORG . It was considered that this percentage corresponded to the average costs of the parishes for the burial of the deceased ( cf . Government PERSON CARDINAL/CARDINAL:CARDINAL , appendix CARDINAL , p. CARDINAL ) . Reference was made to the above - mentioned report on the economy of ORG , according to which MONEY , or MONEY of the ORG ’s total costs , related to the burial of the deceased .", "Under LAW of LAW the tax revenue of the different parishes was to a certain extent equalised through payments to and subsidies from the so - called ORG . Poor parishes received a general equalisation subsidy which was not ear - marked for any particular purpose . They could also be granted extra subsidies for specific purposes .", "On DATE the relations between the NORP State and ORG were changed , involving in practice a separation between the ORG and the ORG . LAW and LAW were abolished .", "The parishes’ right of taxation , previously regulated in LAW and LAW , was replaced with an obligation , laid down in section CARDINAL of LAW on ORG ( ORG om svenska kyrkan , GPE ) , on persons belonging to the ORG to pay a church fee .", "According to the new chapter CARDINAL of LAW , every person who is registered as resident in GPE has to pay a burial fee to defray the costs of the burial of the deceased ( section CARDINAL ) . The fee is based on the taxpayer ’s taxable income ( section CARDINAL ) and is paid to the organ CARDINAL parish or municipality DATE responsible for burials at the place where the individual is registered ( section QUANTITY § CARDINAL ) . In the municipalities where the local parishes are responsible for burials , the fee of the members of ORG is to be included in the church fee ( section CARDINAL § CARDINAL ) . According to LAW ( Förordningen om begravningsavgift , CARDINAL ) , the burial fee of non - members is fixed by ORG and Funds ( NORP ) following a proposal by ORG . ORG and the municipalities responsible for burials are obliged to provide the tax authorities and – in the case of ORG with the information needed to calculate and collect the fees . Under the new chapter CARDINAL of LAW , the relevant ORG supervises the DATE burial administration in respect of persons who are not members of ORG .", "As the parishes continue to be responsible for the care and maintenance of church buildings and other ecclesiastical property of historic value , ORG is to receive certain financial compensation from the ORG for the performance of this task ." ]

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[ "The applicants were born in DATE , DATE and DATE respectively and are currently in GPE .", "On DATE the first and second applicants , a married couple , arrived in GPE and applied to ORG ( Migrationsverket ) for asylum , residence and work permits . Applications for refugee status and travel documents were lodged with written submissions dated DATE .", "The applicants submitted that they had lived together in GPE . The first applicant is a NORP and the second applicant a NORP . They both had a university degree and had been working , the first applicant as a machine supervisor at a car factory and the second applicant as a teacher , before they left GPE . The first applicant had also been a musician , and he used to perform and sing political music for the NORP cause in GPE . He had played at several concerts , which had been criticised by the authorities . He had also been an active athlete as an NORP kick - boxing champion .", "The first applicant claimed that he had been politically active in GPE . He had always been interested in the NORP issue and had once , in DATE , been arrested and questioned by PERSON , the NORP security forces , for being involved in a discussion on this topic . Subsequently , he had been sentenced to CARDINAL months’ imprisonment by ORG court . He had served DATE in GPE prison , before being released on bail . Despite the sentence , he had been able to keep his job and stay in GPE .", "DATE before they left GPE , the first applicant had been approached by a colleague and close friend , who was a member of ORG of NORP GPE ( GPE ) , and asked if he was interested in supporting and working for the PERSON . He had accepted the proposition and started to disseminate leaflets , compact discs and other information about the party and also to recruit new members . He had sympathised with the party but had not been a full member . His only contact with the party had been through the colleague .", "On DATE the first applicant had witnessed the arrest of a work colleague by Etalat outside their workplace . He had then , out of fear , decided to leave GPE as he assumed that his friend would reveal his contacts under torture . He had left work , gone to the bank to withdraw his savings and then home to tell his wife and to pack their most important belongings . The applicants had travelled first to PERSON , where the second applicant ’s parents lived and where they also left some personal belongings and documents , and then to ORG , where they stayed with the first applicant ’s grandparents for DATE .", "On DATE the first applicant had called the doorman in their apartment building and been told that CARDINAL men from GPE had come looking for the applicants . PERSON had broken into their apartment , where allegedly they found evidence and GPE - related documents which the applicants had left behind .", "On TIME CARDINAL DATE , the applicants had crossed the border into GPE and then continued through LOC by truck . Since coming to GPE they had been in touch with the first applicant ’s father , who had claimed that he had been threatened by Etalat and that they had been searching for the first applicant . On several occasions , PERSON had approached the father in his home and taken him to their head office for interrogation .", "The second applicant submitted that she had not been politically involved and that she knew little of the extent of her husband ’s involvement in political activities while they were living in GPE . She had , however , helped him to distribute some materials from the party to friends and relatives .", "In the initial contact with ORG the applicants also submitted that they had both been politically active in GPE . They had taken part in several meetings for the NORP cause and were also active in news programmes that were broadcast on a satellite channel banned in GPE and on internet blogs .", "The first applicant had contacted members of the PERSON when he arrived in GPE and , soon after his arrival , he had participated in an information meeting concerning the party ’s CARDINALth ORG . The applicant submitted photographs of his attendance at the meeting before ORG . He also submitted a certificate issued by the GPE office in GPE on DATE , stating that the first applicant was a supporter of the party and that his life would be in danger if he were to return to GPE .", "The second applicant had started in DATE to work regularly for PERSON , a NORP TV channel which was banned in GPE and considered critical of the NORP regime .", "On DATE ORG rejected the ORG request for asylum . ORG found that the applicants’ story lacked credibility in several aspects . Leaving the credibility issues aside , ORG also found that the applicants had only been active in the PERSON at a very low level and that only activists higher up in the hierarchy would be of any interest to the NORP authorities . Furthermore , the ORG found that the applicants had not been very active since their arrival in GPE and had only participated in general meetings .", "The first and second applicants proceeded to ORG ( Migrationsdomstolen ) where they maintained their story and added that several of their friends had been arrested since they had left GPE and the first applicant ’s father had received several threatening telephone calls from Etalat . In DATE the first applicant had been interviewed on PERSON about himself , sports and music , and political activity . The second applicant had started to work for PERSON as a translator , newscaster and journalist on a DATE basis . She had researched and reported , inter alia , on the hidden mass killings in NORP prisons .", "In DATE they had become members of a NORP support committee for NORP prisoners on hunger strike in GPE . Until DATE , when the hunger strike ended , the first applicant had worked actively to collect support from different NGOs and to spread the information on human rights violations in GPE . The issue was brought up by ORG , on the initiative of the committee . The second applicant , as she could speak LANGUAGE , NORP and GPE fluently , had become the universal spokesperson for the committee . During the hunger strike , she had been interviewed by several NORP media , PERSON and ORG and both applicants had participated in debates on human rights violations in GPE on blogs and several internet sites . During another hunger strike in GPE , in DATE , the first applicant had also been interviewed by the NORP media , PERSON and ORG , and both applicants had participated on blogs and several internet sites . They claimed that their involvement with , inter alia , PERSON must have drawn the attention and interest of NORP authorities . They submitted a letter from the first applicant ’s father , compact discs containing interviews with them from PERSON and several reports and certificates from NGOs .", "By a decision on DATE ORG rejected the ORG request to translate the submitted compact discs containing statements about the NORP government .", "On DATE ORG , after an oral hearing of the case , rejected the ORG appeal . The ORG story about their activities in GPE was considered stringent and substantiated by written evidence and the court found no reason to question the credibility of the story . However , reports showed that mainly high - ranking executives or militant members of the GPE were subjected to violent acts . It was not considered probable that the NORP authorities would show an interest in someone at such a low level as the first applicant . Furthermore , the political activities in GPE had been limited in scope and the applicants had not been able to show that these activities were of any interest to the authorities . The submitted letter from the first applicant ’s father and the certificate from the GPE ’s office in GPE were considered very general or of low value as evidence . Having regard to relevant country information and to the fact that the NORP authorities were not interested in activities at a low level , the court found that there was no indication that the applicants had come to the direct attention of the NORP authorities .", "On DATE the third applicant was born .", "Before ORG the first applicant additionally submitted that he had been actively involved for the NORP cause on PERSON , where he had expressed criticism and continuously informed , inter alia , about the situation for NORP and the severe human rights violations in GPE . He had also been interviewed on TV concerning his own reasons for leaving GPE . PERSON was allegedly monitored by the NORP intelligence services . The second applicant submitted that , in addition to her work for PERSON , she had been working for other NORP broadcasting services , that she had performed CARDINAL interviews and that she had worked on translations for ORG international secretariat in GPE . They submitted that they had been involved in substantial political sur place activity and that this activity was known to the NORP authorities .", "On DATE ORG ( Migrations - överdomstolen ) refused leave to appeal .", "Subsequently , the applicants turned again to ORG to stop the expulsion . On DATE the ORG decided not to grant a new examination . This decision was upheld by ORG on DATE and ORG refused leave to appeal on DATE .", "In DATE , DATE and DATE , the applicants published several articles in “ NORP Perspective ” . The second applicant argued , in the articles , in favour of uniting opposition groups against the NORP government of GPE . She argued that there were many racial and religious groups in GPE , all of which were oppressed by the NORP authorities , who tried to take advantage of this variety and distract opposition activities . Several critical articles were also published on various internet sites .", "In DATE and DATE the applicants signed several public petitions to free human rights activists in GPE on an internet site .", "NORP In DATE , the second applicant was involved in promoting the imprisoned NORP Mr. PERSON as candidate for the Nobel Peace Prize . In the nomination process , the second applicant was named as a member of the nominating committee on several internet sites . She was interviewed about his candidacy on CARDINAL of the most popular opposition sites on DATE .", "In GPE , the first applicant had also become a full member of the PERSON .", "The provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW ( Utlänningslagen , DATE hereafter referred to as “ the Aliens Act ” ) .", "LAW , of LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE .", "According to LAW , LAW , of the same LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , membership of a particular social group , religious or political beliefs , grounds of gender , sexual orientation and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) .", "As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of LAW ) .", "NORP Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to treatment as referred to in LAW , LAW , of LAW or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .", "After the elections in GPE on DATE ORG of the PACE on DATE adopted a declaration in which it considered the violent reactions of the NORP authorities to peaceful protests to be a serious breach of NORP ORG human rights . It also called upon governments of other countries not to expel NORP citizens to GPE .", "In a document released by ORG on DATE ( Freedom on the Net – GPE , p. CARDINAL ) it was stated :", "“ Since the protests that followed the disputed presidential election of DATE , the NORP authorities have waged an active campaign against internet freedom , employing extensive and sophisticated methods of control that go well beyond simple content filtering . These include tampering with internet access , mobile - telephone service , and satellite broadcasting ; hacking opposition and other critical websites ; monitoring dissenters online and using the information obtained to intimidate and arrest them ... ”", "ORG : GPE , section CARDINAL : Freedom of Speech and Press / Internet Freedom ( DATE ) noted that :", "“ The government monitored Internet communications , especially via social networking Web sites such as ORG , ORG , and collected ORG personally identifiable information in connection with peaceful expression of views . The government threatened , harassed , and arrested individuals who posted comments critical of the government on the internet ... ”", "ORG Operational Guidance Note – Iran , dated DATE , stated the following :", "“ CARDINAL ... There is a real risk that high profile activists and political opponents who have come to the attention of the authorities would on return to GPE face a real risk of persecution and should be granted asylum for reason of his or her political opinion .", "CARDINAL.CARDINAL.CARDINAL Depending on the particular circumstances , some persons who do not have a political profile- which would include for example student demonstrators or other anti - government protestors- are likely to be perceived by the authorities in GPE to oppose the regime and may similarly face a real risk of persecution or ill - treatment on return . Case owners must consider carefully whether the personal circumstances of the individual concerned are such that he or she would face a real risk of persecution on return to GPE .", "CARDINAL Those who have engaged in opposition political activity in the GPE might , depending on their level of involvement , similarly face a real risk of persecution on return to GPE on account of that activity and in such cases a grant of asylum will also be appropriate . The test to be applied in such cases is set out in detail in ORG ( Demonstrators in GPE DATE risk on return ) ORG [ DATE ] ORG DATE ORG ) .", "CARDINAL NORP opposition groups suspected of separatist aspiration , such as ORG of NORP GPE ( GPE ) , are brutally suppressed .", "CARDINAL.CARDINAL.CARDINAL Politically active groups and individuals are considered a threat to national security by the NORP government . If the NORP authorities consider a person to be working against national security , ( the person may for example be accused of being a spy or of cooperating with an oppositional religious , ethnic or political group ) , they may face severe punishment ranging from CARDINAL years’ imprisonment to execution . For instance , being in possession of a CD , a pamphlet or something similar made by ORG ( KDPI ) , GPE or other NORP organisations , may be considered as an act against national security . This form of persecution for political activities is a problem all over GPE . However , the authorities are watching NORP areas and GPE more carefully than other areas .", "CARDINAL.CARDINAL.CARDINAL There is no evidence to suggest that an applicant of NORP ethnic origin , in the absence of any other risk factor , would on return face a real risk of serious mistreatment simply on the account of his or her ethnic origin alone . Applicants who are able to demonstrate that they are members or supporters of the GPE , GPE , or active members of ORG , and who are known to the authorities as such , will be at real risk of persecution and a grant of asylum will be appropriate unless there are case - specific reasons why it would not be . ”", "Amnesty International , in its ORG DATE GPE , stated the following :", "“ The authorities maintained severe restrictions on freedom of expression , association and assembly . Sweeping controls on domestic and international media aimed at reducing Iranians’ contact with the outside world were imposed . Individuals and groups risked arrest , torture and imprisonment if perceived as co - operating with human rights and foreign - based NORP - language media organizations . Political dissidents , women ’s and minority rights activists and other human rights defenders , lawyers , journalists and students were rounded up in mass and other arrests and CARDINAL were imprisoned . Torture and other ill - treatment of detainees were routine and committed with impunity . Women continued to face discrimination under the law and in practice . The authorities acknowledged CARDINAL executions , but there were credible reports of CARDINAL other executions .", "... The authorities continued to restrict access to outside sources of information such as the internet . International radio and television broadcasts were jammed . In DATE , the authorities banned contact by NORP with CARDINAL news outlets and foreign - based organizations . Those willing to speak to the few large NORP - language media outlets on human rights issues were threatened or harassed by security officials .", "... The authorities banned newspapers and student journals and prosecuted journalists whose reporting they deemed \" against the system \" . Wiretapping and intercepting of SMS and email communications were routine . A shadowy \" cyber army \" , reportedly linked to ORG , organized attacks on domestic and foreign internet sites deemed to be anti - government , while other sites , including some associated with religious leaders , were filtered ... ”", "The GPE ORG in its Human Rights and Democracy : The DATE ORG – GPE , ( DATE ) , stated :", "“ The NORP authorities continued to actively censor the internet , restricting access to wide range of sites including ORG and GPE and targeting bloggers and online journalists . The military - run ORG was reported to have taken a leading role in monitoring and disrupting internet sites and other online tools , including email and blog sites . ”", "ORG , in its legal position document ( Rättsligt ställningstagande ) , regarding the determination of individual risk for minorities and other groups in GPE and also the refugee status for individuals with regard to sur place activity ( DATE ) stated that it must be considered that the NORP regime is interested in internet users and activity abroad . Its ability to track down and monitor Iranians’ use of internet and other activities abroad is remarkably high and GPE is considered to be one of the countries which go the furthest in this respect .", "In its World Report DATE , ORG stated the following :", "“ In DATE NORP authorities refused to allow government critics to engage in peaceful demonstrations . In DATE , DATE and DATE security forces broke up large - scale protests in several major cities ... There was a sharp increase in the use of death penalty . The government continues targeting civil society activists , especially lawyers , rights activists , students , and journalists . ”", "In a judgment of ORG in ORG ( GPE ) [ CARDINAL ] EWCA Civ CARDINAL , the issue of sur place activities was considered . The case concerned an appeal by an NORP of NORP ethnicity who claimed to have been involved with GPE , a NORP political party , in GPE and that GPE leaflets had been found in his home . He had said that after fleeing GPE and applying for asylum he had become more involved with GPE . A photograph of him had been posted on the internet and a film sequence of a demonstration he had attended in GPE had been broadcast on ORG in GPE . ORG considered that the Immigration Judge ’s conclusions on the credibility of the appellant were not sustainable , however , the court did also consider the appellant ’s sur place activities . Bearing in mind that the burden of proof lay on the appellant , Lord ORG found that the Immigration Judge had been entitled to reach the conclusion he did . He commented :", "“ There must be a limit as to how far an applicant for asylum is entitled to rely upon publicity about his activities in the GPE against the government of the country to which he is liable to be returned . It seems to me that it is not enough for such an applicant simply to establish , as here , that he was involved in activities which were relatively limited in duration and importance , without producing any evidence that the authorities would be concerned about them , or even that they were or would be aware of them . ”", "However , in GPE ( GPE ) v. Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL , which was handed down on DATE , ORG took the following approach to the issue of sur place activities . The case involved an NORP asylum seeker who claimed to have been active in support of the opposition ORG whilst in GPE . ORG again remitted the issues arising from sur place activities to be heard before a differently constituted ORG , which stated :", "“ ... [ T]he ORG , while accepting that the appellant ’s political activity in this country was genuine , were not prepared to accept in the absence of positive evidence that the NORP authorities had ‘ the means and the inclination’ to monitor such activities as a demonstration outside their embassy , or that they would be able to identify the appellant from photographs of the demonstration . In my judgment , and without disrespect to what is a specialist tribunal , this is a finding which risks losing contact with reality . Where , as here , the tribunal has objective evidence which ‘ paints a bleak picture of the suppression of political GPE by a named government , it requires little or no evidence or speculation to arrive at a strong possibility , - and perhaps DATE that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed . Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups . The real question in most cases will be what follows for the individual claimant . If , for example , any information reaching the embassy is likely to be that a claimant identified in a photograph is a hanger - on with no real commitment to the oppositionist cause , that will go directly to the issue flagged up by art CARDINAL ) of the [ LAW ] . ”", "In a more recent judgment of ORG in ORG ( Demonstrators in GPE DATE risk on return ) ORG [ DATE ] ORG DATE ORG ) , the tribunal gave a new “ country guidance ” determination on returns to GPE in light of the post - presidential election violence . The case concerned an NORP national ’s sur place activities in the GPE The ORG considered the appellant to be a demonstrator whom the NORP authorities would particularly wish to identify and that there was a real risk that they would be able to do so . Additionally , because of the nature of his association with PERSON there was also a real risk that he would face ill - treatment which would amount to persecution because of his political beliefs . The ORG stated , inter alia , the following .", "“ CARDINAL Given the large numbers of those who demonstrate here and the publicity which demonstrators receive , for example on ORG , combined with the inability of ORG to monitor all returnees who have been involved in demonstrations here , regard must be had to the level of involvement of the individual here as well as any political activity which the individual might have been involved in GPE before seeking asylum in GPE .", "CARDINAL ( a ) NORP returning to GPE are screened on arrival . A returnee who meets the profile of an activist may be detained while searches of documentation are made . Students , particularly those who have known political profiles are likely to be questioned as well as those who have exited illegally .", "( b ) There is not a real risk of persecution for those who have exited GPE illegally or are merely returning from GPE . The conclusions of the ORG in the country guidance case of ORG ( risk on return DATE illegal exit ) GPE CG [ DATE ] UKAIT DATE are followed and endorsed .", "( c ) There is no evidence of the use of facial recognition technology at the NORP GPE International airport , but there are a number of officials who may be able to recognize up to CARDINAL faces at any CARDINAL time . The procedures used by security at the airport are haphazard . It is therefore possible that those whom the regime might wish to question would not come to the attention of the regime on arrival . If , however , information is known about their activities abroad , they might well be picked up for questioning and/or transferred to a special court near the airport in GPE after they have returned home .", "CARDINAL It is important to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority that the NORP regime would give to tracing him . It is only after considering those factors that the issue of whether or not there is a real risk of his facing persecution on return can be assessed . ”", "A number of factors were considered and placed under CARDINAL main heads : ( i ) the type of sur place activity involved ; ( ii ) the risk that a person will be identified as engaging in it ; ( iii ) the factors triggering inquiry on return of the person and ; ( iv ) in the absence of a universal check on all entering the country , the factors that would lead to identification at the airport on return or after entry .", "In a recent judgment of ORG of DATE , the court considered the need for international protection based on sur place activity . The court stated that a real risk to be subjected to severe ill - treatment can be based on an applicant ’s sur place activity and that a comprehensive examination of all circumstances has to be made to determine such a risk . It was considered to be of particular importance whether the claimed activity was an expression and a continuation of opinions already founded in the country of origin .", "ORG , in its legal statement of CARDINAL DATE CARDINAL(as referred to above ) , recognised that a risk based on sur place activity can constitute grounds for refugee status and asylum and listed the following factors to be considered in such assessment :", "“ CARDINAL . Whether the person has been politically or religiously active also in his country of origin . It is of importance for the determination whether a need for international protection has occurred sur place if the claimed activity is an expression and a continuation of an opinion already founded in the country of origin . The starting point should be that the requirements are higher regarding the extent of sur place activity if it has only occurred in GPE .", "Whether the political activity and its extent are of interest to the NORP state . The activity must be sufficiently serious in nature and involve behaviour which would generally be seen to displease the NORP regime . The assessment should be based on the nature and extent of the activity and should take into consideration the NORP approach to such activity according to current country information , the degree of exposure in GPE and the possible subsequent risk on return to GPE .", "Whether the activity has or may come to the knowledge of the NORP state . The asylum seeker has to make plausible that the activity has or may come to the knowledge of the NORP authorities . To this end he must , in the absence of other evidence , provide a clear and coherent story supported by current country information . ”" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in NORP , a village in GPE . ORG ( “ the Government ” ) were represented by Mr P. Laptev , former Representative of GPE at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant leads a group of workers who build roads in GPE . In DATE they organised themselves as Private Enterprise “ Saturn ” ( ORG « Сатурн ORG ) . The applicant allegedly was the sole owner of ORG .", "In DATE and DATE Saturn won CARDINAL civil actions against its customer – Yekaterinovskoye State Road Construction Enterprise “ Dorotdel ” ( PERSON государственное дорожное ремонтно-строительное предприятие « PERSON ) .", "On DATE ORG of GPE awarded PERSON MONEY ( RUB ) in damages and costs . This judgment became binding on DATE and was enforced on DATE .", "On DATE ORG of GPE awarded Saturn RUB CARDINAL,CARDINAL,CARDINAL in damages and costs . This judgment became binding on DATE but has not been enforced .", "On DATE ORG of GPE awarded Saturn RUB CARDINAL,CARDINAL,CARDINAL in damages and costs . This judgment became binding on DATE but has not been enforced .", "In DATE Saturn was declared bankrupt and liquidated . In DATE PERSON was subjected to insolvency proceedings .", "Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE ." ]

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[ "The applicant was born in DATE and lives in PERSON , in the PERSON region of GPE .", "On DATE ORG ( NORP міський суд PERSON області ) awarded the applicant CARDINAL hryvnyas ( ORG ) against his former NORP employer , the ORG - owned ORG Mine “ PERSON ” ( CARDINAL відкрите акціонерне товариство « Шахта ім. Дзержинського » ) , in disability benefits and other payments .", "This judgment was not appealed against , became final , and enforcement proceedings were instituted to collect the debt .", "The debt was paid to the applicant in numerous small instalments , the last payment of ORG CARDINAL having been made on DATE .", "As explained by the bailiffs ' service , the enforcement of the judgment had been delayed on account of numerous reasons , including a prolonged reorganization of the debtor , insufficient funds and a tax lien imposed on its property , as well as a statutory moratorium on the forced sale of the ORG property .", "The relevant domestic law is summarised in the judgment in the case of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE the applicant sued his former lawyer for unjust enrichment and sought payment of CARDINAL NORP korunas ( CZK ) , MONEY ( ORG ) . At the same time he applied for a lawyer to be appointed to act on his behalf and for a waiver of the court fees .", "In DATE the GPE nad ORG discontinued the proceedings ; in DATE the decision was quashed by LOC , which also noted that the applicant should clarify his claims .", "In DATE the applicant extended his action to CARDINAL judges and ORG .", "In response to the applicant ’s request , on DATE ORG referred the case to ORG on the grounds that the judges of the GPE nad ORG could have been biased owing to the applicant ’s action against one of them .", "Later , the applicant sought the exclusion of the ORG judges from the case ; however , ORG dismissed this request . The applicant also challenged , before ORG , the impartiality of ORG judges to examine the exclusion of the first - instance court judges , and later he challenged the impartiality of the High Court judges before ORG . All these requests were refused .", "Throughout DATE the ORG appointed CARDINAL different lawyers to act on the applicant ’s behalf and dismissed his request for the extension of the action to the other CARDINAL parties . The relevant lawyers successfully challenged their appointments in view of their relationship to the case . In DATE ORG changed this decision in part and granted the request for the extension of the action to CARDINAL judge .", "On DATE ORG revoked the exemption from the court fees granted to the applicant in DATE and refused to appoint any more lawyers on his behalf . Based on the ORG records it found that the applicant possessed CARDINAL big plots of land and that he had obtained ORG CARDINAL as a result of his application before the Court ( LOC v. GPE , no . CARDINAL/CARDINAL , DATE ) . The applicant did not challenge this decision .", "On DATE ORG held a hearing , refused the applicant ’s request for the exclusion of the ORG judges from the case , granted the applicant ’s action in relation to his former lawyer and dismissed it concerning the judge . The applicant did not attend the hearing , without providing any explanation in a timely manner and despite having been duly notified .", "On DATE ORG refused the applicant ’s request for the hearing to be rescheduled as unsubstantiated , refused his former request for the exclusion of a ORG judge from the proceedings and upheld the judgment . It became final on DATE .", "In DATE the applicant lodged a claim for compensation for non - pecuniary damage arising from the excessive length of the proceedings with ORG under PERSON no . CARDINAL/CARDINAL , as amended by PERSON no . DATE .", "As the Ministry did not deal with the applicant ’s request within the DATE statutory time - limit , he brought a civil action for damages against ORG on DATE . He specified the non - pecuniary damage that he had suffered at CZK MONEY ( EUR CARDINAL ) .", "In a letter of DATE ORG acknowledged that the proceedings had been unreasonably lengthy . Taking into account the complexity of the proceedings and the applicant ’s substantial contribution to the delay , ORG awarded him CZK CARDINAL for non - pecuniary damage .", "On DATE the GPE CARDINAL ORG granted the action in part and awarded the applicant CZK CARDINAL,CARDINAL in addition to the just satisfaction granted by ORG . The court concluded that the proceedings on the merits had been delayed from DATE ; however , they had been carried out smoothly after that period . It considered that the applicant had significantly contributed to their length when repeatedly applying for the exclusion of judges from proceedings , raising the issue even before the High and ORG . Although he had exercised his undisputed rights , the examination of all his requests must objectively have taken due time .", "On DATE ORG refused the applicant ’s request to exclude the judges of the Municipal and High Courts from the proceedings for their alleged bias and upheld the judgment , finding that the applicant had initially claimed a sum representing CARDINAL the minimum monthly salary and that the litigation could have hardly caused considerable non - pecuniary damage . Overall , the applicant was awarded just satisfaction of CZK CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) .", "The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE ( no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant was the chair of ORG , a registered social club operating on FAC , GPE . In DATE , ORG ( “ ORG ” ) carried out a search of the LOC and removed many documents .", "The applicant was subsequently required to attend for interview with a financial investigator appointed under LAW ) Order DATE . He did so on DATE and answered all questions put to him .", "On DATE , the applicant was charged by the police with false accounting and conspiracy to defraud .", "On DATE , a further notice was served on the applicant under the DATE Order , requiring his attendance before financial investigators at a police station on DATE . The maximum penalty for failure to attend an interview was DATE imprisonment or a fine not exceeding GBP CARDINAL . The notice , which was dated DATE , stated that the investigation was into whether any person had benefited from theft or false accounting , contributing to the resources of a proscribed organisation or from contraventions of betting regulations . The applicant was required to attend at FAC on DATE .", "NORP On DATE , the applicant 's solicitors sent a letter seeking a written guarantee that no information or statements obtained during the interview would be used in criminal proceedings .", "On DATE , a further notice , dated DATE , was served on the applicant , again requiring him to attend the interview on DATE . The notice was served with a letter in which the investigators confirmed that they were aware of the criminal proceedings pending against the applicant . They set out the safeguards in paragraph CARDINAL of Schedule CARDINAL to the Order , and stated that the applicant therefore had the guarantees he sought . They added that paragraph CARDINAL of Schedule CARDINAL restricted the disclosure of information obtained by a financial investigator , and added that “ this does not prevent the answers or information being used to further the investigation ” .", "On DATE , the applicant 's solicitor sent a letter to the financial investigators indicating that the applicant 's replies could become admissible evidence at a trial and suggesting that the purpose of the interview was to compel him to disclose his defence . He added that the applicant had been advised not to attend an interview unless a satisfactory response to the letter was received .", "On DATE , the applicant 's solicitor was informed by letter that the reason for the interview was not to force the applicant to disclose his defence but that a number of matters from the earlier interview required clarification and additional matters had also arisen .", "On a request by the investigators , on DATE the applicant 's representatives informed the investigators that the applicant would not attend the interview . The interview did not take place .", "On DATE , a summons charged the applicant with the offence of failing without reasonable excuse to comply with the financial investigator 's requirement to answer questions or otherwise furnish information , contrary to paragraph CARDINAL ) of Schedule DATE Order . On DATE , the applicant was convicted of this offence in the Magistrates ' Court and fined the sum of GBP CARDINAL .", "On DATE , ORG allowed the applicant 's appeal against conviction , finding that the prosecution had not proved the absence of a reasonable excuse . The judge noted that ORG had dealt with a similar case ( PERSON v. PERSON [ DATE ] NI CARDINAL ) which related to the same legislation and the same investigation . ORG had held that as ORG had put in place certain express limitations on the use of information obtained by investigators , it could not have intended that the person concerned could put forward the risk of self - incrimination as a “ reasonable excuse ” . In PERSON v. PERSON , however , the accused had refused to answer questions at an interview , and he had not been interviewed by the police , or charged with any offence .", "The judge further noted that CARDINAL of the grounds on which the information obtained by investigators could be used in criminal proceedings was where evidence inconsistent with the information was relied on by the defence . That ground had been amended in the light of the ORG 's judgment in the case of ORG v. the GPE , and the amendment would have afforded the applicant the protection he sought had it been in place at the time . The judge took the view that once he had been questioned by the police and charged , the applicant had a right not to answer questions that would have tended to incriminate him . The only outstanding matter was whether the applicant should have attended the interview and then refused to answer questions , or , as he did , refuse to attend the interview once he failed to receive the assurances he had asked for . The judge regarded the distinction as technical , and found that the prosecution had failed to establish the absence of a “ reasonable excuse ” for not answering questions about the proceeds of a crime , with which he had been formally charged .", "On DATE , the prosecutor requested ORG to state a case for the purpose of an appeal to ORG in GPE .", "On DATE , ORG in GPE heard the appeal . On DATE , Lord Justice PERSON , giving judgment , considered , in the light of NORP v. ORG , ex parte ORG ( [ DATE ] ORG CARDINAL ) , that LAW is directed towards the fairness of the trial itself and is not concerned with extra - judicial inquiries “ with the consequence that a person to whom those inquiries are directed does not have a reasonable excuse for failing or refusing to comply with a financial investigator 's requirements merely because the information sought may be potentially incriminating ” . The appeal was upheld , and the applicant 's conviction confirmed .", "The criminal proceedings for false accounting and conspiracy to defraud ( see § CARDINAL above ) were struck out on grounds of delay by ORG in DATE . The magistrate was asked by the office of ORG to state a case for ORG , but he died before having prepared the stated case .", "The Proceeds of Crime ( Northern Ireland ) Order DATE inter alia provides for investigatory measures and powers in respect of the tracing and confiscation of proceeds of criminal conduct .", "Pursuant to paragraph CARDINAL ) of Schedule CARDINAL , it was an offence for a person to fail , without reasonable excuse , to attend to answer questions by a ORG appointed under the Order . Paragraph CARDINAL restricted the use that could be made of the statements made to CARDINAL situations :", "( a ) on a prosecution for an offence under the Perjury ( GPE ) DATE ;", "( b ) on a prosecution for some other offence where evidence inconsistent with any such answers or information is relied on by the defence , or", "( c ) on a prosecution for failing to comply with a requirement of the DATE Order , such as attending to answer questions", "On DATE , paragraph CARDINAL ) was limited by ORG and Criminal Evidence Act DATE to permit use of the statements only if they are adduced , or if they are the subject of questions at trial , by the defence .", "According to paragraph CARDINAL of Schedule CARDINAL , information obtained by a person in his capacity as a financial investigator may not be disclosed by him except to ( a ) a constable ; ( b ) any GPE department or government department discharging its functions on behalf of the ORG ; ( c ) to any competent body as defined , or ( d ) any foreign equivalent of ( a ) –(c ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively , and live in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON . ORG were invited to intervene in the proceedings ( LAW ) . However , by letter of DATE they notified the ORG that they did not wish to exercise their right to do so .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicants , while travelling in the former GPE in their car , ran off the road into an abyss .", "On DATE they brought , through their legal representative , a compensation claim against the public undertaking responsible for road maintenance alleging that the accident had been caused by a landslide . On DATE ORG of ORG ruled partly in favour of the applicants . After CARDINAL remittal , the applicants’ case was finally decided by ORG decision of CARDINAL DATE . According to the copy of a receipt slip submitted by ORG , this latter decision was served on the ORG representative on DATE ." ]

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[ "NORP The applicant ’s late husband was employed by DATE , a company based in GPE ( “ the company ” ) . DATE he was deployed on certain projects in GPE , for which work , apart from his salary , he had the right to claim an allowance calculated in GPE dollars ( USD ) .", "On DATE ORG in GPE instituted insolvency proceedings in respect of the company .", "On an unspecified date thereafter PERSON lodged a pecuniary claim within the insolvency proceedings for salary arrears , deployment allowance , and various social security contributions . On DATE ORG rejected his claim and instructed him to initiate a regular civil suit and request determination of his claim ( radi utvrđivanja osporenih potraživanja ) .", "On DATE PERSON , as instructed , lodged a separate civil claim .", "On DATE ORG rejected the part of PERSON request regarding the salaries , as it was considered to have been withdrawn , while the request for deployment allowance was partly granted . By virtue of this judgment the company was ordered to pay him USD MONEY towards the unpaid allowances , together with the social security contributions due and statutory interest , plus MONEY ( ORG ) for legal costs .", "On DATE and DATE respectively ORG and ORG upheld the judgment of DATE . The judgment of ORG was served on the applicant after DATE .", "On an unspecified date thereafter , the said judgment having become final , it was acknowledged within the insolvency proceedings .", "On DATE the costs awarded in the civil proceedings were paid , while on DATE the interest calculated on the costs was also paid .", "On CARDINAL occasions DATE and DATE the company paid the applicant various smaller amounts in “ hardship assistance ” ( solidarna pomoć ) , to help cover certain medical bills . The total of all these sums amounted to an equivalent of MONEY . These amounts , however , were not specified as being intended to constitute partial payment of the debt , but as assistance to the applicant ’s family because of the applicant ’s late husband ’s illness .", "On DATE ORG issued a decision ordering payment of PERCENT of the guaranteed salary to all the former employees of the company for the period from DATE to CARDINAL DATE . On DATE the applicant received a payment under this head of MONEY ( ORG , CARDINAL at the relevant time ) .", "NORP Before the insolvency proceedings the debtor company was entirely socially owned . It has remained registered as fully socially owned in the relevant public registries throughout the insolvency proceedings .", "On DATE the company was put up for auction , in accordance with the provisions of the applicable law ( see paragraph CARDINAL below ) . Following several unsuccessful auction attempts , on DATE ORG authorised the sale of the company to a third private party . The purchase price has been added to the company ’s assets .", "On DATE ORG in GPE terminated the insolvency proceedings against the company , however continuing with insolvency action against the bankruptcy estate . On DATE ORG authorised payment of certain sums to some of the former employees of the company , but the applicant was not placed on the list for payment .", "Article CARDINAL of the Forced Settlement , LAW ( Zakon o prinudnom poravnanju , stečaju i likvidaciji , published in ORG no . CARDINAL and OG FRY nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) provided that with the opening of bankruptcy proceedings the entire assets of the company were to be transformed into the bankruptcy estate ( stečajna masa ) .", "Upon the opening of the bankruptcy proceedings , the creditors have to report their claims to the bankruptcy council ( stečajno veće ; LAW ) , which requests the bankruptcy administrator ( stečajni upravnik ) and other creditors to either approve or dispute any claim ( ORG CARDINAL and CARDINAL ) .", "The creditor whose claim had been disputed in the bankruptcy proceedings shall be instructed to initiate civil dispute or other proceedings requesting determination of his or her claim ( LAW ) . The claims finally established in civil proceedings shall take part in the distribution of the bankruptcy estate ( LAW ) .", "All debts of the company are to be paid proportionally , apart from the payments on account of salaries up to the amount of the guaranteed salaries ( LAW ) , payments on account of the costs of civil proceedings from LAW and some other costs , which are to be paid as a priority and in their entirety ( LAW .", "According to LAW the company subject to bankruptcy , as a legal person , could have been sold separately . Once the company is sold , the bankruptcy proceedings are terminated in relation to the company , while they are to be continued in relation to the bankruptcy estate ( LAW ) . Following termination of the bankruptcy proceedings the debtor company is no longer held responsible for any debts of the company ( LAW ) .", "The remainder of the relevant domestic law is set out in the ORG ’s judgments of PERSON and ORG ( nos . CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL , DATE , § § CARDINAL - CARDINAL ) ; PERSON ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ; PERSON and Others v. PERSON ( nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , CARDINAL DATE , § § CARDINAL - CARDINAL ) ; ORG GPE ( no . CARDINAL , § § CARDINAL and DATE , CARDINAL DATE ) ; and GPE and Others v. PERSON ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) ." ]

[ "6", "P1" ]

[ "6-1", "P1-1" ]

[ "P1-1-1" ]

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[ "The first applicant , PERSON , is an unincorporated association which did not inform the ORG of any registered address . The second applicant , Mr PERSON , an NORP national who lives in GPE , is the appointed representative of the first applicant for the purposes of the proceedings before the ORG . The third to seventeenth applicants ( see list appended ) are members or supporters of the first applicant residing in GPE and GPE ( applicant no . CARDINAL ) . They were represented before the ORG by Mr PERSON of ORG solicitors , a law - firm practising in GPE .", "ORG ( “ the Government ” ) were represented by their agent , PERSON , of ORG and by Mr PERSON , professor of international law at ORG .", "Having been informed on DATE of their right to submit written observations , ORG indicated to the ORG that they did not intend to take part in the proceedings . ORG did not express an intention to take part in the proceedings .", "The first applicant , whose name means “ ORG ” , describes itself as a “ global NORP political party and/or religious society ” . It was established in GPE in DATE and advocates the overthrow of governments throughout the NORP world and their replacement by an NORP State in the form of a recreated ORG . The first applicant has achieved a small , but highly committed following in a number of NORP states and has also gained popularity among NORP in LOC . In GPE , where the first applicant has been active since DATE , it has CARDINAL followers .", "On DATE the NORP ORG of the Interior ( ORG ) issued a decision by which it proscribed the first applicant ’s activities within NORP territory under sections CARDINAL § CARDINAL , CARDINAL § CARDINAL no . CARDINAL in conjunction with sections CARDINAL § CARDINAL and CARDINAL § CARDINAL of ORG ( see relevant domestic law , below ) . It further ordered the first applicant ’s assets to be confiscated . Assets of third parties were confiscated as far as they had been intentionally used or were intended to be used to promote the first applicant ’s illegal activities .", "The Ministry considered that the first applicant was a foreign private association operating on an international scale and that there existed no known sub - organisation in GPE . Its activities in GPE included the distribution of leaflets and brochures and the distribution of information via internet as well as , more recently , the organisation of public events .", "The Ministry considered that the first applicant ’s activities were directed against the principle of international understanding and that the applicant advocated the use of violence as a means to achieve its political goals . The organisation ’s mouthpiece and ideological platform in GPE was the DATE magazine “ FAC .", "Basing its decision on the book “ The inevitability of the battle of cultures ” , published in DATE by the organisation ’s founder , ORG , as well as on a number of publications attributed to the first applicant , in particular articles published in the magazine “ PERSON , leaflets and publications on the organisation ’s website , ORG considered that the first applicant denied the right of GPE to exist and called for its destruction and for the killing of NORP . This constituted an expression of the applicant ’s basic philosophical position , which included the “ active Jihad ” . The applicant agitated in a targeted fashion against NORP States and the governments , which overthrow it repeatedly called for . It pursued its objectives , which were directed against the concept of international understanding , in a pro - actively aggressive manner . It did not thereby restrict itself to merely criticising existing political or social conditions or rejecting peaceful coexistence between GPE and peoples but also called for the armed struggle against the State of GPE , NORP and ORG .", "The ORG further considered that the first applicant was not a political party , as it did not intend to stand for elections in GPE . It further held that the first applicant was not to be regarded as a religious or philosophical community ( Religions- oder PERSON ) , as it did not pursue religious , but political objectives .", "On DATE the applicants , represented by counsel , lodged an application against the prohibition order with ORG ) . They alleged , in particular , that the prohibition violated their right to freedom of religion under LAW . They denied that they advocated the use of violence .", "On DATE ORG ordered the first applicant to submit evidence as to where the organisation was based . On DATE the first applicant pointed out that its organisation was prohibited in all NORP states , they were thus forced to work clandestinely and were unable to reveal the organisation ’s address .", "On DATE ORG severed the first applicant ’s application from the remainder of the proceedings and declared it admissible . That court considered that the first applicant had the legal standing to lodge an application against the prohibition order . Furthermore , it had been properly represented before the court . On DATE , ORG orally informed the applicants , that , under its established case - law ( compare paragraph CARDINAL , below ) actions lodged by individual members of a prohibited association were to be declared inadmissible . A decision on the admissibility of the remaining applicants’ actions was postponed until DATE .", "On DATE the second to seventeenth applicants withdrew their applications with reference to the indication given by ORG as to the inadmissibility of their applications . On DATE ORG decided to discontinue the proceedings insofar as they concerned the applications lodged by these applicants .", "NORP In its submissions dated CARDINAL and DATE , the first applicant accepted that it was not to be regarded as a political party within the meaning of the relevant law . The first applicant claimed , however , that all its activities had a religious foundation and that it enjoyed the protection of freedom of religion under LAW . It further submitted that the Government had misconstrued the nature of its ideology , stressing , in particular , that the first applicant promoted peaceful dialogue and had never advocated the use of violence . It contested that the magazine “ PERSON was the organisation ’s mouthpiece . The first applicant further pointed out that it did not seek to establish a “ caliphate ” in any of the NORP democracies . Lastly , it complained of a violation of its rights under Articles CARDINAL , CARDINAL and CARDINAL of the Convention .", "On DATE ORG , by court order without a prior oral hearing , rejected the first applicant ’s application as unfounded . Relying on the so - called “ organisational law ” submitted by the applicants , the court considered that the first applicant did not fulfil the requirements of a religious community , as its activities did not include the exercise of a common religious practice . Furthermore , the first applicant could not be regarded as a philosophical community , as its existence and activities were based on ORG .", "ORG further confirmed that the first applicant ’s activities were directed against the principle of international understanding and were thus subject to prohibition under LAW of LAW in conjunction with ORG . Examining the sources already relied upon by ORG , the court considered that numerous statements were attributable to the applicant , which called for the violent elimination of ORG and for the physical destruction of human lives and thus worked contrary to a peaceful resolution of LOC conflict .", "The ORG considered that articles published in the magazine “ Explizit ” contained denials of GPE ’s right to exist and called for the violent elimination of ORG or for people to be killed . The LAW “ PERSON noch ? ” ( How long ? ; PERSON , issue no . DATE , p. CARDINAL et seqq . ) addressed the political and military situation in GPE . The article sharply criticised the NORP peace deal adopted at the summit meeting of GPE in GPE in DATE . This was followed by criticism of the NORP authority , which was accused of not pursuing the goal of", "“ freeing GPE , but of handing over GPE in the name of the NORP people to the NORP . ”", "This assessment was followed by the statement :", "“ As NORP , we must be clear that the problem of “ GPE ” is not a border issue but an existential issue . The NORP foreign body at the heart of the NORP world can under no circumstances be allowed to continue to exist ... We repeat again the unalterable NORP duty : There can only be one response to the NORP aggression in GPE : Jihad . Allah , the Exalted , commands : “ And slay them wherever ye catch them , and turn them out from where they have turned you out ” ( PERSON CARDINAL , PERSON ) . ”", "This was followed by the opinion that GPE was to be overcome by military means and that the", "“ NORP armies ( had ) never really fought against the NORP aggressor ” .", "The court considered that the call to Jihad in the article represented a summons to violently eliminate ORG . It conceded that the term “ Jihad ” was multilayered in NORP usage , referring to more than just the “ Holy War ” . The term described every endeavour , effort and strengthening of ORG . What was decisive in the present context , however , was how the term was to be understood by readers in the context of the article . It was embedded in the statement that GPE could on no account be allowed to continue to exist and the summons to eliminate the ORG by military means . In this context there could be no doubt that the call to ORG was aimed at the violent destruction of GPE as a solution to the NORP - Palestinian conflict . This interpretation corresponded to the quotation from the DATE relied upon in the article . It did not have to be decided how this quotation was to be understood in its original context . In the context of the article , it constituted a call to take violent action with the intention of causing physical destruction and banishment .", "In the article “ PERSON – Happy Birthday GPE ? ” ( DATE Happy birthday GPE ? , PERSON , issue no . CARDINAL , DATE , p. CARDINAL et seqq . ) it was stated that the creation of ORG to the detriment of the NORP people was accompanied by crimes against humanity and that GPE thus lacked legitimacy . The article closed with the following statement :", "“ Whoever accepts the State of GPE is against Allah ’s commands and thus commits a serious sin . ”", "This was followed by a quotation from the Qur’an of a “ command by Allah ” :", "“ And fight for Allah against those who fight against you , but do not transgress ! Truly , Allah loves those who do not transgress . And slay them wherever ye catch them , and turn them out from where they have turned you out . ”", "The court considered that it could be left open whether the denial of GPE ’s right to exist already breached the concept of international understanding . An any rate , that concept had been interfered with as soon as the assertion was followed by a call violently to eliminate ORG , as had been the case with regard to the quotation from the DATE .", "ORG analysed the content of one further article published in the magazine PERSON in DATE and concluded that that article also contained a call for the destruction of the State of GPE .", "According to the court , there were a number of indications , which taken as a whole , left no doubt that there was a close link between the magazine “ PERSON and the first applicant , and that therefore the articles discussed in the above were attributable to the first applicant .", "The call to eliminate the State of GPE by force and to kill people was not restricted to the magazine “ PERSON . Among other sources , the court referred to a transcript dated DATE of a programme broadcast on GPE local television about a debate on LOC conflict at ORG , according to which the second applicant said the following with regard to suicide attacks in GPE :", "“ These actions would be banned in GPE or in other countries in the West – since ORG rejects violence against civilians , but there are no civilians in GPE ; all of them , women and men , are part of the military and the founding of GPE was an act of aggression . Everyone who goes to GPE and lives there is complicit in it . An attack on an institution with adults inside is an act of self - defence . If children are also killed , their parents are responsible for having decided to live in GPE . ”", "ORG considered that these statements , in which the second applicant justified the physical destruction of NORP nationals , spoke for themselves . According to the court , the same objective was reflected in a statement made by the second applicant at an event held on DATE , during which he said :", "“ For us , GPE is a State of aggression . A State of violence , a State of attack . That is why we are not prepared to accept this ORG , to make peace with this NORP entity . This State was built upon the blood of NORP , through aggression , through violence and we have a duty as NORP to liberate the land again . ”", "According to ORG , the denial of GPE ’s right to exist , linked to the call to eliminate the ORG by force , was also the subject matter of several of the first applicant ’s flyers . The court quoted , inter alia , a flyer dated DATE , which read :", "“ The whole of GPE , from the sea to the river , is NORP territory . NORP are duty bound to liberate it from the rule of the NORP , even if it costs the lives of CARDINAL of martyrs . ”", "Another flyer dated DATE contained the following :", "“ The NORP question is not a question of withdrawing from the region called the NORP territories . Nor is it a question of the withdrawal from GPE , GPE or from GPE . It is the NORP entity itself which unlawfully appropriated GPE . The solution is to uproot the NORP entity from the entire NORP territory . Thus speaks Allah : “ And slay them wherever ye catch them , and turn them out from where they have turned you out” ... CARDINAL ) . Every recognition , every negotiation with the NORP is treason against Allah , His PERSON and the believers . We are not allowed to accept this or to keep quiet about it . ”", "Lastly , the court considered that the prohibition was proportionate . In this connection , it observed that the first applicant did not enjoy special protection under the LAW as a religious or philosophical community . It further considered that ORG did not have a milder means at their disposition to achieve the pursued aim .", "On DATE the first applicant submitted its comments on the court order . It alleged , in particular , that the court ’s interpretation of the notion “ religious community ” had been too restrictive and was not consistent with the case law of ORG . It further requested an oral hearing to be held .", "By judgment of DATE , which was served on the applicants’ counsel on DATE , ORG , following a hearing , rejected the application as unfounded . At the outset , the court confirmed its ruling that the applicant could not be regarded as a religious community , as its aims were primarily of a political nature , even if they were based on religious foundations .", "ORG further considered that , even assuming that the first applicant could be regarded as a religious community or a religious association ( religiöser ORG ) , it remained subject to prohibition under LAW . The court was satisfied that the conditions for a ban to be issued were fulfilled because a multitude of public statements attributable to the first applicant against the backdrop of the NORP - Palestinian conflict called for the violent elimination of the ORG of GPE and for people to be killed .", "ORG considered that the first applicant ’s objections against this ruling were not convincing . The evidence presented in the court order was sufficient to justify the assumption that the cited articles were attributable to the first applicant . Irrespective of this fact , the first applicant ’s calls for ORG to be eliminated by force and for people to be killed were not only restricted to the magazine “ LOC .", "The court lastly found that , having regard to the seriousness of the statements attributable to the first applicant , the measure taken had to be regarded as proportionate even if the first applicant did enjoy the right to religious freedom . It would , in particular , not have been sufficient exclusively to ban the second applicant ’s activity , as the impugned statements were not only made by the second applicant . Neither would it have been sufficient to ban the first applicant from issuing statements on LOC conflict , as the first applicant regarded it as a primary duty to combat and violently to destroy GPE . As was demonstrated by the multitude of statements examined by the court in its court order , and had been confirmed by the first applicant during the oral hearing , the first applicant considered it as a main duty of the Caliphate to be created to destroy GPE . These statements had such a weight that even the protection , which religious and philosophical associations generally enjoyed under LAW , did not call for renouncing the prohibition for the mere reason that the statements had so far not been followed by actions .", "On DATE the first applicant lodged a constitutional complaint , alleging , in particular , that the prohibition was disproportionate and violated its right freely to assemble as a religious community ( religiöse PERSON ) under LAW . The first applicant complained , in particular , that LAW was not applicable in the instant case . Furthermore , the prohibition order failed sufficiently to take into account its interests as a religious community and was disproportionate . According to the first applicant , it would have been sufficient to order the second applicant or other members of the association to refrain from making political statements on LOC conflict . The first applicant further alleged that the impugned decisions violated its rights under Articles CARDINAL , CARDINAL , DATE and DATE of the Convention .", "On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the first applicant ’s complaint for adjudication . According to that court , the complaint was inadmissible because the first applicant was not qualified to file a complaint as it did not have a registered address in GPE . Pursuant to the relevant provisions of the PERSON on proceedings before ORG , only those persons who could claim a violation of their constitutional rights were entitled to lodge a constitutional complaint . LAW of LAW provided that the basic rights also applied to domestic legal persons to the extent that the nature of such rights permitted . The applicant , however , was a foreign legal person . While it might be considered that a foreign legal person based in another member ORG of ORG had a right to equal treatment under LAW , this did not apply in the first applicant ’s case , as it had not been established that the first applicant had a registered office in another ORG member ORG .", "This decision was served on the first applicant ’s counsel on DATE .", "The relevant provisions of the German Basic Law ( Grundgesetz ) read as follows :", "Article CARDINAL", "[ Personal freedoms ]", "“ ( CARDINAL ) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law . ”", "Article CARDINAL", "[ Freedom of faith and conscience ]", "“ ( CARDINAL ) Freedom of faith and of conscience , and freedom to profess a religious or philosophical creed , shall be inviolable .", "( CARDINAL ) The undisturbed practice of religion shall be guaranteed .", "... ”", "Article CARDINAL", "[ Freedom of association ]", "“ ( CARDINAL ) NORP shall have the right to form corporations and other associations .", "( CARDINAL ) ORG whose aims or activities contravene the criminal laws , or that are directed against the constitutional order or the concept of international understanding , shall be prohibited .", "... ”", "Article CARDINAL", "[ Restriction of basic rights – Legal remedies ]", "“ ( CARDINAL ) Insofar as , under LAW , a basic right may be restricted by or pursuant to a law , such law must apply generally and not merely to a single case . In addition , the law must specify the basic right affected and the LAW in which it appears .", "( CARDINAL ) In no case may the essence of a basic right be affected .", "( CARDINAL ) The basic rights shall also apply to domestic legal persons to the extent that the nature of such rights permits .", "( CARDINAL ) Should any person ’s rights be violated by public authority , he may have recourse to the courts . If no other jurisdiction has been established , recourse shall be to the ordinary courts ... ”", "The relevant sections of ORG ) read as follows :", "Section CARDINAL", "Banning", "“ ( CARDINAL ) ORG association can only be treated as being banned ( LAW ) if the competent authority established by decree that its aims or its activity contravene the criminal law or that they are directed against the constitutional order or against the idea of international understanding ; the order shall decree the dissolution of the association ( ban ) . As a general rule , such ban shall entail confiscations and seizure of", "ORG association ’s assets ,", "CARDINAL ... and", "property of third parties provided that the owner , by handling the items over to the association , has deliberately promoted the association ’s anti - constitutional activities or if the items were intended to further such activities .", "... ”", "Section CARDINAL", "Geographical applicability of bans imposed on associations", "“ ... If a ( foreign ) association does not have a sub - organisation within the geographical applicability of this LAW , the ban ( section CARDINAL paragraph CARDINAL ) is directed against its activity within that territory . ”", "Section CARDINAL", "“ Anyone who , within the geographical applicability of this act , by pursuing an activity", "( ... )", "contravenes an enforceable prohibition under section CARDINAL sentence CARDINAL ( ... ) will be sentenced to up to DATE imprisonment or to a fine . ”", "Under the established case - law of ORG ( compare judgment of CARDINAL DATE , no . CARDINAL A CARDINAL and decision of DATE , no . CARDINAL A CARDINAL ) , individual members of an association are not entitled to lodge actions against the banning of the respective association , because the ban exclusively affects the legal position of the respective association , and not the individual rights of its members ." ]

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[ "The applicants were born in DATE and DATE and reside in GPE and GPE , respectively .", "C.S. was the owner of a flat in GPE , which she had let to GPE", "On DATE the applicants became the owners of the flat .", "The applicants served formal notice on the tenant on DATE , informing him that they intended to terminate the lease when it expired on DATE , requiring him to vacate the LOC by that date and giving him notice to appear before ORG .", "In a decision of DATE , that court formally fixed the termination of the lease for DATE and ruled that the LOC would have to be vacated by DATE . The decision became enforceable on CARDINAL DATE .", "On DATE of the applicants , PERSON , signed a statutory declaration to the effect that she urgently needed to recover the use of the flat for her own accommodation .", "On DATE the applicants served notice on the tenant requiring him to vacate the LOC .", "On DATE they served notice on the tenant indicating that he would be evicted on DATE by a bailiff .", "DATE and DATE a bailiff made CARDINAL attempts to evict the tenant but each attempt proved unsuccessful . The applicants never obtained police assistance for the enforcement of the eviction .", "On DATE , relying on section CARDINAL of Law no . CARDINAL , the tenant applied to ORG for a stay of execution of the eviction . The court stayed the execution until DATE .", "NORP In DATE the tenant spontaneously vacated the LOC and the applicants were able to recover the use of their flat .", "Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the government decreed statutory increases ) , by the statutory extension of all current leases and by the suspension or staggering of the enforcement of orders for possession . With respect to the extension of leases and the suspension or staggering of the enforcement of orders for possession , the relevant domestic law is set out in the ORG 's judgment in the case of ORG GPE ( [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINAL-V ) .", "Lastly , Legislative Decree no . CARDINAL of DATE , which later became PERSON no . CARDINAL/CARDINAL , suspended the enforcement of certain orders for possession until DATE .", "By Legislative Decree no . CARDINAL of DATE , the suspension was extended until DATE .", "The history of legislative developments in the area of rent control may be summarised as follows .", "The first relevant measure was PERSON no . CARDINAL of DATE , which provided for a system of “ fair rents ” ( equo canone ) on the basis of a number of criteria such as the surface area of the flat and the cost of its construction .", "The second was adopted by the NORP authorities in DATE , with a view to the progressive liberalisation of the rental property market . Legislation relaxing rent level restrictions ( patti in deroga ) then came into force . Owners and tenants were in principle given the opportunity to derogate from the rent fixed by law and to agree on a different amount .", "Lastly , PERSON no . CARDINAL of DATE reformed the tenancy regulations and liberalised rents .", "The tenant is under a general obligation to compensate the landlord for any loss caused by the belated return of the accommodation . In this connection , Article CARDINAL of the Civil Code provides :", "“ Tenants who fail to vacate premises are under an obligation to pay the landlord the agreed amount until DATE of their departure , together with compensation for any other loss . ”", "NORP However , PERSON no . CARDINAL of CARDINAL DATE provided , inter alia , that the compensation claimable by the landlord would be limited to the amount of the rent paid by the tenant at the time of the expiry of the lease , index - linked to the cost of living ( section CARDINAL of Law no . CARDINAL of DATE ) and increased by PERCENT , in respect of the whole period in which the landlord had been unable to recover possession of his property .", "On a number of occasions ORG has been called upon to consider whether the statutory system for the extension of leases and for the suspension or staggering of the enforcement of orders for possession was compatible with the LAW in terms of the right to peaceful enjoyment of property and the reasonable - time requirement . It has also been requested to rule on the issue of the limitation to the compensation that a landlord is entitled to claim .", "NORP In response to the first question , ORG gave a number of judgments DATE ( in particular , judgments nos . CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) in which it found that the legislative measures were compliant , being justified by their transitional and limited nature . In the last of the above - mentioned judgments , in particular , ORG asserted that , even though the legislature had a duty to make provision for individuals who were particularly destitute , the burden could no longer simply be transferred exclusively to the landlord , who might himself be in a situation of hardship . Moreover , the future continuation of the same legislative logic could no longer be perceived as legitimate .", "As to the second question , in judgment no . CARDINAL of DATE ORG confirmed that compensation could be limited during the periods determined by law for the suspension of evictions . It explained that the introduction of such limits was intended to govern tenancies concerned by the emergency legislation currently in force , and that the housing shortage made such suspension of enforcement necessary . Whilst evictions were suspended ex lege , the law also determined the quantum of the compensation that could be claimed from the tenant , both measures being temporary and exceptional . Besides , to compensate landlords to some extent , they had been exempted from having to prove that they had suffered a loss .", "ORG declared the limitation to the compensation claimable by the landlord unconstitutional in cases where the inability of the landlord to recover possession stemmed from the conduct of the tenant rather than from any legislative intervention .", "The court thus opened the way for landlords to bring civil proceedings in order to obtain full compensation for the loss caused by the tenant .", "In its judgment no . CARDINAL of DATE , ORG held that Article CARDINAL of LAW did not prevent the parties concerned from agreeing in advance on the amount of the compensation , so that the landlord would not be obliged to adduce evidence of the sum lost .", "In its subsequent judgment no . CARDINAL of DATE , ORG explained that a delay in the return of the property could only , by itself , justify a general finding that the tenant should pay compensation for the loss sustained by the landlord , who would be required to provide specific evidence of that loss in relation to the condition and location of the property and its potential use . In that particular case , ORG upheld the decision of the court below , which had dismissed the landlord 's claim for compensation on the ground that he had not submitted evidence of the loss actually sustained by producing specific documents concerning precise offers to rent the property or agreements with prospective tenants on rent rates .", "In judgment no . DATE of DATE , ORG considered that the loss sustained by a landlord could also be evaluated on an equitable basis .", "In judgment no . DATE of CARDINAL DATE , ORG established that the limiting of the compensation to which a landlord was entitled only applied in respect of periods during which the suspension of evictions had been provided for by law .", "In judgment no . CARDINAL of DATE , ORG confirmed that the landlord was obliged to provide evidence of precise offers to rent or purchase the property , in order to substantiate the loss claimed on the basis of a shortfall in rent or an inability to sell the flat . The same principle was subsequently confirmed by judgments FAC . CARDINAL of DATE and DATE of DATE .", "In judgment no . CARDINAL of DATE , ORG held that the loss sustained by the landlord could be proved simply by a request for a higher rent , determined on the basis of the amount that he could have charged on the free market .", "Lastly , in judgment no . DATE of DATE , ORG laid down the principle that the tenant is considered to have been given notice to quit as soon as the lease agreement expires , regardless of the eviction date set by the judge .", "In judgment no . CARDINAL of CARDINAL DATE ORG ruled on the issue of police assistance .", "That judgment was given in a case arising from a claim for compensation lodged by a number of landlords against ORG in DATE .", "In particular , they were claiming reimbursement for losses sustained as a result of a delay in recovering their property that was attributable , in their view , to the fact that they had not been provided with police assistance .", "A bailiff had made CARDINAL attempts to gain access and CARDINAL of them were unsuccessful . According to the landlords , CARDINAL of those attempts were made during periods when evictions were subject to legislative suspension .", "In the other CARDINAL cases , the claimants asserted that the authorities had not provided evidence of any force majeure that made it absolutely impossible for them to grant the necessary police assistance .", "At first instance ORG found in favour of the claimants and awarded them the sum of MONEY ( MONEY ) in compensation . The Ministry appealed and the judgment was set aside by ORG on the ground that , in view of the public policy imperatives cited by the authorities , the claimants had not provided evidence to show that the refusal to grant police assistance was unjustified . The claimants appealed on points of law .", "ORG observed that , in judgment no . CARDINAL of DATE , sitting in plenary , it had laid down the principle that a landlord who has obtained an enforceable judgment in his favour is entitled to apply to the authorities for any acts required for the purpose of enforcement , including police assistance . It was thus an obligation rather than a discretionary power of the authorities .", "ORG further observed that , in judgment no . CARDINAL of CARDINAL DATE , sitting in plenary , it had held that as a consequence of that principle any inability of the authorities to comply with their obligation should be subjected to a stringent test . In particular , the question whether the police authority had legitimately refused to provide assistance on DATE and at the time indicated by the bailiff was to be assessed by taking into account whether any alternative time , or even date , had been proposed , and if any reasons had been given , in each specific case , to justify the refusal .", "The Court of Cassation moreover stated that the police authority enjoyed a margin of discretion as to the actual time when its assistance was to be allocated .", "Except where the inability to comply is caused by force majeure , if the competent authority refuses to grant such resources in spite of a request from a bailiff , the landlord should be entitled to lodge a claim with the ordinary courts seeking compensation from the authorities for the loss sustained as a result of the refusal .", "ORG reiterated the principle set out in judgments nos . CARDINAL and DATE of CARDINAL DATE that reparation in the form of compensation was the minimum guarantee necessary to uphold an impaired right in cases where the resulting damage interfered with an interest protected by LAW . It held that the right to execution of the order contained in an enforceable judgment had to be regarded as such a right , because the possibility for a person to bring legal proceedings seeking the protection of his or her rights extended to the enforcement of final and binding judicial decisions .", "ORG quashed the judgment of ORG and referred it back to the lower courts for reconsideration . It stated as a matter of principle that , when compensation claims were brought against public authorities by landlords complaining of damage because an eviction order had not been executed or its execution had been delayed , it was for the authorities to prove that they had been prevented from allocating police assistance . Such a defence would only release the authorities from responsibility , in particular , if it arose from extraordinary and unforeseeable imperatives . In this connection , ORG emphasised that any permanent crisis situations , such as those affecting the judicial system or public authorities , did not preclude responsibility for damage caused to individuals , but , on the contrary , might constitute the origin of such responsibility . In particular , the “ crisis ” in the NORP court system had not helped the ORG to avoid a number of unfavourable judgments by ORG for the excessive length of judicial proceedings , and currently did not preclude such findings by domestic courts pursuant to PERSON no . CARDINAL of DATE ( the “ Pinto Act ” ) ." ]

[ "6", "P1" ]

[ "6-1", "P1-1" ]

[ "P1-1-1" ]

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[ "The applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE - upon - GPE . She is represented before the ORG by PERSON , a lawyer practising in GPE - upon - GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant has been involved in peaceful protests designed to draw attention to practices carried out at ORG in GPE .", "On DATE a ORG interim injunction was obtained against the applicant ( and others ) under section CARDINAL of ORG ( “ the LAW ” ) by the plaintiffs to a civil claim against her , the PERSON family , who lived at the farm . The injunction was granted without the applicant having notice of the application , in her absence and prior to the issue of civil proceedings .", "The Order restrained the applicant from pursuing a course of conduct which amounted to harassment of any of the plaintiffs including , in particular , communicating with them or coming onto their farm , the land immediately adjoining their farm or certain parts of a nearby public highway , whether for the purposes of protesting or otherwise . It provided :", "“ ( CARDINAL ) This Order prohibits you from doing the acts set out in this Order . You should read it carefully . You are advised to consult your solicitor as soon as possible . You have a right to ask the ORG to vary or discharge this Order .", "( CARDINAL ) If you disobey this Order you may be found guilty of ORG and you may be sent to prison or fined and if fined your assets may be seized . ”", "It continued further as follows :", "“ VARIATION OR DISCHARGE OF THIS ORDER", "The Defendant may apply to the ORG at any time to vary or discharge this Order but if he wishes to do so he must first inform ORG in writing TIME beforehand . ”", "Thereafter the applicant states that she , acting in person , served a timely defence and a notice of application to have the injunction varied or discharged on both ORG and the plaintiffs’ solicitors . She expected that the court would list the matter thereafter . No such listing and/or hearing had taken place prior to the applicant ’s arrest for the criminal offence of harassment in DATE . The applicant states that subsequent enquiries have revealed that ORG did not have a copy of the application to vary or discharge the injunction on its file and that it appears that the document was lost either in the post or at the ORG office .", "The magistrate in her criminal proceedings ( see below ) found as a fact that the applicant had served a timely defence on both the plaintiffs’ solicitors and on the court and had requested the removal of the injunction , but that she was still awaiting a reply and an opportunity to challenge the injunction at the time of her criminal trial .", "In DATE the applicant was arrested and charged ( along with CARDINAL others ) with a criminal offence under LAW . The information laid alleged as follows :", "“ PERSON , jointly with others DATE at ORG , ORG , GPE pursued a course of conduct which amounted to harassment of PERSON , contrary to section CARDINAL of the Protection from Harassment Act CARDINAL . ”", "The applicant was tried by a stipendiary magistrate . Evidence was heard for DATE between DATE and DATE . On DATE , the magistrate acquitted the applicant , holding that , while her course of conduct amounted to harassment and she knew or ought to have known that it did so , it was reasonable in the circumstances . Pursuant to section CARDINAL(CARDINAL)(c ) of the Act , it was a defence for the defendant to show that in the particular circumstances the pursuit of the course of conduct was reasonable . In considering whether to regard the applicant ’s behaviour as reasonable , the magistrate balanced the “ highly valued and protected ” right to protest against the effect of the protests on the occupants of the farm . He continued :", "“ ... there has been in the evidence no suggestion of violence and not more than the smallest hint of possible damage and abusive language .", "Even in the case of DATE I am far from certain about the value of the evidence . What I have heard and been impressed by is that all of them [ the Defendants ] , and PERSON in particular , have gone out of their way to avoid such behaviour and have indeed counselled others against it .", "What all this amounts to is that I am satisfied that the purpose of the protest and the way in which these CARDINAL pursued it was reasonable and I therefore dismiss all the charges against them . ”", "The Director of Public Prosecutions appealed by way of case stated to ORG . ORG was required to answer the following question :", "“ Whether as a matter of law the course of conduct pursued by the defendant PERSON could have been deemed to be reasonable having regard to the fact that the course of conduct was in breach of the terms of ORG injunction served on the defendant PERSON on DATE . ”", "ORG answered the above question in the negative ( R v. ORG , ex parte PERSON and others , DATE , case no . CO/CARDINAL/CARDINAL [ “ ex parte PERSON ” ] ) . It considered that on the basis that the conduct in question did amount to harassment and was in breach of the injunction , it was not open to the applicant on the facts as found to establish that she had a defence of reasonableness within section CARDINAL(CARDINAL)(c ) of the LAW . Mr Justice PERSON stated that :", "“ ... The injunction , if granted , must be obeyed , and unless and until it is set aside , it binds the party in question . It can not be right for an individual to say to him or herself , that he or she will ignore the terms of the injunction because he or she believes that the conduct in question is reasonable .", "The course that must be adopted is to apply to set the injunction aside . The judge will then decide whether the conduct is reasonable , or should be prevented . He will carry out the balancing exercise . But , as it seems to me , it is incumbent upon a magistrate , faced with an injunction , to accept that it means that the defendant is unable to discharge the burden placed upon him by the LAW of establishing that the conduct was reasonable .", "For my part , I find it quite impossible to accept that it can be reasonable to pursue a course of conduct in breach of an injunction which is designed to stop such conduct . ”", "In a concurring judgment , Lord Justice PERSON stated :", "“ It is , in my opinion , to be presumed that the injunction , although ex parte and interim , has been obtained properly , and it is to be obeyed until it expires , or is set aside or varied by ORG . A person who is aware that he or she is subject to an injunction , made by ORG , and who can apply to set it aside or to vary it , can not be conducting him or herself reasonably if he or she deliberately and without reasonable excuse breaks the terms of the injunction .", "Miss PERSON was in breach of the injunction in CARDINAL respects . She was upon the road outside the farm ... and she on occasions trespassed on the Harrisons’ land .", "The particular circumstances , against which the reasonableness of that course of conduct had to be measured , included the existence of the High Court order . There was no justification put forward by Miss PERSON either before the stipendiary magistrate or before this Court , for her disobeying the order of ORG ...", "What is certain , in my judgment , is that conduct which flouts a ORG order can not be reasonable unless there exists a wholly exceptional excuse for doing so , such as the instance put forward by Mr. PERSON during argument , that it is necessary to go into a prohibited area to rescue someone who is in imminent danger . Any other view could lead to inconsistent conclusions being reached by the GPE court and ORG ; a most undesirable result . ”", "While not necessary for the determination of the point in issue , during the course of his judgment , Mr ORG also referred to the additional defence that the applicant had run under section CARDINAL ) of the LAW ( that she had pursued her course of conduct for the purpose of preventing or detecting crime ) and observed that :", "“ ... I find it difficult to see how a protest of this sort , carried on over a lengthy period of time , could be said to have been pursued for the purpose of detecting or preventing crime . It is no crime to run a mink farm and as the magistrate found , there was never any evidence of breaches of any regulations covering the manner in which the minks had to be kept . ”", "ORG directed the GPE court to proceed in the light of its judgment .", "The applicant thereafter applied to ORG for leave to present a petition of appeal to ORG and for certification of the following point of law as CARDINAL of general public importance :", "“ Whether conduct which is in breach of an injunction imposed in civil proceedings is capable of being reasonable under section CARDINAL(CARDINAL)(c ) of ORG . ”", "On DATE , the ORG certified the point of law as being CARDINAL of general public importance . However , it refused the applicant ’s application for leave to present a petition of appeal to ORG .", "On DATE , the applicant was granted legal aid to pursue a petition of appeal to ORG . However , she was advised by both leading and junior counsel in conference on DATE , and in a subsequent written opinion by junior counsel on DATE , that her appeal had little prospect of success . Indeed , in that written opinion counsel stated that she was “ quite certain that ORG would not grant leave ” . The applicant was then informed by her solicitors that her legal aid would be discharged , which occurred subsequently . The applicant thereafter instructed a new firm of solicitors on a pro bono basis to seek a further opinion from counsel regarding a potential appeal to ORG . A further experienced barrister advised by telephone on DATE that a petition to ORG would be unlikely to be successful . She had , in fact , also previously received advice to the same effect on DATE from the barrister who represented her in ORG . This avenue of appeal was therefore not pursued .", "On DATE , as a result of the judgment of ORG , the applicant was convicted by the stipendiary magistrate . She was sentenced to an absolute discharge and an indefinite restraining order under LAW , which read as follows :", "“ CARDINAL ) The Defendant is prohibited from assaulting , molesting , harassing , threatening , pestering or otherwise interfering with Mr. PERSON , his children or members of his family , Mrs. PERSON , Mrs. PERSON and PERSON , by doing acts to cause them , their servants , agents , employees or customers harm whether directly or indirectly .", "CARDINAL ) The Defendant is prohibited from making any communication to Mr. PERSON , his family , servants , agents , employees or customers whether in writing or orally , whether by telephone or otherwise .", "CARDINAL ) The Defendant is prohibited from entering upon the land of PERSON at ORG , ORG , GPE , or travelling within QUANTITY thereof . ”", "On DATE , the applicant applied to ORG for leave to appeal , out of time , against the magistrate ’s decision to convict and sentence her . This application was rejected by ORG on DATE .", "On DATE , the applicant , acting in person , applied to ORG for permission to seek judicial review of ORG decision . Permission was granted on DATE . At the full hearing on DATE , ORG decision was quashed ( R v. ORG , ex parte PERSON , DATE , case no . CO/CARDINAL/CARDINAL ) . Permission to appeal out of time was granted in relation to the applicant ’s submissions concerning the defence which she had raised under section CARDINAL ) of the Act at the GPE court trial , namely that she pursued her course of conduct for the purpose of preventing or detecting crime . She argued that it was her co - defendants who were primarily running the defence of reasonable conduct under section CARDINAL(CARDINAL)(c ) and that the magistrate effectively “ rolled up ” the defences that were being put forward under subsection ( CARDINAL ) of LAW , without specifically differentiating between the evidence which was being put forward on behalf of her co - defendants and her own evidence .", "ORG held that although ORG in ex parte PERSON had ruled that her reasonableness defence under section CARDINAL(CARDINAL)(c ) of the LAW had been determined against her by the existence of the injunction , it was still open to the applicant to argue before ORG that her actions were lawful under section CARDINAL ) of the LAW . Lord Justice PERSON stated :", "“ ... the judge was wrong to conclude that ORG decision in any way precluded the applicant either as a matter of law from seeking to pursue her defence under section CARDINAL ) , or in any way , insofar as he sought to do so , concluding that on the merits there was no basis upon which it could properly be said that there was material which could found such a defence . The applicant had put before him arguments which indicated that she had been seeking to obtain evidence or other material which would affect the regulatory or prosecuting authorities based upon her assertion that criminal activity was taking place at the mink farm . She may or may not , at DATE , on the facts be able to establish her case , because the burden of proof will be on her ; and , in particular , she will have the difficulty , if she is to succeed , of having to establish that the purpose of her activities was for preventing or detecting crime ... Those will be issues which are properly issues to be determined on the basis of proper conclusions on the facts after the hearing of evidence . It seems to me that nothing that was decided by ORG can impinge upon the applicant ’s right to have those issues properly so resolved . ” ( [ DATE ] ORG ADMIN CARDINAL at paragraph CARDINAL )", "Thereafter , the appeal in ORG was listed for DATE . However , by letter of DATE the applicant informed ORG that she wished to abandon the appeal for medical reasons .", "Section CARDINAL of the LAW creates a general prohibition on harassment as defined in that section , subject to certain exceptions , stating in its material part :", "“ ( CARDINAL ) A person must not pursue a course of conduct –", "( a ) which amounts to harassment of another , and", "( b ) which he knows or ought to know amounts to harassment of the other . ...", "( CARDINAL ) Subsection ( CARDINAL ) does not apply to a course of conduct if the person who pursued it shows –", "( a ) that it was pursued for the purpose of preventing or detecting crime , [ or ] ...", "( c ) that in the particular circumstances the pursuit of the course of conduct was reasonable . ”", "Non - compliance with LAW can give rise to criminal ( section CARDINAL ) and civil ( section CARDINAL ) liability .", "Section CARDINAL of the LAW states in its material part :", "“ ( CARDINAL ) A person who pursues a course of conduct in breach of LAW is guilty of an offence . ”", "Section CARDINAL of the LAW states in its material part :", "“ ( CARDINAL ) An actual or apprehended breach of LAW may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question . ”", "The availability of a civil remedy enables injunctions to be granted during the course of civil proceedings . A civil cause of action must exist before an injunction can be granted .", "The breach of any injunction can give rise to civil committal proceedings . At any such proceedings the court has the power to commit a person who is found to be in breach of the injunction to prison .", "Sections CARDINAL(CARDINAL ) to CARDINAL(CARDINAL ) of the Act make provision for the procedures that can be taken and the sanctions which can be imposed if a civil injunction is breached . Its provisions , while drafted at the time of the commencement of the LAW on DATE , only took effect as from DATE . These provisions were therefore not in force at the time that the applicant was charged under LAW . The provisions read , in relevant part :", "“ ( CARDINAL ) Where –", "( a ) in [ civil ] proceedings ORG or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment , and", "( b ) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction ,", "the plaintiff may apply for the issue of a warrant for the arrest of the defendant . ...", "( CARDINAL ) The judge or district judge to whom an application under subsection ( CARDINAL ) is made may only issue a warrant if -", "( a ) the application is substantiated on oath , and", "( b ) the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction .", "( CARDINAL ) Where –", "( a ) the High Court or a county court grants an injunction for the purpose mentioned in subsection ( CARDINAL)(a ) , and", "( b ) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction ,", "he is guilty of an offence . ”", "Section CARDINAL of the LAW enables a court sentencing a person who commits a criminal offence under LAW to impose a restraining order upon that person . This is an order prohibiting the defendant from doing anything which is set out in the order . By virtue of section CARDINAL(CARDINAL ) , the prosecutor , the defendant or any other person mentioned in the order may apply to the court which made it for it to be varied or discharged by a further order .", "Section CARDINAL(CARDINAL ) states :", "“ If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section , he is guilty of an offence . ”", "By section CARDINAL(CARDINAL ) , a person guilty of an offence under section CARDINAL(CARDINAL ) can be sentenced on conviction on indictment to imprisonment for a term of DATE , or a fine , or both , or , on summary conviction , to imprisonment for a term not exceeding six months , or a fine not exceeding the statutory maximum , or both .", "ORG in this case , ex parte PERSON , held , as set out in the above facts , that the course of conduct pursued by the applicant could not be deemed to be reasonable having regard to the fact that it was in breach of the terms of a ORG order ." ]

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