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[ "The applicants , PERSON , NORP and NORP were born in DATE , DATE and DATE respectively and live in GPE . PERSON sisters and PERSON is their brother .", "NORP The applicants’ mother had CARDINAL children by her husband . After the death of the applicants’ father in DATE , their mother cohabited with PERSON CARDINAL further children were born in that relationship .", "The family , living in a local authority flat in GPE , were known to the social services of GPE and ORG ( “ the local authority ” ) . The records provided by the ORG show that they were principally concerned from DATE onwards in relation to the mother ’s severe financial difficulties . The mother suffered from bad health and it was noted in DATE that when she had a broken arm she always kept CARDINAL of the children off school ( presumably to help in the home ) and was likely to be summoned before ORG . Problems with rent and electricity arrears were noted as recurring through DATE and DATE , as well as continuing health difficulties suffered by the mother . An entry on DATE noted that the CARDINAL children were all happy though overcrowded and that there were no behavioural problems .", "On DATE , it was recorded however that PERSON , the first applicant , who had been causing concern as she had been staying out at TIME , was found semi - conscious at a nearby flat , having taken an overdose . It was noted that the mother was to take her to attend a psychiatric clinic . The medical notes recorded that PERSON complained that she disliked intensely her mother ’s cohabitee PERSON who hit her , shouted and upset her so much that she ran away with intent to kill herself .", "A social work report dated DATE noted that the family consisted of CARDINAL daughters and CARDINAL sons living with their mother . PERSON , the father of the CARDINAL youngest children , was recorded as not cohabiting and the mother had stated that she would not marry him as she would be worse off financially . The state of the home was said to fluctuate according to the mother ’s health but was considered to be adequately furnished with a warm , friendly atmosphere . The mother had always demonstrated a great deal of concern for her children and had perhaps overindulged them at times . In spite of the fact that there was much juvenile delinquency in the area , this was noted as being the first time that any of her children had given cause for concern . The mother ’s ambivalent attitude to school attendance was commented on .", "In DATE , PERSON left school and the social services gave assistance in finding employment .", "On DATE , PERSON , the third applicant , then aged CARDINAL , ran away from home , following an incident in which she claimed that PERSON had attempted to rape her . She was referred as an emergency by the police to the social services . The police interviewed all the family . It is not apparent that the family , in particular the children , were interviewed by social workers concerning the implications of PERSON ’s disclosures . No steps were taken to refer them to the Reporter of the Children ’s Hearing .", "On DATE , PERSON was arrested by the police and charged with indecently assaulting PERSON and L.", "On DATE , ORG entered a guilty plea concerning charges involving offences of indecent behaviour against PERSON before ORG . The pleas were accepted by the prosecution and the case proceeded on the basis that PERSON had committed CARDINAL act of indecency against PERSON between DATE and CARDINAL DATE , and CARDINAL acts of indecency against L. DATE . The ORG requested the social services to prepare social enquiry and psychiatric reports . PERSON was not detained pending sentence . According to the applicants , he returned to live at the applicants’ home .", "On DATE , the applicants stated that the police submitted a report to the children ’s social worker , S. , expressing concern that the children should be protected from further abuse . The Government have found no trace of any such report in existence .", "On DATE , ORG appeared before the Sheriff for sentencing . The social enquiry report dated DATE stated inter alia that the family lived in a CARDINAL room local authority flat in an area where there was a high incidence of social problems . The home was adequately furnished and maintained to a reasonable standard . The mother was described as a caring woman who did not enjoy good health but who put her ORG interests first . The family was considered as appearing a happy well - adjusted group though they were well known to the social services as they had been given assistance from time to time . The children attended school regularly and appeared happily settled . PERSON was recorded as admitting the offence and as being more than ashamed of his conduct , though he could offer no explanation for these actions . It was noted that he did not appear to realise fully the serious nature of these charges . Since the alleged offence he had obtained accommodation outside the applicants’ home - it indicated an address in the same apartment block . It was further noted that the mother was not prepared to accept the charges relating to this man and stated that they had plans to marry in the Spring as they had had a close relationship for DATE . It was concluded that , in view of the serious nature of the offences , it would be necessary for firm control to be exercised over the accused for a period of time .", "NORP The psychiatric report found that PERSON did not show any psychiatric abnormality . His criminal record showed CARDINAL prior minor offence of dishonesty .", "PERSON was sentenced by the Sheriff to two years’ probation . The applicants state that this was with a condition that he cease to reside at the applicants’ address . The Government have found no record of that condition attaching to the probation order and stated that the probation file can not now be found . They accepted however that it was the social services’ responsibility to supervise PERSON ’s probation . According to the recollection of PERSON , who was the supervising officer for part of that period ( after DATE ) , he would have made it clear to PERSON that he was not permitted to live in the family home due to the nature of the offences . He recalled visiting PERSON at a separate address in GPE during this period and sending mail to that address . He believed that PERSON was living there and not at the applicants’ home . In the precognition annexed to the Government ’s observations , PERSON , who was also probation officer for PERSON and acted as replacement for the family social worker , recalled however that he did have suspicions that PERSON might still be living at the family home and that on visiting the family home CARDINAL times unexpectedly he found PERSON “ just leaving ” . He did not consider that there was sufficient evidence of PERSON breaching the conditions attached to his probation order to justify taking the matter further .", "NORP The social worker , PERSON , visited the home on QUANTITY occasions DATE and DATE and did not see PERSON However , his notes recorded in DATE a suspicion that the mother was still cohabiting with PERSON When PERSON took over the case , he noted that PERSON was not living there ( social work case notes entry of CARDINAL DATE ) and that PERSON was not contributing financially to his children . In his later affidavit , he stated that this entry was based on information from the mother . Entries indicated concerns about school attendance and that the mother had been repeatedly told that she should not keep the girls off school . In DATE , it was noted that the school had expressed concerns about the welfare of T. , the fourth applicant , which was attended to by a senior social worker . A school meeting concerning the children ’s attendance was arranged but the mother and PERSON , the second applicant , failed to attend . In DATE , the social worker paid an unexpected visit to the home and found that PERSON was there . Both he and the mother denied that he was living there .", "According to a social enquiry report of DATE drawn up by Mr NORP when PERSON was charged with criminal damage before ORG , she had left home in DATE . No reference was made to the past history of sexual abuse in the home though it was stated that she had left home after a scene with the man who was at that time co - habiting with her mother . PERSON was found guilty of malicious mischief on DATE and sentenced to CARDINAL years’ probation . Social work case notes also recorded that by DATE she had left home . According to her claims lodged in later proceedings , PERSON finally left home on her CARDINALth birthday , in DATE .", "DATE School attendance was still recorded as a problem in DATE for the remaining girls at home . H. , the second applicant , had now left school officially . In her later statements , PERSON recalled that during DATE she was on occasion taken into temporary local authority care in connection with problems of running away .", "NORP In DATE , the mother was recorded as giving her various health problems as the reason for keeping PERSON and T. off school . It was noted that her speech was slurring , among other symptoms , but that she had shown reluctance in going to see her doctor or in allowing the social workers to approach her doctor . In DATE , she was keeping CARDINAL or both girls off school to help her at home or to run messages .", "In DATE , it was noted that the house was becoming even more disordered and the younger children and the mother were becoming more unkempt . The mother gave the impression of having given up . In DATE , the mother was finally referred through her doctor for hospital tests , though she failed to attend the appointments set . In DATE , it was noted that the house stank and that the carpet was matted . The mother informed the social worker that PERSON , who lived in GPE , had invited her to go and live with him there . She gave up that idea shortly afterwards .", "In DATE , PERSON was referred to a Children ’s Hearing for failure to attend school . In the background report drawn up by PERSON for the hearing , explanation was given of the financial and health difficulties of the mother and it was stated that it was the mother who kept PERSON from school to help in the home . There was no reference to the history of sexual abuse in the home . In DATE , PERSON was living temporarily in a social work establishment known as ORG . On DATE , she ran away from the home and was returned . At a date unspecified , she went back to live at home .", "H. , aged DATE , left the family home in or DATE .", "On or DATE , PERSON left home after an argument with her mother about going out at night and was brought back by the police who referred the matter to the social services . After discussion with the mother , PERSON was taken into care by the social services until DATE .", "On DATE , the school attended by PERSON called a multi - disciplinary meeting to discuss the problems of non - attendance of a number of the children of the family . Though a social worker was invited to attend , none was present .", "On DATE , L. was transferred to a residential centre but left the following day to return home . At about the same time , the ORG mother changed address . PERSON lived with her there for DATE and then left to live with a friend . She took an overdose and was admitted to hospital . A letter dated DATE from the psychiatric registrar to ORG noted that “ ... she does n’t get on well with her mother ’s cohabitee . The relationship with PERSON ’s cohabitee seems a bit peculiar ” .", "After being discharged from hospital on DATE , PERSON went to live with a DATE man with whom she had a sexual relationship . On CARDINAL DATE , the police picked up PERSON who told them about the relationship . The mother agreed that PERSON was beyond her control and agreed that she be put in a place of safety . An order lasting DATE was made to that effect . From DATE , she was made the subject of compulsory care measures by the local authority which brought her before the Children ’s Hearing . In the background report drawn up by the social worker PERSON for the hearing , details were given of the mother ’s financial difficulties and ill - health and comment was made that , apart from truancy , the family had not been in any trouble . No reference was made to the past sexual abuse . The hearing extended the place of safety order . PERSON was sent to ORG from DATE to DATE . She appears to have remained there for most of the period until her CARDINALth birthday on DATE , at which date she ceased to be subject to the legislation governing the compulsory education of children . Efforts were then made to find employment for her . Social work notes of CARDINAL DATE concerning PERSON recorded that , when the social worker accompanied her to the mother ’s home for a visit , a man described as PERSON ’s stepfather was present in the living room .", "Entries in the social work notes for the family during DATE continued to emphasise financial difficulties . An entry in DATE referred to problems of school attendance of CARDINAL years’ standing and the mother ’s frequent summoning before the school council .", "On DATE , it was noted that the family had moved to a larger home , a self - contained house provided by the local authority .", "Through DATE , financial difficulties were noted as continuing , and the mother ’s health and general state deteriorating to such an extent that she rarely got out of bed .", "NORP The applicants’ mother died in DATE . It appeared that she had been suffering , inter alia , from undiagnosed multiple sclerosis . The applicants’ elder sister ( aged CARDINAL ) took on the mothering role in the family home .", "T. left home in DATE , after she had become pregnant and had a child . By DATE , she was living at an address with her DATE daughter and was in contact with the social services concerning her financial problems . In DATE , she indicated to her social worker that she had been subject to sexual abuse in the past . In DATE , she disclosed that this had involved her step - father PERSON as well as other men , CARDINAL of whom had been convicted of rape . As at the time she was in regular contact with PERSON , whom she considered had reformed , she was counselled concerning the risk to her own child .", "Following counselling , PERSON the history of abuse by PERSON to the police in or DATE . In her statement of CARDINAL DATE , PERSON stated that after PERSON had been arrested in DATE , various social workers used to come around and she and the others had had to tell them that PERSON was not living with them anymore . When they came to the house , PERSON used to hide and her mother used to keep the children out of their way if possible . She recalled wanting to tell a social worker what was happening but was so petrified of PERSON that she did not . PERSON continued to interfere with her and had sex with her a couple of times after the court case .", "Charges were brought against PERSON of committing sexual offences against PERSON and T.", "At his trial before ORG on DATE , PERSON pleaded guilty to CARDINAL charges and not guilty to CARDINAL charges . The prosecution accepted his pleas . PERSON was duly convicted of serious acts of indecency against PERSON between DATE and DATE and of further such acts against her DATE and DATE ; of serious acts of indecency against L. between DATE and DATE ; and of similar acts against T. between CARDINAL DATE and DATE . Only part of the latter charge concerned the period after PERSON ’s earlier conviction on DATE .", "NORP The trial was adjourned for sentencing reports to be obtained . On DATE , ORG sentenced PERSON to a DATE suspended sentence of imprisonment , having regard to the reports which indicated that he now lived in GPE and that most of the offences predated his earlier conviction in DATE . However , it was only at this time that the applicants alleged that they became aware that PERSON had been subject to criminal proceedings in DATE and that he had been placed on probation on the condition that he did not reside in their home .", "On DATE , the CARDINAL applicants brought proceedings against the local authority seeking damages on the basis that the local authority had failed to carry out its statutory duties , in particular , that PERSON had breached his probation order by residing at the family home and that the social services had , or ought to have , known this and had failed to report the breach to the court or to take the children into care .", "On DATE , following the decision of ORG in X. and Others v. ORG ( [ DATE ] PERSON ) and in the light of counsel ’s advice that their case was indistinguishable , the applicants consented to an order that their action be dismissed .", "In or DATE , the applicants applied for compensation to ORG in respect of the abuse suffered . In their applications , they alleged as follows :", "( i ) E. stated that from DATE she suffered DATE of abuse from PERSON The first incident which she recalled was when she was DATE when he struck her , sending her flying into the wall . Soon after , he began coming into her room at TIME and doing things to her , requiring her to masturbate him . If she cried , he would punch her in the face . From DATE , he used to make the girls have a bath together and would touch them all over their bodies , inserting his finger into them . Often he would keep her off school and would abuse her sexually . He assaulted her often , coming up behind her to hit her on the back of the head . He also used to stand on her naked feet with his shoes on and twist , pinch her with his nails and punch her . This physical abuse happened on a DATE basis . He would also get her and the others to strip to the waist and hit each other with dog chains . This conduct continued regularly until she left home on her CARDINALth birthday ( DATE ) . She recalled going to the social services when she was aged DATE and telling them that PERSON was living with them when he was not supposed to . Nothing happened as a result . While the social services were coming to the house , she did not remember them talking to her . She recalled that this period was before she was DATE or DATE , before DATE or DATE . When she was DATE , she started running away from home . On CARDINAL occasion she took pills . When she was visited by the police in hospital , she told them that PERSON was interfering with her . She also told this to a psychiatrist whom she saw soon after . However , PERSON continued interfering with her . PERSON was only arrested after PERSON had run away from home in DATE . E. had suffered serious problems since that time , having made several suicide attempts and having developed a severe drink problem . A psychiatric report of DATE concluded that her symptoms accorded with a diagnosis of severe post traumatic stress disorder .", "( ii ) PERSON stated that he suffered from physical abuse , assaults and threats of violence from PERSON from DATE . From about DATE CARDINAL , PERSON used to punch him in the stomach and bash him against the wall . He also made him and the others strip to the waist and punch and hit each other with chains . These relentless assaults went on regularly until he left home during DATE . A psychiatric report of DATE concluded that he had long term relationship problems , poor self confidence and long standing personality difficulties .", "( iii ) PERSON stated that she had suffered sexual and physical abuse from PERSON from DATE until she left home in DATE and on occasion after that . PERSON had started interfering with her when she was CARDINAL or CARDINAL . The first thing she remembered was him bathing her with her sister PERSON and rubbing her private parts . Hardly a day went past when he did not do something of a sexual nature to her ( e.g. touching her breasts or private parts ) or batter her . When she was older , he made her touch him on his private parts and perform oral sex . He made her and the other children hit each other with chains and whips and would sometimes join in . She was often left with bad bruises and a bleeding nose . From the age of DATE or DATE , he had sexual intercourse with her several times . When she ran away in DATE , she told the police and he was arrested . However , he returned home and started interfering with her again , having intercourse with her and punching or kicking her if she refused . She ran away again in DATE and was put into a home , first in GPE , then PERSON and finally PERSON , which she eventually left in DATE when she was DATE . At that point , she did not return home but went to stay with her sister and then embarked in a series of relationships . When she visited her mother on DATE , PERSON put his hands up her skirt but let her go when she threatened to tell her boyfriend . On another occasion in DATE , PERSON tried to fondle her but she got up and left . She had never been able to tell anyone about these things as she was scared of him and thought that he would severely assault her . A psychiatric report of DATE concluded that her symptoms , including nightmares and sleep disturbance , accorded with a diagnosis of severe post traumatic stress disorder .", "( iv ) PERSON stated that she had suffered sexual and physical abuse from PERSON from DATE . Though she did not remember anything specifically before DATE , she slept in the same bed as L. and remembered him coming naked into the bed with them . From an early age , he used to stand on her naked feet in his shoes and twirl round , nip her and punch her in the stomach . She had black eyes occasionally . When she was DATE , she remembered him making her touch him and masturbate him . She had to do that to him CARDINAL or CARDINAL times a week when he came home from work . He then started keeping her off school and would lie down on the bed naked , making her take her clothes off and masturbate him . This occurred CARDINAL or CARDINAL times a week . When she was DATE , he began to touch her breasts and rub his penis over her until he ejaculated . When she was DATE , he forced her to have sexual intercourse with him . He did not repeat that but continued touching her and making her masturbate him or have oral sex . This continued until DATE when she was able to leave home – she deliberately got pregnant by having sex with someone she knew , so that the local authority would provide her with accommodation away from home . In DATE , PERSON started coming to her house and would try to touch and grab her . She became very depressed and suicidal . She then told ORG about the abuse . A psychiatric report of DATE concluded that her symptoms , including low self - esteem , fear , mistrust and depression , accorded with a diagnosis of severe post traumatic stress disorder .", "Though the applicable provisions did not permit claims for injuries from violence arising before DATE where the victim and assailant were in the same household , ORG ( “ CICB ” ) , in an apparent oversight , made an assessment awarding MONEY ( GBP ) to PERSON and PERSON for general damages . They appealed against the failure to award damages for loss of earnings . As it was noted that in the proceedings for the fourth applicant PERSON that most of her injuries had arisen before DATE , the applicants PERSON withdrew their appeals to prevent their awards being reconsidered altogether . In deciding ORG ’s appeal , ORG decided that as she had sustained some damage post - DATE it would not disturb the award but made no award for alleged loss of earnings or damage to employment prospects . H. did not receive any award . A letter dated DATE from the PERSON indicated that his application had been rejected in that his claim had not been made within DATE of the incident giving rise to the claim and the Chairman had decided not to waive the requirement in his case .", "On DATE , the applicants requested the Commissioner for ORG in GPE to undertake an investigation into their allegations of negligence and maladministration by the local authority . By letter dated DATE , the ORG stated that he had no jurisdiction pursuant to section CARDINAL of ORG ( GPE ) Act DATE , which precluded investigations where the complainants had a remedy by way of proceedings in a court of law , and that , even if he had jurisdiction , he would not have undertaken an investigation due to the lapse in time since the events occurred . By letter of CARDINAL DATE , he declined to reconsider his decision .", "The Government submitted CARDINAL reports by PERSON , a social work consultant who has worked for DATE in the field of child care , principally in GPE .", "In her first affidavit dated DATE , PERSON stated that with the exception of cases of incest there was in the DATE no real appreciation of the incidence of , and consequences for victims of , child sexual abuse within families . Circulars referred to non - accidental injury without specific reference to sexual abuse which was not recognised as a particular issue . It was only in DATE that literature began to arrive in GPE from GPE on the subject of child sex abuse and initially this was regarded as controversial . The first real recognition of the problem in GPE was a ORG publication “ Child Sexual Abuse in the Family ” published in DATE . ORG on the topic was set up by ORG of ORG in which she was involved and which reported in DATE .", "According to her experience , during DATE and before , where a case of incest or sexual abuse had been identified , the focus would be on ensuring that the perpetrator was punished . Little or no attention was given to the needs of the victim and once the perpetrator was convicted that would be seen as the end of the matter . There was no real appreciation of the extent to which abusers might continue to abuse their victims over DATE or of the skills of abusers in avoiding detection . Social workers were not given any specific training about child sex abuse . There was also the practice at the time of local authorities keeping their probation and child care functions separate , with social workers working separately rather than as part of a team and there was a tendency for there to be relatively little interaction between schools and social work departments .", "In her view , after PERSON had been convicted and sentenced to probation in DATE , it would have been generally assumed that any continuing problem would have been resolved , particularly if a condition in his probation was that he was not allowed to live in the family home . No work would have been envisaged with the victims unless they were showing obvious distress or problems . A mere suspicion that the PERSON was in breach of the probation order , and his presence found in the house during DATE , would not have been sufficient proof of breach . He was the father of CARDINAL of the mother ’s youngest children , contact with the family was not prohibited and his presence in the house would have even been seen as positive . Even if they had considered the possible breach of probation further , they would not have gone on to consider possible harm to the children . It would have been standard practice to make specific appointments to visit the home in order to avoid wasted time and she would not have expected the social worker to make spot checks or call at unexpected times to check on ORG .. As was the practice , social services provided support for the mother who had considerable problems in running the home , and would have had a tendency not to investigate the causes of any running away or of truancy , particularly where the child was close to school leaving age . Nor would it have been expected at the time for the social workers to make a point of talking individually to the children , unless for the purpose of a specific report .", "In her additional comments of DATE , added in the light of the examination of further documents , PERSON noted that at the meeting convened by the school in DATE concerning PERSON the social work department had not sent a participant though invited to do so . The school problems drawn to the attention of the social services did not appear to have prompted the social worker to suggest a meeting to try to draw together the issues for the family and this meant that the full extent of the problems that PERSON and the others in the family faced were not discussed by the wider group of professionals who knew the family . By this time , the use of case conferences was well established in social work practice .", "She also noted that following PERSON ’s overdose of pills in DATE , the social services did not appear to react to PERSON ’s dislike of PERSON and her allegations of an earlier sexual assault and his shouting and hitting . Nor was there any social work follow - up when PERSON ran away in DATE , beyond a visit of the emergency social worker , or any discussion with PERSON after PERSON had been sentenced . Even if social workers at the time were not aware of the incidence of sexual abuse , the incidents with the QUANTITY girls and the evident distress shown by them should have usefully led to an attempt to discuss with them individually how things were at home , in particular to establish the severity of past incidents and whether any other children in the house were at risk of sexual or physical abuse .", "Further , in the light of Mr R ’s report to the court which commented on the need for firm control of ORG and the mother ’s refusal to accept that he had committed the offences , this made the assurances given by PERSON and the mother that PERSON was not living in the home much less safe to rely on . PERSON did not appear to have issued any warning to them about the consequences of breaching the probation order . When the report was made on PERSON in DATE there was no reference to the sexual abuse or home difficulties . Also the report to ORG on L. in DATE failed to give a full picture of her difficulties . Throughout the case there was an emerging pattern of different people not using the information available to assess the safety of the girls and PERSON ’s adherence to the probation conditions . After the report on PERSON in DATE , it could have been expected that the workers involved in the family would have increased their scrutiny of the living arrangements in the family . The lack of detail in the reports on L. deprived the Children ’s Hearing of vital information which could have led them to place NORP on supervision and afforded more opportunity for her to speak about the home situation .", "Though by DATE PERSON was too old to be referred to the reporter of ORG , grounds existed for referring PERSON at that time . Given the abuse , her level of truancy , the poor financial and material circumstances in the family and the offence of PERSON , coupled with allegations by PERSON as to shouting and hitting in the family home , she considered that a referral of PERSON ought to have been made . This would have given an opportunity for all the different agencies involved with the family to contribute to the discussion and for the Hearing to appreciate the full extent of the problems . Though L. might not have been removed in the first instances , a supervision requirement would have allowed closer contact and more individual work . The Reporter would also have had the opportunity to consider whether any other children in the household were in need of compulsory measures of care .", "She concluded that the failure to share significant issues with ORG about L. , the failure to work collaboratively with the school , the lack of attention to the assessed need for firm control of the situation after PERSON was placed on probation and the lack of attention to the significance that the mother did not believe her daughters’ complaints against PERSON , all contributed to a failure to help get the girls the support they were likely to need after the conviction of PERSON and disclosed a failure in the approach taken to the family by the social work department .", "The applicants provided CARDINAL reports dated DATE , CARDINAL May and DATE by Mr PERSON , a consultant in social work with experience in social work practice over DATE .", "He stated that from DATE , when circular SWCARDINAL/CARDINAL was issued , a mult - disciplinary approach by professionals was promoted in respect of neglect and child protection , though sexual abuse was not explicitly referred to . While public and professional acknowledgement of a significant child abuse problem did not emerge until the DATE ’s , in this case PERSON had made disclosures which were believed and not in doubt . Literature as to the nature of the problem was available to practitioners , in particular with GPE and ORG work published in DATE , inter alia , identifying clear indicators as to the behaviour exhibited by abused children .", "NORP Despite long - term problems with the family and notes of truanting dating back to DATE , there was minimal reference to dialogue between the social services and the education authority . There was no reference in the social work records to the disclosures made by PERSON to medical personnel or to a visit to her in hospital by an emergency social worker , disclosing a significant breakdown in communication . The family social worker PERSON appears to have had no clear knowledge as to the situation , while PERSON , who later supervised probation of PERSON , was not a qualified social worker and did not appear to have proper knowledge of the seriousness and persistence of the offences in issue .", "Once disclosures had been made by PERSON in DATE , it would have been reasonable , given the ages of the children , to discuss PERSON with them outwith the presence of the mother . A serious discussion ought to have taken place in the social services as to the potential risks to the children in the household and at the very minimum a report should have been prepared for the Reporter to ORG . In fact there was nothing to suggest that the social services explored PERSON ’s impact on the children in the family at all .", "NORP The social service records noted clear suspicions that PERSON continued to live in the household . Though it was stated in the context of the probation order that firm control was needed , no steps were taken such as further enquiries from neighbours or the local police as to PERSON ’s actual place of residence . Breach of the probation order was a very serious matter and should have triggered a referral of his case back to the court and of the children to the Reporter .", "When PERSON ’s truancy was referred to the Children ’s Hearing in DATE , there was no reference to the background of her running away in DATE or to the history of neglect and turbulent dynamics in the family . It was negligent of the social services not to provide the panel with full information . Nor when there was a case study meeting at the school in DATE did any social worker attend . There was never any multi - disciplinary case conference which reviewed in a full , objective and accurate manner the history and circumstances of the family .", "Imprisonment is used in GPE only where there is no alternative . CARDINAL alternative is probation , which was at the relevant time imposed under section CARDINAL of the Criminal Procedure ( GPE ) Act DATE . When an offender is placed on probation he is allowed to retain his liberty during the period of probation but must comply with the requirements of the probation order . In all cases the order requires the offender to be of good behaviour , conform to the directions of the supervising officer and to inform the supervising officer if he changes residence or employment . Other requirements may be imposed , such as conditions as to the place of residence . If the offender fails to comply with requirements of the probation order , that failure may be reported to the sentencing court by the supervisory officer or other responsible officials of ORG . The supervising officer has a degree of discretion where there is an apparent breach of the order . He may warn the probationer about the conduct if he considers a warning is likely to alter the probationer ’s behaviour . If he reports the matter to the court , the court then investigates the matter . If the failure is proved to its satisfaction , the court can impose a variety of penalties including sentencing the probationer to imprisonment for the offence for which he was placed on probation .", "The care and protection of children in GPE was governed for most of the relevant period by ORG ( GPE ) Act DATE ( the “ CARDINAL Act ” ) .", "There was a duty on local authorities under section CARDINAL ) of the CARDINAL Act to receive a child under CARDINAL into care when it appeared to an authority that his parent or guardian was unable , by reasons of illness , mental disorder or other circumstance , from providing proper accommodation , maintenance and upbringing . The test was whether the intervention was necessary in the interests of the welfare of the child . Compulsory measures of care were also required under section CARDINAL for children in need , including those who were suffering unnecessarily or were the victims of cruelty . Under section CARDINAL(CARDINAL ) , anyone with reasonable cause to believe a child fell into this category could inform the Reporter to ORG of the matter .", "The Children ’s Panel was a tribunal specifically designed to cope with cases involving children . The Reporter had investigative powers to establish the condition of the welfare of the child and had CARDINAL options : to take no further action , to refer the case to ORG for them to give guidance or support , or to convene a Children ’s Hearing . ORG had the power to order the child to submit to a supervision requirement in accordance with such conditions as it saw fit or to reside in a special establishment .", "After the entry into force of LAW DATE , the local authority had a duty to cause inquiries to be made , unless it did not deem them necessary .", "Under section CARDINAL ) of LAW , a police constable or other person authorised by a court or justice of the peace could take a child to “ a place of safety ” , e.g. if offences had been committed in relation to the child , including cruelty or the infliction of unnecessary suffering .", "Physical or sexual abuse of a child will generally constitute a civil wrong ( such as assault ) , as well as a criminal offence , and give rise to an action for damages by the perpetrator .", "DATE . Actions in civil damages may also lie against the social work department ( local authority ) either in respect of alleged wrongdoing ( e.g. negligence , or wilful abuse of power ) for its own actions or vicariously for the actions of its staff .", "Under NORP law , a body carrying out statutory functions will be liable in damages to a person affected by its performance or non - performance of those functions ( in the absence of a wilful disregard of its duties ) only if the statute expressly or impliedly provides for such a liability , or the relationship between the statutory body and the person in question is of such a nature as to create a common law duty of care , and the statutory body violated that duty ( i.e. was negligent ) .", "As set out in PERSON and Others v. GPE [ ORG ] , ( no . CARDINAL , ECHR CARDINAL-V ) , negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort ( delict ) of negligence : a duty of care , breach of the duty of care and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must indicate that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing :", "– that damage to the claimant was foreseeable ;", "– that the claimant was in an appropriate relationship of proximity to the defendant ; and", "– that it is fair , just and reasonable to impose liability on the defendant .", "The leading case is ORG v. PERSON ( [ DATE ] CARDINAL AC CARDINAL ) .", "If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .", "The decision in X and Others v. ORG ( [ DATE ] CARDINAL ORG CARDINAL ) is the leading authority in GPE in this area . ORG there 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 . The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them , inter alia , by not exercising their power to take them into care at an earlier stage . As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence , Lord PERSON in his leading judgment found that no duty of care arose as it was not fair , just or reasonable to impose one on the local authority in their exercise of this aspect of their duties .", "More recently , in the case of PERSON and Others v. ORG ( [ DATE ] CARDINAL AER CARDINAL ) in a case concerning the claims of a family , parents and children , that they had suffered abuse and damage due to the foster placement in their home by the local authority of a DATE boy who was a suspected sexual abuser , ORG held that a duty of care lay towards the children of the family , while ORG on DATE ( [ DATE ] CARDINAL WLR CARDINAL ) held that the parents could also arguably claim that they were owed a duty of care . ORG had also given judgment on DATE in PERSON v. the GPE of GPE ( [ DATE ] CARDINAL WLR CARDINAL ) . That case concerned the claims of the plaintiff , who had been in care from DATE , that the local authority had negligently failed to safeguard his welfare causing him deep - seated psychiatric problems . The local authority had applied to strike out the case as disclosing no cause of action . ORG , upholding the plaintiff ’s appeal , unanimously held that the case of X and Others v. ORG did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care .", "The Criminal Injuries Compensation Authority ( known at the relevant time as ORG – CICB ) may make an award where it is satisfied on the balance of probabilities that an applicant is a victim of a criminal offence and suffered the harm alleged . Payments of MONEY GBP are paid out DATE . However , under the rules in force until DATE , there was a complete bar on claims where the victim and the assailant were living together at the same time as members of the family .", "The acts , omissions and decisions of social work agencies carrying out statutory functions in connection with the welfare of children in GPE are subject to judicial review by ORG . Decisions by the local authority , for example , concerning the place of residence of children or recording the name of an abuser on a register have been quashed . Damages may be awarded in such proceedings .", "DATE . Persons aggrieved by the actions or omissions of social work agencies may complain to the Commissioner for ORG in GPE whose functions include investigation of written complaints by persons who claim to have suffered from the maladministration of local authorities ( Part II of ORG ( GPE ) DATE as amended ) . ORG may recommend an appropriate remedy , including the payment of compensation . Though the local authority is not legally obliged to pay the compensation recommended , it is the general practice to do so .", "There are restrictions on the investigations which may be conducted . Section CARDINAL ) of LAW above requires a person to bring a complaint within DATE from DATE on which the complainant had notice of the matters concerned , though there is a discretion to consider complaints outside this time - limit if the ORG considers it reasonable to do so . He may not investigate any matter in which the person aggrieved has or had a remedy by way of proceedings in any court of law ( section CARDINAL(CARDINAL)c ) ." ]

[ "13", "3" ]

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[ "At the time of the introduction of the application , the applicant was serving a prison sentence . The background to his conviction is as follows .", "According to the ORG ’s case the applicant , together with C. , S. and another , planned to carry out an armed robbery of a FAC van as it was due to leave ORG at FAC in GPE . C. and S. had worked for ORG and were familiar with the procedures necessary to send packages of great value through the post . Using up - to - date technology the conspirators posted a letter containing a tracking device . The letter was to appear , in due course , amongst other packages of a similar kind , in a mail van the conspirators proposed to rob . Unknown to them , the police were fully informed as to the robbery that had been planned .", "On DATE , the date of the robbery , the police were keeping the area and conspirators under observation .", "At TIME an Orion ( driven by C. ) parked in FAC , with its lights on , near the ORG depot . ORG arrived in FAC . The applicant emerged from ORG , dressed entirely in black . He made his way into the cemetery carrying a jacket over his arm . C. in the ORG then followed the ORG , only to return to FAC , where he parked the Orion with the headlights on .", "At TIME the applicant was seen lying down by the railings , inside the cemetery , at a spot directly opposite FAC where there was a gap in the railings . At TIME he was disturbed by a passing resident , who stopped and spoke to him . He was also spotted by a ORG employee . The police officers observed the incident .", "At TIME the applicant ran further back into the cemetery constantly stopping to face the depot and gesticulating in a manner consistent with his trying to attract the attention of C. in the Orion which was parked opposite . Having disappeared between the bushes for TIME , he re - appeared , now without his jacket , and ran further into the cemetery where he was arrested by armed officers .", "C. was arrested in a motorcar near the mail van . In the car there was a walkie - talkie , a balaclava and some gloves .", "Behind a bush where the applicant had been observed crouching at CARDINAL stage was found a light - coloured jacket with fibres on it matching those from the applicant ’s jumper . In the pocket of the jacket were a pair of handcuffs , a sock containing CARDINAL shotgun cartridges , and a canister of ORG gas . Partially buried near the jacket was a balaclava helmet . A short time later a police officer discovered a pair of gloves and a sawn - off shotgun buried nearby . All the items were shown to the applicant whilst still at the scene . He denied all knowledge of them .", "S. was stopped after a high - speed car chase . In his car there was another walkie - talkie , through which connection could be made with that found in C. ’s car . Yet another car was found abandoned nearby . It was the ORG ’s case that that car had been driven by a fourth conspirator . In it was found a device capable of monitoring a police radio .", "The trial against the applicant , PERSON on DATE at ORG , GPE . DATE , C. pleaded guilty and the jury were discharged . On DATE the trial of PERSON and the applicant began before a new jury . On DATE the applicant was convicted of conspiracy to rob , possession of a firearm and possession of a prohibited weapon , and he was sentenced to CARDINAL years’ imprisonment .", "Prior to the start of the trial , on DATE , the prosecution applied ex parte to the trial judge for an order that they should not be required to disclose certain material to the defence . The defence were told that the material related to sources of information . The contents of the material in question were described to the trial judge by prosecuting counsel . Having later heard submissions from the defence that if any of this information touched upon the applicant ’s defence that he had been set up by PERSON ( see paragraph CARDINAL below ) , it ought to be disclosed , on DATE the trial judge refused to order disclosure . He stated , inter alia :", "“ ... I ... adopted the principle that if something did or might help further the defence then I would order disclosure . I have not ordered disclosure . I have not found it necessary or right to adjourn proceedings , ex parte , in order for them to be inter partes ... ”", "On DATE , having informed the defence , the ORG made a further ex parte application to the trial judge . Immediately thereafter , the judge held an inter partes hearing on the question whether a witness statement taken from ORG after his guilty plea should be disclosed to the defence . During the hearing prosecution counsel described the category of information which had been the subject of the ex parte application :", "“ ... the application was CARDINAL - fold . CARDINAL part of the ... application ... concerned a renewal of the original ex parte application , namely concerning the source of the information . The second limb upon which approval was sought is such that even to deal with the area upon which it was argued that it ought not to be disclosed would , in fact , reveal what the area was and that particular concern was expressly covered in the case of PERSON , PERSON and PERSON [ see paragraphs CARDINAL - CARDINAL below ] which was [ held ] to be CARDINAL of the exceptions where one does not even state the category in case it result in revealing that which ... ought to be protected . ”", "The judge read the entirety of the unedited witness statement and ruled :", "“ What has happened here is the defendant , [ C. ] , pleaded guilty . The matter was adjourned so that the prosecution could take a statement from him . It is now known that he has made a statement , but he is not to be called as a witness . ... [ T]he prosecution has asked me to examine matters ex parte and I am satisfied that that was a correct application , that it was right that I should hear matters ex parte . As I indicated , had I changed my view during the hearing , I would have adjourned and heard the matter inter partes .", "It is plain to everyone , including each defendant that the statement of [ C. ] must , first of all , have dealt with preparation of the conspiracy to which he has pleaded guilty and the events of DATE upon which he was arrested . The reason the prosecution say they should not serve that part of [ C. ] ’s statement is sources of information in the headline and my decision has been that the prosecution ’s attitude is correct . ... ”", "In accordance with the judge ’s ruling , the defence were served with a summary of C. ’s statement , omitting any reference to sources of information .", "The applicant gave evidence at trial . It was his case that he had agreed with ORG , who was his brother - in - law , to bury some items which he understood had been used in connection with a theft of motor vehicles . These items had come from a man called PERSON , from whom PERSON was buying a car . The items had been handed to the applicant by PERSON in CARDINAL bundles , wrapped in a brown coat , on the evening of CARDINAL DATE . The applicant said that ORG had asked him to bury the bundles at a particular spot in the cemetery . This he had proceeded to do on that TIME . After he had buried the items , he put the knife he used for digging the holes and the brown coat into a bag , which he then threw away . He denied all knowledge of the proposed robbery , of the light - coloured jacket , handcuffs , ORG canister , shotgun and cartridges .", "The applicant alleged that he had been falsely implicated in the conspiracy by a participating informer , although he could only speculate as to the identity of the informer and as to that person ’s motives . He claimed that ORG had been having a relationship with PERSON ’s girlfriend , and that PERSON had sought , for purposes of revenge , to make it appear that PERSON was involved in an armed robbery .", "On DATE the trial judge , in his summing - up to the jury , said :", "“ That there was information from CARDINAL person in this case is accepted and must be the situation , must it not , otherwise why would the police be going to all this trouble watching ? Every rule has its exceptions and the law provides if a defendant in his trial is hindered in putting forward his defence by not knowing , first of all , whether or not there was an informer or , if he knows that , not knowing the identity of an informer , an application can be made to the judge and the judge has to be told the identity of the informer , or informers and he may order the prosecution to reveal that if a defendant is prejudiced in his defence . …", "Well , it will be plain to you that in a case like this where there has been CARDINAL informer , the role of the informer has got to be examined with care and circumspection by you the jury in this trial . If the rules are observed not only by the police but also by the informer , or informers , the informer should not be told not [ sic ] to initiate crime or to promote it but , if crime is going on , he may be invited to string along with the plan and have a foot in both camps .", "Of course an informer may overstep the mark , for example , and what is suggested here is that [ PERSON ] organised really a façade of conspiracy to rob possibly in order to take revenge on [ C. ] who was messing about with his girl , or for whatever reason ( perhaps a reward it is suggested ) and you must consider it : has [ PERSON ] so organised matters that [ C. ] would be arrested in incriminating circumstances and has [ the applicant ] been drawn into that web , [ S. ] possibly also being drawn into that web ? ”", "The applicant appealed to ORG . Subsequent to his conviction he had discovered that C. had provided false information for reward on a number of occasions in the past . Therefore , in the course of the appeal proceedings , the applicant applied to ORG for disclosure of CARDINAL statements previously made by C. relating to alleged confessions to crime made by other prisoners or information about crimes allegedly witnessed or overheard by C. while he was at liberty . This application was refused by ORG , which was “ not persuaded that there [ was ] any proper basis for ordering such disclosure ” .", "The applicant relied on CARDINAL grounds of appeal against conviction . The first ground concerned the rulings by the trial judge and the second related to the witness statement made by C. to the prosecution . It was submitted in particular that :", "“ ... In his sentencing remarks the judge specifically referred to the existence of a ‘ participating informant’ who was instrumental in both the appellant and [ C. ] being arrested ; this was the first that the defence had heard of the existence of such an informant .", "In the submission of the appellant , the interests of justice required that the undisclosed material which had been specifically withheld from the defence , and apparently relating to a participating informant , should have been made available to the defence . The defence was materially disadvantaged in presenting its case to the jury by its inability to establish even the existence , let alone the role , of this informant . Without this evidence the defence case of ‘ set - up’ rested upon a mere assertion which may well have been regarded by the jury as quite incredible and absurd . ...", "... In the submissions of the defence , the actual text of the witness [ C. ’s ] statement , or such part or parts of it as were not covered by recognised public interest immunity or protection , ought to have been disclosed to them . If this was not practicable then a further statement should have been obtained which omitted the objectionable material . The course in fact adopted of giving a ‘ LAW was a naked device to prevent the proper disclosure of admittedly relevant material , and was specifically designed to thereby advantage the ORG and to disadvantage the defence . ”", "On DATE ORG upheld the applicant ’s conviction , observing :", "“ ... During the course of the proceedings the prosecution successfully applied ex parte to the judge for an order that they not be required to disclose certain material to the defence , save to the extent that the defence were told that the material related to sources of information . Having later heard submissions from the defence that if any of the material in question touched upon the applicant ’s defence that he had been set up by [ PERSON ] , it ought to be disclosed , on DATE the judge refused to order any disclosure of the materials .", "These rulings by the judge are the subject of the first ground of appeal ... It is said that the interests of justice required that the undisclosed material should have been disclosed to the defence . We can see no reason to disagree with the judge ’s ruling . He made it clear that if any of the material ‘ did or might help the defence’ he would order disclosure . He obviously considered the matter carefully before giving his ruling . There is no substance in this ground of appeal .", "The second ground of appeal relates to a witness statement made by [ C. ] as a witness for the ORG . On DATE the ORG applied ex parte to the judge to approve the non - disclosure of [ C. ] ’s witness statement and to approve the alternative course proposed by the ORG , which was to provide a summary of the witness statement . The judge granted the application and approved the proposed course . Again , we see no reason to disagree with the judge ’s decision in this matter . ...", "Accordingly , this renewed application for leave to appeal against conviction is refused . ”", "At common law , the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial . The duty also extends to statements of any witnesses potentially favourable to the defence .", "In DATE the Attorney - General issued Guidelines , which did not have the force of law , concerning exceptions to the common - law duty to disclose to the defence certain evidence of potential assistance to it ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL : “ the Guidelines ” ) . The Guidelines attempted to codify the rules of disclosure and to define the prosecution ’s power to withhold “ unused material ” . Under paragraph CARDINAL , “ unused material ” was defined as :", "“ ( i ) All witness statements and documents which are not included in the committal bundle served on the defence ; ( ii ) the statements of any witnesses who are to be called to give evidence at the committal and ( if not in the bundle ) any documents referred to therein ; ( iii ) the unedited version(s ) of any edited statements or composite statement included in the committal bundles . ”", "According to the LAW , 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 . ”", "According to paragraph CARDINAL , “ in deciding whether or not statements containing sensitive material should be disclosed , a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence ” . The decision as to whether or not the balance in a particular case required disclosure of sensitive material was CARDINAL for the prosecution , although any doubt should be resolved in favour of disclosure . If either before or during the trial it became apparent that a duty to disclose had arisen , but that disclosure would not be in the public interest because of the sensitivity of the material , the prosecution would have to be abandoned .", "NORP Since DATE the Guidelines have been superseded by the common law , notably by a number of decisions of ORG .", "In NORP v. Ward ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) ORG dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity . It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case , because :", "“ ... [ When ] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings . Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence . If , in a wholly exceptional case , the prosecution are not prepared to have the issue of public interest immunity determined by a court , the result must inevitably be that the prosecution will have to be abandoned . ”", "ORG described the balancing exercise to be performed by the judge as follows :", "“ ... 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 ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , ORG emphasised that , in performing the balancing exercise referred to in NORP v. Ward , the court must view the material itself :", "“ In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity . When public interest immunity is claimed for a document , it is for the court to rule whether the claim should be upheld or not . To do that involves a balancing exercise . The exercise can only be performed by the judge himself examining or viewing the evidence , so as to have the facts of what it contains in mind . Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure . ”", "This judgment also clarified that , where an accused appeals to ORG on the ground that material has been wrongly withheld , ORG will itself view the material ex parte .", "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 then had 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 .", "The Court of Appeal 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 .", "In NORP v. PERSON ( DATE ] CARDINAL Weekly Law Reports CARDINAL ) ORG emphasised that , since the ex parte procedure outlined in PERSON , PERSON and PERSON was “ contrary to the general principle of open justice in criminal trials ” , it should be used only in exceptional cases . It would be an abdication of the prosecution ’s duty if , out of an abundance of caution , it were simply “ to dump all its unused material in the court ’s lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential ” . Thus , the prosecution should put before the court only those documents which it regarded as material but wished to withhold . “ Material ” evidence was that which could , on a sensible appraisal by the prosecution , be seen ( i ) to be relevant or possibly relevant to an issue in the case ; ( ii ) to raise or possibly raise a new issue the existence of which was not apparent from the evidence the prosecution proposed to use ; or ( iii ) to hold out a real ( as opposed to fanciful ) prospect of providing a lead of evidence going to ( i ) or ( ii ) . Exceptionally , in case of doubt about the materiality of the documents or evidence , the court might be asked to rule on the issue . In order to assist the prosecution in deciding whether evidence in its possession was “ material ” , and the judge in performing the balancing exercise , it was open to the defence to indicate any defence or issue which they proposed to raise .", "In NORP v. PERSON ( The ORG , DATE ) , ORG held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence was challenged had applied for or received a reward for giving information was a material irregularity which justified overturning a conviction .", "In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , ORG reviewed the operation of the Guidelines . It stated :", "“ The Attorney - General ’s objective was no doubt to improve the existing practice of disclosure by the ORG . That was a laudable objective . But the Attorney - General was not trying to make law and it was certainly beyond his power to do so ... The Guidelines are merely a set of instructions to ORG lawyers and prosecuting counsel ... Judged simply as a set of instructions to prosecutors , the LAW would be unobjectionable if they exactly matched the contours of the common law duty of disclosure ... But if the LAW , judged by the standards of DATE , reduce the common - law duties of the ORG and thus abridge the common - law rights of a defendant , they must be pro tanto unlawful ...", "[ T]oday , the Guidelines do not conform to the requirements of the law of disclosure in a number of critically important respects . First , the judgment in LOC established that it is for the court , not prosecuting counsel , to decide on disputed questions as to discloseable materials , and on any asserted legal ground to withhold production of relevant material ... For present purposes the point of supreme importance is that there is no hint in the Guidelines of the primacy of the court in deciding on issues of disclosure ... Secondly , the guidelines are not an exhaustive statement of the ORG ’s common law duty of disclosure : NORP v. Ward at CARDINAL and CARDINALD. To that extent too the Guidelines are out of date . Thirdly , the LAW were drafted before major developments in the field of public interest immunity . [ I]n paragraph CARDINAL the Guidelines are cast in the form of a prosecutor ’s discretion ... Much of what is listed as ‘ sensitive material’ is no doubt covered by public interest immunity . But not everything so listed is covered by public interest immunity ... ”", "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 ...", "It is sufficient for us to say that in this case we are satisfied that the information concerning the informant showed a participation in the events concerning this crime which , coupled with the way in which the defence was raised from the very first moment by the defendant when he said that he was being set up , gave rise to the need for the defence to be aware of the identity of the informant and his role in this matter . We , therefore , conclude that if one applies the principle which has been quoted from NORP v. PERSON ... to the facts of the present case , there could only be one answer to the question as to whether the details concerning this informer were so important to the issues of interest to the defence , present and potential , that the balance which the judge had to strike came down firmly in favour of disclosure . ”", "Subsequent to the applicant ’s trial , a new statutory scheme covering disclosure by the prosecution has come into force in GPE and GPE . Under LAW , 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-IV ) GPE has 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 .", "For example , in the immigration context , the relevant Rules under LAW are contained in GPE ( Procedure ) Rules DATE ( ORG no . DATE ) . Rule CARDINAL provides that in exercising its functions , the Commission shall secure that information is not disclosed contrary to the interests of national security , the international relations of GPE , the detection and prevention of crime , or in any other circumstances where disclosure is likely to harm the public interest . Rule CARDINAL relates to the special advocate established by section CARDINAL of LAW . It provides , inter alia :", "“ CARDINAL . NORP …", "( CARDINAL ) The function of the special advocate is to represent the interest of the appellant by -", "( a ) making submissions to the Commission in any proceedings from which the appellant or his representative are excluded ;", "( b ) cross - examining witnesses at any such proceedings ; and", "( c ) making written submissions to the Commission .", "( CARDINAL ) Except in accordance with paragraphs ( CARDINAL ) to ( CARDINAL ) the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission .", "( CARDINAL ) The special advocate may communicate with the appellant and his representative at any time before the Secretary of ORG makes the material available to him .", "( CARDINAL ) At any time after the Secretary of ORG has made the material available under Rule CARDINAL(CARDINAL ) , the special advocate may seek directions from the ORG authorising him to seek information in connection with the proceedings from the appellant or his representative .", "( CARDINAL) The Commission shall notify the Secretary of ORG of a request for direction under paragraph ( CARDINAL ) and the Secretary of ORG must , within a period specified by the Commission , give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made .", "( CARDINAL ) Where the Secretary of ORG makes an objection under paragraph ( CARDINAL) Rule CARDINAL shall apply as appropriate . ”", "Rules DATE , to which Rule CARDINAL refers , provide :", "“ CARDINAL . ( CARDINAL ) If the Secretary of ORG intends to oppose the appeal , he must , no later than CARDINAL days after receiving a copy of the notice of appeal -", "( a ) provide the ORG with a summary of the facts relating to the decision being appealed and the reasons for the decision ;", "( b ) inform the Commission of the grounds on which he opposes the appeal ; and", "( c ) provide the ORG with a statement of the evidence which he relies upon in support of those grounds .", "( CARDINAL ) Where the Secretary of ORG objects to material referred to in paragraph ( CARDINAL ) being disclosed to the appellant or his representative , he must also -", "( a ) NORP state the reasons for the objection ; and", "( b ) if and to the extent it is possible to do so without disclosing information contrary to the public interest , provide a statement of that material in a form that can be shown to the appellant .", "( CARDINAL ) Where he makes an objection under paragraph ( CARDINAL ) , the Secretary of ORG must make available to the special advocate , as soon as it is practicable to do so , the material which he has provided to the ORG under paragraphs ( CARDINAL ) and ( CARDINAL ) .", "( CARDINAL ) Proceedings under this Rule shall take place in the absence of the appellant and his representative .", "( CARDINAL ) ORG shall decide whether to uphold the Secretary of ORG ’s objection .", "( CARDINAL ) Before doing so it shall invite the special advocate to make written representations .", "( CARDINAL ) After considering representations made under paragraph ( CARDINAL ) the ORG may -", "( a ) invite the special advocate to make oral representations ; or", "( b ) uphold the Secretary of ORG ’s objections without requiring further representations from the special advocate .", "( CARDINAL ) Where the Commission is minded to overrule the Secretary of ORG ’s objection , or to require him to provide material in different form from that in which he has provided it under Rule CARDINAL(CARDINAL)(b ) , the Commission must invite the Secretary of ORG and the special advocate to make oral representations .", "( CARDINAL ) Where -", "( a ) ORG overrules the Secretary of ORG ’s objection or requires him to provide material in different form from that in which he has provided it under Rule ORG ) , and", "( b ) NORP the Secretary of ORG wishes to oppose the appeal ,", "he shall not be required to disclose any material which was the subject of the unsuccessful objection if he chooses not to rely upon it in opposing the appeal . ”", "In the context of fair employment proceedings in GPE , the scheme under sections CARDINAL of the CARDINAL Act and the relevant Rules is identical to the mechanism adopted under LAW ( above ) .", "In addition , the government has recently placed before ORG CARDINAL bills which make provision for the appointment of “ special counsel ” ( operating under the same conditions ) in other circumstances . ORG Bill DATE provides for the appointment of a “ special representative ” in proceedings before an ORG to be established for the purpose of examining complaints relating to the interception and interpretation of electronic communications . In the context of criminal proceedings , ORG and Criminal Evidence Bill DATE makes provision for the appointment by the court of a special counsel in any case in which a trial judge prohibits an unrepresented defendant from cross - examining in person the complainant in a sexual offence ." ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in PERSON .", "On DATE the applicant and CARDINAL others , all of whom were charged with fraudulent bankruptcy , were committed for trial in LOC . After numerous adjournments on account of failure to serve proper notice or ORG strikes , a hearing was held on DATE . At the hearing the lawyer retained by PERSON produced a list of witnesses he wanted to be summoned to appear in court . They were mainly people who would say that the applicant had been less directly involved in the management of GPE , a commercial company , after DATE . The president of the court granted the request .", "At a hearing on DATE , PERSON was represented by a different lawyer of his choosing , PERSON , whom he had retained on DATE . PERSON produced the list of witnesses again . The court again granted leave for the persons named in the list to be summoned . A number of witnesses were examined on DATE in the presence of the applicant and PERSON", "NORP In a note deposited with the registry of ORG on DATE , PERSON announced that he was withdrawing from the case . He said that the applicant had been informed accordingly by registered letter sent on DATE . On DATE the court assigned the applicant a defence lawyer , PERSON", "On DATE Mr B. was informed of the date of the next hearing ( DATE ) . The note he received did not , however , mention that he had been officially assigned to represent Mr LANGUAGE . No notification was sent to PERSON .", "Mr B. did not appear at the hearing on CARDINAL DATE , but the applicant did . The court ordered PERSON to be replaced by another official defence lawyer , PERSON , and adjourned the case to DATE .", "On that date PERSON again failed to appear , but the applicant was present . The court ordered PERSON to be replaced by another official defence lawyer , PERSON of the witnesses called by the prosecution was examined by the prosecution ’s representative and cross - examined by the lawyer of CARDINAL of the applicant ’s co - defendants . The court adjourned the proceedings to CARDINAL DATE and ordered the other witnesses to be summoned .", "On that date PERSON again failed to appear , but the applicant was present . The court ordered PERSON to be replaced by another official defence lawyer , Mr O. Mr PERSON made a number of spontaneous statements . A witness called by the prosecution was examined . Having regard to the absence of CARDINAL other prosecution witnesses , the court adjourned its examination of the case to DATE . The hearing was not held on that date and the proceedings were adjourned on account of the NORP parliamentary elections .", "Further hearings were held on DATE and DATE and on DATE and DATE , to which the witnesses on the applicant ’s list were not summoned . PERSON , who had still not appeared , was replaced by a different court - appointed defence lawyer each time .", "The record of the hearing on DATE mentions that the applicant was present , which the applicant himself denies . He states that he attended his trial for the last time on CARDINAL DATE and that after the adjournment of DATE he was not notified of the date of the next hearing ( DATE ) . A notice of hearing had in fact been issued to a person who did not have authorisation ( persona non abilitata ) to receive notices . The Government produced a note ( relata di notifica ) before the ORG , drawn up by a court bailiff , according to which notice of the hearing on DATE had been served personally on DATE on a person identifying himself as PERSON . The applicant maintains that the signature appearing on the note is not his and that on DATE he was not at home , but at FAC in GPE del Tronto , as had been proved by his lawyer in the appeals lodged after his conviction . Furthermore , he alleges , the indication that the notice of hearing was served on him personally was added by the court bailiff DATE after the material time , “ at the request of the office of ORG at ORG ” .", "A final hearing was held on DATE . Neither the applicant nor PERSON appeared . PERSON was replaced by a court - appointed lawyer . Witnesses were examined .", "In a judgment of DATE , the text of which was deposited with the court ’s registry on DATE , ORG sentenced the applicant to CARDINAL years’ imprisonment .", "The applicant was not officially informed that the judgment against him had been deposited with the registry . He submits that , not having been aware of the conviction , he was unable to avail himself of his right to appeal within the statutory DATE period .", "He claims that he did not learn of his conviction DATE which had become final on CARDINAL DATE – until DATE , when he asked for a copy of his criminal record .", "The applicant also learnt that PERSON had been appointed to represent him , whereupon he contacted him .", "Through PERSON the applicant lodged an application on DATE for leave to appeal out of time . He claims that the notice of the date of the hearing of DATE was void on the ground that the court bailiff ’s report did not refer to the standing of the person on whom it had been served . Moreover , PERSON appointment was DATE he alleges – unlawful because his name did not appear on the list of official defence lawyers . In any event PERSON had never been informed of his appointment . In the applicant ’s submission , the time - limit for lodging an appeal had therefore never started running .", "At the same time , again through PERSON , the applicant appealed against the judgment of DATE . He sought an acquittal on the merits and requested the investigation to be reopened for the purpose of hearing evidence from the witnesses indicated in the defence ’s list .", "By an order of DATE , ORG dismissed the application for leave to appeal out of time . It observed that the applicant referred to matters regarding the conduct of the trial at first instance that should have been raised prior to the date on which the judgment of DATE had become final . Leave to appeal out of time was granted only where the convicted person proved that he had been prevented by a case of force majeure from taking certain steps within the statutory time - limit , and not where he alleged procedural defects . In those conditions it was not necessary to ascertain whether the facts of which the applicant complained were genuine .", "On DATE the applicant lodged an appeal on points of law . He alleged that ORG had wrongly construed the relevant provisions of domestic law , namely , ORG and CARDINAL of LAW ( “ the ORG ” – see “ Relevant domestic law ” below ) . He stated that , through no fault of his own , he had not been aware of the judgment .", "In a judgment of DATE , the text of which was deposited with the registry on CARDINAL DATE , ORG declared the appeal inadmissible . It observed that the applicant was complaining of flaws in the appointment of his court - appointed defence counsel and the service of the notice of the date of the hearing of DATE . Those flaws could have resulted in certain measures being annulled on grounds of procedural errors , but had been cured ( sanate ) when the conviction had become final .", "On DATE the GPE public prosecutor ’s office ordered execution of the sentence imposed on the applicant by the judgment of CARDINAL DATE . Execution was stayed , however .", "On DATE the applicant requested the application of an alternative measure to detention , namely , probation ( affidamento in prova al servizio sociale ) . By an order of CARDINAL DATE , ORG granted the applicant ’s request . On DATE the applicant declared that he accepted the obligations stipulated in the probation order , namely , not to leave the district ( comune ) of PERSON without prior authorisation of the judge supervising enforcement of sentences ; to devote himself fully to his work at the LOC company ; not to leave his house before TIME and not to return after TIME ; not to associate with reoffenders ; and to report to the police station CARDINAL times per week .", "Article CARDINAL § § CARDINAL and CARDINAL of the ORG provides for the possibility of applying for leave to appeal out of time . The relevant parts of that provision were worded as follows at the material time :", "“ In the event of conviction in absentia ... , the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge [ effettiva conoscenza ] [ of it ] ... [ and ] on condition that no appeal has been lodged by his lawyer and there has been no negligence on his part or , in the case of a conviction in absentia having been served ... on his lawyer ... , that he did not deliberately refuse to take cognisance of the procedural steps .", "A request for the reopening of the time allowed for appeal must be lodged within DATE of the date ... on which the defendant learnt [ of the judgment ] , failing which it shall be declared inadmissible . ”", "The validity of a conviction may be contested by means of an objection to execution under LAW of the ORG , the relevant parts of which provide :", "“ Where the judge supervising enforcement establishes that a judgment is invalid or has not become enforceable , he shall , [ after ] assessing on the merits [ nel merito ] whether the safeguards in place for a convicted person deemed to be untraceable have been observed , ... suspend its enforcement , ordering , where necessary , that the person be released and that defects in the service of process be remedied . In such cases the time allowed for appealing shall begin to run again . ”", "Under LAW , DATE , DATE and CARDINAL of the ORG :", "“ CARDINAL . A defendant who has not appointed a lawyer of his own choosing or finds himself without CARDINAL shall be assisted by a court - appointed defence lawyer .", "...", "Where defence counsel ’s presence is necessary and [ the lawyer ] chosen by the defendant or the court - appointed lawyer ... has not been found , has not appeared or has withdrawn from the case , the judge shall appoint as his replacement another defence lawyer immediately available [ reperibile ] , to whom the provisions of Article CARDINAL shall apply [ under that provision , the replacement lawyer exercises the rights of the defence counsel and is subject to the same obligations ] . ...", "The court - appointed defence lawyer shall defend his client [ prestare il patrocinio ] and shall not be replaced other than for a legitimate reason [ giustificato motivo ] .", "The court - appointed lawyer shall cease to act if [ the defendant ] appoints a lawyer of his own choosing . ”", "A defence lawyer who has just been appointed may request an adjournment of the hearing date . LAW ORG provides , inter alia :", "“ Where a defence lawyer withdraws from the case , has his appointment revoked or is incompatible or abandons the case , the defendant ’s new lawyer or the court - appointed [ defence lawyer ] can request sufficient time [ congruo ] , of DATE , in which to study the file and acquaint himself with the facts of the case . ”", "In accordance with Article CARDINAL § CARDINAL of the ORG , the reading out of decisions to persons present in the courtroom and the information given to them orally by the judge “ shall replace formal notice [ sostituiscono le notificazioni ] , on condition that they are noted in the record of hearing ” .", "After production of the evidence requested by the parties , the judge may , if he considers it “ absolutely necessary ” , order that further evidence be adduced ( LAW ORG ) ." ]

[ "6" ]

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

[ "6-3-c" ]

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[ "The applicant , Mr PERSON , is an 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 Government were represented by their Agents , in which capacity ORG was followed by Mr PERSON , and by their co - Agents , in which capacity Mr PERSON was followed by Mr PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the GPE public prosecutor 's office entered the applicant 's name in the register of persons against whom criminal proceedings had been brought ( registro degli indagati ) , on suspicion of forgery .", "On DATE the public prosecutor 's office requested that the applicant and CARDINAL other accused be committed for trial . The application erroneously gave his name as PERSON instead of GPE .", "On DATE the preliminary investigations judge listed the preliminary hearing for DATE .", "On DATE ORG noted the mistake and sent the case file back to the preliminary investigations judge for a hearing on DATE , which was later adjourned to CARDINAL DATE .", "On DATE the preliminary investigations judge noted that the applicant had not been questioned and sent the file back to the public prosecutor 's office .", "On DATE the prosecuting authorities questioned the applicant . The preliminary hearing was then set for DATE .", "On DATE the preliminary investigations judge ruled that he did not have jurisdiction ratione materiae and sent the file back to the public prosecutor 's office .", "The subsequent course of the proceedings is not known , since the file is untraceable .", "On DATE the ORG informed the applicant of the entry into force , on DATE , of PERSON no . CARDINAL of DATE ( hereafter “ the Pinto Act ” ) , which introduced into the NORP legal system a remedy against the excessive length of judicial proceedings .", "In a letter of DATE the applicant informed the ORG that he had applied to ORG for compensation under LAW and asked the ORG to suspend the examination of his application until the end of the related proceedings .", "On DATE the applicant did indeed submit a claim to ORG under LAW , complaining of the excessive length of the proceedings described above .", "He asked it to hold that there had been a violation of LAW and to order the NORP ORG to make good the pecuniary and non - pecuniary damage he had sustained and to pay him costs and expenses .", "In particular , the applicant claimed CARDINAL,CARDINAL.CARDINAL euros ( ORG ) , made up of ORG CARDINAL,CARDINAL.CARDINAL for loss of opportunity , LAW for non - pecuniary damage , EUR CARDINAL,CARDINAL.CARDINAL for the downgrading his employer had imposed on him and EUR CARDINAL,CARDINAL.CARDINAL for costs and expenses .", "By a decision of DATE , deposited with the registry on DATE , ORG found that a reasonable time had been exceeded . It refused the application regarding compensation for pecuniary damage , describing the applicant 's claims as “ speculative ” , but awarded him , on an equitable basis , ORG CARDINAL,CARDINAL.CARDINAL in compensation for non - pecuniary damage and ORG CARDINAL for costs and expenses , plus interest .", "On DATE ORG decision became enforceable .", "On DATE the applicant served ORG decision on the respondent authority .", "In letters dated DATE and DATE the applicant requested payment of the sums due .", "On DATE he served the respondent authority with a notice to pay . As the money was not forthcoming , he summoned the authority to appear in court on DATE .", "In a letter of DATE the applicant asked the ORG to resume its examination of his application . He explained that , in the end , he did not intend to appeal on points of law against ORG decision because he considered that he had very little prospect of success .", "In a decision of DATE , deposited with the registry on CARDINAL DATE , the GPE judge responsible for supervising the execution of judgments ordered the respondent authority to pay the sums due .", "On DATE the applicant obtained payment of the amounts in question .", "The relevant domestic law and practice are described in LAW ( ( dec . ) no . CARDINAL/CARDINAL , PERSON CARDINAL-IV ) ." ]

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[ "The applicants were born DATE and live respectively in GPE , PERSON and GPE . Their names and details are set out in the appendix .", "During their education , the applicants at times attended separate classes , comprising only GPE pupils , at a primary school in the village of GPE for CARDINAL applicants ( the second to tenth applicants ) and at a primary school in the village of GPE , in GPE , for CARDINAL applicants ( DATE applicants ) . In GPE , primary education consists of CARDINAL grades and children are obliged to attend school from DATE . The first CARDINAL grades are considered as lower grades and each class is assigned a class teacher who in principle teaches all subjects . The fifth to eighth grades are upper grades in which , in addition to a class teacher assigned to each class , different teachers teach different subjects . The curriculum taught in any primary school class , including the GPE - only classes which the applicants attended , may be reduced by PERCENT in comparison to the regular , full curriculum .", "The proportion of GPE children in the lower grades ( from the first to the fourth grade ) varies from PERCENT to PERCENT . The total number of pupils in Podturen Primary School in DATE was CARDINAL , CARDINAL of whom were GPE . There was CARDINAL GPE - only class , with CARDINAL pupils , while the remaining CARDINAL GPE pupils attended mixed classes .", "NORP In DATE a pre - school programme called “ Little School ” ( Mala škola ) was introduced in the PERSON settlement in GPE . It included about CARDINAL NORP children and was designed as a preparatory programme for primary school . CARDINAL educators were involved , who had previously received special training . The programme ran from DATE to DATE . This programme has been provided on a permanent basis since DATE . It usually includes CARDINAL GPE children aged from CARDINAL to CARDINAL . The programme is carried out by an educator and a GPE assistant in cooperation with ORG . An evaluation test is carried out at the end of the programme .", "NORP In DATE ORG and Sports adopted a decision introducing GPE assistants in schools with GPE pupils from the first to fourth grades . In Podturen Primary School , there was already a GPE assistant who had worked there since DATE . A statement made by CARDINAL such assistant , PERSON , on DATE reads :", "“ I started work at ORG in DATE . At that time there were CARDINAL classes in the fourth grade . Class CARDINAL ( b ) had GPE pupils only and it was very difficult to work with that class because the pupils were agitated and disrupted the teaching . I contemplated leaving after DATE . At the request of teachers , I would give written invitations to the parents or I would invite them orally to come to talk with the teachers at the school . Some parents would come , but often not , and I had to go and ask them again . A lot of time was needed to explain NORP words to the pupils because some of them continued to speak PERSON and the teachers could not understand them . I told the pupils that they should attend school regularly . Some pupils would just leave classes or miss a whole day . I helped pupils with homework after school . I helped the school authorities to compile the exact list of pupils in the first grade . I no longer work at the school . ”", "Since DATE there have been no GPE - only classes in Podturen Primary School .", "The proportion of NORP children in the lower grades varies from PERCENT . GPE - only classes are formed in the lower grades and only exceptionally in the higher grades . All classes in the CARDINAL final grades ( seventh and eighth ) are mixed . The total number of pupils in ORG in DATE was CARDINAL , CARDINAL of whom were GPE . There were CARDINAL GPE - only classes , with CARDINAL pupils in all , while the remaining CARDINAL GPE pupils attended mixed classes .", "NORP Since DATE the participation of GPE assistants has been implemented .", "A “ Little School ” pre - school programme was introduced in DATE .", "The applicants submitted that they had been told that they had to leave school at DATE . Furthermore , the applicants submitted statistics showing that in DATE PERCENT of NORP children DATE completed their primary education , compared with PERCENT of the general primary school population in GPE . The drop - out rate of GPE pupils without completing primary school was PERCENT , which was CARDINAL times higher than for the general population . In DATE , CARDINAL GPE children were enrolled in the first grade and CARDINAL in the eighth .", "The following information concerning each individual applicant is taken from official school records .", "By a letter of CARDINAL DATE , the first applicant expressed the wish to withdraw his application . Thus in the ORG judgment of DATE the ORG decided to discontinue the examination of the application in so far as it concerned the first applicant .", "The second applicant , PERSON , was enrolled in the first grade of primary school in DATE . She attended a mixed class DATE and DATE , but in DATE she failed to go up a grade . In DATE to CARDINAL/CARDINAL she attended a GPE - only class . In DATE she attended a mixed class . In DATE she took the sixth grade for the second time and failed . She failed the first and the sixth grades twice . Out of CARDINAL regular parent - teacher meetings organised during her primary schooling , her parents attended CARDINAL .", "She was provided with additional classes in NORP in the fourth grade . From the first to the fourth grade she participated in extracurricular activities in a mixed group ( that is to say a number of different activities organised for the same group of children ) , organised by the school . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .", "The third applicant , PERSON , was enrolled in the first grade of primary school in DATE and passed the first grade . DATE and DATE he attended a GPE - only class . In DATE and DATE he attended a mixed class and after that a GPE - only class for the remainder of his schooling . In DATE he passed the fourth grade . He failed the second grade CARDINAL times . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .", "He was not provided with additional classes in NORP . From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school . After reaching DATE he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .", "Later , he enrolled in TIME classes in ORG in GPE , where he completed his primary education .", "The fourth applicant , PERSON , was enrolled in the first grade of primary school in DATE . During DATE he attended a GPE - only class and the following DATE a mixed class . In DATE he attended a GPE - only class . In DATE he attended a mixed class . In DATE he took the fifth grade for the second time and failed . He failed the second grade CARDINAL times , the fourth grade once and the fifth grade twice . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .", "He was not provided with additional classes in NORP . From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .", "Later , he enrolled in fifth - grade TIME classes , but did not attend .", "The fifth applicant , PERSON , was enrolled in the first grade of primary school in DATE and passed the first grade . In DATE to DATE he attended a GPE - only class , after which he attended a mixed class . In DATE he took the fifth grade for the third time and failed . He failed the fourth grade once and the fifth grade CARDINAL times . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .", "He was not provided with additional classes in NORP . From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification . In DATE the school authorities wrote to the competent social welfare centre informing them of the applicant ’s poor school attendance .", "The sixth applicant , PERSON , was enrolled in the first grade of primary school in DATE and attended a GPE - only class . The following DATE she attended a mixed class . In DATE to DATE she attended a GPE - only class and passed the fourth grade , after which she attended a mixed class . From DATE she followed an adapted curriculum for the rest of her schooling on the ground that a competent expert committee – the Children ’s Psycho - physical ORG ( GPE za utvrđivanje psihofizičkog stanja djeteta ) had established that she suffered from developmental difficulties . In DATE she took the fifth grade for the second time and failed . She failed the first grade CARDINAL times and the fifth grade twice . Out of CARDINAL regular parent - teacher meetings organised during her primary schooling , her parents attended CARDINAL .", "She was provided with additional classes in NORP in her third grade . From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .", "Later , she enrolled in fifth - grade TIME classes , but did not attend .", "The seventh applicant , PERSON , was enrolled in the first grade of primary school in DATE and attended a GPE - only class up to and including DATE , after which he attended a mixed class . From DATE he followed an adapted curriculum in his further schooling on the ground that a competent expert committee – the Children ’s Psycho - physical ORG ( ORG za utvrđivanje psihofizičke sposobnosti djece ) had established that he suffered from developmental difficulties . In DATE he took the sixth grade for the second time and failed . He failed the fifth and sixth grades twice . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .", "He was provided with additional classes in NORP in the third grade in DATE . From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .", "The eighth applicant , PERSON , was enrolled in the first grade of primary school in DATE and in DATE attended a GPE - only class , after which she attended a mixed class for DATE . On DATE ORG ( Ured za prosvjetu , kulturu , informiranje , šport i tehničku kulturu PERSON ) ordered that she follow an adapted curriculum during the rest of her schooling on the ground that a competent expert committee DATE the Children ’s Psycho - physical ORG DATE had established that she suffered from poor intellectual capacity , concentration difficulties and socio - pedagogical neglect . It was also established that she was in need of treatment from the competent social welfare centre . In DATE and DATE she attended a GPE - only class and passed the fourth grade . In the following DATE she attended a mixed class , took the fifth grade for the second time and failed . She failed the third grade CARDINAL times and the fifth grade twice . Out of CARDINAL regular parent - teacher meetings organised during her primary schooling , her parents attended CARDINAL .", "She was provided with additional classes in NORP in the third grade in DATE . She participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .", "The ninth applicant , PERSON , was enrolled in the first grade of primary school in DATE and attended a GPE - only class up to and including DATE , after which she attended a mixed class . In DATE she took the fifth grade for the third time and failed . She failed the fourth grade once and the fifth grade CARDINAL times . Out of CARDINAL regular parent - teacher meetings organised during her primary schooling , her parents attended CARDINAL .", "She was provided with additional classes in NORP in the third grade in DATE . From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .", "The tenth applicant , PERSON , was enrolled in the first grade of primary school in DATE and attended a mixed class for DATE . From CARDINAL to DATE he attended a GPE - only class , after which he attended a mixed class . On DATE ORG ordered that he follow an adapted curriculum during the rest of his schooling on the ground that a competent expert committee – the Children ’s Psycho - physical ORG DATE had established that he suffered from developmental difficulties . In DATE he failed the sixth grade . He failed the first grade twice and the fourth and sixth grades once . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .", "He was provided with additional classes in NORP in the third grade in DATE . He participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .", "The eleventh applicant , PERSON , was enrolled in the first grade of primary school in DATE . The preliminary tests carried out before his assignment to a particular class showed that he did not understand the NORP language . He scored CARDINAL out of CARDINAL points ( PERCENT ) . He was therefore assigned to a GPE - only class , where he spent his entire schooling . In DATE he took the fifth grade for the second time and failed . He failed the first and the fourth grades once and the fifth grade twice . Out of CARDINAL parent - teacher meetings organised during his entire primary schooling , his parents attended none .", "He was provided with additional classes in NORP in the third grade in DATE . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .", "The twelfth applicant , PERSON , was enrolled in the first grade of primary school in DATE . The preliminary tests carried out before his assignment to a particular class showed that he did not understand the NORP language . He scored CARDINAL out of CARDINAL points ( PERCENT ) . He was therefore assigned to a GPE - only class , where he spent his entire schooling . In DATE he took the third grade for the second time and failed . He failed the first grade once , the second grade CARDINAL times and the third grade twice . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended none .", "He was provided with additional classes in NORP in the first , second and third grades . In the second grade he participated in a dancing group and in the third grade in a choir . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .", "The thirteenth applicant , PERSON , was enrolled in the first grade of primary school in DATE . The preliminary tests carried out before her assignment to a particular class showed that she had inadequate knowledge of the NORP language . She scored CARDINAL out of CARDINAL points ( PERCENT ) . She was therefore assigned to a GPE - only class , where she spent her entire schooling . In DATE she passed the fifth grade . She failed the first grade twice and the second grade once . Out of CARDINAL regular parent - teacher meetings organised during her primary schooling , her parents attended CARDINAL .", "She was provided with additional classes in NORP in the first grade . In the first grade she participated in extracurricular activities in a mixed group and in the fifth grade in a choir . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .", "The fourteenth applicant , PERSON , was enrolled in the first grade of primary school in DATE . The preliminary tests carried out before his assignment to a particular class showed that he did not understand the NORP language . He scored CARDINAL out of CARDINAL points ( PERCENT ) . He was therefore assigned to a GPE - only class , where he spent his entire schooling . In DATE he passed the third grade . He failed the first grade CARDINAL times and the third grade once . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .", "He was provided with additional classes in NORP in the first grade . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .", "The fifteenth applicant , PERSON , was enrolled in the first grade of primary school in DATE . The preliminary tests carried out before her assignment to a particular class showed that her understanding of the NORP language was poor . She scored CARDINAL out of CARDINAL points ( PERCENT ) . She was therefore assigned to a GPE - only class , where she spent her entire schooling . In DATE she passed the fifth grade . She failed the first grade twice and the second grade once . Out of CARDINAL regular parent - teacher meetings organised during her entire primary schooling , her parents attended CARDINAL .", "She was provided with additional classes in NORP in the first grade . In the first grade she participated in extracurricular activities in a mixed group , in the second grade in dancing , in the third grade in handicraft classes , and in the fifth grade in a choir . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .", "On DATE the applicants brought an action under section CARDINAL of LAW in ORG ( PERSON ) against the above - mentioned primary schools and ORG , the ORG and GPE ( “ the defendants ” ) . They submitted that the teaching organised in the GPE - only classes in the schools in question was significantly reduced in volume and in scope compared to the officially prescribed curriculum . The applicants claimed that the situation described was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment . They requested the court to order the defendants to refrain from such conduct in the future .", "The applicants also produced the results of a psychological study of GPE children attending GPE - only classes in PERSON , carried out immediately before their action was lodged , showing the following :", "– most children had never had a non - GPE child as a friend ;", "– PERCENT expressed a wish to have a non - GPE child as a friend ;", "– PERCENT expressed a wish to attend a mixed class ;", "– PERCENT said they felt unaccepted in the school environment ;", "– PERCENT stated that GPE and non - NORP children did not play together .", "Furthermore , the report asserted that segregated education produced emotional and psychological harm in GPE children , in terms of lower self - esteem and self - respect and problems in the development of their identity . Separate classes were seen as an obstacle to creating a social network of GPE and non - NORP children .", "The defendants each submitted replies to the arguments put forward by the applicants , claiming that there was no discrimination of GPE children and that pupils enrolled in school were all treated equally . They submitted that all pupils were enrolled in school after a committee ( composed of a physician , a psychologist , a school counsellor ( pedagog ) , a defectologist and a teacher ) had found that the candidates were physically and mentally ready to attend school . The classes within a school were formed depending on the needs of the class , the number of pupils , etc . In particular , it was important that classes were formed in such a way that they enabled all pupils to study in a stimulating environment .", "Furthermore , the defendants submitted that pupils of GPE origin were grouped together not because of their ethnic origin , but rather because they were often not proficient in NORP and it took more exercises and repetitions for them to master the subjects taught . Finally , they claimed that GPE pupils received the same quality of education as other pupils as the scope of their curriculum did not differ from that prescribed by law .", "On DATE ORG dismissed the applicants’ action , accepting the GPE argument that the reason why most GPE pupils were placed in separate classes was that they were not fluent in NORP . Consequently , the court held that this was not unlawful and that the applicants had failed to substantiate their allegations concerning racial discrimination . Lastly , the court concluded that the applicants had failed to prove the alleged difference in the curriculum of the GPE - only classes .", "On DATE the applicants appealed against the first - instance judgment , claiming that it was arbitrary and contradictory .", "On DATE the Čakovec County Court ( Županijski sud u PERSON ) dismissed the ORG appeal , upholding the reasoning of the first - instance judgment .", "Subsequently , on DATE , the applicants lodged a complaint with ORG ( Ustavni sud PERSON ) under section CARDINAL of LAW on FAC . In their constitutional complaint the applicants reiterated their earlier arguments , relying on the relevant provisions of LAW and of the Convention .", "On DATE the ORG lawyer lodged an application with ORG to expedite the proceedings . On DATE ORG dismissed the ORG complaint in its decision no . U - III-CARDINAL/CARDINAL , published in ORG no . CARDINAL of CARDINAL DATE . The relevant parts of the decision read as follows .", "“ The first - instance court established in the impugned judgment that the criteria for formation of classes in the defendant primary schools had been knowledge of the NORP language and not the pupils’ ethnic origin . The [ first - instance ] court considered that the complainants had failed to prove their assertion that they had been placed in their classes on the basis of their racial and ethnic origin . The [ first - instance ] court stressed that the complainants relied exclusively on the activity report of the Ombudsman for DATE . However , the ORG said in his evidence that the part of the report referring to the education of GPE had been injudicious because all the relevant facts had not been established .", "The first - instance court relied on section CARDINAL paragraph CARDINAL of LAW ... which provides that teaching in primary schools is in the NORP language and NORP script , and considered a lack of knowledge of the NORP language as an objective impediment in complying with the requirements of the school curriculum , which also transpires from the conclusion of a study carried out for the needs of ORG . The [ first - instance ] court found :", "‘ pupils enrolling in DATE of primary schools have to know the NORP language , so that they are able to follow the teaching , if the purpose of primary education is to be fulfilled . It is therefore logical that classes with children who do not know the NORP language require additional efforts and commitment of teachers , in particular to teach them the NORP PERSON", "The first - instance court found that the defendants had not acted against the law in that they had not changed the composition of classes once established , as only in exceptional situations was the transfer of pupils from CARDINAL class to another allowed . The [ first - instance ] court considered that this practice respected the integrity of a class and its unity in the upper grades .", "The [ first - instance ] court considered that classes should be formed so as to create favourable conditions for an equal approach to all pupils according to the prescribed curriculum and programme , which could be achieved only where a class consisted of a permanent group of pupils of approximately the same age and knowledge .", "Furthermore , the [ first - instance ] court found that the complainants had failed to prove their assertion that ... they had a curriculum of significantly smaller volume than the one prescribed for primary schools by ORG and Sports on DATE . The [ first - instance ] court found that the above assertion of the complainants relied on the ORG ’s report . However , the ORG said in his testimony that he did not know how the fact that in GPE - only classes the teaching followed a so - called special programme had been established .", "The [ first - instance ] court established that teaching in the ORG respective classes and the parallel ones followed the same curriculum . Only in ORG were there some deviations from the school curriculum , but the [ first - instance ] court found those deviations permissible since they had occurred ... at the beginning of DATE owing to low attendance .", "After having established that the complainants had not been placed in their classes according to their racial and ethnic origin and that the curriculum had been the same in all parallel classes , the first - instance court dismissed the ORG action .", "...", "The reasoning of the first - instance judgment ... shows that the defendant primary schools replied to the ORG allegations as follows :", "‘ The [ defendant schools ] enrolled in DATE those children found psycho - physically fit to attend primary school by a committee composed of a physician , a psychologist , a school counsellor [ pedagog ] , a defectologist and a teacher . They did not enrol NORP children or GPE children as such , but children found by the said committee to be psychologically and physically fit to be enrolled in primary school . ... The defendant primary schools maintain that the first obstacle for GPE children in psychological tests is their lack of knowledge of the NORP language in terms of both expression and comprehension . As to the emotional aspect of maturity , most of these children have difficulty channelling their emotions . In terms of social maturity , children of GPE origin do not have the basic hygienic skills of washing , dressing , tying or buttoning , and a lot of time is needed before they achieve these skills . ... It is therefore difficult to plan lessons with sufficient motivation for all children , which is CARDINAL of the obligations of primary schools . There are classes composed of pupils not requiring additional schooling to follow the teaching programme and classes composed of pupils who require supplementary work and assistance from teachers in order to acquire the necessary [ skills ] they lack owing to social deprivation . ... ’", "The reasoning of the same judgment cites the testimony of ORG , a school counsellor and psychologist at ORG , given on DATE ... ;", "‘ Before enrolment the committee questions the children in order to establish whether they possess the skills necessary for attending school . Classes are usually formed according to the PERSON curve , so that the majority in a given class are average pupils and a minority below or above average . ... However , in a situation where PERCENT of the population does not speak NORP , a different approach is adopted so as to form classes with only pupils who do not speak NORP , because in those classes a teacher ’s first task is to teach the children the PERSON", "The above shows that the allocation of pupils to classes is based on the skills and needs of each individual child . The approach is individualised and carried out in keeping with professional and pedagogical standards . Thus , the Constitutional Court finds the approach applied correct since only qualified experts , in particular in the fields of pedagogy , school psychology and defectology , are responsible for assigning individual children to the appropriate classes .", "ORG has no reason to question the findings and expert opinions of the competent committees , composed of physicians , psychologists , school counsellors [ pedagog ] , defectologists and teachers , which in the instant case found that the complainants should be placed in separate classes .", "None of the facts submitted to ORG leads to the conclusion that the placement of the complainants in separate classes was motivated by or based on their racial or ethnic origin .", "The Constitutional Court finds that their placement pursued the legitimate aim of necessary adjustment of the primary educational system to the skills and needs of the complainants , where the decisive factor was their lack of knowledge or inadequate knowledge of NORP , the language used to teach in schools .", "The separate classes were not established for the purpose of racial segregation in enrolment in DATE of primary school but as a means of providing children with supplementary tuition in the NORP language and eliminating the consequences of prior social deprivation .", "It is of particular importance to stress that the statistical data on the number of GPE children in separate classes in DATE ... are not in themselves sufficient to indicate that the defendants’ practice was discriminatory ( see also ORG judgments PERSON v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE , and ORG and Others v. GPE , no . MONEY , § DATE , DATE ) .", "Moreover , the complainants themselves maintain in their constitutional complaint that in DATE PERCENT of GPE children in GPE were placed in regular classes , which tends to support ORG conclusion that there is no reason to challenge the correct practice of the defendant primary schools and expert committees .", "...", "In their constitutional complaint the complainants further point out that , ‘ [ e]ven if lack of knowledge of the NORP language on enrolment in DATE was a problem , the same could not be said of the ORG enrolment in upper ORG . They therefore consider that their rights were violated by the ORG findings that it had been justified to maintain separate [ GPE - only ] classes in the upper grades in order to preserve the stability of the wholeness of a given class . The complainants submit that the stability of a class should not have been placed above their constitutional rights , multiculturalism and national equality .", "In that regard ORG accepts the ORG arguments .", "While ORG considers correct and acceptable the ORG findings that lack of knowledge of the NORP language represents an objective obstacle justifying the formation of separate classes for children who do not speak NORP at all or speak it badly when they start school ... bearing in mind the particular circumstance of the present case , it can not accept the following conclusion of the first - instance court :", "‘ Furthermore , the integrity and unity of a class is respected in the upper grades . Therefore , transfer of children from CARDINAL class to another occurs only exceptionally and in justified cases ... because a class is a homogeneous whole and transferring children from CARDINAL class to another would produce stress . ... The continuity of a group is a precondition for the development of a class collective ... ’", "Accordingly , ORG can not accept the following view of the appellate court :", "‘ The classes are formed when the children enter DATE of their schooling , not DATE , and their composition changes only exceptionally . They become a settled whole which makes for work of a higher quality and it is not pedagogically justified to change them . Therefore this court , like the first - instance court , concludes that maintaining established classes did not amount to an unlawful act.’", "The above views of the courts would have been acceptable had they referred to the usual situations concerning the assignment of pupils to upper grade classes in primary schools where no objective need for special measures existed , such as forming separate classes for children with inadequate command of NORP .", "Considering the circumstances of the present case , ORG finds that it is in principle objectively and reasonably justified to maintain separate classes in the upper grades of primary school only for pupils who have not attained the level of NORP necessary for them to follow the school curriculum of regular classes properly . ...", "However , there is no objective or reasonable justification for not transferring to a regular class a pupil who has attained proficiency in NORP in the lower grades of primary school and successfully mastered the prescribed school curriculum .", "...", "Keeping such a pupil in a separate class against his or her will ... for reasons unrelated to his or her needs and skills would be unacceptable from the constitutional point of view with regard to the right of equality before the law , guaranteed under LAW .", "...", "... [ A ] constitutional complaint is a particular constitutional instrument for the protection of a legal subject whose human right or fundamental freedom guaranteed under LAW has been infringed in an individual act of a ORG or public body which determined his or her rights and obligations .", "The present constitutional complaint concerns impugned judgments referring to DATE . However , not a single complainant alleges that in DATE he or she was a pupil in a separate [ GPE - only ] upper - grade class or was personally affected or concerned by the contested practice ...", "Although it does not concern the individual legal position of any of the complainants ... , in respect of the ORG general complaint about the maintaining of GPE - only classes in the upper grades of primary school ORG has addressed the following question :", "– was the continued existence of GPE - only classes in the upper grades of primary school ... caused by the GPE intent to discriminate those pupils on the basis of their racial or ethnic origin ?", "... [ N]one of the facts submitted to ORG lead to the conclusion that the GPE ... practice was aimed at discrimination of the GPE pupils on the basis of their racial or ethnic origin .", "...", "The complainants further complain of a violation of their right to education on the ground that the teaching organised in those classes was more reduced in volume and in scope than the curriculum for primary schools adopted by ORG and Sports on DATE . They consider that ‘ their placement in GPE - only classes with an inferior curriculum stigmatises them as being different , stupid , intellectually inferior and children who need to be separated from normal children in order not to be a bad influence on them . Owing to their significantly reduced and simplified school curriculum , their prospects of higher education or enrolment in high schools as well as their employment options or chances of advancement are slimmer ... ’", "After considering the entire case file , ORG has found that the above allegations are unfounded . The case file , which includes the first - instance judgment ... , shows that the allegations of an inferior curriculum in GPE - only classes are not accurate . ORG has no reason to question the facts as established by the competent court .", "The possible difference in curricula between parallel classes for objective reasons ( for example the low attendance at ORG , where in the first term of DATE the pupils in classes CARDINAL , CARDINAL , CARDINAL and CARDINAL missed CARDINAL lessons in total , CARDINAL of which were missed for no justified reason ) does not contravene the requirement that the curriculum be the same in all parallel classes .", "ORG is obliged to point out that neither the LAW nor the LAW guarantees any specific requirements concerning school curricula or their implementation . First and foremost the LAW and the LAW guarantee a right of access to educational institutions existing in a given ORG , as well as an effective right to education , in other words that every person has an equal right to obtain official recognition of the studies which he or she has completed ( a similar view was expressed by ORG in a case relating to certain aspects of the laws on the use of languages in education in [ Case “ relating to certain aspects of the laws on the use of languages in education in ] GPE [ ” ] ( merits ) , DATE , Series A no . CARDINAL ) . ...", "... [ T]he ORG finds the evidence submitted in the present proceedings insufficient to show beyond doubt that the complainants had to follow a school curriculum of lesser scope . ...", "Thus , ORG considers the ORG assertion about being stigmatised as a subjective value judgment , without reasonable justification . The Constitutional Court finds no factual support for the ORG assertion that the source of their stigmatisation was an allegedly reduced curriculum owing to which their prospects for further education were lower , and dismisses that assertion as arbitrary . The competent bodies of GPE recognise the level of education a person has completed irrespective of his or her racial or ethnic origin . In that respect everyone is equal before the law , with equal chances of advancement according to their abilities . ”", "Article CARDINAL of the LAW reads :", "“ Everyone in GPE shall enjoy rights and freedoms , regardless of race , colour , gender , language , religion , political or other belief , national or social origin , property , birth , education , social status or other characteristics .", "All shall be equal before the law . ”", "The relevant parts of section CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE read :", "“ CARDINAL . Everyone may lodge a constitutional complaint with ORG if he or she deems that the individual act of a state body , a body of local and regional self - government , or a legal person with public authority , which decided about his or her rights and obligations , or about suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional right ) ...", "NORP If another legal remedy exists against the violation of the constitutional right [ complained of ] , the constitutional complaint may be lodged only after that remedy has been exhausted .", "NORP In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law is allowed , remedies are exhausted only after the decision on these legal remedies has been given . ”", "Section CARDINAL of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL , CARDINAL/CARDINAL and DATE ) provides for special proceedings for the protection of constitutional rights and freedoms from unlawful acts of public officials , specifically that an action can be brought if the following conditions are met : ( a ) an unlawful action has already taken place ; ( b ) such action is the work of a government official / body / agency or another legal entity ; ( c ) the action resulted in a violation of CARDINAL or more of the plaintiff ’s constitutional rights ; and ( d ) the NORP legal system does not provide for any other avenue of redress .", "The relevant provisions of LAW ( Zakon o osnovnom školstvu , ORG nos . DATE , CARDINAL , CARDINAL , DATE , CARDINAL/CARDINAL , PERSON , PERSON and CARDINAL/CARDINAL ) read :", "“ The purpose of primary education is to enable a pupil to acquire knowledge , skills , views and habits necessary for life and work or further education .", "A school is obliged to ensure continuous development of each pupil as a spiritual , physical , moral , intellectual and social being in accordance with her or his abilities and preferences .", "The aims of primary education are :", "– to arouse and cultivate in pupils an interest and independence in learning and problem solving as well as creativity , moral consciousness , aesthetic tastes and criteria , self - esteem and responsibility towards the self and nature , social , economic and political awareness , tolerance and ability to cooperate , respect for human rights , achievements and aspirations ;", "– to teach literacy , communication , calculation , scientific and technological principles , critical observation , rational argumentation , understanding of the life we live and understanding of the interdependence of people and nature , individuals and nations .", "The aims and tasks of primary education shall be realised according to the established teaching plans and programmes . ”", "“ Primary education lasts DATE .", "Primary education is in principle mandatory for all children from DATE . ”", "The relevant part of the report concerning the situation of GPE reads :", "“ CARDINAL . Overall , ORG are reported to continue to face societal discrimination and official inaction when complaints are filed . ORG has been made in the fields of education and public awareness , through the publication of studies on the subject of PERSON education , initiatives related to the organisation and financing of education of NORP children , training of GPE teachers , and public forums on the difficulties faced by ORG society . The authorities are encouraged to give further support to such initiatives , taking into account ORG ’s General Policy Recommendation No . CARDINAL on combating racism and intolerance against Roma / Gypsies . ... ”", "The relevant parts of this report read :", "“ Access to education", "Education of ORG children is a serious problem in GPE . Many ORG children do not go to school , having either dropped out or having never attended . According to ORG representatives , there are regions where not a single ORG child attends school . ORG understands that the reasons for this situation are complex , and there is no easy solution , however emphasises the need to increase the participation of ORG children at all levels of education . The NORP authorities are encouraged to make special efforts in this regard .", "ECRI wishes to draw attention to its General Policy Recommendation No . CARDINAL on combating racism and intolerance against Roma / Gypsies , where the existence of discrimination in explaining the process of social exclusion is highlighted . An investigation should be carried out into the role of stereotypes and prejudices of teachers , which may lead to low expectations for ORG . ORG recommends , in this respect , that training be offered to teachers , including information about the particular needs and expectations of ORG and the ability to use this knowledge effectively . As insufficient knowledge of the NORP language upon entry to classes may also present an obstacle , ORG emphasises the importance of preparatory classes , additional training in the NORP language and increased opportunities to study the GPE language in DATE of schooling , which might assist ORG children in integrating into the educational system . ORG notes with interest initiatives such as the “ Programme for Including NORP children in FAC ” , launched in DATE , and encourages the authorities in their efforts to continue to develop and implement appropriate measures in cooperation with ORG . ORG organisations have highlighted the connection between poverty , poor living conditions and school attendance . The NORP authorities might consider creating special assistance programmes for ORG and other children from extremely poor families who may find the costs of textbooks , other school materials and proper school dress prohibitive . ”", "The relevant parts of this report read :", "“ Education and awareness raising", "ECRI is concerned to learn that schoolbooks sometimes convey negative images of certain minority groups , particularly ... GPE .", "...", "Situation of the NORP community in GPE", "...", "ECRI is pleased to learn that in DATE the government adopted a national programme for the GPE which aims to resolve many of the difficulties encountered by GPE in their day - to - day lives . The programme is based on the observation that GPE are largely marginalised in social and public activities and experience worse living conditions than the average majority population and other minorities . The programme aims to abolish all forms of discrimination , violence , stereotyping and prejudice against GPE , while ensuring that they do not lose their own identity , culture or traditions . In order to achieve this aim , the programme sets out a series of measures in areas such as access to citizenship , education , housing , access to public services and relations with the police . In DATE , a commission made up of government representatives , GPE and NGO [ non - governmental organisation ] representatives was set up to monitor the programme and develop a joint action plan for the different ministries . A number of measures have already been taken , such as the training of GPE as assistants in schools or as police officers and the training of young GPE at seminars on participation in public life . ... However , implementation of the programme has not really got off the ground yet and NGOs are critical of the lack of budgetary resources provided , though these are essential to the success of such a programme . The programme must be regarded as positive , although in ORG ’s view it does not sufficiently emphasise the part played by stereotyping and prejudice against GPE , both among the population and among representatives of the public authorities , in the difficulties encountered by this community . ORG also notes with interest that the government is in the process of adopting a national action plan for GPE integration , which proposes a wide range of measures to improve the situation of GPE .", "...", "Access to education for GPE children", "In its second report on GPE , ORG recommended that the NORP authorities make special efforts to increase the participation of GPE children at all levels of education .", "The authorities have taken measures to facilitate GPE children ’s access to education , such as setting up nursery school classes enabling them to learn NORP , training teachers in GPE culture and training young GPE as assistants in schools . Some GPE now receive ORG grants to enrol in university . However , as they are very recent and applied on a small scale these measures are not enough to offset the fact that GPE children are very much behind in terms of equal opportunities in education . Many NORP children leave school at a very early age . They do not always have access to education in their mother tongue and their own culture in schools , in spite of the legislation on the rights of national minorities which provides for this possibility . The authorities have explained to ORG that this is because the GPE have not asked for it themselves and because the PERSON language is not standardised , with several PERSON dialects in GPE . However , some GPE representatives have expressed the wish that the school curriculum for GPE children should include teaching of their mother tongue and GPE culture , though they also emphasise the importance of learning NORP .", "DATE ECRI is particularly concerned by allegations that separate classes solely for NORP children exist alongside classes for non - NORP children in some schools in the NORP region . According to several NGOs , including ORG , education in the classes set aside for GPE children is of poorer quality than in the other classes . According to the authorities , however , the sole reason why there are still classes comprising only NORP children is the de facto segregation which they face where housing is concerned , since GPE are sometimes in the majority in some areas . Nevertheless , this explanation does not provide a response to allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools , they came up against opposition from the non - GPE parents , who apparently signed petitions against this measure , with the result that the separate classes were maintained . ORG notes that proceedings for racial segregation are pending before the national courts in this connection .", "Recommendations", "ECRI urges the NORP authorities to take measures without delay to improve equal opportunities for GPE children in education . It stresses the paramount importance of elaborating a short- , medium- and long - term policy in the matter and providing sufficient funds and other resources to implement this policy . In particular , it should be made easier for NORP children to learn NORP while also allowing those who so wish to be taught their PERSON dialect and GPE culture .", "ECRI encourages the NORP authorities to conduct an in - depth investigation into the allegations that segregation is practised between GPE and non - NORP children in some schools and to rapidly take all the necessary measures , where appropriate , to put an end to such situations .", "ECRI reiterates its recommendations that a study be carried out on the influence of stereotyping and prejudices among teachers , which may lead to low expectations of GPE children . It encourages all measures designed to educate teachers about GPE culture . ”", "DATE . The relevant parts of the opinion read :", "“ ...", "The Advisory Committee finds that GPE has not been able to secure full and effective equality between the majority population and GPE and that the situation of GPE remains difficult in such fields as employment , housing and education . It appears , however , that GPE issues have recently received increasing attention from the central authorities . ORG finds it important that this commitment increases the vigour with which sectoral projects for GPE , such as the ones in the field of education ( see also comments under LAW ) , are pursued and leads to the development , in consultations with GPE , of more comprehensive programmes and strategies to address the concerns of this national minority .", "... ”", "“ ...", "While recognising that there appears to be no large - scale separation of GPE children within the educational system of GPE , ORG is highly concerned about reports that in certain schools , GPE children are placed in separate classes and school facilities are organised and operated in a manner that appears to stigmatise GPE pupils . ORG stresses that placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent , objective and comprehensive tests . ORG supports the efforts of the office of the ORG to review this situation with a view to ensuring that GPE children have equal access to , and opportunities to continue to attend , regular classes . ORG is aware of the reservations expressed by some GPE with respect to the integration of GPE pupils into regular classes and supports efforts to involve GPE parents and GPE organisations in the process aimed at remedying the current situation . ORG considers that a key to reaching this aim is to secure that the educational system reflects and takes fully into account the language and culture of the minority concerned , as stipulated in the principles contained in ORG Recommendation No . R ( DATE ) CARDINAL on the education of ORG children in LOC . ORG notes that the government of GPE adopted in DATE a “ ORG in ORG ” which contains a number of useful ideas in this respect . The text of the programme appears however rather cursory in nature , and ORG considers that GPE needs to develop , implement and evaluate further its measures aimed at improving the status of GPE in the educational system .", "... ”", "PERSON for conclusions and recommendations by ORG", "“ ...", "...", "ORG concludes that in certain schools in GPE , GPE children are reportedly placed in separate classes , and school facilities are organised and operated in a manner that appears to stigmatise GPE pupils . ORG recommends that this question be reviewed , and necessary measures taken , with a view to ensuring that NORP children have equal access to , and opportunities to continue to attend , regular classes , bearing in mind the principles contained in ORG R ( DATE ) CARDINAL on the education of ORG children in LOC . ”", "The relevant parts of the comments read :", "“ ...", "The education of GPE is a serious problem caused by their way of life and their attitude towards the system , laws , rights and obligations of citizens and requires particular efforts and solutions . ORG and Sports , in cooperation with the other ministries and state institutions , local administration and self - government , as well as non - governmental organisations , has initiated programmes to resolve this issue at CARDINAL levels :", "( a ) ORG of integration of the NORP population into the educational system of GPE .", "( b ) Exercise of minority rights aimed at preserving their mother tongue and culture .", "Regarding pre - school education , ORG and Sports , in cooperation with non - governmental organisations , initiated a programme for the inclusion of GPE children and their families , notably mothers , into the system , but only on a voluntary basis , while at the moment there are no effective mechanisms of obligatory inclusion .", "At the level of primary and secondary education , GPE children attend classes together with other children . Those children who do not speak the NORP language may well be enrolled in special classes where they receive special attention with a view to learning the NORP language . This practice is implemented only in the first and second grade of primary school , after which children attend classes together with children of other nationalities . Although this practice has yielded some positive results , priority is given to the organisation of pre - school preparation to help GPE children to overcome the language barrier , learn the basic rules of school conduct , hygienic habits and needs , and strengthen the feeling of affiliation and security in the school environment . ORG and Sports , in cooperation with the local administration , has taken a number of measures for this purpose – additional assistance to overcome problems concerning the following and comprehension of school lessons , adaptation of curricula to the needs of NORP children , granting of accommodation for GPE pupils ( attending secondary schools ) , follow up to the process of inclusion , assisting in the preparation of young GPE for the profession of teachers and trainers , providing free school meals and bus transport to and from school and so forth . ”", "The relevant parts of the opinion read :", "“ LAW [ for ORG ]", "...", "Education of GPE children and contacts amongst pupils from different communities", "...", "Present situation", "( a ) Positive developments", "The authorities seem to be increasingly sensitive to the problems of GPE children in education and have launched new initiatives , including at the pre - school level , which are aimed at improving the situation and attendance of GPE children in schools . ORG details a number of laudable measures that could help to further the protection of the GPE in the educational system , such as the employment of GPE assistant teachers in regular classes and the provision of free meals for children .", "( b ) Outstanding issues", "The placing of GPE children in separate classes appears to be increasingly rare in GPE , but this practice , which has been challenged in pending legal cases , continues in some schools in GPE . ORG also endorses the idea of separate first - grade GPE - only classes for those who have not attended pre - school and are not proficient in the NORP language . Such classes do not appear to be set up to foster teaching in or of GPE language or other elements of GPE culture , but rather to assist the children to obtain basic NORP language and other skills so that they can meet the demands of the educational system . While recognising that these are valuable aims , ORG considers that pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned , and where such placing is found necessary , it should be for a limited period only .", "...", "Recommendations", "GPE should fully implement the valuable educational initiatives contained in the National Programme for ORG , including those promoting increased attendance of GPE children in pre - schools . The envisaged remedial first - grade classes should , however , not be conceived a priori as GPE classes , but as classes in which individuals are placed on the basis of their skills and needs , regardless of their ethnicity .", "... ”", "The relevant parts of the comments read :", "Education of GPE children and contacts amongst pupils from different communities", "“ The programme of pre - school education is intended to encompass as large a number of GPE children as possible and thus create the precondition for their successful entrance into the primary education system . ORG , Education and ORG has also supported the establishment of kindergartens for GPE children in cooperation with GPE NGOs , international organisations and local authorities . The responsible bodies are also helping with the enrolment of GPE pupils in institutions of secondary and higher education and are providing student grants .", "By increasing the number of NORP children in pre - school education , conditions are created for their enrolment in regular primary schools . ”", "The relevant parts of the report read :", "“ III . Situation of the NORP community", "...", "In spite of non - discrimination on a legal plane , the treatment meted out to the GPE minority still raises anxieties since this population continues to undergo social and economic discrimination . It should nevertheless be observed that efforts have been undertaken in institutional matters especially , the government having set up a ORG chaired by the Deputy Prime Minister . Locally , and around Međimurje in particular , most districts have had water and electricity connected and are served by school transport .", "...", "NORP Segregation in schools", "DATE saw the worsening of problems around the town of GPE which applied a practice of separating GPE and non - GPE pupils in schools . An atmosphere of intolerance took hold ; non - GPE parents went so far as to stage a demonstration in front of a school at the start of the DATE , denying entry to the GPE children . Under strong national and international pressure , the authorities recognised that these practices existed and undertook to review this question .", "When I visited GPE , I had the opportunity to visit a primary school with a mixed enrolment . I hasten to thank the head and the staff of this school for their reception . My discussions with them satisfied me that the situation had substantially improved thanks to the commitment of all concerned . Certain difficulties still lingered , however . The PERSON region has a high proportion of GPE and schools have a large enrolment of GPE pupils who make up PERCENT of certain age bands . But these figures can not justify any segregation whatsoever between children , who must be equally treated . I sincerely hope there will be no recurrence of the events which took place in the past , and it is imperative to guarantee that the social and ethnic mix is maintained for the sake of having GPE and non - NORP children educated together in the same classes .", "Difficulties over Roma pupils’ NORP language proficiency were also reported to me . I would stress the importance of putting all pupils through the same syllabus and the same teaching process in one class . Nonetheless , the knowledge gap problem is not to be evaded . As a remedy to it , it could be useful to set up at national level pre - school classes for children whose mother tongue is not NORP . That way , they will acquire a sufficient grounding in the NORP language to be able to keep up with the primary school courses later , while at the same time familiarising themselves with the school institution . In the second place , it rests with the parents to ensure the sound learning of the language and their children ’s regular attendance for the entire school course . ”", "In the third section of the report , which concerns discrimination in education , the Commissioner for Human Rights noted that the fact that a significant number of GPE children did not have access to education of a similar standard to that enjoyed by other children was in part a result of discriminatory practices and prejudices . In that connection , he noted that segregation in education was a common feature in many ORG member GPE . In some countries there were segregated schools in segregated settlements , in others special classes for GPE children in ordinary schools . Being subjected to special schools or classes often meant that these children followed a curriculum inferior to those of mainstream classes , which diminished their opportunities of further education and finding employment in the future . At the same time , segregated education denied both GPE and non - NORP children the chance to know each other and to learn to live as equal citizens . It excluded NORP children from mainstream society at the very beginning of their lives , increasing the risk of their being caught in the vicious circle of marginalisation .", "It was also noted that special classes or special curricula for GPE had been introduced with good intentions , for the purposes of overcoming language barriers or remedying the lack of pre - school attendance of NORP children . Evidently , it was necessary to respond to such challenges , but segregation or systematic placement of NORP children in classes which followed a simplified or a special PERSON - language curriculum while isolating them from other pupils was clearly a distorted response . Instead of segregation , significant emphasis had to be placed on measures such as pre - school and in - school educational and linguistic support as well as the provision of school assistants to work alongside teachers . In certain communities , it was crucial to raise the awareness of GPE parents – who themselves might not have had the possibility to attend school – of the necessity and benefits of adequate education for their children .", "In conclusion , the Commissioner made a number of recommendations related to education . Where segregated education still existed in CARDINAL form or another , it had to be replaced by ordinary integrated education and , where appropriate , banned through legislation . Adequate resources had to be made available for the provision of pre - school education , language training and school assistant training in order to ensure the success of desegregation efforts . Adequate assessment had to be made before children were placed in special classes , in order to ensure that the sole criterion in the placement was the objective needs of the child , not his or her ethnicity .", "DATE . The excerpt of the report concerning GPE reads :", "“ DATE . While visiting GPE in DATE , I learned of a DATE programme , initiated in DATE , to prepare all GPE children for schools , under which children were taught various skills in the NORP language . Under ORG for DATE for ORG , special efforts to improve pre - school education for NORP children have been continued with a view to full integration in[to ] the regular school system . ... ”", "The ORG provides as follows :", "“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,", "Considering that the aim of ORG is to achieve greater unity between its members and that this aim may be pursued , in particular , through common action in the field of education ;", "Recognising that there is an urgent need to build new foundations for future educational strategies toward the Roma / Gypsy people in LOC , particularly in view of the high rates of illiteracy or semi - literacy among them , their high drop - out rate , the low percentage of students completing primary education and the persistence of features such as low school attendance ;", "Noting that the problems faced by ORG in the field of schooling are largely the result of long - standing educational policies of the past , which led either to assimilation or to segregation of ORG children at school on the grounds that they were ‘ socially and culturally FAC ;", "Considering that the disadvantaged position of ORG in NORP societies can not be overcome unless equality of opportunity in the field of education is guaranteed for ORG children ;", "Considering that the education of ORG children should be a priority in national policies in favour of ORG ;", "Bearing in mind that policies aimed at addressing the problems faced by ORG in the field of education should be comprehensive , based on an acknowledgement that the issue of schooling for ORG children is linked with a wide range of other factors and pre - conditions , namely the economic , social and cultural aspects , and the fight against racism and discrimination ;", "Bearing in mind that educational policies in favour of ORG children should be backed up by an active adult education and vocational education policy ;", "...", "Recommends that in implementing their education policies the governments of the member States :", "– be guided by the principles set out in the appendix to this Recommendation ;", "– bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels . ”", "The relevant sections of the Appendix to Recommendation No . R ( DATE ) CARDINAL read as follows :", "“ Guiding principles of an education policy for ORG children in LOC", "I. Structures", "Educational policies for ORG children should be accompanied by adequate resources and the flexible structures necessary to meet the diversity of the ORG population in LOC and which take into account the existence of ORG groups which lead an itinerant or semi - itinerant lifestyle . In this respect , it might be envisaged having recourse to distance education , based on new communication technologies .", "Emphasis should be put on the need to better coordinate the international , national , regional and local levels in order to avoid dispersion of efforts and to promote synergies .", "To this end member GPE should make the ministries of education sensitive to the question of education of ORG children .", "NORP In order to secure access to school for ORG children , pre - school education schemes should be widely developed and made accessible to them .", "Particular attention should also be paid to the need to ensure better communication with parents , where necessary using mediators from the ORG community which could then lead to specific career possibilities . Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families . There has to be mutual understanding between parents and schools . The GPE exclusion and lack of knowledge and education ( even illiteracy ) also prevent children from benefiting from the education system .", "Appropriate support structures should be set up in order to enable ORG children to benefit , in particular through positive action , from equal opportunities at school .", "NORP The member States are invited to provide the necessary means to implement the above - mentioned policies and arrangements in order to close the gap between ORG pupils and majority pupils .", "II . Curriculum and teaching material", "Educational policies in favour of ORG children should be implemented in the framework of broader intercultural policies , taking into account the particular features of the NORP culture and the disadvantaged position of many Roma / Gypsies in the member GPE .", "The curriculum , on the whole , and the teaching material should therefore be designed so as to take into account the cultural identity of ORG children . PERSON history and culture should be introduced in the teaching material in order to reflect the cultural identity of ORG children . The participation of representatives of ORG community should be encouraged in the development of teaching material on the history , culture or language of the Roma / Gypsies .", "NORP However , the member GPE should ensure that this does not lead to the establishment of separate curricula , which might lead to the setting up of separate classes .", "NORP The member GPE should also encourage the development of teaching material based on good practices in order to assist teachers in their DATE work with ORG pupils .", "NORP In the countries where the NORP language is spoken , opportunities to learn in the mother tongue should be offered at school to ORG children .", "III . Recruitment and training of teachers", "It is important that future teachers should be provided with specific knowledge and training to help them understand better their ORG pupils . The education of ORG pupils should however remain an integral part of the general educational system .", "The Roma / Gypsy community should be involved in the designing of such curricula and should be directly involved in the delivery of information to future teachers .", "Support should also be given to the training and recruitment of teachers from within the Roma / Gypsy community .", "... ”", "The relevant parts of the Recommendation read :", "“ ORG ...", "Recommends that the governments of member GPE , with due regard for their constitutional structures , national or local situations and educational systems :", "...", "b. elaborate , disseminate and implement education policies focusing on ensuring non - discriminatory access to quality education for GPE and NORP children , based on the orientations set out in the appendix to this recommendation ;", "...", "d. ensure , through local and regional authorities , that GPE and NORP children are effectively accepted in school ;", "... ”", "The relevant sections of the Appendix to Recommendation CM / Rec(CARDINAL)CARDINAL read as follows .", "“ I. Principles of policies", "...", "Member GPE should ensure that legal measures are in place to prohibit segregation on racial or ethnic grounds in education , with effective , proportionate and dissuasive sanctions , and that the law is effectively implemented . Where de facto segregation of GPE and NORP children based on their racial or ethnic origin exists , authorities should implement desegregation measures . Policies and measures taken to fight segregation should be accompanied by appropriate training of educational staff and information for parents .", "Educational authorities should set up assessment procedures that do not result in risks of enrolling children in special education institutions based on linguistic , ethnic , cultural or social differences but facilitate access to schooling . ORG representatives should be involved in defining and monitoring these procedures .", "...", "II . Structures and provision for access to education", "Roma and Travellers should be provided with unhindered access to mainstream education at all levels subject to the same criteria as the majority population . To accomplish this goal , imaginative and flexible initiatives should be taken as required in terms of educational policy and practice . Appropriate measures should also be taken to ensure equal access to educational , cultural , linguistic and vocational opportunities offered to all learners , with particular attention to GPE and NORP girls and women .", "Attendance of pre - school education for GPE and NORP children should be encouraged , under equal conditions as for other children , and enrolment in pre - school education should be promoted if necessary by providing specific support measures .", "...", "III . Curriculum , teaching material and teacher training", "...", "Educational authorities should ensure that all teachers , and particularly those working in ethnically mixed classes , receive specialised training on intercultural education , with a special regard to ORG . Such training should be included in officially recognised programmes and should be made available in various forms , including distance and online learning , summer schools , etc .", "Teachers working directly with ORG children should be adequately supported by ORG mediators or assistants and should be made aware that they need to engage ORG children more in all educational activities and not de - motivate them by placing lower demands upon them and encourage them to develop their full potential .", "... ”", "ORG made , inter alia , the following general observations :", "“ CARDINAL . CARDINAL of the aims of ORG is to promote the emergence of a genuine NORP cultural identity . LOC harbours many different cultures , all of them , including the many minority cultures , enriching and contributing to the cultural diversity of LOC .", "A special place among the minorities is reserved for NORP . Living scattered all over LOC , not having a country to call their own , they are a true NORP minority , but one that does not fit into the definitions of national or linguistic minorities .", "As a non - territorial minority , NORP greatly contribute to the cultural diversity of LOC . In different parts of LOC they contribute in different ways , be it by language and music or by their trades and crafts .", "NORP With central and east NORP countries now member GPE , the number of NORP living in the area of ORG has increased drastically .", "Intolerance of Gypsies by others has existed throughout the ages . Outbursts of racial or social hatred , however , occur more and more regularly , and the strained relations between communities have contributed to the deplorable situation in which the majority of NORP lives today .", "Respect for the rights of NORP , individual , fundamental and human rights and their rights as a minority , is essential to improve their situation .", "Guarantees for equal rights , equal chances , equal treatment , and measures to improve their situation will make a revival of PERSON language and culture possible , thus enriching the NORP cultural diversity .", "The guarantee of the enjoyment of the rights and freedoms set forth in LAW is important for NORP as it enables them to maintain their individual rights .", "... ”", "As far as education is concerned , the ORG states :", "“ vi . the existing NORP programmes for training teachers of NORP should be extended ;", "...", "viii . talented young NORP should be encouraged to study and to act as intermediaries for NORP ;", "... ”", "This Recommendation states , inter alia :", "“ ...", "DATE Roma are still subjected to discrimination , marginalisation and segregation . Discrimination is widespread in every field of public and personal life , including access to public places , education , employment , health services and housing , as well as crossing borders and access to asylum procedures . Marginalisation and the economic and social segregation of GPE are turning into ethnic discrimination , which usually affects the weakest social groups .", "Roma form a special minority group , in so far as they have a double minority status . They are an ethnic community and most of them belong to the socially disadvantaged groups of society .", "...", "ORG can and must play an important role in improving the legal status , the level of equality and the living conditions of GPE . The ORG calls upon the member ORG to complete the CARDINAL general conditions , which are necessary for the improvement of the situation of GPE in LOC :", "...", "c. to guarantee equal treatment for the NORP minority as an ethnic or national minority group in the field of education , employment , housing , health and public services . Member GPE should give special attention to :", "i. promoting equal opportunities for GPE on the labour market ;", "ii . providing the possibility for Romany students to participate in all levels of education from kindergarten to university ;", "iii . developing positive measures to recruit GPE in public services of direct relevance to GPE communities , such as primary and secondary schools , social welfare centres , local primary health care centres and local administration ;", "...", "d. to develop and implement positive action and preferential treatment for the socially deprived strata , including GPE as a socially disadvantaged community , in the field of education , employment and housing ...", "e. to take specific measures and create special institutions for the protection of the Romany language , culture , traditions and identity :", "...", "ii . to encourage Romany parents to send their children to primary school , secondary school and higher education , including college or university , and give them adequate information about the necessity of education ;", "...", "v. to recruit GPE teaching staff , particularly in areas with a large NORP population ;", "PERSON to combat racism , xenophobia and intolerance and to ensure non - discriminatory treatment of GPE at local , regional , national and international levels :", "...", "vi . to pay particular attention to the phenomenon of discrimination against GPE , especially in the fields of education and employment ;", "... ”", "The relevant sections of this Recommendation state :", "“ ORG against Racism and Intolerance :", "...", "Recalling that combating racism , xenophobia , anti - Semitism and intolerance forms an integral part of the protection and promotion of human rights , that these rights are universal and indivisible , and that all human beings , without any distinction whatsoever , are entitled to these rights ;", "...", "Noting that ORG suffer throughout LOC from persisting prejudices , are victims of a racism which is deeply rooted in society , are the target of sometimes violent demonstrations of racism and intolerance and that their fundamental rights are regularly violated or threatened ;", "Noting also that the persisting prejudices against ORG lead to discrimination against them in many fields of social and economic life , and that such discrimination is a major factor in the process of social exclusion affecting many Roma / Gypsies ;", "...", "recommends the following to governments of member PERSON :", "...", "– to ensure that discrimination as such , as well as discriminatory practices , are combated through adequate legislation and to introduce into civil law specific provisions to this end , particularly in the fields of employment , housing and education ;", "...", "– to vigorously combat all forms of school segregation towards ORG children and to ensure the effective enjoyment of equal access to education ;", "... ”", "The following definitions are used for the purposes of this Recommendation :", "“ ( a ) ’racism’ shall mean the belief that a ground such as race , colour , language , religion , nationality or national or ethnic origin justifies contempt for a person or a group of persons , or the notion of superiority of a person or a group of persons .", "( b ) NORP racial discrimination’ shall mean any differential treatment based on a ground such as race , colour , language , religion , nationality or national or ethnic origin , which has no objective and reasonable justification . Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised .", "( c ) ORG racial discrimination’ shall mean cases where an apparently neutral factor such as a provision , criterion or practice can not be as easily complied with by , or disadvantages , persons belonging to a group designated by a ground such as race , colour , language , religion , nationality or national or ethnic origin , unless this factor has an objective and reasonable justification . This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised . ”", "In the explanatory memorandum to this Recommendation , it is noted ( point CARDINAL) that the definitions of “ direct ” and “ indirect ” racial discrimination contained in paragraph CARDINAL ( b ) and ( c ) of the Recommendation draw inspiration from those contained in ORG CARDINAL/CARDINAL/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in ORG CARDINAL establishing a general framework for equal treatment in employment and occupation and on the case - law of ORG .", "Article CARDINAL of the LAW provides :", "“ All persons are equal before the law and are entitled without any discrimination to the equal protection of the law . In this respect , the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status . ”", "NORP In points CARDINAL and CARDINAL of its General Comment No . CARDINAL of DATE on non - discrimination , the ORG expressed the following opinion :", "“ CARDINAL . ... the ORG believes that the term ‘ discrimination’ as used in the LAW should be understood to imply any distinction , exclusion , restriction or preference which is based on any ground such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status , and which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise by all persons , on an equal footing , of all rights and freedoms .", "...", "NORP ... when legislation is adopted by ORG , it must comply with the requirement of LAW that its content should not be discriminatory . ... ”", "NORP CARDINAL of its Views dated DATE on Communication no . CARDINAL concerning GPE , the ORG noted :", "“ ... ORG is of the view , however , that the intent of the legislature is not alone dispositive in determining a breach of LAW . A politically motivated differentiation is unlikely to be compatible with LAW . But an act which is not politically motivated may still contravene LAW if its effects are discriminatory . ”", "The relevant part of LAW provides :", "“ ... the term ‘ racial discrimination’ shall mean any distinction , exclusion , restriction or preference based on race , colour , descent , or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise , on an equal footing , of human rights and fundamental freedoms in the political , economic , social , cultural or any other field of public life .", "... ”", "In its ORG . DATE on the definition of discrimination , the ORG noted , inter alia :", "“ CARDINAL . ... A distinction is contrary to the [ FAC on the Elimination of All Forms of Racial Discrimination ] if it has either the purpose or the effect of impairing particular rights and freedoms . This is confirmed by the obligation placed upon GPE parties by LAW ) to nullify any law or practice which has the effect of creating or perpetuating racial discrimination . ...", "NORP ... In seeking to determine whether an action has an effect contrary to the [ FAC on the Elimination of All Forms of Racial Discrimination ] , [ the ORG ] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race , colour , descent , or national or ethnic origin . ”", "NORP In its FAC . CARDINAL of DATE on racial segregation and apartheid , the ORG observed :", "“ CARDINAL . ... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies , a condition of partial segregation may also arise as an unintended by - product of the actions of private persons . In many cities residential patterns are influenced by group differences in income , which are sometimes combined with differences of race , colour , descent and national or ethnic origin , so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds .", "The ORG therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities . ... ”", "In its ORG . CARDINAL of DATE on discrimination against ORG made , inter alia , the following recommendation in the education sphere :", "“ CARDINAL . To support the inclusion in the school system of all children of GPE origin and to act to reduce drop - out rates , in particular among GPE girls , and , for these purposes , to cooperate actively with GPE parents , associations and local communities .", "To prevent and avoid as much as possible the segregation of GPE students , while keeping open the possibility for bilingual or mother - tongue tuition ; to this end , to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community , to recruit school personnel from among members of ORG and to promote intercultural education .", "To consider adopting measures in favour of GPE children , in cooperation with their parents , in the field of education . ”", "In its concluding observations of CARDINAL DATE following its examination of the report submitted by GPE , the ORG noted , inter alia :", "“ CARDINAL . The marginalisation of the GPE community in the field of education is noted with concern . Evidence that a disproportionately large number of GPE children are placed in special schools , leading to de facto racial segregation , and that they also have a considerably lower level of participation in secondary and higher education , raises doubts about whether LAW ] is being fully implemented . ”", "The relevant parts of ORG CARDINAL and CARDINAL of this Convention provide as follows .", "“ CARDINAL . DATE States Parties recognise the right of the child to education , and with a view to achieving this right progressively and on the basis of equal opportunity , they shall , in particular :", "( a ) Make primary education compulsory and available free to all ;", "...", "( e ) Take measures to encourage regular attendance at schools and the reduction of drop - out rates .", "... ”", "“ In those GPE in which ethnic , religious or linguistic minorities or persons of indigenous origin exist , a child belonging to such a minority or who is indigenous shall not be denied the right , in community with other members of his or her group , to enjoy his or her own culture , to profess and practise his or her own religion , or to use his or her own language . ”", "The relevant part of DATE provides :", "“ CARDINAL . States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law .", "... ”", "Articles CARDINAL and CARDINAL of ORG in Education of DATE provide in their relevant parts as follows .", "“ CARDINAL . For the purposes of this Convention , the term ‘ discrimination’ includes any distinction , exclusion , limitation or preference which , being based on race , colour , sex , language , religion , political or other opinion , national or social origin , economic condition or birth , has the purpose or effect of nullifying or impairing equality of treatment in education and in particular :", "( a ) Of depriving any person or group of persons of access to education of any type or at any level ;", "( b ) Of limiting any person or group of persons to education of an inferior standard ;", "( c ) ORG to the provisions of LAW , of establishing or maintaining separate educational systems or institutions for persons or groups of persons ; or", "( d ) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man .", "... ”", "“ In order to eliminate and prevent discrimination within the meaning of this Convention , the GPE Parties thereto undertake :", "( a ) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education ;", "( b ) To ensure , by legislation where necessary , that there is no discrimination in the admission of pupils to educational institutions ;", "... ”" ]

[ "14", "6", "P1" ]

[ "6-1", "P1-2" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE . The facts , as found by Mr Justice PERSON ( “ Wall J ” ) , who heard the parties’ oral evidence ( see paragraph CARDINAL below ) , are as follows .", "On DATE the applicant and her partner , J , commenced treatment at ORG ( “ the clinic ” ) . The applicant had been married and had been referred for fertility treatment at the clinic with her husband in DATE , but had not pursued it because of the breakdown of her marriage .", "On DATE the applicant and J were informed , during an appointment at the clinic , that preliminary tests had revealed that the applicant had serious pre - cancerous tumours in both ovaries , and that her ovaries would have to be removed . They were told that because the tumours were growing slowly , it would be possible first to extract some eggs for in vitro fertilisation ( “ ORG ” ) , but that this would have to be done quickly .", "The consultation of DATE lasted TIME in total . A nurse explained that the applicant and J would each have to sign a form consenting to the ORG treatment and that , in accordance with the provisions of ORG “ the DATE LAW ) , it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant ’s uterus ( see paragraphs CARDINAL below ) . The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs , but was informed that this procedure , which had a much lower chance of success , was not performed at the clinic . At that point J reassured the applicant that they were not going to split up , that she did not need to consider the freezing of her eggs , that she should not be negative and that he wanted to be the father of her child . Wall J found that J gave these assurances in good faith , because at that time he loved the applicant , genuinely wanted a child with her and wanted to support her during a very difficult period ( see also paragraph CARDINAL below ) .", "Thereafter , the couple entered into the necessary consents , by signing the forms required by LAW ( see paragraph CARDINAL below ) .", "Immediately beneath the title to the form appeared the following words :", "“ NB – do not sign this form unless you have received information about these matters and have been offered counselling . You may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used . Please insert numbers or tick boxes as appropriate . ”", "J ticked the boxes which recorded his consent to use his sperm to fertilise the applicant ’s eggs in vitro and the use of the embryos thus created for the treatment of himself and the applicant together . He further ticked the box headed “ Storage ” , opting for the storage of embryos developed in vitro from his sperm for the maximum period of DATE and also opted for sperm and embryos to continue in storage should he die or become mentally incapacitated within that period . The applicant signed a form which , while referring to eggs rather than sperm , essentially replicated that signed by J. Like J , she ticked the boxes providing for the treatment of herself and for the treatment “ of myself with a named partner . ”", "On DATE the couple attended the clinic and CARDINAL eggs were harvested and fertilised . CARDINAL embryos were created and consigned to storage . On DATE the applicant underwent an operation to remove her ovaries . She was told that she should wait DATE before attempting to implant any of the embryos in her uterus .", "NORP In DATE the relationship broke up . The future of the embryos was discussed between the parties . On DATE J wrote to the clinic to notify it of the separation and to state that the stock of embryos should be destroyed .", "The clinic notified the applicant of ORG ’s withdrawal of consent to further use of the embryos and informing her that it was now under a legal obligation to destroy them , pursuant to section CARDINAL(CARDINAL ) of Schedule DATE CARDINAL Act ( see paragraph CARDINAL below ) . The applicant commenced proceedings in ORG , seeking an injunction requiring J to restore his consent to the use and storage of the embryos and a declaration , inter alia , that he had not varied and could not vary his consent of DATE . Additionally she sought a declaration of incompatibility under LAW DATE to the effect that section CARDINAL of , and Schedule CARDINAL to , LAW breached her rights under LAW , CARDINAL and DATE . She also pleaded that the embryos were entitled to protection under LAW and DATE . Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings .", "The trial judge , Wall J , heard the case over DATE and took evidence from , among others , the applicant and J. On DATE , in a CARDINAL page judgment ( PERSON v. ORG and others , [ DATE ] EWHC CARDINAL ( Fam ) ) , he dismissed the applicant ’s claims .", "He concluded that J had not given consent to the continuing treatment of the applicant on her own and that there had been no consent on his part to the use of the embryos irrespective of any change of circumstance . He rejected the applicant ’s submission that J was estopped from withdrawing his consent , finding that both the applicant and J had embarked on the treatment in good faith on the basis that their relationship would continue . It did not , however , and in the changed circumstances of separation , it would be inequitable not to allow either party to change his or her mind and to withdraw consent to the treatment .", "As to the applicant ’s Convention claims , Wall J held in summary that an embryo was not a person with rights protected under the Convention , and that the applicant ’s right to respect for family life was not engaged . He did , however , accept that the relevant provisions of LAW did interfere with the private life of both parties , but held that it was proportionate in its effect , the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child ( see further paragraphs CARDINAL - CARDINAL below ) . He considered it entirely appropriate that the law required couples embarking on ORG treatment to be in agreement about the treatment , and permitted either party to withdraw from it at any time before the embryo was transferred into the woman .", "Wall J emphasised that the provisions of Schedule QUANTITY ( see paragraph CARDINAL below ) applied equally to all patients undergoing ORG treatment , irrespective of their sex , and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man :", "“ If a man has testicular cancer and his sperm , preserved prior to radical surgery which renders him permanently infertile , is used to create embryos with his partner ; and if the couple have separated before the embryos are transferred into the woman , nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her . The statutory provisions , like Convention rights , apply to men and women equally . ”", "The applicant ’s appeal to ORG was dismissed in a judgment delivered on DATE ( PERSON v. ORG , [ DATE ] EWCA Civ CARDINAL ) .", "The court held that the clear policy of LAW was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo , and that “ the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme ” . J was thus entitled to withdraw his consent as and when he did and such withdrawal prevented both the use and continued storage of the embryos . The court rejected the applicant ’s argument that J had concealed his ambivalence , thereby inducing her to go forward with him into couple treatment , holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant , J , and the other witnesses ( see paragraphs CARDINAL above ) . ORG was also informed by ORG ’s counsel that ORG clear position in withdrawing his consent was CARDINAL of fundamental rather than purely financial objection .", "While there was an interference with the private lives of the parties , Lord Justices PERSON and PERSON found it to be justified and proportionate , for the following reasons :", "“ The less drastic means contended for here is a rule of law making the withdrawal of [ J ’s ] consent non - conclusive . This would enable [ the applicant ] to seek a continuance of treatment because of her inability to conceive by any other means . But unless it also gave weight to [ J ’s ] firm wish not to be father of a child borne by [ the applicant ] , such a rule would diminish the respect owed to his private life in proportion as it enhanced the respect accorded to hers . Further , in order to give it weight the legislation would have to require ORG or the clinic or both to make a judgment based on a mixture of ethics , social policy and human sympathy . It would also require a balance to be struck between CARDINAL entirely incommensurable things . ...", "... The need , as perceived by ORG , is for bilateral consent to implantation , not simply to the taking and storage of genetic material , and that need can not be met if CARDINAL of the consent is no longer effective . To dilute this requirement in the interests of proportionality , in order to meet [ the applicant ’s ] otherwise intractable biological handicap , by making the withdrawal of the man ’s consent relevant but inconclusive , would create new and even more intractable difficulties of arbitrariness and inconsistency . The sympathy and concern which anyone must feel for [ the applicant ] is not enough to render the legislative scheme ... disproportionate . ”", "Lady ORG stated , by way of introduction , that :", "“ The DATE Act inevitably uses clinical language , such as gametes and embryos . But it is clear that LAW is concerned with the very emotional issue of infertility and the genetic material of CARDINAL individuals which , if implanted , can lead to the birth of a child . ... Infertility can cause the woman or man affected great personal distress . In the case of a woman , the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life . It goes to their sense of identity and to their dignity . ”", "ORG noted that neither ORG nor the Green Paper which had preceded the legislation had discussed what was to happen if the parties became estranged during treatment ( see paragraphs DATE below ) . However , she went on to find :", "“ Like PERSON and PERSON , I consider that the imposition of an invariable and ongoing requirement for consent in LAW in the present type of situation satisfies LAW . ... As this is a sensitive area of ethical judgment , the balance to be struck between the parties must primarily be a matter for ORG ... . ORG has taken the view that no one should have the power to override the need for a genetic parent ’s consent . The wisdom of not having such a power is , in my judgment , illustrated by the facts of this case . The personal circumstances of the parties are different from what they were at the outset of treatment , and it would be difficult for a court to judge whether the effect of [ J ’s ] withdrawal of his consent on [ the applicant ] is greater than the effect that the invalidation of that withdrawal of consent would have on [ J ] . The court has no point of reference by which to make that sort of evaluation . The fact is that each person has a right to be protected against interference with their private life . That is an aspect of the principle of self - determination or personal autonomy . It can not be said that the interference with [ J ’s ] right is justified on the ground that interference is necessary is protect [ the applicant ’s ] right , because her right is likewise qualified in the same way by his right . They must have equivalent rights , even though the exact extent of their rights under LAW has not been identified .", "The interference with [ the applicant ’s ] private life is also justified under LAW because , if [ the applicant ’s ] argument succeeded , it would amount to interference with the genetic father ’s right to decide not to become a parent . Motherhood could surely not be forced on [ the applicant ] and likewise fatherhood can not be forced on [ J ] , especially as in the present case it will probably involve financial responsibility in law for the child as well . ”", "On the issue of discrimination , Lord Justices PERSON and PERSON considered that the true comparison was between women seeking ORG treatment whose partners had withdrawn consent and those whose partners had not done so ; Lady ORG considered that the real comparators were fertile and infertile women , since the genetic father had the possibility of withdrawing consent to ORG at a later stage than in ordinary sexual intercourse . The CARDINAL judges were nevertheless in agreement that , whatever comparators were chosen , the difference in treatment was justified and proportionate under LAW same reasons which underlay the finding of no violation of LAW . ORG further refused leave to appeal against ORG finding that the embryos were not entitled to protection under LAW , since under domestic law a foetus prior to the moment of birth , much less so an embryo , had no independent rights or interests .", "On DATE ORG refused the applicant leave to appeal against ORG judgment .", "The birth of the first child from ORG in DATE prompted much ethical and scientific debate in GPE , which in turn led to the appointment in DATE of ORG under the chairmanship of PERSON to “ consider recent and potential developments in medicine and science related to human fertilisation and embryology ; to consider what policies and safeguards should be applied , including consideration of the social , ethical and legal implications of these developments ; and to make recommendations . ” The Committee reported in DATE ( ORG ) and its recommendations , so far as they related to ORG treatment , were set out in a ORG issued for public consultation . After receipt of representations from interested parties , they were included in a ORG , ORG : ORG , published in DATE ( Cm CARDINAL ) . The White Paper noted “ the particular difficulties of framing legislation on these sensitive issues against a background of fast - moving medical and scientific development ” . Nonetheless , following further consultation , ORG and Embryology Bill DATE was published , and passed into law as ORG Embryology Act DATE .", "NORP The solution recommended and embodied in LAW was to permit , subject to certain express prohibitions , the creation and subsequent use of live human embryos produced in vitro , subject to a number of conditions , restrictions and time limits .", "Thus , by section CARDINAL(CARDINAL ) of the LAW , no person shall bring about the creation of an embryo , or keep or use an embryo except in pursuance of a licence . The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question . The contravention of section CARDINAL ( CARDINAL ) is an offence ( created by section CARDINAL(CARDINAL)(a ) of the LAW ) .", "One of the policy objectives of LAW was to promote the welfare of the child . Thus , section CARDINAL(CARDINAL ) provides :", "“ A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment ( including the need of that child for a father ) , and of any other child who may be affected by the birth . ”", "The second important policy objective of the DATE Act was to ensure that both gamete providers ( i.e. the providers of the sperm and eggs ) continued to consent from the commencement of the treatment until the implantation of the embryos . The primacy of continuing bilateral consent had been central to ORG recommendations about the regulation of ORG treatment and although neither ORG nor the Green Paper had discussed what was to happen if the parties became estranged during treatment , the White Paper emphasised that donors of genetic material would have the right under the proposed legislation to vary or withdraw their consent at any time before the embryos were used .", "By section CARDINAL(c ) of the LAW , it is a condition of every licence granted that the provisions of Schedule CARDINAL to the LAW , which deal with consent , shall be complied with .", "Schedule CARDINAL provides :", "“ Consents to use of gametes or embryos", "Consent", "A consent under this Schedule must be given in writing and , in this Schedule , ‘ effective ORG means a consent under this Schedule which has not been withdrawn .", "— ( CARDINAL ) A consent to the use of any embryo must specify CARDINAL or more of the following purposes—", "( a ) use in providing treatment services to the person giving consent , or that person and another specified person together ,", "( b ) use in providing treatment services to persons not including the person giving consent , or", "( c ) use for the purposes of any project of research ,", "and may specify conditions subject to which the embryo may be so used .", "( CARDINAL ) A consent to the storage of any gametes or any embryo must—", "( a ) specify the maximum period of storage ( if less than the statutory storage period ) , and", "( b ) NORP state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable because of incapacity to vary the terms of the consent or to revoke it ,", "and may specify conditions subject to which the gametes or embryo may remain in storage .", "( CARDINAL ) A consent under this Schedule must provide for such other matters as the ORG may specify in directions .", "( CARDINAL ) A consent under this Schedule may apply—", "( a ) to the use or storage of a particular embryo , or", "( b ) in the case of a person providing gametes , to the use or storage of any embryo whose creation may be brought about using those gametes ,", "and in the paragraph ( b ) case the terms of the consent may be varied , or the consent may be withdrawn , in accordance with this Schedule either generally or in relation to a particular embryo or particular embryos .", "Procedure for giving consent", "CARDINAL ) Before a person gives consent under this Schedule—", "( a ) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps , and", "( b ) he must be provided with such relevant information as is proper .", "( CARDINAL ) Before a person gives consent under this Schedule he must be informed of the effect of paragraph CARDINAL below .", "Variation and withdrawal of consent", "CARDINAL.—(CARDINAL ) The terms of any consent under this Schedule may from time to time be varied , and the consent may be withdrawn , by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant .", "( CARDINAL ) The terms of any consent to the use of any embryo can not be varied , and such consent can not be withdrawn , once the embryo has been used—", "( a ) in providing treatment services , or", "( b ) for the purposes of any project of research .", "Use of gametes for treatment of others", "CARDINAL ) A person ’s gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent .", "( CARDINAL ) A person ’s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used .", "( CARDINAL ) This paragraph does not apply to the use of a person ’s gametes for the purpose of that person , or that person and another together , receiving treatment services .", "In vitro fertilisation and subsequent use of embryo", "CARDINAL.—(CARDINAL ) A person ’s gametes must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo the creation of which may be brought about with the use of those gametes being used for one or more of the purposes mentioned in paragraph CARDINAL(CARDINAL ) above .", "( CARDINAL ) An embryo the creation of which was brought about in vitro must not be received by any person unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for CARDINAL or more of the purposes mentioned in paragraph CARDINAL(CARDINAL ) above of the embryo .", "( CARDINAL ) An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents .", "( CARDINAL ) Any consent required by this paragraph is in addition to any consent that may be required by paragraph CARDINAL above .", "Embryos obtained by lavage , etc .", "...", "Storage of gametes and embryos", "CARDINAL ) A person ’s gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent .", "( CARDINAL ) An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent , by each person whose gametes were used to bring about the creation of the embryo , to the storage of the embryo and the embryo is stored in accordance with those consents .", "( CARDINAL ) An embryo taken from a woman must not be kept in storage unless there is an effective consent by her to its storage and it is stored in accordance with the consent . ”", "The material effect of Schedule CARDINAL was summarised in the judgment of ORG Justices PERSON and PERSON as follows :", "“ ( i ) Those contemplating the storage and/or use of embryos created from their gametes must first be offered counselling ; ( ii ) they must specifically be informed of the circumstances in which consent to the storage or use of an embryo may be varied or withdrawn ; ( iii ) consent given to the use of an embryo must specify whether the embryo is to be used to provide treatment services to the person giving consent , or to that person together with another , or to persons not including the person giving consent ; ( iv ) an embryo may only be stored while there is effective consent to its storage from both gamete providers , and in accordance with the terms of the consent ; ( v ) an embryo may only be used while there is an effective consent to its use from both gamete providers , and in accordance with the terms of that consent ; ( vi ) consent to the storage of an embryo can be varied or withdrawn by either party whose gametes were used to create the embryo at any time ; ( vii ) consent to the use of an embryo can not be varied or withdrawn once the embryo has been used in providing treatment services . ”", "On the basis of the material available to the ORG , including the “ Medically Assisted Procreation and the Protection of the Human Embryo Study on the ORG in GPE ” ( ORG , DATE ) , the situation in the various Member ORG would appear to be as follows . In GPE , GPE , GPE and GPE , the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in legislation ; in the GPE , this rule is included in secondary legislation . In GPE , GPE and GPE clinical practice appears to conform to this model , and it further appears that , as a matter of law or practice , in GPE , GPE and GPE the male donor enjoys a similar power of veto to that afforded by GPE .", "A number of countries have , however , regulated the consent issue differently . In GPE , for example , in recognition of the fact that medically - assisted reproduction represents a far heavier burden for the woman than for the man , and absent any prior written agreement to the contrary , the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple . In GPE , GPE and GPE the man ’s consent can be revoked only up to the point of fertilisation , beyond which it is the woman alone who decides if and when to proceed . In GPE , the man ’s right to revoke his consent is recognised only where he is married to and living with the woman .", "The field of medically assisted reproduction is not regulated at federal level in GPE , and since few GPE have introduced laws concerning the subsequent withdrawal of consent by CARDINAL party , it has been left to the courts to determine how the conflict between the parties should be resolved . There is , therefore , a series of judgments by ORG regarding the disposal of embryos created through ORG .", "In PERSON , ( CARDINAL S.W.CARDINALd CARDINAL , CARDINAL ; DATE ) , ORG held in DATE :", "“ ... disputes involving the disposition of pre - embryos produced by in vitro fertilization should be resolved , first , by looking to the preferences of the progenitors . If their wishes can not be ascertained , or if there is dispute , then their prior agreement concerning disposition should be carried out . If no prior agreement exists , then the relative interests of the parties in using or not using the pre - embryos must be weighed . Ordinarily , the party wishing to avoid procreation should prevail , assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre - embryos in question . If no other reasonable alternatives exist , then the argument in favor of using the pre - embryos to achieve pregnancy should be considered . However , if the party seeking control of the pre - embryos intends merely to donate them to another couple , the objecting party obviously has the greater interest and should prevail . ”", "In PERSON v. PERSON ( CARDINAL GPE . TIME ) , the couple had signed an agreement with the clinic which stipulated that , “ in the event that we ... are unable to make a decision regarding the disposition of our frozen pre - zygotes ” , the embryos could be used for research . When the couple separated , PERSON sought to overturn the agreement and proceed to implantation . Although she prevailed at first instance ( the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of ORG ) , ORG decided that the existing agreement was sufficiently clear and should be honoured .", "In GPE v. LANGUAGE , ( DATE , CARDINAL ORG CARDINAL ; CARDINAL N.E. CARDINALd DATE ) there was again a previous written agreement , according to which , in the event of separation , the embryos were to be given to the wife , who now wished to continue with the treatment , contrary to the wishes of the husband . However , ORG considered that the arrangement should not be enforced because , inter alia , as a matter of public policy “ forced procreation is not an area amenable to judicial enforcement ” . Rather , “ freedom of personal choice in matters of marriage and family life ” should prevail .", "This judgment was cited with approval by ORG , in PERSON ( DATE PERSON ) . Here , it was the wife who sought the destruction of the embryos while the husband wanted them preserved for use with a future partner . Although constitutional arguments were advanced on behalf of the wife , the court declined to approach the matter in this way , reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights . Instead , the court subscribed to the view taken in the PERSON case regarding public policy and ordered that the wife ’s wishes be observed .", "In the final case in this series , Litowitz v. Litowitz , ( DATE , CARDINAL ) , ORG of GPE decided in DATE to adopt a contractual analysis and to honour the couple ’s agreement with the clinic not to store the embryos for DATE .", "In GPE v. PERSON ( CARDINAL ) LAW ( Isr ) ) a childless NORP couple decided to undergo ORG and then to contract with a surrogate in GPE to bear their child because the wife would not be able to carry the foetus to term . The couple signed an agreement with the surrogate , but not with the ORG clinic regarding the disposal of the embryos in the event of their separation . The wife had her last CARDINAL eggs extracted and fertilised with her husband ’s sperm . The couple then separated , before the embryos could be implanted in the surrogate , and the husband , who had gone on to have children with another woman , opposed the use of the embryos .", "ORG found in favour of the wife , holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife ’s egg through sexual intercourse . A CARDINAL - judge panel of ORG reversed this decision , upholding the man ’s fundamental right not to be forced to be a parent . ORG reheard the case as a panel of CARDINAL judges and decided , CARDINAL , in favour of the wife . Each judge wrote a separate opinion . The judges in the majority found that the woman ’s interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man . CARDINAL of the minority judges , including the Chief Justice , reached the opposite conclusion , emphasising that the wife had known that her husband ’s consent would be required at every stage and that the agreement could not be enforced after the couple had become separated . The fourth of the dissenters held that the man ’s consent was required before the obligation of parenthood could be imposed on him .", "The General Rule stated in LAW as follows :", "“ An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it .", "This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks .", "The person concerned may freely withdraw consent at any time . ”", "Principle CARDINAL of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences , the expert body within ORG which preceded the present ORG ( ORG , DATE ) , stated :", "“ CARDINAL . The techniques of artificial procreation may be used only if the persons concerned have given their free , informed consent , explicitly and in writing , in accordance with national requirements ... ”", "Finally , LAW provides :", "“ DATE Consent", "a ) Any preventive , diagnostic and therapeutic medical intervention is only to be carried out with the prior , free and informed consent of the person concerned , based on adequate information .", "The consent should , where appropriate , be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice . ”" ]

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[ "14", "2", "8" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant stood for the elections to ORG as a candidate of the opposition bloc YeS ( FAC ) . He was registered as a candidate by ORG ( “ the ConEC ” ) for the single - member ORG no . DATE .", "On DATE the ConEC decided to apply to ORG with a request to cancel the applicant ’s registration as a candidate owing to the reports of his alleged involvement in activities incompatible with the requirements of LAW . According to TIME of the PERSON meeting , CARDINAL members of the ConEC participated in the meeting . The applicant was not informed about this meeting in advance and was not invited to it . In support of its decision , the ConEC relied on CARDINAL grounds , summarised below .", "Firstly , the PERSON noted that it had received written statements from CARDINAL voters claiming that the applicant had either promised or given them money in exchange for their promise to vote for him . CARDINAL of them claimed that they had each received CARDINAL old NORP manats ( at that time , a sum equivalent to MONEY ) in cash from the applicant and , as a proof of this claim , handed in this cash to the ConEC . None of these voters were heard in person by the ConEC . The ConEC considered that such actions by the applicant were contrary to LAW concerning the illegal means of gaining voter support .", "Secondly , relying on unspecified reports , the PERSON noted that the applicant had made public statements “ against the constitutional foundations of the ORG ” by advocating for the return to power of the Chairman of ORG and former President PERSON GPE ( who had been in exile for DATE ) .", "Thirdly , the PERSON noted that on DATE the applicant was planning to organise a demonstration in front of the ConEC building in order to protest against the cancellation of the registration of another candidate from the same constituency , which had taken place earlier .", "On DATE ORG examined the case and cancelled the applicant ’s registration as a candidate , in accordance with Articles CARDINAL.CARDINAL and CARDINAL of LAW . During the hearing , the applicant denied all the accusations and argued that the case had been fabricated and that the allegations of bribery had not been proven . Having regard to the ConEC ’s submissions , the written statements of the CARDINAL voters , and several banknotes sealed in plastic bags ( as “ material evidence ” ) , ORG found that the applicant had offered money to voters in exchange for their votes in his favour , thus breaching LAW of LAW . It appears that the court considered that this was a sufficient ground for the cancellation of the applicant ’s registration and did not examine the other CARDINAL grounds mentioned in the ConEC ’s request .", "According to the applicant , CARDINAL members of the ConEC ( CARDINAL of whom had allegedly participated in the meeting of DATE ) wrote affidavits , addressed to ORG , in which they claimed that the alleged ConEC meeting of DATE had actually not taken place and that the minutes of that meeting , submitted to ORG , constituted a false document . These affidavits were not accepted by ORG because they had not been notarised . Subsequently , CARDINAL of the above ConEC members wrote similar notarised affidavits addressed to ORG , while one of them retracted his earlier statement .", "According to the Government , on DATE CARDINAL of the abovementioned ConEC members , ORG , wrote another affidavit in which he retracted his previous statement and maintained that he had been forced by the applicant and his representatives to write a statement that there had been no ConEC meeting .", "The applicant lodged an appeal with ORG , arguing that the allegations against him had been fabricated and that the evidence used against him had been tenuous , uncorroborated and wrongly assessed . In support of his submissions he attached , inter alia , the above - mentioned affidavits by the ConEC members .", "On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment of CARDINAL DATE . It refused to admit the documents submitted by the applicant , finding", "Article CARDINAL of LAW of DATE provides as follows :", "“ CARDINAL . Candidates ... are prohibited from gaining the support of voters in the following ways :", "CARDINAL.CARDINAL.CARDINAL . giving money , gifts and other valuable items to voters ( except for badges , stickers , posters and other campaign materials having nominal value ) , except for the purposes of organisational work ;", "CARDINAL.CARDINAL.CARDINAL . NORP giving or promising rewards based on the voting results to voters who were involved in organisational work ;", "selling goods on privileged terms or providing goods free of charge ( except for printed material ) ;", "CARDINAL.CARDINAL.CARDINAL . providing services free of charge or on privileged terms ;", "CARDINAL.CARDINAL.CARDINAL . influencing the voters during the pre - election campaign by promising them securities , money or other material benefits , or providing services that are contrary to the law . ”", "In accordance with Articles CARDINAL and CARDINAL of LAW , the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by LAW of the LAW .", "Complaints concerning decisions of electoral commissions must be examined by the courts within DATE ( unless the Electoral Code provides for a shorter period ) . The period for lodging an appeal against a court decision is also DATE ( Article MONEY ) .", "LAW sets out rules for the examination of applications concerning the protection of electoral rights ( or the right to participate in a referendum ) . According to LAW , such applications must be submitted directly to the appellate courts in accordance with the procedure established by LAW .", "Applications concerning the protection of electoral ( referendum ) rights must be examined within DATE of receipt of the application , except for applications submitted on DATE or the day after DATE , which must be examined immediately ( Article CARDINAL ) . The court must hear the case in the presence of the applicant , a representative of the relevant electoral commission and any other interested parties . Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case ( Article CARDINAL ) .", "The appellate court ’s decision can be appealed against to the higher court ( the court of cassation ) within DATE . This appeal must be examined within DATE , or immediately if submitted on DATE or DATE . The decision of the court of cassation is final ( Article CARDINAL ) ." ]

[ "P1" ]

[ "P1-3" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before ORG by Ms J. PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On an unspecified date in DATE the applicant was charged with trafficking in women and corrupting the morals of youth .", "On DATE the police notified his counsel that Ms T. , the key witness whom the applicant had allegedly taken to GPE to carry out prostitution in DATE , would be questioned by the investigator on DATE . Counsel informed them that she could not attend the questioning due to a concurrent hearing before a court .", "PERSON testified as follows :", "“ [ I ] was again advised by reading a printed form ‘ ORG and LAW ... I fully understood the contents of the notice , and ... I do not have any reason not to testify , I wish to and will testify ... I will tell the truth .", "As to my trip to GPE ... with a view to prostitution ... [ in ] DATE , ... I travelled with a friend of PERSON , a certain PERSON , ... PERSON introduced us on DATE on which I received my passport , ... on DATE . ... [ On DATE ] PERSON picked me up ... at the GPE club in GPE ... and we travelled to GPE . He knew the purposes of our trip , [ that is , ] that he was taking me abroad with a view to prostitution . ... After having passed GPE , we met PERSON in a tavern ... He said that we would continue on to GPE to meet a certain PERSON . ... , on DATE we met PERSON at a petrol station where we had breakfast and afterwards we got into PERSON ’s car , PERSON leaving his car there . At TIME , we reached the town of [ S. ] in GPE ... I was handed over to the owner of a club called Joe ’s Sauna Club . PERSON noted the address of the club and , together with PERSON , left ... I have not seen PERSON since then . ”", "PERSON was also shown photographs and identified the applicant as the person with whom she had travelled to GPE .", "On DATE ORG ( okresní soud ) heard the applicant , who pleaded not guilty . The hearing was adjourned until DATE in order to summon other witnesses , including PERSON", "DATE the court adjourned the hearing CARDINAL more times to summon PERSON However , despite the attempts of the police to find out her whereabouts and bring her to the court and the court ’s search in the central register of citizens in GPE and GPE , PERSON failed to appear before the court . Therefore , on DATE the court , by virtue of section GPE ) of LAW , read out her testimony from the preliminary proceedings . At the end of the trial , ORG convicted the applicant of trafficking in women and corrupting the morals of youth and sentenced him to DATE of imprisonment with CARDINAL years’ probation . The court held that :", "“ ... [ The applicant is ] incriminated by the testimony of PERSON , which was read out at trial ... since the court did not succeed in assuring her presence at the main hearing ; she was no longer at the place of her permanent residence and was probably living at an unknown address in GPE . ...", "The criminal activities of the accused ... are demonstrated by documentary evidence such as the lists ... of telecommunication operations of the accused and PERSON [ and another witness giving evidence against the applicant ’s co - accused ] and ... the transcriptions of the interceptions of their telephone conversations ... It follows clearly from the material in evidence that [ the applicant ’s co - accused ] in the first place but also [ the applicant ] knew that the girls , all of whom were not yet identified , were involved in prostitution , both in GPE and abroad , and it is clear that the accused together with other persons ... participated in managing the prostitution of these girls . ... ”", "On DATE ORG ( krajský soud ) , further to an appeal by the applicant , upheld ORG judgment . It reiterated that the applicant had been incriminated by the testimony of Ms T. , who had been properly advised about her right not to give testimony and about whose questioning the applicant ’s counsel had been notified .", "On DATE ORG ( PERSON ) declared the applicant ’s appeal on points of law ( dovolání ) inadmissible .", "On DATE ORG ( PERSON ) dismissed as manifestly ill - founded a constitutional appeal by the applicant in which he maintained that the ordinary courts had based their findings on PERSON testimony , which had merely been read out at trial . He further submitted that the witness had not been duly advised prior to her interview and that her testimony had therefore been obtained contrary to the law . The court endorsed the conclusion of the ordinary courts that the witness had been duly advised and held that ORG had made a sufficient effort to summon PERSON", "Article CARDINAL § CARDINAL ( a ) provides that the statement of a witness given in preliminary proceedings may be read out at the trial if the witness has died or has gone missing , is abroad and is thus unreachable , or has become ill and is therefore not in a position to be heard ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE the applicant was charged with attempted tax evasion under sections CARDINAL § CARDINAL , QUANTITY b ) and CARDINAL § § CARDINAL and CARDINAL c ) of LAW .", "On DATE the applicant and CARDINAL other persons , inter alia PERSON , were officially indicted .", "A main hearing before ORG ( okresní soud ) was scheduled DATE to be held in DATE . It took place on DATE and then on DATE . During the hearing of DATE the applicant declared that he refused to attend further hearings ; these then took place in his absence . The court requested a report from the prison doctor on the applicant ’s bizarre behaviour during the main hearing of DATE and with regard to the report on the applicant ’s injury that occurred on DATE in custody and to the report of DATE on the use of a coercive measure against the applicant in custody due to his aggressiveness . It his report the prison doctor noted that the applicant was not able to attend the main hearings . It became necessary to carry out a psychological and psychiatric examination of the applicant , and the prison doctor did not recommend that the applicant attend the new main hearing . On DATE the applicant ’s and PERSON ’s criminal case was severed for separate consideration and decision .", "On DATE the applicant was moved to the prison hospital whence he was transported back to the custody prison on DATE .", "On DATE ORG submitted the applicant ’s and PERSON ’s criminal case to ORG ( Vrchní soud ) for the purpose of a decision on the regional prosecutor ’s complaint that concerned , inter alia , PERSON ’s detention during judicial proceedings . ORG presiding judge asked ORG for the file in order to make a copy for the applicant ’s and PERSON ’s severed criminal case . According to the Government , the file was lent to ORG on DATE . Therefore , between CARDINAL DATE and CARDINAL DATE ORG did not have the relevant file at its disposal .", "On DATE ORG ( krajský soud ) transferred the applicant ’s and PERSON ’s criminal case to ORG as a court with jurisdiction in rem and local jurisdiction .", "On DATE ORG convicted the applicant of tax evasion and sentenced him to CARDINAL months’ imprisonment . On DATE , the applicant was released from custody .", "On DATE ORG dismissed an appeal by the applicant against ORG judgment .", "On DATE ORG approved the deduction of the applicant ’s pre - trial detention from his sentence .", "On DATE ORG remanded the applicant in custody under LAW b ) of LAW ( “ the ORG ” ) , with backdated effect from DATE . The court held that there was a risk that the applicant would influence witnesses and his co - accused .", "On DATE ORG upheld the detention order , stating that the applicant ’s detention was necessary , inter alia , in order to confront him with PERSON , to interview the witnesses and eventually to confront the witnesses with the co - accused . The court found , therefore , that in this stage of the proceedings , the applicant ’s detention was justified CARDINAL b ) of the ORG .", "On DATE ORG rejected the applicant ’s first request for release , noting that the grounds for custody still persisted under LAW b ) of the ORG . The court noted that other persons would be examined , which was supported by the content of the confrontation carried out between the applicant and PERSON There continued to be concerns that the applicant would interfere with witnesses .", "On DATE ORG rejected the applicant ’s complaint filed on DATE against this decision .", "On DATE ORG decided to release the applicant on a request for release lodged by him on DATE . On DATE ORG , on an appeal by ORG , ( krajský prokurátor ) , quashed ORG decision . In the court ’s opinion , grounds for custody still existed under LAW b ) of the ORG , which consisted of the possibility of his interfering with witnesses who had not yet been examined , and there was also a risk of possible interference with the co - accused .", "On DATE ORG requested an extension of the applicant ’s detention due to the fact that his custody would end on DATE and it would not be possible to conclude the case by then because of its scope .", "On DATE ORG filed a complaint against ORG decision of CARDINAL DATE in which the court had rejected ORG motion . On DATE ORG granted this complaint , quashed ORG decision and extended the applicant ’s custody to DATE pursuant to LAW ORG .", "On DATE ORG extended the applicant ’s detention until DATE , on a request by ORG DATE , concluding that a risk still persisted that the applicant would influence witnesses . On DATE ORG rejected a complaint filed by the applicant on DATE against ORG decision , referring , inter alia , to the complex character of the case .", "On DATE ORG granted a request made by the applicant on DATE and decided to release him from custody . It found :", "“ After examining the applicant ’s requests , the opinions of the prosecutor and the ... investigation file , the court drew the conclusion that the reasons for [ the applicant ’s ] detention ... ceased to exist . The accused ... is prosecuted for a single [ offence ] , ... necessary investigative acts were carried out and , on DATE , the investigation was closed ... In the course of the investigation , nothing was found which would prove or indicate that the accused ... attempted to influence the witnesses or his co - accused or that he tried to jeopardise the discovery of facts , which were essential for the criminal investigation . Thus , there are no longer the original grounds for concern , within the meaning of CARDINAL b ) of the [ ORG ] , and taking into account that there are no other reasons for the detention , [ the court ] decided to release the accused from custody ... ”", "On DATE ORG , upon ORG appeal of DATE , quashed ORG decision and ordered the applicant ’s continued remand in custody , stating :", "“ ORG filed a complaint against the decision of ORG ... maintaining that the reasons for the accused ’s detention under LAW b ) of the [ ORG ] continue to exist , having regard to the fact that there is still a risk that , if released , the accused would influence witnesses and/or the co - accused who have not yet been interviewed by the court , and , in addition , the residence of CARDINAL witness has not yet been established . ”", "On DATE ORG dismissed a further request by the applicant for release from custody , filed on DATE . On CARDINAL DATE ORG rejected a complaint by the applicant of CARDINAL DATE against ORG decision .", "On DATE ORG rejected a request by the applicant for release from custody of CARDINAL DATE . On DATE ORG rejected a subsequent complaint by the applicant of DATE against ORG decision .", "While transferring the case to ORG ( see paragraph CARDINAL above ) , ORG dealt of its own motion under LAW of the ORG with the question whether grounds for remaining the applicant in custody continued to apply , and decided to keep him in detention . On DATE the applicant filed a complaint against this decision , which was rejected by ORG on DATE .", "On DATE the applicant requested release , which ORG rejected on DATE . ORG dismissed a complaint by the applicant against this decision on DATE .", "On DATE ORG rejected a request by ORG of DATE for an extension of the applicant ’s detention under LAW of the ORG by DATE , that is to CARDINAL DATE .", "On DATE the applicant was released from custody at his request , made on DATE .", "On DATE the applicant lodged a constitutional appeal ( ústavní stížnost ) with ORG ( GPE PERSON ) against ORG decision of DATE claiming , inter alia , that there had been no reason for keeping him in custody .", "On DATE ORG and ORG were invited to submit their observations on the constitutional appeal . ORG observations were submitted on CARDINAL DATE and ORG observations on DATE .", "NORP In subsequent period , ORG regularly requested the ordinary courts to lend it file materials . From ORG file it can be seen that requests to lend the file materials or furnish information as to the location of the file materials were made on DATE , DATE and DATE , DATE , DATE , DATE and DATE May , DATE , DATE , CARDINAL and DATE , DATE , DATE and DATE , and DATE , DATE and DATE .", "On DATE ORG found that the reasons for the applicant ’s continued detention , as provided for in CARDINAL b ) of the ORG , were well - founded . It stated , however , that ORG had failed to reason its decision of DATE sufficiently and that the applicant ’s rights to a fair trial , guaranteed by LAW práv a svobod ) , and to liberty , LAW CARDINAL § CARDINAL of the Convention , had been violated . It therefore quashed ORG decision .", "Under LAW b ) an accused person may be remanded in custody only if there exist specific grounds to believe that he or she will try to influence witnesses or co - accused who have not yet been heard by the court or otherwise frustrate the investigation into the facts which are of importance for the criminal proceedings , or will commit an offence which he or she was preparing or threatened to commit .", "Pursuant to LAW , a person ’s detention may last as long as is necessary . If the detention lasted DATE at the pre - trial stage and the release of the accused person would have jeopardised or substantially complicated the achievement of the aim of the proceedings , a judge can extend the detention for DATE , or a chamber for DATE .", "Under LAW a person ’s detention at the pre - trial stage and at trial should not exceed DATE . If , because of the complexity of the matter or for other serious reasons , it has not been possible to complete the criminal proceedings within this period , and if the release of the accused person would jeopardise or substantially complicate the achievement of the aim of the proceedings , ORG can extend the detention for the necessary period ." ]

[ "5" ]

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

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[ "The applicant is a NORP national , born in DATE , and resides in PERSON .", "On DATE , ORG ( ORG ) of PERSON ordered the applicant to remove a garden house and a QUANTITY high garden fence , which the applicant had built without a construction permit as required under LAW ) , or to reduce the height of the fence to QUANTITY . He was further informed that , in accordance with LAW ( PERSON ) , failure to comply with this order would entail a penalty of ORG . CARDINAL per week for the garden house and ORG . CARDINAL per week for the fence , not exceeding a total amount of ORG . CARDINAL .", "The applicant ’s objection ( bezwaar ) against the decision of DATE was rejected by ORG on DATE . As regards the garden fence , ORG noted that , under LAW ( j ) of LAW , a construction permit is required for fences QUANTITY . Although the applicable rules did allow exemptions , no exemption could be granted in the applicant ’s case given the local urban development situation , the dominant character of the fence and the fact that , according to ORG ( GPE ) , the fence did not comply with the reasonable requirements of external appearances of buildings ( “ redelijke eisen van welstand ” ) . The applicant ’s subsequent appeal to ORG of ORG ( Arrondissementsrechtbank ) of GPE was rejected on DATE .", "By letter of DATE , the applicant filed an appeal against the decision of CARDINAL DATE with ORG ( Afdeling Bestuursrechtspraak ) of ORG . In this letter the applicant informed ORG that , in the meantime , the garden house had been moved to a different - for the municipal authorities acceptable - place on his LOC . As regards the decision concerning the fence the applicant invoked , inter alia , LAW and in this context argued that this fence had been built on his property in order to protect the privacy of his family . He explained that the aim of the fence was to protect his pets , plants and bushes from footballs of soccer playing children landing in his garden , and to block the irritating lights from cars passing by and the strong light from the central hall of the nearby home for the elderly .", "In its decision of DATE , ORG rejected the applicant ’s appeal . It noted that , according to LAW , no construction permit is required for a fence built outside the building line ( rooilijn ) if its height does not exceed QUANTITY . As the applicant ’s LOC lie on a corner of CARDINAL streets and as the fence , which was QUANTITY , had been built outside the front building line , ORG was competent to issue the order for removal . It further held that it had not been established that the fence qualified for legalisation .", "ORG also rejected the applicant ’s argument under LAW , holding that the submitted aim of the fence , namely to prevent children ’s footballs from ending up on the applicant ’s premises , was insufficient for a finding that the applicant ’s right to respect for his private life or home came into play .", "" ]

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[ "The applicant was born in DATE and is a citizen of GPE .", "On DATE , while the applicant was temporarily staying in GPE ( LOC , GPE ) , the NORP police initiated criminal proceedings concerning sexual assault of juveniles purportedly committed by him during his previous trip to GPE , in DATE .", "On DATE the applicant was apprehended by the police and taken into custody on suspicion of having committed sexual assault of juveniles . According to the arrest report , the applicant had been identified by an eyewitness whose name was not indicated . The charges against the applicant were explained to him in LANGUAGE by an officer from ORG . The arrest report noted that the applicant had confirmed that he had understood the substance of the report but had refused to sign to that effect .", "On DATE the applicant was brought before a judge of FAC , who decided to detain him on remand . The judge filled in a standard pre - typed form by writing her name , the date of the detention order and other details of the case . In substantiating the decision , the judge had simply to underline the pre - typed text of the standard form , choosing from the following list of grounds for detention : risk of absconding , risk of impeding the investigation , risk of committing crimes , severity of the crime the arrested person is suspected of , his or her personality , occupation , state of health , and “ other circumstances ” . The judge underlined all of the aforementioned grounds , except the “ risk of absconding ” , the “ state of health ” , the “ occupation ” , and the “ other circumstances ” . The applicant received the LANGUAGE translation of this order on DATE .", "The applicant 's attorney appealed against the detention order to ORG on DATE . The attorney did not attend the hearings that had been scheduled for CARDINAL and DATE . By a final decision of CARDINAL DATE , taken after a hearing with the applicant 's lawyer 's participation , ORG dismissed the appeal , finding that the impugned order had been taken in accordance with the applicable law . No other reasons were given .", "In the meantime , on DATE the applicant was officially charged with sexual assault .", "On DATE , a judge of FAC , on the request of the public prosecutor in charge of investigation , extended the applicant 's detention on remand until DATE . This decision was not written on a standard form with a pre - typed text . According to that decision , the applicant 's detention was extended on the basis of the reasonableness of the suspicion against the applicant , the severity of the crime with which he was charged , the fact that he had no legal and/or fixed residence in GPE , the danger of his absconding and the possibility that he could impede the investigation . It also mentioned the risk that the applicant could put pressure on witnesses or endanger them .", "NORP The applicant appealed against that decision to ORG . According to the requirements of the law , he submitted his appeal , written in LANGUAGE , to the court that had adopted the disputed order , in order for it to be transmitted to ORG . On DATE ORG sent the applicant 's appeal back to ORG , directing that it should be first translated into NORP . It also directed ORG to provide the applicant with an LANGUAGE translation of its decision , which was done on DATE . The competent judge of ORG sent the applicant 's appeal back to him , in order for him to make the translation .", "The applicant complained again to ORG . By a decision of CARDINAL DATE ORG declared that , by compelling the applicant to translate his appeal himself rather than sending it for translation at the ORG 's expense , the first instance judge had “ grossly violated ” his fundamental procedural rights guaranteed by law . Consequently , ORG suspended the proceedings and ordered ORG to remedy the above - mentioned shortcomings . The case was also reported to ORG , competent in disciplinary matters involving the judiciary . The case was later assigned to another judge of ORG .", "On DATE , a judge of the Rīga City Centre District Court , on the request of the public prosecutor in charge of investigation , again extended the applicant 's detention on remand , this time until DATE . The reasoning of this detention order was similar to the first CARDINAL orders . The applicant 's detention was extended on the basis of almost the same grounds : the reasonableness of the suspicion against the applicant , the severity of the crime with which he was charged , the danger of his absconding and the possibility that he could impede the investigation . Contrary to the earlier decisions on the applicant 's detention , this order in addition referred to the possibility that he could “ flee after having committed an offence ” and specifically mentioned the fact that he had no legal and/or fixed residence in GPE as well as no permanent residence permit there .", "By a decision of DATE ORG dismissed the applicant 's appeal against the detention order of CARDINAL DATE . Although the decision set out the applicant 's arguments in detail , the court 's reasoning consisted of repeating the reasons given by the court of first instance and declaring that the latter had acted in conformity with the law . ORG further noted that the appeal against the detention order of CARDINAL DATE was still pending .", "On DATE ORG finally examined and dismissed the applicant 's appeal against the detention order of CARDINAL DATE , by which his detention had been extended until DATE . The court observed that there continued to be grounds for applying the exceptional measure – detention . Those grounds included the fact that the applicant had been charged with committing a serious crime , that he had no permanent residence permit in GPE and that he had no permanent place of residence there , as well as the grounds mentioned by the judge of the first instance court .", "On DATE the applicant was examined by a board of psychiatrists which established that he had suffered from a mental disorder in the past and that he had undergone treatment in a psychiatric hospital in GPE . However , the board declared itself unable to reach a precise conclusion and recommended the applicant 's internment in a psychiatric hospital for further examination . On DATE experts of ORG , after having observed the applicant in a psychiatric hospital over DATE , found that he was of a sound mind .", "On DATE , a judge of the Rīga City Centre District Court again extended the applicant 's detention on remand until DATE . The reasoning was practically identical to that in the decision of CARDINAL DATE . The applicant 's appeal , in which he inter alia complained that the decision to leave him in detention solely because his residence permit had expired was discriminatory , was dismissed by ORG on DATE , which used similar reasoning to the previous decisions .", "On DATE , the competent judge of the Rīga City Centre District Court , on the request of the public prosecutor in charge of the investigation , extended the applicant 's detention on remand until DATE . Besides the usual grounds , the judge 's decision noted :", "“ ... Having assessed the gravity of the offence allegedly committed , [ as well as ] the particularities of investigating a case where the victims are children , I consider that ... the length of the remand measure prohibiting PERSON from exercising his freedom of movement is consistent with the character of the socially dangerous act of which he has been accused ... ”", "On DATE ORG upheld the aforementioned detention order , repeating in substance the reasons given by the first instance judge .", "On DATE the prosecutor expanded the charges against the applicant , also accusing him of having molested young boys on the occasion of another trip to GPE , in DATE , DATE and DATE . Besides the existing charge of sexual assault , the applicant was accused of having committed aggravated forcible sexual assault , forcible sodomy , inducing or compelling a juvenile to engage in prostitution , and engaging a juvenile under DATE in production of pornography . On DATE the preliminary investigation was completed and the case - file was handed over to the defence , who finished acquainting themselves with the case on DATE .", "On DATE the applicant and his lawyer were presented with the final bill of indictment and its LANGUAGE translation . On DATE the case was sent to ORG for trial .", "On DATE a single judge of ORG adopted a decision to commit the applicant for trial and to keep him in detention . The decision to keep the applicant in detention was reasoned as follows : “ The preventive measure has been chosen in accordance with the accused person 's personality and the gravity of the charges brought [ against him ] , and there is no reason to alter [ that measure ] ” . There was no possibility to appeal against that decision ( see below paragraph CARDINAL ) .", "After having adjourned hearings of CARDINAL and DATE , by a judgment of DATE ORG found the applicant guilty of all the crimes he had been accused of and sentenced him to DATE imprisonment . According to LAW , the court ordered his deportation from GPE after having served the sentence . The applicant appealed against this judgment .", "On DATE FAC acquitted the applicant of the charges of producing child pornography and reduced the penalty to DATE imprisonment . The remainder of the appeal was dismissed .", "The applicant then filed an appeal on points of law , by submitting himself a short handwritten letter that was translated into NORP by a court interpreter . On DATE the ORG of ORG by a decision of a preparatory meeting declared the appeal inadmissible for lack of arguable points of law . DATE , on DATE , the applicant 's lawyer tried to submit to the ORG a more elaborate memorial ; however , it was returned to him since the time - limit for appeal on points of law had elapsed and since the applicant 's own appeal had already been examined and rejected .", "After the applicant had served CARDINAL of his sentence , he was released on parole on DATE and was expelled from GPE DATE .", "The former Code of Criminal Procedure ( ORG ) , a legacy of the NORP era which was amended on numerous occasions , was applicable at the material time . It remained in force until DATE , when it was replaced by the new Criminal Procedure Law ( GPE likums ) .", "Under the terms of LAW of the ORG , a preventive measure could be applied where plausible reasons existed to suspect that the accused would seek to evade investigation or hinder the determination of the truth in the case . CARDINAL types of preventive measure existed : an undertaking not to change one 's residence , personal guarantees , financial guarantees , police surveillance , house arrest , detention in prison and CARDINAL measures specifically applicable to minors and members of the armed forces .", "Under LAW of the ORG , a preventive measure had to be chosen and implemented on the basis of the following criteria : the seriousness of the alleged offence ; the personality of the accused ; the likelihood that he or she would seek to evade investigation and hinder the determination of the truth in the case ; and the accused 's occupation , age , domestic circumstances and health and other relevant criteria . Any preventive measure had to be applied on the basis of an order giving sufficient reasons .", "By virtue of LAW of ORG , a preventive measure had to be terminated if it had been applied unlawfully or it ceased to be necessary , or could be changed to ad . The termination or alteration of detention on remand applied by a judge or a court during the preliminary investigation had to be effected by a reasoned decision of a prosecutor , or it could be terminated by a court decision in the cases provided for in LAW .", "Pursuant to Article CARDINAL , all decisions given by a judge at the pre - trial stage regarding the detention on remand and its extension could be appealed to a higher instance court by a suspected or accused person or his counsel or representative within DATE after they found out about that decision . The appeal had to be examined and a decision taken within DATE as of its receipt . The decision was final and not subject to further appeal .", "After drawing up and signing the final indictment , the public prosecutor 's office had to forward the file to the trial court ( Articles CARDINAL of the ORG ) . Within DATE of receiving the file , a single judge of the trial court , without ruling on the accused 's guilt , had to decide whether the file provided a sufficient basis for committing the accused for trial and whether the preventive measure had been chosen correctly . If he had no objections , the single judge adopted a final decision to commit the accused for trial and leave the preventive measure unchanged ( lēmums par apsūdzētā nodošanu tiesai ) . Such a decision could not be appealed .", "If the single judge disagreed with the conclusions of the bill of indictment or considered that a preventive measure had to be applied to the accused or that the preventive measure that had been applied previously had to be altered , he convened a preparatory meeting ( rīcības sēde ) . The preparatory meeting took a decision either to commit the accused for a trial or to terminate the proceedings or to refer the case back for additional investigation . It also had to decide the question about the preventive measure . The order given following a preparatory hearing was amenable to appeal before a higher court .", "Article CARDINAL set time - limits for examination of a case and provided that the examination of a case before a court had to start no later than within DATE or , under exceptional circumstances , no later than within DATE , after the case was received by the court . However , this provision was very rarely complied with by the NORP courts ( see GPE v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINAL ( extracts ) ) ." ]

[ "5" ]

[ "5-4" ]

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[ "5" ]

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

[ "5-1-c" ]

[ "The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively . They are presently serving prison sentences in GPE . They were represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Ms A. PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "By a bill of indictment ( stämningsansökan ) of DATE , ORG in ORG charged the applicants with a number of criminal offences , including several counts of theft and handling of stolen goods , violations of the Inflammable and Explosive Products Act ( ORG om brandfarliga och explosiva varor , PERSON ) and LAW ( Vapenlagen , CARDINAL ) and , most importantly , attempted aggravated robbery and attempted murder . Describing the robbery offence , the prosecutor , inter alia , stated the following :", "“ [ The applicants ] have ... on DATE ... attempted with threats and physical violence to steal from a money transport vehicle operated by the security company ORG on behalf of ORG . ... The robbery was not successful but there was a risk of the crime being completed . ...", "The second applicant has forced his way into the driver ’s seat of the money transport vehicle and driven it ... to a secluded place on a smaller road QUANTITY away from [ the place where it was halted ] . The first applicant has driven ORG to the same place . There the CARDINAL perpetrators ... have forced open the outer door to the place where the valuables were stored . Then they have tried ... to gain access to the strong room of the vehicle but have ended the attempt before succeeding to complete the crime , as they believed that another vehicle was approaching and that there was a risk that they would be discovered . ”", "By a judgment of DATE , ORG ( tingsrätten ) of PERSON convicted the applicants on all charges except car theft and attempted murder . With respect to the latter charge , however , the second applicant was instead convicted of aggravated assault , having shot at the money transport vehicle and wounded CARDINAL of the security officers . The first applicant was sentenced to DATE in prison and the second applicant to CARDINAL years’ imprisonment . In regard to the charge of attempted aggravated robbery , the court reached the following conclusion :", "“ To sum up , ORG finds that it must be considered to be beyond every reasonable doubt that [ the applicants ] on TIME DATE on ECARDINAL/ECARDINAL ... began an attempt to rob the ORG money transport vehicle ... . The attempt thereafter continued on a smaller road ... by means of the applicants taking various measures to get access to the strong room of the vehicle . They ended the attempt , apparently because they got alarmed by lights from CARDINAL or more cars , but there was a risk of the crime being completed . The crime is of an aggravated nature , mainly due to the fact that MONEY [ SEK ] were stored in the vehicle and that firearms were used . ... ”", "Both the applicants and the public prosecutor appealed to ORG ( PERSON hovrätt ) .", "ORG heard the case on CARDINAL and DATE and on CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE . Several witnesses gave evidence . On DATE , when only the parties’ closing statements remained , the president of the court invited the parties to consider whether the robbery charge could not be regarded as encompassing a charge of completed aggravated robbery . As a consequence , the public prosecutor , in his closing statement , adjusted the charge in question to concern , in the first place , aggravated robbery and , in the second place , attempted aggravated robbery . The description of the offence then read :", "“ [ The applicants ] have ... on DATE ... with threats and physical violence unlawfully taken , with the intention of appropriating it , a money transport vehicle containing in total SEK CARDINAL,CARDINAL,CARDINAL in cash . The transport was operated by ... ORG , on behalf of ORG . ”", "Counsel for the applicants objected that the adjustment was not permissible , as it introduced a new charge of intentional appropriation of the vehicle in question . Counsel for the second applicant stated that the charge of aggravated robbery could be considered as covered by the original indictment . Nevertheless , having regard to the factual circumstances , the applicants’ actions could not be seen as constituting a completed aggravated robbery but only an attempt . Counsel for the first applicant maintained that the robbery offence had not been completed .", "ORG did not take a separate decision as to whether the public prosecutor ’s adjustment should be allowed . In its judgment of DATE , it stated that the applicants had objected to the adjusted description of the offence because it introduced an additional charge of theft of the vehicle . Finding that no such additional charge had been made but , instead , that the prosecutor , following the adjustment , had claimed that the robbery had been completed through the appropriation of the vehicle , the court decided to allow the adjustment .", "On DATE ORG upheld ORG judgment , except that it found the applicants guilty of aggravated robbery and acquitted the first applicant of CARDINAL charge of handling stolen goods and the second applicant of the charge of aggravated assault . In the latter respect , the court found that the use of violence was not a separate offence but had to be seen as an element of the robbery , leading to the latter being considered to be an aggravated offence . Finding that the robbery constituted a completed offence and not an attempt , the court stated the following :", "“ Through the oral evidence combined with the telephone lists and other technical evidence , ORG finds that it has been shown beyond reasonable doubt that [ the applicants ] , in the manner claimed by the public prosecutor , have planned and prepared the robbery together and in mutual agreement , and that they have thereafter halted the money transport vehicle ... following which they have driven it to a secluded location QUANTITY away from the place where it was halted .", "[ The applicants ] have not succeeded in getting access to the strong room of the vehicle and have therefore been forced to abandon the vehicle without getting hold of any part of its money contents . However , the very fact that [ the applicants ] have taken possession of the money transport vehicle with its money contents means that the robbery offence is completed , notwithstanding the fact that they thereafter have been unable to appropriate any of its load . ”", "ORG sentenced both applicants to CARDINAL years’ imprisonment .", "The applicants appealed to ORG ( ORG domstolen ) . The appeal included the same complaints as those made in the present application .", "On DATE ORG refused leave to appeal .", "Domestic provisions of relevance to the present case are found in LAW ( ORG ) and LAW ( PERSON ) .", "A person who steals from another person by means of violence or by threat , implying or appearing to the threatened person to present an imminent danger , shall be sentenced for robbery to CARDINAL and CARDINAL six years’ imprisonment ( chapter DATE , section CARDINAL of LAW ) . In order to convict a person of robbery , he or she must have unlawfully taken somebody ’s property with the intent to appropriate it . If the violence used endangers life or is very brutal , the crime is to be regarded as aggravated robbery , with a range of punishment from DATE imprisonment ( chapter CARDINAL , section CARDINAL ) .", "If the commission of a crime has begun but is not brought to completion , the perpetrator is sentenced for an attempt to commit the crime if there was a danger that the crime would be completed or such danger was precluded only because of fortuitous circumstances , and provided that the act of attempt is criminalised by a specific provision ( chapter DATE , section CARDINAL ) . An attempt requires the same subjective condition as a completed crime , while some factual requisite may be missing on account of , for example , interference by the police . An attempt to commit robbery or aggravated robbery is punishable with terms of imprisonment corresponding to those applicable to a completed crime ( chapter DATE , section CARDINAL and chapter CARDINAL , section CARDINAL ) .", "A court ’s judgment may only relate to an act for which a prosecution has been properly instituted ( chapter CARDINAL , section CARDINAL of LAW ) . A charge of criminal responsibility is conducted by the public prosecutor , who files with the court a bill of indictment against the person or persons to be accused ( chapter DATE , section CARDINAL ) . The indictment must , inter alia , identify the criminal act and specify the time and place of its commission and the other circumstances required for its identification ( chapter DATE , section CARDINAL ) . These particulars of the offence provide the framework for the court ’s adjudication . The prosecutor should also state the applicable domestic law and the means of evidence invoked .", "The particulars of the offence should include all the prerequisites of the act distinguishing it as criminal , that is , the actual facts as well as the subjective elements . The court must not judge on any other acts than those included in the particulars of the offence , or on any other extraneous elements . However , the court is not bound by the prosecutor ’s characterisation of the offence or reliance on a particular legal provision ( chapter CARDINAL , section CARDINAL ) . It is for the court to know the law and apply the relevant provision to the act , as charged .", "As a rule , once a prosecution has been instituted , it should not be altered . If the prosecutor wishes to prosecute another act , a new prosecution must be brought . However , the prosecutor may extend the prosecution against the same defendant to encompass another act if the court finds it appropriate , having regard to the investigation and other circumstances . In addition , the prosecutor may , with respect to the same act , without altering the indictment , adjust it by narrowing the action , or invoke a new circumstance or another legal provision in support of the prosecution ( chapter DATE , section CARDINAL ) .", "Whether the prosecution is extended or merely adjusted depends on whether the new element amounts to a new act . The possibility to adjust the prosecution is closely connected to the principles of legal force , or res judicata . The criminal liability for those prerequisites which have already been determined in a judgment may not be taken up again for adjudication ( chapter DATE , section CARDINAL ) . Consequently , prerequisites which could be embraced by the legal force of a judgment may freely be added to the prosecution case , while prerequisites that could be prosecuted separately , even after the judgment , may not usually be added . However , the prosecutor may present another subjective requisite without being considered to have introduced a new act .", "The court examining a case shall make certain that it is investigated appropriately and ensure that irrelevant matters are not presented . Through questions and observations , the court shall also attempt to remedy any unclear and incomplete statements which have been made ( chapter DATE , section CARDINAL and chapter DATE , section CARDINAL ) . Further , as the court is not bound by the prosecutor ’s characterisation of the offence or the legal provision on which reliance is placed , procedural guidance might be necessary in order to draw the parties’ attention to any altered perceptions . In particular , a court of appeal must take into account that it should not alter the judgment of a district court without allowing the parties to comment on all the circumstances of importance for such alterations . Moreover , ORG has stated that the defendant must be able to answer to everything which is held against him or her , and that no unexpected elements may influence the outcome ( NJA DATE , p. CARDINAL ) ." ]

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[ "On DATE Detective Inspector PERSON ( PERSON ) , received information that an armed robbery of a ORG cash - collection van was going to be committed on or DATE by the first applicant and PERSON at one of several possible locations . The police knew where PERSON lived and began visual surveillance of those same LOC DATE . PERSON learnt that PERSON was suspected of being a drug dealer and that surveillance operations mounted against B. in the past had proved unsuccessful because they had been compromised . It was therefore concluded that PERSON was “ surveillance - conscious ” . PERSON was suspected of being responsible for the shooting of a police officer with a shotgun in the course of a robbery . This was something that all the officers , and particularly the Chief Constable , were aware of when the police operation was being planned .", "No robbery took place on DATE . By DATE , however , the police had received further information that the robbery was to take place “ somewhere ” on DATE . Further information as to the location or target of the proposed robbery could not be obtained on DATE . In order to obtain further details about the proposed robbery , PERSON prepared a report for the Chief Constable in support of an application for authorisation to install a covert listening device in PERSON ’s flat . Some of the contents of this report were the subject of a successful application for non - disclosure by the ORG on the ground that serious damage would be caused to the public interest were they to be made public .", "The use of covert listening devices was governed by the “ Guidelines on the Use of Equipment in Police Surveillance Operations ” issued by ORG in DATE ( “ the LAW ) . On DATE the Chief Constable decided that the use of such a device was justified under the Guidelines but would not authorise its use until he was satisfied that its installation was feasible . Reconnaissance during TIME established that it was feasible .", "On DATE the Chief Constable gave oral authorisation to proceed with its use . However , he did not provide written confirmation as required by the Guidelines because he was on DATE leave , so he gave the authority by telephone from home . The Chief Constable stated that the use of the device was to be reviewed on a DATE basis . He said that he had asked the Deputy Chief Constable to look after the written formalities and to ensure , inter alia , that there was written confirmation of the message that the installation of the device was feasible . He did not receive this confirmation until DATE . On DATE the Deputy Chief Constable gave “ retrospective ” written authorisation for use of the listening device .", "On DATE a covert listening device was therefore installed in a sofa in B. ’s flat before the Deputy Chief Constable had confirmed the authorisation in writing . Conversations between B. and others in B. ’s living room were monitored and recorded until DATE .", "On DATE the police made a request to ORG ) for itemised billing in relation to the telephone number of B. at his flat for the period from DATE to the date of the request . The data - protection form was countersigned by a police superintendent in line with ORG ’s requirements , stating that the information was necessary to assist in the identification of members of a team of suspected armed robbers . While the request was originally made in an effort to identify the unknown third person in the conspiracy ( now known to have been the second applicant ) , the data was also used later in court to corroborate the times and dates recorded by the officers in respect of the covert listening device in the flat .", "On DATE B. and others who were with him in his home discovered the listening device and abandoned the premises . The robbery did not take place . The police had been continuing their visual surveillance of the premises , taking photographs and video footage whilst the audio surveillance was in progress . The applicants were identified by various officers going in and out of the flat and observed on some occasions to be carrying various hold - alls . The police had also been keeping watch on a cache in a rural location and observed the first applicant collecting an item from this location on TIME DATE . An officer had earlier inspected the hidden item , which he stated he could tell through the plastic bag was a revolver . It appeared that the vehicle which the first applicant used for transport that TIME was a stolen vehicle in which he was subsequently arrested .", "On DATE the applicants were arrested in the stolen ORG car . In the boot of the vehicle were found CARDINAL hold - alls containing , inter alia , CARDINAL black balaclavas , CARDINAL black plastic cable ties , CARDINAL pairs of leather gloves and CARDINAL army kitbags . Following legal advice , the applicants declined to comment during interview and refused to provide speech samples to the police . The police obtained a search warrant for the flat and searched it . Fingerprints of the applicants were found , as well as items such as a pair of overalls and a third balaclava . CARDINAL vehicles were recovered and examined . The items retained included balaclavas , hold - alls , overalls and a broken petrol cap .", "As they wished to obtain speech samples to compare with the tapes , the police applied for authorisation to install covert listening devices in the cells being used by the applicants and to attach covert listening devices to the police officers who were to be present when the applicants were charged and when their antecedents were examined . Written authorisation was given by the Chief Constable in accordance with ORG . Samples of the applicants’ speech were recorded without their knowledge or permission . In the case of the second applicant , the conversations that were recorded included , on CARDINAL occasion , the second applicant taking advice from his solicitor . The Government state that , when the police officer realised what the conversation was about , it was not listened to . That recording was not adduced in evidence at trial .", "The voice samples of the applicants were sent to an expert who compared them with the voices on the taped recordings of conversations held in PERSON ’s home DATE . The expert concluded that it was “ likely ” that the first applicant ’s voice featured on the taped recordings and that it was “ very likely ” that the second applicant ’s voice featured on them .", "B. and the applicants were charged with conspiracy to ORG of monies . PERSON pleaded guilty in view of ORG decision in PERSON [ DATE ] CARDINAL ORG ) . ORG held in that case that relevant evidence was admissible notwithstanding that it had been obtained by unlawful means ( for example , trespass ) . The applicants , however , challenged the admissibility of the evidence derived from the use of the covert listening devices at B. ’s home on CARDINAL grounds .", "( a ) The Chief Constable should not have authorised the use of a covert listening device at B. ’s premises because other forms of investigation had not been tried and failed as required by paragraph CARDINAL ( b ) of the LAW , with the result that it would be unfair to admit evidence which ought never to have been obtained .", "( b ) The covert listening device had been installed and used before written confirmation of the Chief Constable ’s authorisation had been received and there was no specific permission for the recordings obtained from the device to be used in evidence .", "Before the jury was sworn in at the trial , Judge PERSON heard evidence by means of a voir dire ( submissions on a point of law in the absence of the jury ) on matters relating to the admissibility of the challenged evidence . The prosecution conceded that the relevant evidence had been obtained by unlawful means , namely trespass . During this procedure the prosecution claimed that the public interest was likely to be damaged if certain disclosures were made and certain evidence given , in other words claiming public interest immunity . The prosecution argued that the test of admissibility was relevance . The defence argued that the judge had the discretion to exclude the evidence under section CARDINAL of ORG PACE ) , and that he should do so because the Chief Constable had failed to abide by LAW .", "Judge PERSON decided that some documents , including PERSON report , which led to the Chief Constable ’s decision to authorise the use and installation of a covert listening device in PERSON ’s flat , were to be withheld from the applicants and their lawyers . The judge kept under review the non - disclosure during the proceedings and at CARDINAL point some disclosure was made , although not PERSON report in its entirety . PERSON also declined to answer questions put to him in cross - examination by defence counsel on the ground that it might reveal sensitive material . Judge PERSON asked defence counsel whether they wanted him to put the unanswered questions to PERSON under oath , in chambers , and they agreed . The judge proceeded to put the questions to PERSON in private in the absence of the applicants and their lawyers . He heard evidence from PERSON concerning the ability of the police to “ control ” B. in order to install the device in the flat , which the defence asserted indicated that normal methods of surveillance would have been possible . He also heard PERSON concerning the arrangements made and put into effect for this period . The answers to those questions were not divulged , the judge indicating in open court that the benefit to the defence from the answers given was slight , if any at all , while the damage to the public interest if the answers were made public would be great . Accordingly , he held that PERSON was entitled on public immunity grounds to refuse to answer those questions .", "Judge PERSON rejected the applicants’ challenge to the admissibility of the evidence derived from the covert listening devices in B ’s flat . In reaching his decision , Judge PERSON stated :", "“ CARDINAL . It follows that I must apply the test set out in section CARDINAL on the basis that this was a properly authorised decision to install the device and that the police were justified in continuing to use it up to the moment when it was discovered . At most there were CARDINAL or possibly CARDINAL breaches of procedure , but neither , in my judgment , could be described as either significant or substantial . It is conceded by the ORG that the installation of the device amounted to a civil trespass . In addition it was a serious invasion of privacy in circumstances in which those concerned would have expected their conversations to be private .", "I was invited to take into account , and I do , that the installation of the device may well amount to an invasion of the general right to privacy under LAW [ of the LAW ] . It is not for me to determine whether there has , in fact , been a breach of LAW , but in weighing this point I must bear in mind that it is at least arguable that the interference in the present case could be justified on one or more of the grounds set out in LAW . In those circumstances I can not see any reason for concluding that the possible breach of LAW was either substantial or significant .", "I was also invited to consider whether the admission of this evidence and the difficulties faced by the Defence in seeking to test the validity of the Chief Constable ’s decision breached LAW I am satisfied beyond reasonable doubt that to the extent that there has been a breach of LAW it has not in fact deprived these Defendants of the right to a fair trial . ”", "The applicants also challenged the admissibility of evidence derived from the use of covert listening devices attached to the officers charging them and dealing with their antecedents . Judge PERSON stated :", "“ CARDINAL . ... it does not seem to me to be right to attach great weight to the unfair way in which the control tapes were obtained . The fact that they provide relevant evidence , in the sense that they are a reliable sample of speech , which can be clearly attributed to each of these Defendants , weighs more heavily in my judgment . On balance therefore I am satisfied that the admission of the control tapes would not have such an adverse effect on the fairness of the proceedings that I ought to exclude them . ”", "The police submitted statements from those officers who had conducted the audio and visual surveillance of the flat , and the searches of the flat and the recovered vehicles . There was also evidence from officers who had been keeping watch on a cache . CARDINAL officer stated that the item hidden under a tree was in fact a revolver . The first applicant was seen collecting this item on TIME DATE .", "On DATE the applicants were convicted of conspiracy to commit armed robbery and were sentenced to CARDINAL years’ imprisonment . They applied to ORG for leave to appeal on grounds relating to the judge ’s rulings to admit taped evidence . They did not challenge the judge ’s decisions with respect to non - disclosure of certain evidence on public interest immunity grounds . Their applications were refused on DATE , a single judge finding that the judge ’s exercise of his discretion to admit evidence did not give rise to an arguable ground of appeal . Notification of the refusal was sent to them on CARDINAL and DATE respectively . It does not appear that the applicants made any complaints to ORG in respect of the covert listening devices .", "At the relevant time , guidelines on the use of equipment in police surveillance operations ( ORG of DATE ) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices . The Guidelines were available in the library of ORG and were disclosed by ORG on application . They provided , inter alia :", "“ CARDINAL . In each case , the authorising officer should satisfy himself that the following criteria are met :", "( a ) the investigation concerns serious crime ;", "( b ) normal methods of investigation must have been tried and failed , or must from the nature of things , be unlikely to succeed if tried ;", "( c ) there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism ;", "( d ) use of equipment must be operationally feasible .", "In judging how far the seriousness of the crime under investigation justifies the use of a particular surveillance technique , authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected is commensurate with the seriousness of the offence . ”", "The Guidelines also stated that there might be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings .", "ORG was created by CARDINAL of ORG . It is an independent body empowered to receive complaints as to the conduct of police officers . It has powers to refer charges of criminal offences to ORG and itself to bring disciplinary charges .", "Section CARDINAL(CARDINAL ) of this LAW provides as follows :", "“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”", "The CARDINAL Act provides for a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy . The relevant sections relating to the authorisation of surveillance operations , including the procedures to be adopted in the authorisation process , entered into force on DATE .", "NORP Since DATE , these controls have been augmented by Part II of ORG ( RIPA ) . In particular , covert surveillance in a police cell is now governed by sections CARDINAL ) and CARDINAL ) of RIPA . ORG also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police .", "At common law , the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial . The duty also extends to statements of any witnesses potentially favourable to the defence .", "The case of NORP v. Ward ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) dealt with the question of what duties the prosecution has to disclose evidence to the defence . It laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity . ORG held that it was the court , and not the prosecution , who would undertake the balancing exercise between the interests of public interest immunity and fairness to the party claiming disclosure :", "“ In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity . When public interest immunity is claimed for a document , it is for the court to rule whether the claim should be upheld or not . To do that involves a balancing exercise . The exercise can only be performed by the judge himself examining or viewing the evidence , so as to have the facts of what it contains in mind . Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure . ”", "This judgment also clarified that , where an accused appeals to ORG on the grounds that material has been wrongly withheld , ORG will itself view the material ex parte .", "Section CARDINAL of the Telecommunications Act CARDINAL prohibits the disclosure by a person engaged in a telecommunications system of any information concerning the use made of the telecommunications services provided for any other person by means of that system .", "NORP However , pursuant to section CARDINAL(CARDINAL ) of LAW DATE :", "“ Personal data are exempt from non - disclosure provisions in any case in which –", "( a ) the disclosure is for any of the purposes mentioned in subsection CARDINAL above ; and", "( b ) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection . ”", "Subsection CARDINAL refers to data held for the purpose of :", "“ ( a ) the prevention or detection of crime ;", "( b ) the apprehension or prosecution of offenders ; or", "( c ) the assessment or collection of any tax or duty . ”" ]

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[ "The applicant was born in DATE and lives in PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant published the photograph ' Soroca Castle ' in the album PERSON . He received author 's fees for that photograph .", "In DATE the Government adopted a decision regarding national identity cards using , inter alia , the photograph taken by the applicant as a background for the identity cards issued by ORG GPE ( “ the Ministry ” ) . The applicant was not consulted and did not agree to such a use of the photograph .", "In DATE he requested the ORG to compensate him for the infringement of his rights caused by the unlawful use of the photograph he had taken , as well as to conclude a contract with him for the future use of the photograph .", "When his request was rejected , the applicant initiated court proceedings against ORG on DATE . On DATE the ORG partly allowed his claims and found that he had been the author of the photograph which had been used without his agreement . The court awarded him CARDINAL NORP lei ( MDL ) , equivalent to MONEY ( USD ) . The court also obliged the Ministry to publish an apology but rejected the applicant 's request that the Ministry be ordered to conclude a contract with him for the future use of the photograph .", "The applicant appealed . He submitted , inter alia , that the reason why he had not asked for the withdrawal of the identity cards already issued in infringement of his rights and for new identity cards using the photograph taken by him not to be issued in the future was that this would have incurred unreasonably high costs for ORG and would have caused unnecessary problems for identity card holders . He had therefore requested the conclusion of a contract with ORG .", "On DATE ORG quashed the lower court 's judgment and rejected the applicant 's requests .", "On DATE ORG quashed ORG judgment and upheld the judgment of ORG as regards the award to the applicant , while rejecting his request for an apology to be published . The court also ordered a re - examination of the case as regards the conclusion of a contract with the applicant for the future use of the photograph since , in its opinion , he had such a right .", "From CARDINAL DATE the Ministry ceased using the photograph taken by the applicant as a background for identity cards .", "In a new set of proceedings the applicant requested compensation for the financial loss caused by the continued unlawful use of his photograph between the date of the judgment , DATE , and CARDINAL DATE . Since CARDINAL identity cards had been issued during the relevant period , he claimed PERCENT of the amount paid by the identity cards ' owners to the ORG ( MDL CARDINAL ) . He also claimed compensation for infringement of his moral rights ( MDL CARDINAL ) .", "On DATE the ORG awarded the applicant MDL CARDINAL in compensation for pecuniary damage and MDL CARDINAL for non - pecuniary damage , while rejecting his request to oblige the ORG to conclude a contract with him .", "On DATE ORG quashed that judgment and rejected the applicant 's claims . The court found that , while the applicant 's authorship of the relevant photograph had been clearly established , he had been compensated by the judgment of DATE . Since the court had not prohibited the use of the photograph in future and since the applicant himself had not requested such a prohibition , the identity cards already issued or any cards issued in the future were no longer covered by ORG “ the DATE LAW ) ( no.CARDINAL-XII ) ( see paragraph DATE below ) . Accordingly , the applicant could not allege an infringement of his rights .", "On DATE ORG essentially repeated the reasons given in the judgment of ORG and rejected an appeal by the applicant on points of law . While confirming the applicant 's intellectual property rights in respect of the photograph he had taken , it added that an identity card was an official document which could not be subject to copyright .", "The relevant provisions of ORG ( no . CARDINAL ) of DATE read as follows :", "“ Section CARDINAL", "( CARDINAL ) The author 's rights do not depend on the property right over the material object in which the relevant protected work is embodied . Purchasing the object does not imply the transfer to the purchaser of any copyright set out in the present Act .", "Section CARDINAL", "( CARDINAL ) The author 's rights cover literary , artistic and scientific protected works in the form of :", "...", "i ) ... photographic works ... ;", "Section CARDINAL", "( CARDINAL ) The following shall not constitute objects of copyright :", "( a ) official documents ...", "Section CARDINAL", "...", "( CARDINAL ) The personal ( moral ) rights of the author can not be assigned and continue to be protected if the copyright is assigned .", "Section CARDINAL", "The use of the author 's protected work by third persons ... is permitted on the basis of a contract concluded with the author or with his or her successors , except for the cases mentioned in sections DATE .", "Section CARDINAL", "( CARDINAL ) The copyright ... may be transferred by the authors or other copyright owners through authorship contracts .", "Section CARDINAL", "( CARDINAL ) The use of ... artistic works in breach of the copyright of their authors is unlawful .", "Section CARDINAL", "( CARDINAL ) The owner of the copyright can request from the person who has infringed this right :", "( a ) the recognition of this right ;", "( b ) the re - establishment of the situation pertaining before the infringement of the right and the cessation of the actions infringing the author 's rights or which may lead to such an infringement ;", "( c ) compensation for losses or lost revenue ;", "( d ) transfer of the revenues obtained through the unlawful use of the protected work , in lieu of compensation for the losses or lost revenue ;", "( e ) compensation of CARDINAL times the minimum wage in lieu of compensation for losses or the transfer of the revenues obtained through the unlawful use of the protected work ;", "( CARDINAL ) The sanctions mentioned under paragraph ( CARDINAL ) ( c)-(e ) above are applied in accordance with the choice of the holder of the copyright ” .", "The relevant provisions of LAW ( no . CARDINAL ) of DATE read as follows :", "“ Section CARDINAL", "The following can not be challenged before administrative courts :", "...", "( c ) laws , Presidential Decrees with a normative character , Government orders and decisions with a normative character , ... ”" ]

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[ "The applicant was born in DATE and lives in Čepin .", "On DATE the Osijek Municipal State Attorney ’s Office ( Općinsko državno odvjetništvo u GPE ) indicted the applicant in ORG ( PERSON ) on charges of fraud and business fraud , claiming that , acting as a director of companies ORG and PERSON , he had defrauded companies A. and NORP by using fraudulent payment instruments in exchange for goods which his companies received from NORP and NORP in the period between CARDINAL DATE and DATE and on DATE .", "On DATE the trial court commissioned a report from an accounting expert , GPE", "On DATE submitted his report to ORG . He found that PERSON ’s bank account had been frozen at the time when it had engaged in business transactions with company A. He also found that ORG ’s bank account had not been frozen at the time of its business transactions with company ORG , but that its account had been frozen at the time of its business transactions with company NORP", "At a hearing held on DATE D.D. gave oral evidence . He confirmed all his findings in the report . The parties made no objections to the report , nor did they put any questions to GPE The applicant ’s lawyer asked that the prosecution submit all documents they had seized from the applicant so that they could be examined by GPE The trial court requested further documents from the police and CARDINAL commercial banks .", "At a hearing held on DATE asked for an additional period to examine the documents submitted by the CARDINAL banks .", "At a hearing on DATE the applicant ’s lawyer reiterated his request that the police be ordered to submit all business documentation they had seized from the applicant concerning companies ORG and PERSON The trial court accepted the request .", "On DATE D.D. submitted an additional report . He reiterated his previous findings and also explained the manner and nature of the business transactions in issue .", "At a hearing held on DATE CARDINAL ORG gave further oral evidence . The applicant ’s lawyer and the applicant put no questions to GPE and made no objection to his report .", "On DATE the applicant ’s lawyer submitted written observations before ORG . He commented on the reports drawn up by PERSON in setting out the defence ’s arguments . His observations were forwarded to GPE", "On DATE D.D. submitted written observations in which he expressly reiterated all his previous findings and highlighted certain sentences from his reports . He also disagreed with the conclusions drawn from his reports by the defence .", "At a hearing held on DATE the judge conducting the proceedings presented ORG written observations of CARDINAL DATE to the parties and read them out . CARDINAL large envelopes containing documents submitted by the police were also presented to the parties and read out in court .", "The applicant ’s lawyer asked the trial court to request information from the NORP authorities about the applicant ’s detention in that country or to examine witnesses PERSON . PERSON and GPE PERSON , who he stated could confirm that the applicant had been in detention in GPE DATE and that he had therefore been unable to conduct business affairs in the relevant period . He also suggested that these witnesses could confirm that all goods that the applicant ’s companies had received from companies A. and NORP had been stolen during the applicant ’s absence . The applicant ’s lawyer made further observations in respect of GPE ’s written observations of CARDINAL DATE and asked that he be recalled . In respect of the documents provided by the police , he asked that the trial be adjourned for DATE so that they could prepare the defence and also in order that the documentation might be forwarded to ORG , he asked that another additional witness be heard . ORG dismissed all of the defence ’s requests on the grounds that all the relevant facts had been sufficiently established .", "On DATE ORG found the applicant guilty on CARDINAL counts of business fraud and CARDINAL count of fraud . It also revoked the suspension of a sentence given to the applicant in previous criminal proceedings and sentenced him to CARDINAL years’ imprisonment .", "In its judgment the court noted :", "“ The parties had no objections in respect of the evidence taken and read out , nor did they make any further requests , and the authenticity of the documents [ in the case file ] has not been brought into doubt . ”", "On DATE the applicant lodged an appeal against conviction . He complained that the defence had not had sufficient time to examine ORG written observations of CARDINAL DATE and that they had had no opportunity to examine the documentation provided by the police . He further complained that ORG had not been recalled and that the witnesses PERSON . PERSON and PERSON had also not been heard , although the trial court had not provided any reasons for not hearing these witnesses . He also complained that the suspension of his previous sentence had been revoked , although he had had no opportunity to present arguments in that respect .", "On DATE ORG ( Županijski sud u GPE ) upheld the applicant ’s conviction but decreased his sentence to CARDINAL years’ imprisonment . It found that ORG had analysed witness statements and other documents in detail and had provided sufficient reasons for the applicant ’s conviction . In respect of the complaint about GPE , ORG judgment reads :", "“ Under LAW paragraph CARDINAL of the C[ode ] [ of ] C[riminal ] P[rocedure ] , in respect of crimes punishable by [ up to ] CARDINAL years’ imprisonment , when an expert witness has already been heard before the president of a [ trial ] panel [ and there has been no change in president ] , the expert ’s report can be read out without the agreement of the parties . It is to be noted that the accounting expert submitted his report on CARDINAL DATE , which [ report ] was forwarded to the parties . On DATE the defence lawyer submitted observations before the court asking that the expert respond to certain questions . The expert then responded to these questions . He therefore had not provided a new report . In his findings he had not amended anything relevant but had only responded to the defence lawyer ’s observations . ... ”", "ORG also found that the suspension of the applicant ’s previous sentence had been correctly and lawfully revoked pursuant to LAW paragraph CARDINAL of LAW . It made no observations in respect of ORG refusal to hear witnesses PERSON . PERSON and GPE PERSON and also made no comment on the applicant ’s complaint that he had had no opportunity to examine the documentation submitted by the police .", "On DATE the applicant lodged a request for extraordinary review ( zahtjev za izvanredno preispitivanje pravomoćne presude ) of ORG judgment with ORG ( PERSON ) , complaining that the defence had not had sufficient time to examine ORG written observations and had had no opportunity to examine the documentation provided by the police , and that the witnesses proposed by the defence had not been heard or PERSON recalled without the trial court providing sufficient reasons . Finally , he complained that the suspension of his previous sentence had been revoked , although he had had no opportunity to present arguments in that respect .", "On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against the judgments of ORG and ORG , reiterating the arguments he had adduced before ORG .", "On DATE ORG dismissed the applicant ’s request for extraordinary review of ORG judgment on the grounds that there had been no violation of any defence rights in the proceedings before the lower courts .", "On DATE the applicant lodged a constitutional complaint before ORG against the judgment of ORG by which his request for extraordinary review of ORG judgment had been dismissed . He argued that ORG had failed to examine all his complaints and that it had failed to remedy the violation of defence rights that had occurred during the proceedings before the lower courts .", "On DATE ORG dismissed the applicant ’s constitutional complaint of DATE against the judgments of ORG and ORG . ORG found that the criminal proceedings against the applicant had been fair and that the judgments of the lower courts had been sufficiently reasoned and did not disclose any arbitrariness . As to the trial court ’s refusal to take the applicant ’s further evidence , ORG noted that it had been for the trial court to decide which evidence to take and that the applicant had not objected to the evidence that had been read out during the trial .", "On DATE the Constitutional Court declared the applicant ’s constitutional complaint of CARDINAL DATE against the judgment of ORG of DATE inadmissible on the grounds that it had not been an act by which the applicant ’s civil rights or obligations or any criminal charge against him had been determined .", "The relevant part of section CARDINAL of LAW ( Official Gazette no . CARDINAL/CARDINAL , of CARDINAL DATE , PERSON o PERSON ) reads as follows :", "“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the individual act of a state body , a body of local and regional self - government , or a legal person with public authority , concerning his or her rights and obligations , or about a suspicion or an accusation of a criminal act , has violated his or her human rights or fundamental freedoms or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : a constitutional right ) ...", "The relevant provisions of LAW in force at the time ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) provided :", "“ ( CARDINAL ) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this LAW .", "( CARDINAL ) A request for the extraordinary review of a final judgment shall be lodged within DATE after the final judgment has been served on the defendant . ”", "“ ORG shall decide requests for the extraordinary review of a final judgment . ”", "“ A request for the extraordinary review of a final judgment may be lodged [ in respect of ] :", "...", "an infringement of the rights of the defence at the trial or of the procedural rules at the appellate stage , if it may have influenced the judgment . ”", "The relevant provisions of LAW ( PERSON , ORG nos . TIME , CARDINAL/CARDINAL , CARDINAL DATE , CARDINAL/CARDINAL , DATE , DATE , CARDINAL , CARDINAL/CARDINAL , DATE , DATE , ORG , ORG ) provided :", "“ ( CARDINAL ) The court shall revoke the suspension of a sentence and order the execution of the pronounced punishment if the convicted person , within the period of probation , commits CARDINAL or more criminal offences for which the court has imposed imprisonment of DATE or a more serious punishment . ”", "“ ( CARDINAL ) Whoever , with the aim of obtaining unlawful pecuniary gain for himself or CARDINAL party , by false representation or concealment of facts , deceives another or continues the deception of another , thereby inducing him to do or to omit to do something to the detriment of his property or the property of another , shall be fined or punished by imprisonment for DATE . ”", "“ ( CARDINAL ) A person responsible [ for the actions ] of a legal person who , with the aim of obtaining unlawful pecuniary gain for himself or the legal person , by using fraudulent instruments in security for payment or by deceiving another or continuing the deception of another in any other way , thereby inducing him to do or to omit to do something to the detriment of his property or the property of another , shall be punished with imprisonment from DATE .", "( CARDINAL ) If the perpetration of the offence referred to in paragraph CARDINAL of this Article results in obtaining significant pecuniary gain or if it causes significant damage , and the perpetrator acted with intent to obtain such a pecuniary gain or to cause such damage , he shall be punished with imprisonment from DATE . ”" ]

[ "6" ]

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

[ "6-3-b" ]

[ "6" ]

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

[ "6-3-d" ]

[ "The applicant , Mr PERSON , is a GPE national who was born in DATE and lives in ‘ s - Hertogenbosch . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "In its judgment of DATE , following criminal proceedings on appeal , ORG ( gerechtshof ) of ‘ s - Hertogenbosch quashed the impugned judgment of ORG ( arrondissementsrechtbank ) of ‘ s - Hertogenbosch of DATE , convicted the applicant of having transported DATE and DATE CARDINAL or more quantities of cocaine , of having held on DATE QUANTITY of cocaine , of having held on DATE in preparation of drug offences – QUANTITY of a substance [ mannitol ] destined to dilute cocaine , of having unlawfully held on DATE firearms and ammunition , and of social security fraud . It acquitted the applicant of the remaining charges , including trafficking cocaine . It sentenced the applicant to DATE and DATE imprisonment less the time spent in pre - trial detention . This judgment became final after an initially lodged appeal in cassation to ORG ( PERSON ) was withdrawn on DATE .", "In the meantime , on DATE , the public prosecutor had summoned the applicant to appear before ORG of ‘ sHertogenbosch in order to be heard on the prosecutor ’s request for an order for the confiscation of illegally obtained advantage ( vordering tot ontneming van wederrechtelijk verkregen voordeel ) within the meaning of LAW ( Wetboek van Strafrecht ) , which had been assessed by the public prosecutor , on the basis of a criminal financial investigation ( strafrechtelijk financieel onderzoek ) carried out and closed on DATE , at a total amount of MONEY ( NLG ; corresponding to EUR CARDINAL,CARDINAL.CARDINAL ) .", "At the hearing held on DATE before ORG on the prosecution ’s application for a confiscation order , the applicant argued that , although he had been convicted of CARDINAL offences for which a fifth - category fine could be imposed , namely CARDINAL offences under LAW ( PERSON ) and one offence under LAW ( FAC en GPE ) , he had not obtained any benefits by or through these offences . He had only traded in cars and gold , not in drugs . In so far as the request for a confiscation order was based on illegally obtained advantage by or through trafficking cocaine , the applicant argued that it could not be held that he had committed this offence as ORG had acquitted him of that charge and that , therefore , the imposition of a confiscation order on that basis would be in violation of his right to be presumed innocent under LAW .", "In its ruling of DATE , ORG rejected the applicant ’s arguments and issued a confiscation order in the amount of NLG CARDINAL to be replaced , in case of lack of payment or impossibility of recovery , by DATE detention .", "The applicant filed an appeal against this ruling with ORG of ‘ s - Hertogenbosch .", "Hearings were held before ORG on DATE and DATE , in the course of which it noted the contents a number of documents , including CARDINAL financial reports drawn up on DATE and a further financial report drawn up on DATE by ORG of LOC , according to which the applicant had had considerable revenues from an untraceable / unknown source , in any event not from a traceable legal source . The applicant maintained that he had only traded in cars and gold , but not in cocaine . ORG further heard CARDINAL witnesses – including Mr PERSON whom the prosecution suspected of perjury ( meineed ) and in respect of whom the procedure concerning a suspicion of perjury by a witness as set out in LAW ) was applied – on the applicant ’s business activities .", "In its decision of DATE , ORG quashed the ruling of DATE and imposed a confiscation order in the amount of ORG CARDINAL,CARDINAL.CARDINAL , to be replaced – in case of lack of payment or impossibility of recovery – by CARDINAL months’ detention . In so far as relevant , this decision reads as follows :", "“ It has been argued on behalf of [ the applicant ] that there exist insufficient indications that [ he ] would have committed ( in brief ) cocaine trafficking .", "The court rejects this defence . In its judgment of DATE having become final , this court has convicted [ the applicant ] of , inter alia , transport of cocaine in the period DATE , possession of QUANTITY of cocaine , and possession of the diluent mannitol . Cocaine trafficking must be regarded as an offence similar to the offences under LAW found proved .", "The court is of the opinion , noting the quantity of cocaine held by [ the applicant ] , the proved transport of cocaine ... , the possession of a diluent , and the ORG ( Criminele Inlichtingen ORG ; ORG ) information in the case - file , that there exist sufficient indications that [ the applicant ] has committed the offence of cocaine trafficking .", "The court considers wholly incredible the [ applicant ’s ] explanation for his frequent visits to the attic he had rented ... ( where the cocaine had been concealed ) that every time he would exchange there a QUANTITY . PERSON pistol for an easier to handle Beretta calibre CARDINAL .", "In addition it appears from the property analysis ( vermogensvergelijking ) prepared by the police ( first and second financial reports of [ CARDINAL DATE of ] ORG of LOC ) that [ the applicant ] , in the period DATE and DATE , held a considerable capital consisting , inter alia , of jewellery and cars where [ the applicant ] , during that period , was in receipt of welfare benefits .", "[ The applicant ] and his counsel have stated before the court in the [ present ] proceedings on appeal that the different cars , which according to the prosecution belonged to [ the applicant ] , would have been financed by the witness PERSON and would in fact belong to the latter , which statement was confirmed in full by the witness PERSON in the [ present ] proceedings on appeal .", "However , the court is of the opinion that it has appeared from the [ present ] appeal proceedings and , in particular , from the different statements from the perjury procedure in respect of F. that the ... [ latter ’s ] statement must be regarded as wholly incredible . [ The applicant ’s ] version has , in the opinion of the court , not been established . Noting this , the ORG considers that no other conclusion can be reached than that [ the applicant ] has purchased these cars with own capital .", "[ The applicant ] has tried during the [ present ] appeal proceedings to demonstrate that , to the extent that there would be any capital , this [ capital ] would have been obtained from the ( illegal ) trade in gold and cars .", "However , in the court ’s opinion , it has not been demonstrated in the examination in court that [ the applicant ] would actually have been engaged in that trade and that it would have generated such profits that thereby [ the applicant ’s ] abovementioned capital could be explained . In this , the court takes into account that [ the applicant ’s ] allegation that there would be great differences in the price of gold in the GPE and GPE has , as appears from information provided by the police , turned out to be untrue . [ The applicant ’s ] statement will be put aside by the ORG as incredible .", "On grounds of the above , the court finds that it can not be concluded otherwise than that there are sufficient indications that [ the applicant ] has been engaged , during the period from DATE to CARDINAL DATE , in violating the prohibition set out in LAW and that [ the applicant ] has derived benefit from this trafficking in cocaine to an amount to be determined below . ”", "The applicant filed an appeal in cassation with ORG ( PERSON ) , complaining that the imposition of the confiscation order on the basis of an offence of which he had been acquitted violated his right to be presumed innocent as guaranteed by LAW .", "In his advisory opinion , the Procurator General to ORG considered , referring to ORG case - law on this point , that the imposition of the confiscation order did not infringe the applicant ’s rights under LAW .", "On DATE , ORG dismissed the applicant ’s complaint in cassation , holding :", "“ The complaint does not provide grounds for overturning the ruling of ORG ( kan niet tot cassatie leiden ) . Having regard to LAW ( Wet op de rechterlijke organisatie ) , no further reasoning is called for , since the complaint does not give rise to a need for a determination of legal issues in the interest of legal unity or legal development . ”", "However , on the basis of an ex officio examination of the impugned ruling , ORG decided to quash the impugned ruling in part , i.e. in so far as ORG had imposed alternative detention . It rejected the remainder of the appeal in cassation .", "Article ORG of LAW ( PERSON ) provides :", "Upon the application of ORG any person who has been convicted of a criminal offence may be ordered in a separate judicial decision to pay a sum of money to the state in order to deprive him of illegally obtained advantage .", "Such an order may be imposed on a person as referred to in paragraph CARDINAL who has obtained advantage by means of or from the proceeds of the said criminal offence or similar offence or offences for which a fifth - category fine may be imposed , in connection with which there exist sufficient indications that they were committed by him .", "Upon the application of ORG any person who has been found guilty of an indictable offence for which a fifth - category fine may be imposed and against whom , in connection with his being suspected of that offence , a criminal financial investigation has been instituted , may be ordered in a separate judicial decision to pay a sum of money to the state in order to deprive him of illegally obtained advantage if , having regard to that investigation , it is likely that other indictable offences led in any other way to the convicted person obtaining illegal advantage .", "The judge shall determine the amount which the illegally obtained advantage is estimated to represent . Advantage shall be taken to include cost savings . The value of goods which the court deems to form part of the illegally obtained advantage may be estimated to be its market value at the time the decision is taken or may be estimated by reference to the yield to be obtained through public auction if the amount must be recovered . The court may order that the amount to be paid shall be less than the estimated advantage .", "Goods shall be taken to mean all objects and property rights .", "In determining the amount which the illegally obtained advantage is estimated to represent , legal claims from disadvantaged third parties awarded by a court shall be deducted .", "In imposing the order account shall be taken of orders to pay a sum of money by way of deprivation of illegally obtained advantage imposed under previous decisions . ”", "The possibility to deprive a person of proceeds of crime was introduced in DATE by LAW ( Wet Vermogenssancties ) . On DATE , the Act of DATE on the extension of the possibilities to apply the measure of illegally obtained advantage and other financial penalties ( PERSON van de mogelijkheden tot toepassing van de maatregel van ontneming van wederrechtelijk verkregen voordeel en andere vermogenssancties ) entered into force . CARDINAL of the changes brought about by this LAW was that the proceedings on the measure of deprivation of illegally obtained advantage were disconnected from the principal criminal proceedings , inter alia , in order to prevent situations in which issues concerning illegally obtained advantage would overshadow and affect the duration of the principal criminal proceedings .", "It established a specific procedure – separate from the criminal proceedings taken against a suspect – for imposing a confiscation order under LAW . This specific procedure is set out in ORG CARDINALb - CARDINALi of LAW ( Wetboek van Strafvordering ) . The legislator ’s choice for this setting was to express that it concerned a continuation of the criminal prosecution of the convicted person , the purpose being to determine the sanction to be imposed ( GPE ( Parliamentary Documents ) II , DATE session , CARDINAL no . CARDINAL , p. CARDINAL ) . The confiscation order procedure is neither designed nor intended for the determination of a criminal charge , but for the detection of illegally obtained proceeds , to determine the pecuniary value thereof and , by way of a judicial confiscation order , to deprive the beneficiary of these proceeds . The aim pursued by the possibility of imposing confiscation orders is twofold ; in the first place to remedy an unlawful situation and , secondly , to bring about a general crimepreventive effect by rendering crime unattractive on account of an increased risk that proceeds of crime will be confiscated .", "Pursuant to LAW , a request for a confiscation order under LAW must be filed by the public prosecutor with ORG as soon as possible and not later than a maximum of DATE after a convicting judgment handed down in the substantive criminal proceedings by the first instance trial court . It is not required that , when filing such a request , the conviction must have obtained the force of res iudicata .", "Article CARDINAL § CARDINAL of LAW obliges the public prosecutor to indicate – in case this has not yet been done DATE when delivering the closing speech ( requisitoir ) before the first instance trial court in the substantive criminal proceedings whether the prosecution intends to seek a confiscation order in case of a conviction . The purpose of this obligation is to prevent a situation that a convicted person is confronted , at DATE after his conviction by a first instance court , with a request for a confiscation order , and to express that a confiscation order procedure does not constitute a fresh , second prosecution based on the same facts but is to be understood as a separate part of the earlier substantive criminal proceedings and that the prosecution does not stop after the end of the substantive criminal proceedings but is pursued in the confiscation order procedure .", "The notion of “ similar offence or offences ” under LAW of LAW relates to offences of a similar nature as those having formed the object of the criminal proceedings against the accused , such as for instance drug offences , property offences and offences involving forgery and fraud .", "The rules of evidence that apply in criminal proceedings , as set out in ORG CARDINAL - CARDINALa of the Code of Criminal Procedure , are not applicable to a confiscation order procedure . In that procedure it is for the public prosecutor to establish a prima facie case that there are sufficient indications that the person concerned has committed CARDINAL or more similar offences within the meaning of LAW of LAW having generated illegally obtained advantage . It is for the person concerned to rebut the prosecutor ’s case . The judge will decide the case on the basis of a balancing of probabilities , comparable to the standard of proof applicable to civil proceedings .", "The fact that the rules of evidence applicable to criminal proceedings do not apply to the confiscation order procedure entails that – if in criminal proceedings an accused has been partly convicted and partly acquitted of the charges brought against him – in a subsequent confiscation order procedure the judge may impose a confiscation order against the person concerned which is not only based on the offence(s ) of which he has been convicted , but also on the similar offence(s ) of which he has been acquitted but in respect of which the judge is satisfied , on a balance of probabilities , that there exist sufficient indications that he has committed them .", "Pursuant to LAW , the judge can derive the assessment of the actual amount of illegally obtained advantage under LAW only from the contents of “ legal means of evidence ” ( wettige bewijsmiddelen ) . LAW defines “ legal means of evidence \" as the personal observations of the judge , statements of the accused , statements of a witness , statements of an expert , and written materials ( such as , for instance , judicial decisions , and formal minutes and records ) . However , unlike the requirement in criminal proceedings that a conviction can only be based on evidence that is corroborated by other evidence , the assessment of the amount of illegally obtained advantage in a confiscation order procedure can be based on CARDINAL evidentiary item , such as for instance a formal record containing the statement of the person concerned .", "In a judgment handed down on DATE and published in ORG ( PERSON ; “ GPE ” ) , ORG held , in so far as relevant :", "“ CARDINAL . In its ruling of CARDINAL DATE , GPE DATE , no . CARDINAL , ORG considered the following :", "- The provisions of LAW and [ Articles CARDINALb – CARDINALi ] of LAW concern the imposition of a measure on the person convicted of a punishable offence , namely the obligation to pay a sum of money to the ORG for the purposes of confiscating illegally obtained advantage . This does not constitute a penalty , but a measure aimed at the deprivation of illegally obtained advantage . The fact that the imposition of that measure has been given a place in a criminal procedure does not alter its special character .", "- That special character is also expressed in the requirements set for imposing it . These requirements are less strict than those that must be met for imposing a [ criminal law ] penalty . The regulations on evidence that apply to criminal proceedings do not apply in their full extent . This entails that offences included in a criminal charge having resulted in an acquittal can still form the basis for the imposition of a ( confiscation ) measure . Also in such a case , the judge must determine either that there exist sufficient indications that a similar offence or similar offences , referred to in LAW for which a fine of the fifth category may be imposed , has / have been committed by the person concerned , or that it is plausible that the other similar offences , referred to in LAW of LAW , have in any way resulted in the illegal obtaining of advantage by the person concerned . Such a determination is preceded by the procedure regulated in ORG CARDINALb et seq . of LAW . This serves as a guarantee that the judge , who must determine a request for a confiscation order filed by the prosecution department , will only do so after he has examined whether , and has found that , the statutory conditions , inter alia whether there are indications within the meaning of the second paragraph [ of LAW ] or plausibility within the meaning of the third paragraph [ of LAW ] , have been met .", "- The above entails that the circumstance that the suspect has been acquitted of specific offences does not automatically constitute an obstacle for considering those offences , in the framework of the confiscation procedure , as “ similar offences ” or “ offences for which a fifth - category fine may be imposed ” as referred to in LAW .", "ORG adds that this is not incompatible with LAW as , in the procedure regulated by LAW seq . of LAW , the person concerned is provided with the opportunity to defend himself , including the possibility to argue that and why there exist insufficient indications that the similar offence or similar offences for which a fifth - category fine may be imposed , as meant in LAW , has / have been committed by [ him ] , or that it is not plausible that the other punishable offences , within the meaning of LAW of LAW , have resulted in the illegal obtaining of advantage by [ him ] . The fact that the procedure on a ... [ request for a confiscation order ] must be regarded as a separate part or a continuation of a same [ set of ] criminal prosecution [ proceedings ] that can lead to conviction and sentence ( see PERSON , DATE ; GPE DATE ; no . CARDINAL ) does not prompt a different finding .", "Considering that it has neither been argued nor appeared that the opportunity , referred to in [ the above paragraph ] CARDINAL . , has not been provided in the instant case , the decision of ORG does not disclose an incorrect interpretation of the law . ”" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and currently resides in GPE . He is a disabled pensioner and a veteran of the Second World War . He suffers from myasthenia .", "In DATE the applicant instituted proceedings in LOC against ORG ( “ FAC ” ) and ORG No . CARDINAL ( the “ Hospital ” ) , seeking compensation for moral and material damage caused by their refusal DATE to provide him with the prescription drug Kalimin-CARDINAL . He alleged that the ORG authorities had failed to provide him with this drug free of charge , contrary to Resolution No . CARDINAL of the Cabinet of Ministers of CARDINAL DATE . He further complained that because this drug was not provided to him , he had to buy it in GPE , GPE and GPE . He requested reimbursement of the costs incurred .", "On DATE the Babushkinsky ORG of Dnepropetrovsk ( the “ Babushkinsky Court ” ) rejected the applicant ’s claims as being unsubstantiated . It found that the ORG and the ORG could not be held responsible for the failure to provide a drug simply because it was not available in LOC .", "On DATE the ORG allowed the applicant ’s appeal , quashed the decision of DATE and remitted the case for fresh consideration .", "On DATE ORG rejected the applicant ’s claims as being unsubstantiated .", "On DATE , following an appeal filed by the applicant , the ORG quashed the decision of DATE and again remitted the case for fresh consideration .", "On DATE ORG rejected the applicant ’s claims as being unsubstantiated .", "On DATE the applicant lodged an appeal with ORG under the new appeal procedure introduced by LAW on DATE . On DATE the ORG allowed the applicant ’s claims in part . The court ordered ORG to pay the applicant ORG CARDINAL.CARDINAL and UAH CARDINAL ( a total of ORG MONEY [ ORG CARDINAL ] ) in compensation for material and moral damage , respectively . It also ordered the Hospital to pay the applicant UAH CARDINAL.CARDINAL , UAH CARDINAL and UAH CARDINAL ( a total of ORG CARDINAL,CARDINAL.CARDINAL [ ORG CARDINAL.CARDINAL ] ) in compensation for material and moral damage , costs and expenses .", "On DATE ORG of the Babushkinsky District Department of Justice ( the “ Bailiffs’ Service ” ) instituted enforcement proceedings in respect of the judgment of DATE .", "On DATE ORG ordered that the funds awarded by the judgment of DATE be transferred to the applicant ’s bank account .", "On DATE a panel of CARDINAL judges of ORG rejected the cassation appeal lodged by the Chief Doctor of the ORG against the judgment of DATE for want of substantiation . The institution of the cassation proceedings did not suspend the enforcement of the judgment of CARDINAL DATE .", "On DATE the writ of execution and the payment request were returned to the applicant because of the Hospital ’s lack of funds .", "On DATE ORG requested ORG to inform it about the possibility of obtaining funds from ORG in order to enforce the judgment .", "On DATE ORG terminated the enforcement proceedings after ORG CARDINAL,CARDINAL.CARDINAL had been transferred to the applicant ’s bank account . The judgment was fully executed in so far as it concerned the ORG .", "On DATE ORG requested the ORG to comply with the judgment of DATE and to transfer the amount due to the applicant to his bank account .", "On DATE the ORG paid UAH CARDINAL [ EUR MONEY ] to the applicant .", "On DATE ORG received the payment request and the writ of execution back from the ORG , with a statement that the judgment could not be fully enforced due to the ORG ’s lack of funds .", "On DATE ORG requested the ORG to pay the applicant the remainder of the judgment debt .", "On DATE the ORG transferred the remainder of the funds ( ORG CARDINAL [ ORG CARDINAL.CARDINAL ] ) to the applicant ’s account . ORG terminated the enforcement proceedings .", "On DATE ORG rejected for lack of substantiation the applicant ’s claims against ORG of ORG for an award of compensation for the moral damage he had allegedly suffered due to the lengthy period of non - enforcement of the judgment of CARDINAL DATE . This judgment was not appealed and thus became final .", "Article CARDINAL of the LAW provided as follows :", "“ ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . ”", "Under LAW , the enforcement of judgments is entrusted to ORG . Under LAW , the creditor may file a complaint against actions or omissions of ORG with the head of the competent department for that ORG or with a local court . LAW entitles the creditor to institute court proceedings against a legal person , entrusted with the enforcement of a judgment , for inadequate enforcement or non - enforcement of a judgement , and to receive compensation .", "LAW provides for the liability of bailiffs for any inadequate performance of their duties , as well as compensation for damage caused by a bailiff when enforcing a judgment . Under LAW , acts and omissions of the bailiff can be challenged before a superior official or the courts .", "Under clause CARDINAL of the regulations , the forced recovery of funds must be executed from the same account as that of ordinary payments ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON .", "The applicant has been the leader of the public movement ORG ( Русский общенациональный союз – Russkiy obshchenatsionalniy soyuz ) since its inception in DATE .", "On DATE ORG registered the movement as a public association .", "On DATE , at the sixth general assembly of the movement , members decided to reorganise the movement into a political party bearing the same name . An application for the party ’s registration was lodged with ORG .", "By a letter of DATE , ORG refused the application on a number of grounds . The first ground for the refusal was that the adjective “ NORP ” ( русский DATE russkiy ) in the name of the party referred to an ethnic group , whereas section GPE of LAW prohibited the establishment of political parties based on professional , racial , ethnic or religious affiliations . The applicant contested that particular ground for the refusal before a court of general jurisdiction .", "By a judgment of DATE , ORG of GPE dismissed the applicant ’s complaint after hearing evidence from several experts called by the defence . The experts concurred that the meaning of the word russkiy was ambiguous , since it could be understood either as denoting anything related to GPE DATE and in this sense its meaning was closer to the word rossiyskiy ( российский ) DATE or as referring to CARDINAL particular ethnic group , the NORP . A representative of ORG submitted to the court that the word “ all - nation ” ( общенациональный – obshchenatsionalniy ) in the name of the applicant ’s party also had CARDINAL meanings , the first being “ an association of people belonging to different nations ” and the second “ an association of the people of CARDINAL nation ” . However , since it was preceded by the word russkiy , these CARDINAL adjectives had to be read together and understood as “ an association of the nation of [ ethnic ] NORP ” . ORG accepted that interpretation , which was not disputed by the applicant , and found that the applicant ’s party was founded on the basis of ethnic affiliation . This amounted to a breach of section CARDINAL(CARDINAL ) of LAW , even though the party ’s articles of association and programme did not indicate protection of the interests of NORP as its main objective .", "On DATE ORG upheld the judgment on appeal , endorsing the reasoning of ORG .", "The applicant challenged section CARDINAL(CARDINAL ) of LAW before ORG , alleging that it was incompatible with LAW . ORG joined his complaint with those of ORG of GPE and PERSON .", "On DATE ORG issued Ruling no . CARDINAL-P. It noted at the outset the special role of political parties as the only form of public association vested with the right to nominate candidates in elections to ORG bodies . According to LAW , membership of political parties is individual and voluntary and may not be restricted on account of professional , social , racial , ethnic or religious affiliation , gender , social origin , property or place of residence . The court concluded that the right of individuals of any ethnicity or religion to become members of a party whose objectives and goals they shared could not be restricted . It further found as follows .", "“ The principles of pluralist democracy , a multi - party system and a secular ORG that form the constitutional basis of GPE – in so far as they apply to legal regulation of the establishment and functioning of political parties , including conditions for their registration – may not be interpreted or implemented without regard to the particular features of GPE ’s historic development , the ethnic and religious structure of NORP society and the specific character of interaction between the ORG , political power , ethnic groups and religious denominations .", "... The principle of a secular ORG can not be applied in GPE in the same way as in those countries that have a single - faith and single - nation social structure and boast a well - developed tradition of religious tolerance and pluralism . In particular , some of those countries have permitted the establishment of political parties based on NORP democratic ideology ; in these cases the term ‘ ORG has moved beyond denominational confines and designates affinity with the NORP system of values and culture .", "In multinational and multi - denominational GPE , owing to the specific modus operandi of leading faiths ... , their influence on public life and their invocation in political rhetoric ( which has historically been linked to the ethnic question ) , public consciousness is more likely to identify the terms ‘ ORG , ‘ Orthodox’ , ‘ Muslim’ , ‘ Russian’ , ‘ Tartar’ , etc . with specific denominations or ethnic groups , rather than with a system of values common to the NORP [ rossiyskiy ] people in its entirety .", "Furthermore , contemporary NORP society , including political parties and religious associations , has not yet acquired substantial experience of democratic coexistence . In these circumstances , parties based on ethnic or religious affiliation would inevitably strive to assert principally the rights of their respective ethnic and religious communities . Competition among parties based on ethnic or religious affiliation ... could lead to stratification of the multinational people of GPE instead of the consolidation of society , to the opposition of ethnic and religious values , exaltation of some and belittlement of others and , ultimately , to attributing predominant importance not to those values which are common to the entire nation but to those restricted to CARDINAL ethnic ideology or religion , a result which would be contrary to LAW ( Articles CARDINAL and CARDINAL ) .", "The establishment of parties based on religious affiliation would open the door to the politicisation of religion and religious associations , political fundamentalism and the clericalisation of parties ... The establishment of parties based on ethnic affiliation could lead to a situation where representatives of parties advocating the interests of large ethnic groups DATE to the detriment of those of small ethnic groups DATE would predominate in elected governing bodies ; a situation which would violate the principle of equal rights irrespective of ethnic origin , established in GPE ( Articles CARDINAL § CARDINAL , CARDINAL § DATE and CARDINAL § CARDINAL ) .", "Thus , the constitutional principle of a democratic and secular ORG , as applied in the particular social and historic context existing in GPE as a multinational and multi - denominational country , does not allow political parties to be established on the basis of ethnic or religious affiliation .", "For those reasons , in the face of unrelenting inter - ethnic and interdenominational tension and the ever - growing political demands of DATE religious fundamentalism , when any religion - based distinction , once brought into the sphere of politics ( and therefore , into the struggle for power ) , may acquire an ethnic dimension and lead to a division of society along ethnic and religious lines ( a division , in particular , into NORP and PERSON elements ) , the introduction into LAW of a ban on the establishment of political parties based on ethnic or religious affiliation is compatible with the authentic meaning of LAW and CARDINAL of LAW read together with Articles QUANTITY and CARDINAL , DATE and CARDINAL ... ”", "Finally , ORG noted that it was not competent to determine whether in a particular case a party had been established on the basis of national or religious affiliation and whether a party ’s name reflected its aims , namely the promotion of ethnic or religious interests , these matters coming within the jurisdiction of the ordinary courts .", "The LAW guarantees plurality of ideologies and political parties and prohibits the activity of public associations which incite social , racial , ethnic or religious discord ( LAW . Article CARDINAL guarantees the secularity of GPE and equality of religions . Article CARDINAL establishes the principle of equality before the courts and the law . Article CARDINAL guarantees the right to freedom of conscience and religion . Article CARDINAL guarantees the right to freedom of thought and expression and prohibits the promotion of social , racial , ethnic , religious or linguistic superiority .", "LAW ( Federal Law no . CARDINAL-FZ of DATE ) provides as follows :", "“ ( CARDINAL ) The establishment of political parties based on professional , racial , ethnic or religious affiliation is not allowed .", "The terms ‘ professional , racial , ethnic or religious affiliation’ shall be understood in the present LAW as inclusion in the articles of association and programme of the political party of the aims of protection of professional , racial , ethnic or religious interests , as well as reference to those aims in the name of the political party . ”" ]

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[ "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a former officer of ORG of GPE ( FSB ) . In DATE he participated in a much publicised press conference together with CARDINAL other ORG officers . Some time after the press conference the applicant remained in the country but was dismissed from the ORG . DATE he served in the tax police and he later became a practising lawyer and a member of the bar association .", "On an unspecified date the Chief Military Prosecutor 's Office initiated an inquiry relating to the period of the applicant 's service in the ORG . The inquiry concerned the alleged disclosure of certain classified material by the applicant .", "On DATE the prosecution carried out a search of the applicant 's home and discovered certain documents allegedly containing classified information . Assorted cartridges for various types of weapons were also found in a cardboard box on a shelf above the applicant 's writing table . The applicant alleged that the cartridges did not belong to him and had been planted by an ORG agent , posing as a plumber , shortly before the search .", "During the search the prosecution also seized a video recording made by the applicant on CARDINAL DATE in a forest near GPE . It showed the applicant and his friend Mr S. shooting for fun from the applicant 's service weapon . The applicant explained that for the shooting he had used a gun cartridge he had received from Mr S.", "On DATE the prosecution charged the applicant with disclosure of ORG secrets and abuse of his official powers ( “ criminal case no . CARDINAL ” ) and unlawful possession of firearms ( the ammunition found in his flat and the gun cartridge he had used to shoot in the forest ) .", "From DATE the applicant was under an obligation not to leave GPE without authorisation from an investigator , a prosecutor or the court . On DATE the investigation was completed and the prosecution handed the case file to the applicant and his lawyers for examination . The defence had the file at their disposal until DATE . On DATE the case file was sent to the court . The date of the first hearing was set .", "Pending the investigation in case no . CARDINAL , the applicant continued his professional activities as a lawyer . On TIME of CARDINAL DATE his car was stopped by traffic police . The car was searched and a handgun was discovered on the back seat of the applicant 's car . On DATE the ORG remanded the applicant in custody on the ground that he was suspected of committing a criminal offence punishable under LAW ( unlawful possession of firearms and ammunition ) . The detention order was confirmed on DATE by ORG , and , on DATE , by ORG . The applicant was eventually acquitted of the charges against him in criminal case no . CARDINAL ( for more details see PERSON v. GPE ( no . CARDINAL ) , no . CARDINAL , DATE ) .", "NORP In DATE the file in criminal case no . CARDINAL and the bill of indictment were forwarded to ORG of ORG . ORG , referring to certain classified information contained in the file , decided to examine case no . CARDINAL in camera .", "On DATE ORG of ORG held a preparatory hearing in the applicant 's case no . CARDINAL . The judge heard evidence from the parties and made certain procedural arrangements for the forthcoming trial . Most of the applications lodged by the defence were rejected ; however , the applicant was granted additional time to examine the case file . Given that the file contained classified information , the applicant could have access to it only on the court 's LOC .", "In the same ruling the judge ordered that the applicant be kept in custody . The judge observed that on DATE the applicant had been arrested by the police on suspicion of committing another crime . The applicant had thus breached his undertaking not to leave his permanent place of residence . The judge also stated that the evidence in the case file included an invitation to visit GPE , which , in the court 's view , indicated that the applicant intended to leave GPE .", "On DATE the applicant lodged an appeal against the detention order . He argued that the criminal cases against him had been fabricated by the authorities , and that there had been no evidence that he would flee or tamper with evidence or commit crimes . In addition , the applicant complained that the prosecution and the court had violated various provisions of domestic criminal procedural law in ordering his arrest .", "On DATE the judge of the ORG decided not to extend the applicant 's detention for the purposes of the proceedings in case no . CARDINAL . However , the applicant remained in the remand prison on the basis of the detention order of DATE , issued by ORG of ORG .", "On an unspecified date in DATE the applicant requested ORG of ORG to release him . On DATE ORG confirmed that the grounds for his detention , as set out in its earlier decision of DATE , were still valid .", "On DATE ORG examined an appeal by the applicant and dismissed it . The hearing took place in the absence of the applicant . The appellate court acknowledged that there had been minor irregularities in the detention order of DATE . Nevertheless , they were not such as to require the applicant 's release . As to the substance of the case , the court upheld the reasoning of the first - instance court .", "According to the Government , the first grounds of appeal lodged by the applicant ( on DATE ) were addressed to ORG of GPE . On DATE the grounds of appeal were dispatched by the prison administration to ORG . On DATE the applicant filed supplementary grounds of appeal . They were also addressed to ORG of GPE . From ORG those grounds were transmitted to ORG of ORG .", "Furthermore , on CARDINAL and DATE the applicant 's lawyers ( PERSON and PERSON ) filed their own grounds of appeal against the detention order of DATE . Those grounds were addressed to ORG of LOC . They were sent to the prosecutor 's office for comment . On DATE ORG of LOC obtained written submissions from the prosecutor 's office in reply to the grounds of appeal filed by the applicant 's lawyers .", "On DATE and DATE the applicant 's original and supplementary grounds of appeal were received by ORG of ORG . ORG sent them to the prosecutor 's office for comments . On CARDINAL and DATE the prosecutor 's office replied in writing to the grounds of appeal . On DATE the complete case file was dispatched to ORG of GPE .", "On DATE the appeal against the detention order of CARDINAL DATE arrived at ORG of GPE . The hearing took place on DATE . The applicant was able to participate in the hearing via video link . The applicant 's CARDINAL lawyers ( Mr PERSON and PERSON ) were present and made submissions . As indicated above ( see paragraph DATE ) ORG dismissed the applicant 's appeal and considered that the applicant should remain detained on remand for the period of the trial .", "The applicant alleged that conditions in the meeting room where he had been allowed to talk to his lawyers and work on the case had been inappropriate . He explained that the room where the detainees met their lawyers was partitioned into CARDINAL small booths for CARDINAL people , with detainees being separated from their lawyers by a grille . This made it impossible to study documents , and detainees had to speak quite loudly to be heard . As a result , other detainees , and the warder walking along the line of booths , could hear conversations between the applicant and his lawyer . It was impossible to pass any document through the grille , even newspapers with the texts of newly enacted legislation . The applicant was unable to meet both of his lawyers at the same time , since the booth had room for CARDINAL persons .", "On DATE the applicant wrote a letter to the Director of ORG of ORG . In this letter the applicant submitted that he was unable to meet his lawyer out of the hearing of the prison warders and other detainees .", "On DATE when the applicant was transported to the courthouse to study the case file , he was so cold and exhausted that , when brought into the court building , he was unable to read the material in the file or prepare his defence : his only concern was to get warm . Moreover , in the courthouse he was kept handcuffed to a table leg or a chair , so that it was very difficult for him to read the case file or take notes . This position also caused severe pain in his back .", "During the trial the applicant asked the court to lessen the frequency of the hearings , which were held DATE . However , his request was refused . In such conditions , and having regard to the poor conditions of his detention and his transfers to the court building , he was unable to prepare properly for the hearings . The applicant claimed that the case file contained objections lodged by him to that end .", "The Government described the meeting rooms as follows . In remand prison no . IZ-CARDINAL/CARDINAL there had been CARDINAL rooms “ for investigative activities ” . The average size of the room had been QUANTITY . According to the Government , while in remand prison no . FAC the applicant had met his lawyers CARDINAL times . His defence team had included QUANTITY persons . The meetings had lasted TIME on average . The applicant and his lawyers had been able to exchange documents and handwritten notes during those meetings . Each room had been equipped with a table , CARDINAL chairs , a coat - hanger , an alarm button and a peephole . The meeting rooms had never been shared by several prisoners at once . There had been no glass partition or grille in the meeting rooms separating the defendant from his lawyers . The Government produced photos of a meeting room which corresponded to that description . During meetings between a detainee and his lawyers , the prison staff had been unable to hear them , but they had been able to observe the room through a peephole .", "The Government denied that the applicant had been handcuffed in the court building while he studied the case file . In the courtroom during the hearings the applicant had been sitting QUANTITY away from his lawyers , so it had been possible for them to talk in private . The trial had started on DATE . On DATE the court had allowed the applicant to consult his lawyer in private before the start of each hearing , as well as during the breaks , in a special meeting room . The Government , referring to the verbatim record of the hearings , maintained that during the trial the applicant had had CARDINAL meetings with his lawyers in the meeting room in the court building . On DATE the applicant had requested the court to allow him to have those meetings directly in the courtroom . That request had been granted by the court . On DATE the applicant had asked the court to give him extra time to talk to his lawyers during the hearings . On DATE the presiding judge had ruled that the applicant should be allowed to talk to his lawyers during the breaks .", "The trial in case no . CARDINAL was held behind closed doors . The applicant was represented by CARDINAL lawyers : PERSON , PERSON and PERSON GPE .", "The defence maintained that the cartridges had been planted by ORG agents . Since the much publicised press conference in DATE , ORG senior officials had wanted to settle old scores with him . The applicant asked the court to admit the videotape of the press conference in evidence .", "The applicant further supposed that the gun cartridges found in his flat could have been planted by ORG agents who had visited him shortly before the search , disguised as plumbers . The defence asked the court to summon these “ plumbers ” .", "As to the allegedly “ classified ” documents discovered by the prosecution among his papers , the applicant did not deny that he had kept them . However , these files related to the period of his service in the ORG ( the predecessor of the ORG ) from DATE . In his submissions , the documents were not secret .", "The court examined PERSON . , who had allegedly received the classified information from the applicant . The court also examined documents and other evidence discovered in the applicant 's flat during the search of DATE , documents relating to the period of his service in the ORG , and the reports on the expert examination of the documents allegedly disclosed by the applicant , which concluded that these documents contained secret information . The court also called and questioned one of the participants in the DATE press conference , PERSON , who denied the existence of any plan to eliminate the applicant . The court also examined the video record of the DATE press conference .", "The court further examined the record of the seizure of DATE , during which the police had discovered cartridges in the applicant 's flat . The court also examined several witnesses who had visited the applicant 's flat before the search . All of them denied having seen the ammunition in the applicant 's flat , but they had not looked in the cardboard box where the cartridges had been discovered . The court called and questioned CARDINAL persons working in the housing maintenance service . They confirmed that on several occasions DATE , plumbers on duty had visited the applicant 's flat .", "The court also examined several relatives of Mr S. They testified about the events of CARDINAL DATE , when the applicant and PERSON had gone shooting for fun in a forest near GPE . The court also examined the video which showed Mr S. firing a shot with the applicant 's gun .", "On DATE ORG of ORG gave judgment in criminal case no . CARDINAL . The applicant was found guilty on CARDINAL charges and was sentenced to DATE imprisonment , to be served in a “ colony - settlement ” .", "First , the court convicted the applicant of unlawful possession of the assorted gun cartridges found in his flat during the search ( LAW ) . Further , the court referred to a videotape seized by the prosecution from the applicant 's flat . The recording was made by the applicant on DATE in a forest near PERSON ; it showed the applicant and his friend Mr S. shooting for fun from the applicant 's service weapon . The court established that the cartridge used by Mr S. to shoot had been unlawfully acquired by the applicant from him .", "Second , the applicant was convicted of disclosure of ORG secrets . The court established that in DATE the applicant had served in the NORP secret service , and had had access to certain classified documents . He had kept at his home a number of case files containing information about ORG informers . In DATE and DATE the applicant had shown these documents to his former colleague . Further , in DATE the applicant had handed the same person ( his former colleague ) CARDINAL files containing information about the ORG 's investigative activities in DATE . At the relevant time the applicant 's former colleague had not been serving in the ORG ; therefore , he had not had the necessary security clearance to have access to such documents . The court qualified the documents shown and given to the former colleague as “ secret ” . Thus , the applicant 's acts amounted to the “ disclosure of ORG secrets ” .", "The defence appealed . They alleged , in particular , that they had been placed in a disadvantageous position vis - à - vis the prosecution , and that the applicant had not had enough time and facilities to prepare his defence .", "On DATE ORG of ORG of GPE upheld the judgment of DATE . ORG did not find any major irregularity in the investigative proceedings and rejected the argument that the defence had not had sufficient time and facilities during the trial . ORG noted that the pace of the trial ( CARDINAL court hearings per month , each lasting TIME ) had been adequate and had not precluded the applicant from meeting his lawyers and preparing his defence . ORG noted that the applicant had not complained of any breaches of confidentiality during the meetings with his lawyers .", "On DATE the applicant was placed in remand prison no . IZ-CARDINAL/CARDINAL in GPE following the decision of ORG of ORG in connection with criminal case no . CARDINAL .", "The applicant arrived at remand prison no . IZ-CARDINAL/CARDINAL very late and spent TIME in a cell measuring CARDINAL by QUANTITY , which had no windows or ventilation , was filthy and smoky and was full of lice . Only on TIME DATE did he receive dried cereal .", "From DATE the applicant was detained in cell no . CARDINAL of remand prison no . IZ-CARDINAL/CARDINAL . According to the applicant , the cell was unventilated , although most of his cellmates were heavy smokers . Moreover , some of the other detainees were convicted criminals . The cell was also overcrowded : there were CARDINAL detainees for CARDINAL sleeping places . As a result , the detainees had to sleep in turns . The applicant was unable to sleep TIME a day , and the rest of the time he had to stand , because all the beds were occupied by his sleeping cellmates , and there were no seats in the cell . The applicant shared his sleeping place with CARDINAL other detainees , including CARDINAL suffering from psoriasis ; consequently , their shared sleeping place was constantly covered with this individual 's scabs . The cell was not equipped with radio and the administration provided no newspapers . Although prison regulations provided for a shower once a week , the applicant was unable to wash himself for DATE , despite his numerous complaints about that fact .", "The applicant produced a written statement signed by PERSON , his cellmate in remand prison no . IZ-CARDINAL/CARDINAL , in which the latter confirmed that the applicant had had no individual sleeping place in the cell . Mr N. also testified that the applicant had often had no possibility of sleeping before going to the court in the mornings , and had not received adequate medical treatment . Depositions to the same effect were signed by the applicant 's cellmates PERSON , PERSON . and PERSON .", "The applicant was detained in that cell until DATE .", "The Government maintained that DATE the overall number of prisoners in remand prison no . IZ CARDINAL/CARDINAL had varied from CARDINAL ( DATE ) to CARDINAL ( in DATE ) , with an average of CARDINAL . The overall number of sleeping places in remand prison no . IZ CARDINAL/CARDINAL was CARDINAL . Only on CARDINAL occasion ( in DATE ) had the number of sleeping places exceeded the number of inmates .", "The Government further maintained that the applicant 's description of conditions in cell no . CARDINAL was inaccurate . They contended that the cell had a combined supply - and - exhaust ventilation system . The toilet and the water tap were separated from the residential area ; the cell had a table , several benches , cupboards for the detainees ' personal belongings , a wall cupboard for food , a mirror , a television set , a refrigerator and cold and hot water . The cell had a surface area of QUANTITY , had CARDINAL sleeping places and housed CARDINAL detainees , including the applicant .", "On DATE the applicant was summoned by the deputy chief administrator of the remand prison . The latter enquired about the applicant 's complaints to ORG concerning the conditions of his detention and threatened him with various disciplinary measures , in particular , placement in a strict isolation cell . The applicant immediately informed his lawyer of the conversation .", "On DATE the applicant signed a declaration in which he stated that he had no complaints about the conditions of detention . He was then transferred to cell no . CARDINAL in building no . CARDINAL of the remand prison . The conditions in that cell were better than in his previous one . It contained CARDINAL people and a hot shower was available twice a week for the detainees in that cell . However , the room was not ventilated and the other detainees smoked constantly . Moreover , the unit had no appropriate courtyard for outdoor exercise . Instead , the detainees were taken to a dusty and covered cubicle , made out of concrete , measuring CARDINAL by QUANTITY , under a roof . Walking in this room in clouds of concrete dust aggravated the applicant 's asthma and various other health problems .", "The applicant 's lawyers complained to the prison authorities . As a result the applicant was examined by a general practitioner ; the doctor diagnosed asthma and cardiological problems and prescribed glasses . At the same time , the doctor concluded that the applicant 's state of health had not deteriorated during his detention in the remand prison .", "On DATE the applicant withdrew the declaration made on DATE . He explained to his lawyer that he had been given an opportunity to sign the declaration in return for his transfer to a cell where he would have an individual sleeping place and access to a hot shower .", "On an unspecified date the applicant 's counsel wrote to ORG complaining about the conditions of her client 's detention .", "In its reply of CARDINAL DATE ORG confirmed that , on arrival at remand prison no . IZ CARDINAL/CARDINAL , the applicant had been placed in a cubicle because no appropriate cells had been available . He had spent TIME there . From TIME to CARDINAL a.m. he had undergone , among other things , a medical examination , fingerprinting , photographing and a personal search . At TIME he had received a “ bag meal ” and had been conveyed to the court . On his return to the remand prison the applicant had been placed in a cell for CARDINAL people , although at that time QUANTITY people had been detained there .", "The ORG explained that at the relevant time the population of the remand prison had exceeded its planned maximum capacity by PERCENT . The cell was not equipped with seats because it was too small .", "As to the timing of the applicant 's transfers to the court , detainees were usually woken up at TIME and were taken out of their cells at TIME Every day CARDINAL persons were conveyed from the remand prison to the courts . Convoy officers were always informed about detainees ' illnesses or other special conditions .", "According to the ORG , time for visits by relatives was limited to TIME because of the lack of appropriate meeting rooms ; as regards meetings with defence counsel , the applicant had experienced no restrictions in this respect . Thus , in DATE the applicant had had CARDINAL meetings with his lawyers ( on CARDINAL , DATE , DATE and DATE ) which had lasted TIME on aggregate . The applicant had been unable to take a shower for DATE because the “ sanitary treatment ” ( washing ) of detainees had taken place on the dates when the applicant had been in court .", "On DATE ORG informed the applicant that his complaints about the delays in transporting detainees to and from the court had proved to be accurate , at least in part . The applicant was assured that the necessary measures would be taken to improve the situation in future .", "On DATE the applicant complained to the prison administration about the conditions in the room for physical exercise ( or rather , the “ walking room ” ) . On DATE he repeated his complaints , stressing that he suffered from asthma of allergic origin and could not breathe normally in the walking room , because of the clouds of concrete dust and the lack of fresh air arriving from outside . He also complained that patients from the prison hospital who suffered from infectious diseases , such as hepatitis , aseptic meningitis , dysentery , syphilis and Aids , were taken to the same room for exercise . They often had diarrhoea and vomited in this very room , but nobody cleaned up after them . In the letters he listed a total of CARDINAL cellmates who were willing to confirm the accuracy of his account . He did not receive a reply to his letters .", "The Government maintained that on DATE the conditions of the applicant 's detention had improved after he had been transferred to cell no . CARDINAL . On CARDINAL May CARDINAL the applicant had been transferred to cell no . CARDINAL . Those cells had recently been renovated ; his transfer was justified by the fact that he was a former law - enforcement official and suffered from chronic diseases . The surface area of the cells was QUANTITY each ; they had CARDINAL sleeping places for CARDINAL inmates . According to the documents submitted by the Government , in remand prison no . IZ-CARDINAL/CARDINAL it was impossible to detain smoking prisoners separately from non - smokers . There was CARDINAL window in the cell measuring QUANTITY by QUANTITY , which had a ventilation pane that could be opened from inside the cell . Both cells ( nos . CARDINAL and CARDINAL ) had shower cubicles . The Government further maintained that at least once DATE the detainees were given an opportunity to take a TIME shower .", "Every day the detainees were taken out for a TIME walk in a walking yard , normally during the DATE . Wing no . CARDINAL of the remand prison had QUANTITY , measuring QUANTITY on aggregate , each ranging from QUANTITY to QUANTITY . The height of the walls of the walking yards was QUANTITY .", "Wing no . CARDINAL of the remand prison had QUANTITY , measuring QUANTITY each and QUANTITY on aggregate , with the walls QUANTITY high .", "The Government explained that the inmates detained together in the same cell were taken for a walk to the corresponding walking yard . All walking yards had benches and rain shelters . The top of the walking yards was covered by a metallic grille . Further , the Decree of the Ministry of Justice of DATE ( no . CARDINAL ) provided that each detainee should have QUANTITY of personal space in a walking yard . The Government produced photocopied photographs of some of the walking yards .", "The Government produced a letter , signed by the head of the prison administration , dated CARDINAL DATE , which stated that on DATE of the hearings the applicant had been entitled to a DATE walk in accordance with the applicable rules during the TIME .", "The Government further enumerated the measures taken by the authorities to improve conditions of detention in NORP remand prisons . They described the conditions in the meeting rooms , where detainees could study the case files , communicate with their lawyers , and so on . Each detainee was entitled to a private visit of TIME every day .", "On DATE the judge of the ORG of Moscow Region ordered the applicant 's transfer from the remand prison in GPE to a remand prison in LOC ( no . IZ CARDINAL/CARDINAL ) , in order to secure his appearance at the trial before ORG in connection with case no . CARDINAL . The applicant appealed against that decision , but to no avail : on DATE it was upheld by ORG .", "DATE . On DATE the applicant was transferred to remand prison no . IZ CARDINAL in LOC . He was examined by a commission of doctors , who concluded that he was suffering from bronchial asthma and chronic bronchitis .", "The applicant submitted that he had first been placed in cell no . CARDINAL , measuring QUANTITY , with CARDINAL other people ; some of them were heavy smokers . He had no individual sleeping place , the table was very small and inmates received no toilet paper . The drinking water tank was broken . On DATE the applicant complained about the conditions of his detention to the administration of the remand prison . As a result , he was transferred to cell no . CARDINAL , where the conditions of detention were somewhat better .", "NORP Over DATE the applicant was detained in a number of other cells , which were always overcrowded and infested with lice and bugs . In DATE he was detained in a cell measuring QUANTITY with CARDINAL other detainees . His DATE physical activity was limited to a walk of TIME in the prison courtyard , under the supervision of guards with Rottweiler dogs .", "The applicant produced written statements by his cellmates , who submitted that he had been detained in cells CARDINAL . CARDINAL , CARDINAL and CARDINAL in the LOC remand prison in DATE ( shortly after his arrest ) , and from DATE until DATE ( after his definite transfer from the GPE remand prison IZ CARDINAL/CARDINAL ) . All of them confirmed that the cells were infested with lice and bugs and that the prison administration had done nothing to get rid of them . They also stated that the cell had been overcrowded : thus , in cell no . CARDINAL the applicant had not had an individual sleeping place and there had been CARDINAL seats for CARDINAL or eleven inmates . Though the applicant was sick , he had not received the necessary medicines and had not been examined by a doctor . Their account was confirmed by CARDINAL other inmates who had been detained with the applicant at the relevant time .", "On several occasions , DATE and DATE , the applicant was transferred to the GPE detention centre in order to participate in the hearings in ORG . The conditions of detention in the FAC detention centre were even worse than in the Volokolamsk remand prison . Thus , there was no opportunity for any physical exercise , the cells were always overcrowded and badly ventilated , there were no washtubs or seats and the lighting was poor . On each occasion when the applicant was transferred from the remand prison to the detention centre , he had to carry all his personal belongings and documents and travel in smelly , dark and unheated metallic compartments in the prison vans . On CARDINAL occasion the applicant was placed in a cell with repeat offenders and “ ordinary ” criminals . He did not receive proper medical aid and his state of health deteriorated .", "On DATE the applicant was transferred from the remand prison in LOC to a remand prison in GPE ( no . IZ CARDINAL/CARDINAL ) . On DATE the applicant was transferred to a “ colony - settlement ” in PERSON , to serve the sentence imposed by the judgment of CARDINAL DATE .", "The Government submitted that the applicant had been detained in cell no . CARDINAL only once , on DATE of his arrival at remand prison no . IZ CARDINAL/CARDINAL ( on DATE ) . The ORG maintained that cell no . CARDINAL was equipped with a water tank which contained boiled water . In addition , the tap water in the cell was drinkable . The cell measured QUANTITY and had CARDINAL sleeping places .", "According to the Government , remand prison no . IZ CARDINAL/CARDINAL had CARDINAL sleeping places ( the exact number varied slightly during DATE and DATE ) . The number of inmates had not exceeded the number of sleeping places , except for DATE in DATE .", "DATE . In DATE the applicant was detained in cells CARDINAL . CARDINAL ( QUANTITY , CARDINAL sleeping places ) , CARDINAL ( QUANTITY , CARDINAL sleeping places ) , CARDINAL ( QUANTITY , CARDINAL sleeping places ) , and then in cell no . QUANTITY again ( in DATE the number of that cell was changed to CARDINAL ) . The number of sleeping places in those cells was reduced after DATE .", "The Government produced an official record indicating the number of persons detained in each cell together with the applicant . According to them , the number of inmates was always equal to or lower than the number of sleeping places . The applicant had spent most of the time in cells CARDINAL . CARDINAL ( from DATE to DATE ) , and CARDINAL ( or CARDINAL , from CARDINAL DATE until DATE ) . During the period under consideration the applicant was detained in cell no . CARDINAL with CARDINAL other people for fortyfive days , and with CARDINAL other people for DATE . During the remaining time the applicant was detained with CARDINAL other people or fewer . As to cell no . CARDINAL , the applicant was detained for DATE with CARDINAL other people , DATE with CARDINAL other people , DATE with CARDINAL other people , DATE with CARDINAL other people , and the remaining time with CARDINAL other people or fewer . From DATE the number of the applicant 's fellow detainees in cell no . CARDINAL ( CARDINAL ) did not exceed CARDINAL .", "The detainees in the remand prison were entitled to a shower once DATE for a duration of TIME . The prison had QUANTITY shower hoses for the detainees .", "As to the DATE walks , the Government produced a description of the walking yards . In addition , they produced CARDINAL letters from the governor of the remand prison . In the first letter he had informed the ORG that persons detained in the same cell were taken for a walk together . Consequently , the number of people in the same walking yard always corresponded to the number of people detained in a cell . In the second letter the governor of the remand prison certified that detainees who were conveyed to the courts or to other places were given the possibility of a walk in TIME , before being transferred .", "According to the Government , on CARDINAL occasions the applicant was transferred to the LOC detention centre to take part in the proceedings before ORG ( criminal case no . CARDINAL ) , and from there back to remand prison no . IZ CARDINAL . In total , he spent DATE in the LOC detention centre . His stays there varied from DATE ; the last stay there was CARDINAL DATE .", "The LOC detention centre was built in DATE . It was situated in a semi - basement under the LOC police station . The Government admitted that at the relevant time the detention centre had had no walking yards , which were under construction . The applicant was detained in a single - occupancy cell measuring QUANTITY . The Government produced photos of that cell ( cell no . CARDINAL ) . The cell was “ equipped with a window opening ” measuring QUANTITY by QUANTITY . The bed was a wooden deck , QUANTITY from the floor . The cell was also equipped with a toilet with a combined “ sink and toilet plumbing system ” . The toilet was separated from the other parts of the cell by a partition . Heating in the cell was provided by the town 's central heating system . The cell was lit by QUANTITY lamp installed in the wall above the entrance . The cell had a cold - water supply ; in addition , hot water was available in the shower room and in the “ room for warming up food ” . The detainees were given the opportunity to use the shower . The cells were ventilated naturally and through a “ forced exhaust ventilation ” system . The applicant was given bedding . On arrival every detainee received soap and toilet paper .", "On DATE the cell was examined by the detention centre 's administration . The examination did not reveal any problems with the sanitary conditions in the cell , which were described as “ satisfactory ” . The administration noted that the cells had been cleaned with disinfectants .", "While in detention , the applicant always received the necessary medical aid . Thus , during his stay in remand prison no . IZ CARDINAL/CARDINAL in GPE the applicant was supervised by a doctor in connection with his bronchial asthma and received “ supportive treatment ” . In DATE the applicant was examined by the doctors in remand prison no . IZ CARDINAL in LOC . They concluded that the applicant was suffering from “ vegetovascular dystonia ” ( autonomic neuropathy ) . The applicant received all the necessary treatment in connection with his diseases .", "From DATE the applicant was regularly taken from the remand prison to the court to attend hearings and examine the case file . The transfers usually started at TIME However , in order to be able to wash himself or to go to the toilets , the applicant had to get up earlier , and wait his turn in a queue .", "DATE the applicant , together with other detainees , waited for a prison van in a small , seatless and smoky cell in the remand prison . Whilst being transported , the applicant and other detainees were kept in the closed metal rear section of an unheated prison van . The van was so overcrowded that the detainees , some of them with active tuberculosis , had to stand face to face during the transfer . Although , in principle , a prison van should carry CARDINAL to CARDINAL detainees , in fact the applicant 's van carried QUANTITY people on average , convicted criminals as well as suspects .", "The van arrived at the courthouse shortly after TIME and the applicant had TIME to examine the case file . In the courthouse he was kept in a “ convoy room ” , which was also overcrowded , unheated and smoke - filled . At QUANTITY the convoy officers collected the detainees from different courts and transported them in a van to a central collection point . There the detainees waited for TIME in the vans to be dispatched to their respective detention facilities . As a result , the applicant often arrived at his detention facility after TIME , although a convoy officer recorded an earlier time in the register of detainees . According to the applicant , he spent an average of TIME in total per day in the van , convoy room and collection point . On several occasions , in particular on CARDINAL , DATE and DATE , he was left without food and water for the whole day .", "On DATE , DATE after his arrival at remand prison no . IZ CARDINAL/CARDINAL , the applicant wrote a letter to the court in which he described the conditions of his detention in and transfers to and from the courthouse . He submitted that in these circumstances he was unable to examine the case file and prepare his defence properly . He also indicated that the convoy officers had refused to accept any written complaints from him . He sought permission to read the case file in the detention centre . By letters of CARDINAL and DATE the court explained that it had no control over the prison administration and convoy services and that all such complaints should be addressed directly to them . The court further stated that the case file had to be kept in the courthouse , since it contained classified documents and information .", "On DATE the applicant wrote a new letter to the court , asking it to provide him with additional time to read the case file . He repeated his complaints about the conditions of his detention and the transfers . He asked the court to order the guards not to handcuff him during the reading of the file .", "On DATE , on his way back from the court to the collection point , the applicant was placed in the metal - clad compartment of a prison van with another detainee , a mentally disturbed person . The latter was on his way from ORG to the prison hospital . The compartment was so small that the applicant had to stand on one leg and then the other . After TIME of this very uncomfortable posture , the applicant asked the convoy officers to put him in a different compartment , but they refused . He then knocked on the door of the compartment , repeating his demand . In reply the convoy officers opened the door and hit him with a rubber stick .", "Because of the conditions in which he was transported , the applicant had a constant cold , from which he would never have recovered without the medicines sent to him by his relatives . He stated that it was very hard to obtain an appointment with a prison doctor and that the quality of medical aid available in the detention facility was very poor .", "The Government specified DATE on which the applicant had been in court . In DATE he had been taken to the court from the remand prison CARDINAL times . In DATE he had been taken to the court CARDINAL times , in DATE QUANTITY times , in DATE times , and in DATE times . In DATE he had CARDINAL visits to the courts per month . After his transfer to remand prison no . IZ CARDINAL/CARDINAL he was taken to various courts CARDINAL times .", "NORP Under the prison rules the applicant was woken up at TIME Most of the time he was supposed to arrive at the court by TIME The time of his return to the remand prison was not specified , since it varied depending on the circumstances . However , the applicant was always back in the remand prison before TIME ( the “ last post ” hour ) .", "Detainees were conveyed from and back to the prisons in prison vans measuring CARDINAL by CARDINAL by CARDINAL ( height ) metres or CARDINAL by CARDINAL by CARDINAL ( height ) metres . The prison vans were designed to hold CARDINAL and QUANTITY people respectively . They had CARDINAL “ shared ” compartments for CARDINAL ( or CARDINAL ) detainees each , CARDINAL ( or CARDINAL , depending on the model ) single - occupancy compartment(s ) , and a compartment for CARDINAL ( or CARDINAL , depending on the model ) prison warders .", "The Government maintained that the detainees conveyed from the remand prison to the court were provided with an “ individual DATE ration of food ” , in accordance with the rules in force . The Government referred to a certificate issued by the governor of the remand prison .", "Detainees were transported in a separated compartment of the prison vans . According to reports by the CARDINAL chief officers of the unit responsible for transfers , dated CARDINAL and DATE , the number of detainees in the prison vans always corresponded to the rules then in force . The Government referred to photographs of prison vans and plans showing how the detainees were seated inside the vans . The vans corresponded to domestic standards in the field of transporting detainees . During the cold season they were kept TIME in a heated garage . Furthermore , the vans were heated with a heating system using the warmth of the engine . The temperature in the prison vans corresponded to the local regulations ; in this connection , the Government referred to a document issued by the officers in charge . The inside of the vans was washed DATE ; furthermore , the vans were disinfected DATE ( the Government referred to a report of DATE ) .", "During his detention in remand prison no . IZ CARDINAL/CARDINAL the applicant was taken to the court CARDINAL times ( on the whole , during the period of his detention in different remand prisons the applicant was taken to the court CARDINAL times ) . The average duration of the transfer between remand prison no . IZ CARDINAL/CARDINAL and the court was TIME ( for a journey of QUANTITY ) . However , sometimes the convoy used an alternative route which was QUANTITY long .", "Cells for the detainees in the court building were “ of standard [ dimensions ] ” , and “ suited different categories of detainees ” . The applicant was detained separately from other detainees . Handcuffs were applied only during embarkation of and disembarkation from the prison van . The detainees in the court cells were provided with boiled water .", "In the remand prison there were CARDINAL “ transition cells ” for those being dispatched to other prisons , courts , and so on . Their overall size was QUANTITY .", "The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held in GPE in DATE and approved by ORG in its resolution CARDINAL C ( XXIV ) of DATE and CARDINAL ( LXII ) of CARDINAL DATE , provide , in particular :", "“ CARDINAL . All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health , due regard being paid to climatic conditions and particularly to cubic content of air , minimum floor space , lighting , heating and ventilation ...", "In all places where prisoners are required to live or work ,", "( a ) The windows shall be large enough to enable the prisoners to read or work by natural light , and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation ;", "( b ) PERSON light shall be provided sufficient for the prisoners to read or work without injury to eyesight .", "The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner .", "Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower , at a temperature suitable to the climate , as frequently as necessary for general hygiene according to DATE and geographical region , but at least once a week in a temperate climate .", "All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time .", "Prisoners shall be required to keep their persons clean , and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness ...", "Every prisoner shall , in accordance with local or national standards , be provided with a separate bed , and with separate and sufficient bedding which shall be clean when issued , kept in good order and changed often enough to ensure its cleanliness .", "( CARDINAL ) Every prisoner shall be provided by the administration at the usual TIME with food of nutritional value adequate for health and strength , of wholesome quality and well prepared and served .", "( CARDINAL ) Drinking water shall be available to every prisoner whenever he needs it .", "( CARDINAL ) Every prisoner who is not employed in outdoor work shall have TIME of suitable exercise in the open air DATE if the weather permits .", "...", "...", "( CARDINAL ) The transport of prisoners in conveyances with inadequate ventilation or light , or in any way which would subject them to unnecessary physical hardship , shall be prohibited ... ”", "The relevant extracts from the General Reports prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) state :", "“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG 's mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .", "A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... Prisoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...", "Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...", "Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...", "The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .", "It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”", "“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG 's mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .", "The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”", "“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...", "In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .", "The ORG frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... Even when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”", "NORP Under paragraph CARDINAL of LAW , a judge 's ruling remanding a person in custody ( detention order ) may be appealed against to a higher court within DATE from the date on which the ruling was given . A judge of the appellate court ( кассационная инстанция ) must give a decision on any such complaint or representation within DATE of the date of its receipt .", "Appellate procedure in general is governed by ORG CARDINAL - CARDINAL of LAW . Pursuant to LAW , all appeals must be lodged with the court which delivered the decision at issue . Under LAW , that court keeps the case file until the expiry of the timelimits for the appeal . Under LAW , after having received an appeal , the court must send a copy of it to the other parties , invite them to submit written replies and set the time - limits for any replies , where appropriate . Article CARDINAL provides that the overall length of the examination of the appeal may not exceed DATE from DATE when the case file is received by the court of appeal ." ]

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

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

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

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

[ "5-4" ]

[]

[ "The applicants were born in DATE and DATE , respectively . The first applicant is in prison ( FAC , PERSON ) and the second applicant lives in Hull .", "In DATE the first applicant was convicted of murder and sentenced to life imprisonment with a tariff of DATE . He is imprisoned in a private prison and his earliest expected release date is DATE . He has no children .", "In DATE he met the second applicant , while she was also imprisoned , by correspondence through a prison pen pal network . She has since been released , although it is not clear when . In DATE the applicants married . The second applicant already had CARDINAL children from other relationships .", "NORP Since the applicants wished to have a child , in DATE the first applicant applied for facilities for artificial insemination . In DATE the second applicant joined this application . Their solicitors made representations to the Secretary of ORG , relying on the length of the relationship and the fact that , given the first applicant ’s earliest release date and the second applicant ’s age , it was unlikely that the applicants would be able to have a child together without the use of artificial insemination facilities .", "In a letter dated CARDINAL DATE the Secretary of ORG refused their application . He first set out his general policy ( “ the policy ” ) :", "“ Requests for artificial insemination by prisoners are carefully considered on individual merit and will only be granted in exceptional circumstances . In reaching decisions particular attention is given to the following general considerations :", "- whether the provision of AI facilities is the only means by which conception is likely to occur", "- whether the prisoner ’s expected day of release is neither so near that delay would not be excessive nor so distant that he / she would be unable to assume the responsibilities of a parent", "- whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with AI", "- whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner ’s release", "- whether there is any evidence to suggest that the couple ’s domestic circumstances and the arrangements for the welfare of the child are satisfactory , including the length of time for which the child might expect to be without a father or mother", "- whether having regard to the prisoner ’s history , antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case . ”", "He then gave his reasons for refusal in the present case . On the one hand , the second applicant would be DATE at the earliest possible date of release of the first applicant so that the likelihood of her being able to conceive naturally was small . Both applicants were also in full agreement about their wish to conceive artificially . However , on the other hand , and in the first place , the relationship was established while they were in prison and had not been tested in the normal environment of DATE life . Secondly , there was insufficient provision in place to provide independently for the material welfare of any child which might be conceived . Thirdly , there was little in the way of an immediate support network in place for the mother and any child which might be conceived . Fourthly , any child would be without a father for an important part of its childhood years . Fifthly , in light of the violence of the first applicant ’s crime , there would be legitimate public concern that the punitive and deterrent elements of his sentence of imprisonment were being circumvented if he were allowed to father a child by artificial insemination .", "The applicants sought leave to apply for judicial review of the Secretary of ORG ’s decision . On DATE the ORG refused leave on the papers . The applicants renewed their application and on DATE leave was again refused after an oral hearing . On DATE the applicants introduced an application to this ORG and it was declared inadmissible in DATE on the basis that they had failed to exhaust domestic remedies ( App . No . CARDINAL/CARDINAL ) . The applicants then applied to ORG for leave to appeal .", "On DATE their application was unanimously rejected by ORG . ORG relied in principle on the judgment of ORG in R ( PERSON ) v Secretary of ORG for ORG ( [ DATE ] CARDINAL WLR CARDINAL ) . He pointed to the similarity of the arguments put by the applicants in the present case and in the PERSON case . ORG relied on the conclusion of Lord PERSON in the PERSON case ( see “ Relevant Domestic Law and Practice ” below ) and commented :", "“ ... Lord PERSON clearly had in mind , and he set it out in the course of his judgment , the provisions of LAW setting out various matters that may justify interference with the right to respect for private and family life , including the protection of health or morals and the protection of the rights and freedom of others . It seems to me that concern , not only for the public attitude to the exercise by prisoners of certain rights in prison which they would take for granted outside , and concern for the rights of a putative child in the upbringing it would receive depending on the circumstances and the length of the imprisonment involved , are highly relevant circumstances for the purposes of LAW", "Accordingly , in my view , it is not open to [ the applicants ] to seek to re - open the validity of the Secretary of ORG ’s policy which this court has held in PERSON is rational and otherwise lawful . As Lord PERSON made clear in his judgment in that case , although the starting point of the policy is that deprivation of facilities for artificial insemination may prevent conception altogether , the finishing point is whether there are exceptional circumstances for not applying the policy ... ”", "He then noted that on occasions the Secretary of ORG had “ dis - applied the policy ” when the circumstances had merited it : he referred to a letter from the ORG Solicitor to the applicants which apparently demonstrated this fact and pointed out that counsel for the Secretary of ORG had informed the court that there had been other such instances .", "Auld LJ then applied the policy to the present case :", "“ To the extent that [ the applicants have ] suggested that he Secretary of ORG has irrationally misapplied his own policy to the circumstances , or has otherwise acted disproportionately in applying it , I would reject the suggestion . There is no basis for saying that the Secretary of ORG ’s approach can be equated , as [ the applicants ] suggested , with the extinction of a fundamental right . It was a weighing of the starting point of the policy against the other considerations for which the policy itself provided , an exercise of discretion and proportionality in respect of which , in my view , the Secretary of ORG can not be faulted on the circumstances as presented to him . ”", "NORP The other judges also relied on the judgment in PERSON . PERSON said the following :", "“ The case of PERSON is also clear authority that considerations and potential consequences of public interest over and above a narrow view of the requirements of good order and security in prison can play a role in a decision whether or not to permit such artificial insemination ... I note that , in addition to the NORP authorities specifically mentioned in paragraph CARDINAL by Lord PERSON , the Commission , in its decision in PERSON v ORG App No . CARDINAL/CARDINAL at DATE , also recognised the potential relevance of more general considerations of public interest . ”", "NORP The Secretary of ORG is empowered to make rules for the management of prisons by LAW of FAC , DATE , which , in so far as material , provides as follows :", "“ The Secretary of ORG may make rules for the regulation and management of prisons ... and for the classification , treatment , employment , discipline and control of persons required to be detained therein ... ”", "The relevant rules are the Prison Rules DATE ( SI DATE No CARDINAL ) . Rule CARDINAL provides as follows :", "“ Outside Contacts", "( CARDINAL ) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both .", "( CARDINAL ) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may , in the opinion of the governor , best promote the interests of his family and his own social rehabilitation . ”", "The long standing policy of the prison service , set out above in the letter of Secretary of ORG of CARDINAL DATE was challenged by a Mr PERSON , a prisoner serving a life sentence for murder . He was DATE of age at the time his case came before ORG with a minimum of CARDINAL years’ imprisonment to serve . His wife was CARDINAL of age . At his earliest release she would have been CARDINAL . He and his wife had been refused artificial insemination facilities : it was considered that there was nothing exceptional about their case .", "They challenged the policy rather than its application to their case arguing that it was an unjustified interference with their LAW . They distinguished that policy from the policy on conjugal visits : the latter gave rise to pragmatic ( security ) concerns whereas artificial insemination did not . The Government argued that the policy was justified : ( a ) it was an explicit consequence of imprisonment that prisoners should not have the opportunity to found a family ; ( b ) there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison ; and ( c ) it was undesirable , as a general rule , for children to be brought up in single parent families .", "ORG considered , while the first reason did no more than restate the policy , the second and third reasons were legitimate justifications for the policy . In giving judgment for the court , Lord PERSON said ( at DATE ff ) :", "“ [ The Secretary of ORG ] submitted that this passage demonstrated that public perception was a legitimate element of penal policy . I agree . GPE sanctions are imposed , in part , to exact retribution for wrongdoing . If there were no system of penal sanctions , members of the public would be likely to take the law into their own hands . In my judgment it is legitimate to have regard to public perception when considering the characteristics of a penal system .", "Furthermore , [ the applicants’ ] submissions did not recognise the significance of the word “ justified ” in the phrase “ justified public concern ” . A policy which accorded to prisoners in general the right to beget children by artificial insemination would , I believe , raise difficult ethical questions and give rise to legitimate public concern ...", "... [ the applicants ] submitted that [ the disadvantage of single parent families ] was not a material consideration when formulating prison policy ... Again , I do not agree . By imprisoning the husband the ORG creates the situation where , if the wife is to have a child , that child will , until the husband ’s release , be brought up in a single parent family . I consider it legitimate , and indeed desirable , that the ORG should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners .", "For those reasons [ the applicants have ] failed to make out his case that the Secretary of ORG ’s policy only to facilitate artificial insemination in exceptional circumstances is irrational . [ The applicants ] accepted that there were in this case no exceptional circumstances , and [ they were ] right to do so . ”", "For those reasons the court concluded that the policy was not a disproportionate interference with the applicants’ rights under LAW . Lord PERSON remarked that , for any applicant claiming exceptional circumstances , the normal “ starting point ” should be the need to demonstrate that , if facilities for artificial insemination were not provided , conception would not just be delayed but prevented altogether ." ]

[]

[]

[]

[ "12", "8" ]

[]

[]

[ "The applicants were born in DATE and DATE and live in GPE .", "On DATE the applicants instituted civil proceedings before ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL NORP tolars ( SIT , MONEY ) for the death of a family member in a car accident .", "DATE the applicants lodged CARDINAL preliminary written submissions and requests that a date be set for a hearing .", "On DATE a hearing was held and the first - instance court delivered a partial judgement . All CARDINAL defending parties appealed .", "On DATE ORG ( PERSON v PERSON ) delivered a judgment upholding the appeal in part . An appeal on points of law was lodged against the rejected part of the appeal by CARDINAL of the defending parties .", "On DATE ORG Vrhovno sodišče ) rejected the appeal on points of law and the proceedings continued before the first - instance court .", "On DATE the ORG delivered a judgment upholding the applicants ' claim in part . An appeal was lodged .", "On DATE ORG issued a judgment upholding the appeal in part . An appeal on points of law was lodged .", "On DATE ORG upheld the appeal on points of law in part and changed the second - instance judgment . The judgment was served on the applicants on DATE ." ]

[ "13", "6" ]

[ "6-1" ]

[]

[]

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[ "The applicants are Mr B. PERSON , Ms A. LAW ( on behalf of the Tolvsnäs & PERSON fiskelag ) , Mr J .- H. Lindqvist ( on behalf of the PERSON fiskelag ) , Mr PERSON GPE ( on behalf of the GPE fiskelag ) , PERSON V. PERSON ( on behalf of the PERSON fiskelag ) , Mr B. PERSON ( on behalf of the PERSON fiskelag ) , Mr PERSON Knuts ( on behalf of the PERSON kyrkoby fiskelag ) , PERSON T.Ylitalo ( on behalf of the GPE kalastuskunta ) , Mr P. ORG on behalf of the Iso - Säkylän kalastuskunta ) , Ms L. PERSON , Ms K. LOC , Mr K .- H. PERSON ( on his own and on behalf of a company called PERSON ) , PERSON Å. PERSON , Ms B. PERSON , PERSON H. Isaksson , Mr J. Isaksson , PERSON , Ms A. Jansson , Mr S. Jansson ( the CARDINAL last mentioned on their own and on the behalf of NORP stugor och fisk ) , PERSON J. Ylitalo , Mr PERSON , Ms PERSON ( the CARDINAL last mentioned on their own and on behalf of PERSON ) and PERSON E. Eela ( on behalf of the Pyhäjärven kalastuskunta ) . The individual applicants are NORP nationals and the association applicants are statutory local fishing associations ( kalastuskunta , fiskelag ) . All the applicants are represented before the ORG by Mr M. Fredman , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicants , may be summarised as follows .", "LAW ( kalastuslaki , lag om fiske ) , as amended on DATE , provides that fishing with hand - held tackle is a public right as everyone who has paid the lure - fishing fee to the ORG is allowed to fish with hand - held tackle also in privately owned water areas . Pursuant to the same amendment , fishing with hook and line as well as ice - fishing are rights guaranteed to everyone . With the amendment , the owner of a water area lost his exclusive right to control fishing , and the amount of fishing licenses , in his water area .", "According to the LAW as amended , the fees for the right to fish with a hand - held tackle are now paid to the ORG . This system replacing the earlier one , in which the owner of a water area himself received the fees paid for the fishing licenses . However , the income from the fees paid for the right to fish with a hand - held tackle are , after the ORG has deducted its expenses for collecting the fees , reimbursed to the owners of the fishing waters as compensation for the fishing with hand - held tackle in their waters . If the reimbursement for an individual owner of a water area is less than ORG CARDINAL , the amount is reimbursed to the local fishing association .", "According to the old LAW , everyone who was DATE and wanted to fish or crayfish , had to pay - in addition to the local fishing license - an DATE payment of ORG to the ORG for the maintenance of the fishing waters .", "The applicants are owners of water areas and local fishing associations . Some of the individual applicants are professional fishermen , who fear for their income as everyone is now entitled to fish in their fishing waters . Others are individuals who , due to the amendment of LAW , have lost income which they used to earn by selling fishing licenses , by renting their water areas to fishing associations , and so on . The applicant associations have lost their income by losing their right to receive payments for fishing licenses . According to the applicants , their income from the fishing licenses and related sources in DATE has been QUANTITY per year per applicant . Some of the fishing associations have , however , earned up to ORG CARDINAL,CARDINAL per year for selling fishing licenses .", "By virtue of LAW , the individual owners of fishery waters form a fishing association . Fishing associations are members of ORG kalastusalue , fiskeområde ) . Activities of Fishing Areas are directed and supervised by LOC ( kalastuspiiri , fiskeridistrikt ) , which are authorities subject to ORG ( maa- ja metsätalousministeriö , jord- och skogsbruksministeriet ) ." ]

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[ "The applicant was born in DATE and lives in LANGUAGE .", "The facts of the case as submitted by the parties , may be summarised as follows .", "On DATE the applicant 's employment with ORG was terminated . He challenged the school 's decision before ORG . On DATE ORG dismissed his action . The applicant appealed .", "On DATE ORG upheld the first - instance decision . The applicant lodged a petition for review with ORG . On DATE the review bench of ORG finally dismissed his action . The applicant requested its re - opening , but to no avail .", "NORP In DATE the applicant , transporting medical equipment in his lorry , was halted at the GPE border . While he was completing the necessary documents , the contents of his lorry were robbed . Purportedly in order to clarify the events , the GPE authorities took the applicant into custody for DATE , after which he was allowed to return to GPE .", "On DATE the applicant initiated a civil action in ORG against a GPE official who had participated in the above events .", "On DATE ORG informed the applicant that his case had been registered as a claim for compensation . In view of the fact that the case file had meanwhile been lost , it requested him to reproduce certain documents .", "On DATE the applicant again submitted his action .", "On DATE ORG ordered the applicant to state his financial situation with a view to determining his request for legal aid . On DATE the applicant submitted the necessary documents .", "The case is still pending before ORG .", "In DATE the applicant 's luggage was lost during his flight to GPE . The applicant unsuccessfully requested the airline to compensate him .", "On DATE the applicant brought an action in compensation against the company . On DATE the ORG informed the applicant that that case file had been lost and requested him to reproduce certain documents .", "The case is apparently is still pending before ORG ." ]

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[ "The applicants , Mr PERSON and Mr PERSON , are GPE nationals . Mr PERSON , who was born in DATE , lives in GPE , GPE . PERSON , who was born in DATE , lives in GPE , GPE . The applicants were represented before the ORG by PERSON and PERSON , lawyers practising in GPE .", "NORP Before DATE basic health insurance in the GPE was organised in CARDINAL separate statutes .", "The first , ORG ( GPE ) , set up a public health insurance system which covered categories of persons that may be broadly described as employees and old age pensioners up to a certain income limit , as well as those in receipt of social - security or unemployment benefits , with their families . They were compulsorily insured by public health care funds ( ziekenfondsen ) , to which they paid contributions withheld from their wages , pensions or benefits respectively .", "The second , ORG ( Wet op de toegang DATE ) , ensured the availability of private health insurance at a level equivalent to that provided under LAW for persons not covered by LAW . To that end it imposed an obligation on insurers providing this kind of insurance to insure persons who were resident in the GPE or elsewhere in ORG ( ORG ) , ORG ( ORG ) , GPE or another ORG with which the GPE had entered into a treaty concerning social security , provided that GPE social security legislation applied to them by virtue of ORG Regulation CARDINAL/CARDINAL ( ORG ) or that treaty .", "ORG ( Reimbursements ) Decree ( Vergoedingenbesluit particulier verzekerden ) provided for reimbursement to insured persons resident in other ORG or ORG member GPE of insured medical costs incurred in those GPE , up to the same amounts that would have been refundable had the care been provided in the GPE ( section CARDINAL ) , and for reimbursement of the cost of urgent hospitalisation in hospitals abroad for DATE to an amount up to double that which would be refundable had the care been provided in the GPE .", "The General Exceptional Medical Expenses Act ( Algemene Wet Bijzondere Ziektekosten , “ PERSON ” ) provided , and provides , a complementary compulsory insurance scheme covering all those lawfully resident or employed in the GPE .", "Before DATE , persons who had been affiliated to this scheme for DATE could continue their affiliation on a voluntary basis if they emigrated , provided inter alia that they were not employed abroad ( section GPE of the LAW ) .", "According to detailed rules given in the General Exceptional Medical Expenses Act ( Benefits in kind ) Ordinance ( Besluit zorgaanspraken PERSON ) , the PERSON covered certain medical and other health care expenses not covered by the above - mentioned insurance schemes , including hospitalisation beyond DATE , medical or non - medical home care and psychotherapy .", "The PERSON system was , and is , contributory . Contributions are calculated based on income and levied by the tax authorities together with wage tax ( loonbelasting ) or income tax ( inkomstenbelasting ) as the case may be .", "On DATE ORG ) entered into force . It replaced the dual regime for basic health care under LAW and ORG by a single regime applicable to all . Complementary health care continues to be provided under the PERSON .", "Save for military personnel , who are subject to a separate regime , and those who object to insurance on religious grounds , who pay a tax in lieu of premium , all those who are compulsorily insured under the PERSON are now obliged to take out health care insurance in accordance with the LAW ( section CARDINAL(CARDINAL ) ) . Health care insurers , now all private entities , have a duty to offer insurance on standard terms to all who so request ( section CARDINAL ) .", "Those compulsorily insured are all GPE residents , persons paying wage tax through being employed in the GPE or on the GPE continental shelf ( section CARDINAL ) , and those whose insurance under the PERSON is a consequence of the application of provisions of a treaty or a decision of an international organisation ( PERSON op grond van deze wet voortvloeit uit de toepassing van bepalingen van een verdrag of van een besluit van een volkenrechtelijke organisatie ) ( section CARDINALb(CARDINAL ) ) . This excludes pensioners resident in ORG countries other than the GPE , to whom the PERSON is no longer directly applicable .", "NORP GPE residents pay a standard basic premium plus an income - dependent additional sum to the health care insurer of their choice , who is obliged to accept them . Any additional private health care insurance is optional .", "The case concerns the effects of the changes introduced on DATE on retired GPE nationals formerly insured under the private insurance system and who are residents of ORG Member GPE other than the GPE ; such persons are stated by the applicants to number CARDINAL . By virtue of ORG Regulation CARDINAL/CARDINAL ( ORG ) , ORG , heading R , paragraph CARDINAL , point ( a)(ii ) , they are entitled to health care in their state of residence , the costs being borne by the GPE . Similar arrangements apply to GPE nationals resident in ORG ( ORG ) countries and DATE under a separate treaty – GPE . Persons in this position are referred to as “ treaty beneficiaries ” ( verdragsgerechtigden ) .", "Treaty beneficiaries are required to register with ORG ( College voor zorgverzekeringen ) , to which they pay a contribution which is deducted at source from their GPE income . They must also register with the health care authority of their country of residence to establish their actual entitlement to health care .", "From figures published by ORG ( GPE PERSON , ORG ) , quoted in the judgment given by the Provisional Measures Judge ( voorzieningenrechter ) of ORG ( rechtbank ) of GPE on DATE ( see paragraph CARDINAL below ) , it appears that at the relevant time the DATE sum paid by the GPE for pensioners subject to the measures in issue and members of their families was QUANTITY ( ORG ) per person for those resident in GPE and ORG CARDINAL per person for those resident in GPE .", "Mr Ramaer and his wife have been resident in GPE since DATE , Mr PERSON having been stationed there by his GPE employer at the time . He now pays his taxes in GPE .", "DATE , he had private health care insurance from an insurer based in the GPE , ORG , under a collective contract negotiated through his former employer . This contract entitled him to care of a standard comparable to that available in the GPE under private insurance plus the PERSON . On DATE the collective contract with ORG was terminated and ORG entitlements under the PERSON came to an end .", "On an unknown date in DATE Mr PERSON received a letter from ORG informing him that he and his wife were henceforth entitled to health care in their country of residence and bound to register with ORG itself . Mr PERSON lodged an objection , which ORG dismissed on CARDINAL DATE . PERSON then lodged an appeal with ORG of ORG ( GPE bestuursrechtspraak PERSON – see below ) .", "Mr Ramaer registered with ORG under protest . He declined ORG ’s offer of complementary insurance , which would have cost him ORG CARDINAL per insured person per year . Instead , making use of a special offer available for a limited period , he took out complementary insurance with a NORP health care insurer , PERSON ; this cost him an additional ORG DATE .", "Mr Ramaer states that in order to obtain health care of the same standard as DATE , he now has to pay the contribution to ORG , the premium to the NORP insurance company and non - refundable portions ( NORP : remgeld , NORP : ticket modérateur ) of certain expenses including the cost of assistance of a general practitioner , internal medicine , the assistance of an optician and physiotherapy .", "Mr Ramaer calculates his DATE medical expenses ( based on DATE figures ) as follows ( in ORG ) :", "which total sum does not include non - refundable portions payable for NORP health care .", "Mr Ramaer calculates that , had he had no option but to take out complementary insurance with IAK instead of ORG , it would have cost him ORG CARDINAL instead of ORG CARDINAL , raising the total sum to ORG CARDINAL,CARDINAL .", "He also calculates that a GPE resident in his position paid ORG DATE for basic health care insurance plus an additional income - dependent contribution in an amount of ORG CARDINAL,CARDINAL , or EUR CARDINAL,CARDINAL in total .", "In DATE or DATE ORG sent ORG a provisional settlement note ( jaarafrekening ) covering the contributions due for DATE . PERSON lodged an objection , which ORG dismissed on DATE . Mr PERSON appealed to ORG of GPE , ORG ( Sector bestuursrecht – see below ) .", "Mr PERSON has been resident in GPE since DATE . Formerly in receipt of disability benefits under ORG ( Wet op de Arbeidsongeschiktheidsverzekering – “ PERSON ” ) , since DATE he enjoys an old age pension under LAW ( PERSON ; “ ORG ” ) and a complementary pension .", "Until DATE Mr PERSON was insured privately by the insurance company ORG , to whom he paid ORG CARDINAL per annum . On DATE this insurance contract was terminated ex lege . ORG replaced it automatically by a new contract at an DATE cost of ORG CARDINAL , this sum being payable in addition to the compulsory contributions due to ORG .", "Mr PERSON protested to ORG against this increase . In DATE Delta Lloyd made him a new offer of complementary insurance for an DATE sum of EUR CARDINAL .", "In the meantime , however , PERSON had accepted a special offer made by the NORP insurance company ORG , who offered him complementary insurance for LAW DATE . Mr PERSON states that this premium has now gone up to ORG CARDINAL,CARDINAL per year for DATE .", "Although this entitles Mr PERSON to private health care as distinct from NORP public health care , which he describes as “ mediocre ” , certain expenses remain non - refundable . These include , among others , the cost of medicines prescribed outside hospitals and part of the cost of consulting a doctor .", "Mr PERSON calculates his DATE medical expenses ( based on DATE figures ) as follows ( in ORG ) :", "", "not including non - refundable expenses .", "Mr PERSON calculates that , had he had no option but to accept the terms offered by ORG in DATE , it would have cost him ORG CARDINAL DATE .", "On DATE ORG ( ORG ) , the body administering , among others , the ORG , informed PERSON of the decision to withhold the contributions due under the Health Care Insurance Act from his ORG pension . Mr PERSON lodged an objection with ORG , which dismissed it on DATE .", "A non - governmental organisation , the ORG for ORG PERSON in het Buitenland , “ ORG ” ) and a group of individuals affected by the matters in issue , including PERSON , summoned ORG before the Provisional Measures Judge of ORG of The GPE seeking , as relevant to the case before the ORG , an order to ensure that the contributions provided for by section CARDINAL.CARDINAL.CARDINAL of ORG ( see below ) be not levied from them and their health care insurance contracts existing before DATE be continued beyond that date .", "The Provisional Measures Judge gave judgment on DATE ordering the ORG not to implement section CARDINAL.CARDINAL.CARDINAL of ORG to the extent that the sums payable by the insured persons exceeded the sums paid by the GPE to the country of residence and instruct ORG accordingly . This order , which was of a provisional nature , would lapse if proceedings on the merits were not brought within DATE .", "However , this judgment led the Minister for ORG to amend section CARDINAL.CARDINAL.CARDINAL of ORG and introduce the “ country of residence correction factor ” with retroactive effect until DATE .", "Mr Ramaer lodged an appeal with ORG of ORG against the dismissal of his objection by ORG ( see paragraph CARDINAL above ) .", "On DATE ORG declared the appeal inadmissible on the ground that ORG original letter of DATE was merely informative in nature and was therefore not a decision against which an objection or an appeal would have been possible .", "Mr Ramaer appealed to ORG of GPE , ORG , against the decision which ORG had given on DATE ( see paragraph CARDINAL above ) , as did CARDINAL other recipients of similar decisions .", "Mr PERSON appealed to ORG of GPE , ORG , against the decision which ORG had given on DATE ( see paragraph CARDINAL above ) , as did CARDINAL other recipients of similar decisions .", "The complaints and arguments were essentially the same in both cases . The appellants argued that CARDINAL and ORG and LAW CARDINAL/CARDINAL offered them the choice to opt out of the social - security regime of their home country . In the alternative , they argued that the absence of such a choice violated LAW CARDINAL , or both , of LAW establishing ORG ; in the further alternative , they argued that the method used to calculate the country of residence correction factor was flawed .", "ORG gave its decisions on DATE .", "In Mr Ramaer ’s case , it held that LAW CARDINAL/CARDINAL provided a conflict rule , not an option . LAW CARDINAL/CARDINAL did not suggest otherwise ; moreover , the latter regulation related to the application of Regulation CARDINAL/CARDINAL . There was no violation of LAW establishing ORG : since the appellants were not put at a disadvantage as compared to those already employed or self - employed in the member GPE concerned , and since the appellants were not made to pay contributions without any corresponding entitlements , and since , moreover , their contributions were subject to a country of residence correction factor , there was no interference with the right to freedom of movement . Finally , the situation was not the same as that which the provisional measures judge of ORG of The Hague had considered in the judgment of DATE : not only were the applicants foreign residents , from which it followed that they were not in a relevantly similar situation to GPE residents and therefore subject to different health care regimes , but country - specific country of residence correction factors had been introduced which removed any equal treatment of fundamentally unequal cases . The calculation of the country of residence correction factors was not arbitrary ; the GPE legislature had remained within its margin of appreciation in its choice of method .", "In Mr PERSON ’s case , it held that primary responsibility for implementing the legislation in question was vested in ORG rather than ORG which had little power of decision in the matter . As for the merits , it confined itself to referring to the decision in the case of PERSON , which it appended to the decision in Mr PERSON ’s case .", "Both applicants appealed , together with their fellow appellants , to ORG ( ORG ) against the decisions of ORG .", "On DATE the Act on proceedings concerning the withholding of contributions from treaty beneficiaries ( GPE rechtsgang bronheffing verdragsgerechtigden ) entered into force . Its effect , as relevant to the present case , was to substitute ORG for ORG as the defendant in the proceedings brought by PERSON .", "On DATE ORG gave a decision noting that an entitlement to health care in the country of residence under LAW and CARDINALa of Regulation CARDINAL/CARDINAL arose only if the person concerned had registered with the competent authority in accordance with LAW CARDINAL/CARDINAL . This the person could refuse to do , which raised the question whether in case of such refusal LAW could be construed as nonetheless justifying the deduction of contributions from their pension . At the same time , although since the introduction of the country of residence correction factor there appeared no longer to be any disadvantage preventing pensioners from settling in other ORG member GPE , the applicants and their fellow appellants were in a dissimilar position in that they had already been resident in other ORG member GPE while the former system was still in existence and they alleged that they were faced with higher costs for health care allegedly of a lower standard . This might affect freedom of movement and residence , protected by ORG DATE and CARDINAL of the LAW establishing ORG ( as in force at the time ) .", "ORG therefore addressed a request for a preliminary ruling under LAW establishing ORG to ORG of ORG in the following terms :", "“ CARDINAL . Should Articles CARDINAL , CARDINALa and CARDINAL of Regulation No CARDINAL/CARDINAL , the provisions of point CARDINAL ) and ( b ) of section R of ORG Regulation No CARDINAL/CARDINAL , and LAW No CARDINAL/CARDINAL be interpreted as meaning that a national provision such as LAW ] is incompatible therewith , in so far as a pensioner who in principle has entitlements under LAW and CARDINALa of Regulation No CARDINAL/CARDINAL is obliged to report to the [ ORG ] and a contribution must be deducted from that person ’s pension even if no registration has taken place under LAW No CARDINAL/CARDINAL ?", "Should Article CARDINAL of the LAW establishing ORG or Article CARDINAL of LAW establishing ORG be interpreted as meaning that a national provision such as LAW ] is incompatible therewith in so far as a citizen of ORG who in principle has entitlements under LAW and CARDINALa of Regulation No CARDINAL/CARDINAL is obliged to report to the [ ORG ] , and a contribution must be deducted from that citizen ’s pension , even if no registration has taken place under LAW No CARDINAL/CARDINAL ? ”", "ORG of ORG gave its preliminary ruling ( case C–CARDINAL/CARDINAL , PERSON , ORG , PERSON , PERSON , PERSON and PERSON v. College voor Zorgverzekeringen ) on DATE . It was in the following terms :", "“ CARDINAL . Articles CARDINAL , CARDINALa and DATE of Council Regulation ( ORG ) No CARDINAL/CARDINAL of DATE on the application of social security schemes to employed persons , to self - employed persons and to members of their families moving within the ORG , as amended by ORG ( ORG ) No CARDINAL/CARDINAL of ORG and of ORG DATE , in conjunction with LAW ( ORG ) No CARDINAL/CARDINAL of DATE laying down the procedure for implementing ORG ( ORG ) No CARDINAL/CARDINAL on the application of social security schemes to employed persons , to self - employed persons and to members of their families moving within the ORG , as amended by ORG ( ORG ) No CARDINAL/CARDINAL of DATE , must be interpreted as not precluding legislation of a Member ORG , such as that at issue in the main proceedings , under which recipients of pensions payable under the legislation of that ORG who reside in another Member ORG in which they are entitled under LAW and CARDINALa of Regulation No CARDINAL/CARDINAL to the sickness benefits in kind provided by the competent institution of the latter Member ORG must pay , in the form of a deduction from their pension , a contribution in respect of those benefits even if they are not registered with the competent institution of their Member State of residence .", "Article CARDINAL TFEU [ i.e. LAW on the Functioning of ORG ] must be interpreted as not precluding legislation of a Member State , such as that at issue in the main proceedings , under which recipients of pensions payable under the legislation of that ORG who reside in another Member ORG in which they are entitled under LAW and CARDINALa of Regulation No CARDINAL/CARDINAL , as amended by Regulation No DATE , to the sickness benefits in kind provided by the competent institution of the latter Member State must pay , in the form of a deduction from their pension , a contribution in respect of those benefits even if they are not registered with the competent institution of their Member State of residence .", "On the other hand , LAW must be interpreted as precluding such national legislation in so far as it induces or provides for – this being for the national court to ascertain – an unjustified difference of treatment between residents and non - residents as regards ensuring the continuity of the overall protection against the risk of sickness enjoyed by them under insurance contracts concluded before the entry into force of that legislation . ”", "ORG gave separate final decisions ( in Mr Ramaer ’s case : PERSON ( ORG , ORG BUCARDINAL ; in Mr PERSON ’s case : PERSON ) on DATE . The reasoning in the ORG cases was identical and extensive . It may be summarised as follows .", "In view of ORG of ORG answer to the first question , ORG found that a right to opt out of the withholding of contributions under LAW of ORG did not exist .", "In view of the answer to the second question , it found that withholding contributions under LAW of ORG did not in itself impede ORG citizens’ freedom of movement .", "This left ORG having to ascertain “ whether an unjustified difference of treatment between residents and non - residents as regards ensuring the continuity of the overall protection against the risk of sickness enjoyed by them under insurance contracts concluded before the entry into force of that legislation ” existed , given that the applicants had been insured privately on DATE .", "ORG found that provision had been made for a statutory transitional arrangement on the basis of which private insurance contracts of residents and non - residents partially lapsed ex lege , in comparable fashion , it being intended that for both groups basic cover as it existed before DATE should continue to exist . There was in fact no disagreement on this point . However , for reasons of practicability , further arrangements had been necessary between the insurance companies and the persons concerned as to the remaining part of the insurance contract or any new complementary insurance contract . This had effectively compelled any persons concerned who wished to retain complementary cover of their medical expenses in addition to the statutory basic system after DATE to take out new complementary insurance . This , however , applied equally to residents and non - residents . In this respect , therefore , there was no difference in treatment between residents and non - residents .", "It then found that private insurers were under no unconditional duty to offer insurance ( acceptatieplicht ) complementary to basic cover . Pursuant to the statutory unconditional duty to offer insurance , basic cover for health care was secured to residents based on ORG . Non - resident treaty beneficiaries were entitled ex lege to health care in their country of residence in accordance with the basic health care regime of that country ( woonlandpakket ) . To that extent it could not be said that residents were treated more favourably than non - residents . Given that there was no statutory duty to offer complementary insurance either as regards residents or as regards non - residents , there was no difference in treatment in that respect either . It was also relevant within the framework of transitional law that a statutory duty to offer insurance was in fact contained in section CARDINAL.CARDINAL.CARDINAL of ORG ( Introduction and LAW ( Invoerings- en aanpassingswet PERSON ) , which applied to both residents and non - residents . Existing insurance contracts were only terminated ex lege in so far as they coincided with the GPE basic insurance regime and the basic health care regime of the country of residence , respectively . They continued to exist for the remainder . It followed that even if a further contract or new complementary contract was entered into , the insurer could not reject any person concerned who was insured on DATE for that part of the contract which was not terminated ex lege . In this , transitional law was actually more favourable than the new system per se .", "Nor could it be found that an ( unjustified ) difference in treatment between residents and non - residents had been caused by ORG through means other than legislation . In addition to studying the drafting history of the new legislation and parliamentary discussions , ORG had held a hearing at which it had heard officials of ORG ( PERSON , ORG ) who had actually been involved in determining the ( legal ) position of resident and non - resident treaty beneficiaries and in the contacts and negotiations with GPE insurance companies . From the information given it had emerged that the Minister for ORG had in fact been concerned to secure for non - resident treaty beneficiaries insurance cover comparable to that which they enjoyed before DATE on reasonable conditions . To that end , the Minister for ORG had entered into administrative agreements , through the umbrella organisation ( koepelorganisatie ) ORG ( Zorgverzekeraars GPE ) , with the public health care funds and the private insurers to make all their insured clients an offer that was comprehensive and non - selective ( i.e. without risk selection ) for health care insurance plus complementary insurance . It was not possible for the Minister for ORG to compel the insurers to make an offer for complementary insurance on definite , fixed - tariff conditions . Such intrusive involvement with complementary insurance would have run counter to ORG directives on non - life insurance ( schadeverzekeringen ) ( Directive CARDINAL/CARDINAL/EEC , Official Journal DATE , LCARDINAL.CARDINAL ; Directive CARDINAL/CARDINAL/EEC , Official Journal DATE , LCARDINAL/CARDINAL ; and Directive CARDINAL , Official Journal DATE , ORG ; as since amended ) , which did not admit of a legislative system in which provision was made for the approval of tariffs for health care insurance other than basic health care insurance .", "The legislature had thus designed a transitional arrangement aiming to preserve as far as possible the global cover which residents and non - resident treaty beneficiaries alike enjoyed before the entry into force of ORG under their GPE private insurance . Despite the statutory arrangement , under which only part of the contract was terminated , it had in actual fact often been necessary , for practical reasons , to conclude new contracts . For residents these contracts related to the statutory basic insurance and CARDINAL or more complementary insurance contracts in addition to that basic insurance , and for treaty beneficiaries , to CARDINAL or more complementary insurance contracts in addition to the basic health care regime of the country of residence . It had been necessary in order to facilitate this process to reach administrative agreements with health care insurers . These had indicated that they could hardly be expected to design cost - effective insurance for ORG or treaty country to meet the wishes of an often relatively small number of insured GPE nationals per country concerned . Although many insurers had in fact made reasonable offers , the fact remained that the numbers of persons requiring complementary insurance as treaty beneficiaries had decreased , and with them the financial base for the insurance . In addition , it could not be ruled out that insurance cover in the respective countries of residence was not up to GPE standards . That , however , was inherent in the new system , which ORG of ORG had found was not in itself contrary to ORG law .", "It could not be ruled out that the insurers might in some cases not have complied , as regards non - resident treaty beneficiaries , with the unconditional duty , set forth in section CARDINAL.CARDINAL.CARDINAL of ORG ( Introduction and LAW , to accept them as clients . Nor could it be ruled out that insurers might in some cases have applied a risk selection on grounds of age and health to treaty beneficiaries , in the sense that terms and conditions for renewal of complementary insurance might have turned out ( considerably ) less favourable than those of the original contract . That said , ORG had not been made aware of a demonstrable difference in treatment between residents and non - residents caused by ORG and implemented with their connivance by insurance companies based in the GPE . Besides the fact that such a difference had not been laid down in the statutory arrangement , there was no appearance either of a ‘ political’ agreement that had formed the basis for the practice of insurance companies in offering insurance or setting tariffs as regards complementary contracts with non - residents . Rather , the procedure followed suggested the opposite . It did not follow from the possibility that in retrospect there might have been a certain measure of administrative naiveté ( bestuurlijke naïviteit ) that any premeditated intention of ORG unjustifiably to treat residents and non - resident treaty beneficiaries differently could be found established .", "ORG was not unaware that , in those cases where the basic insurance regime in the country of residence offered lesser cover than the GPE basic package , a reduction of the base of persons insured and thus the financial base of the insurance coupled with the disappearance of the solidarity levy ( solidariteitstoeslag ) provided for in ORG for basic insurance might to that extent have had the effect of raising premiums for complementary insurance . This was , however , inherent in the system introduced with effect from DATE , which ORG of ORG had not considered in itself contrary to Community law , in which the position of residents and non - residents was not the same , and for that reason alone did not constitute an unjustified difference in treatment of residence in relation to non - residents by which freedom of movement of ORG citizens is restricted .", "The LAW establishing ORG , as in force until DATE , included the following provisions :", "Every citizen of the Union shall have the right to move and reside freely within the territory of the Member GPE , subject to the limitations and conditions laid down in this LAW and by the measures adopted to give it effect .", "NORP If action by the ORG should prove necessary to attain this objective and LAW has not provided the necessary powers , the ORG may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph CARDINAL . ...", "Paragraph CARDINAL shall not apply to provisions on passports , identity cards , residence permits or any other such document or to provisions on social security or social protection .", "Freedom of movement for workers shall be secured within the ORG .", "NORP Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of GPE as regards employment , remuneration and other conditions of work and employment .", "It shall entail the right , subject to limitations justified on grounds of public policy , public security or public health :", "( a ) to accept offers of employment actually made ;", "( b ) to move freely within the territory of Member GPE for this purpose ;", "( c ) to stay in a Member ORG for the purpose of employment in accordance with the provisions governing the employment of nationals of that ORG laid down by law , regulation or administrative action ;", "( d ) to remain in the territory of a Member ORG after having been employed in that ORG , subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission .", "The provisions of this article shall not apply to employment in the public service .", "ORG shall have jurisdiction to give preliminary rulings concerning :", "( a ) the interpretation of this LAW ;", "( b ) the validity and interpretation of acts of the institutions of the ORG and of the ORG [ ORG ] ;", "( c ) the interpretation of the statutes of bodies established by an act of the ORG , where those statutes so provide .", "Where such a question is raised before any court or tribunal of a Member ORG , that court or tribunal may , if it considers that a decision on the question is necessary to enable it to give judgment , request ORG to give a ruling thereon .", "Where any such question is raised in a case pending before a court or tribunal of a Member ORG against whose decisions there is no judicial remedy under national law , that court or tribunal shall bring the matter before ORG . ”", "The LAW establishing ORG was amended and re - named LAW on the Functioning of ORG when LAW amending LAW and LAW establishing ORG entered into force on DATE . Article CARDINAL of the LAW establishing ORG became LAW on the Functioning of ORG ; former LAW became LAW ; and former LAW became LAW .", "At the relevant time , ORG Regulation CARDINAL/CARDINAL ( ORG ) , in its relevant parts , read as follows :", "“ THE COUNCIL OF THE EUROPEAN UNION ,", "Having regard to the LAW establishing ORG , and in particular Articles CARDINAL and CARDINAL thereof ,", "Having regard to the proposal from the Commission ,", "Having regard to the opinion of ORG ,", "Having regard to the opinion of ORG ,", "Whereas the provisions for coordination of national social security legislations fall within the framework of freedom of movement for workers who are nationals of Member ORG and should contribute towards the improvement of their standard of living and conditions of employment ;", "Whereas freedom of movement for persons , which is CARDINAL of the cornerstones of the ORG , is not confined to employed persons but also extends to self - employed persons in the framework of the freedom of establishment and the freedom to supply services ;", "Whereas the considerable differences existing between national legislations as regards the persons to whom they apply make it preferable to establish the principle that the Regulation applies to all persons insured under social security schemes for employed persons and for self - employed persons or by virtue of pursuing employment or self - employment ;", "Whereas it is necessary to respect the special characteristics of national social security legislations and to draw up only a system of coordination ;", "Whereas it is necessary , within the framework of that coordination , to guarantee within the Community equality of treatment under the various national legislations to workers living in the Member GPE and their dependants and their survivors ;", "...", "Whereas employed persons and self - employed persons moving within the ORG should be subject to the social security scheme of CARDINAL single Member ORG in order to avoid overlapping of national legislations applicable and the complications which could result therefrom ;", "Whereas the instances in which a person should be subject simultaneously to the legislation of CARDINAL Member GPE as an exception to the general rule should be as limited in number and scope as possible ;", "Whereas with a view to guaranteeing the equality of treatment of all workers occupied on the territory of a Member ORG as effectively as possible , it is appropriate to determine as the legislation applicable , as a general rule , that of the Member ORG in which the person concerned pursues employment of self - employment ;", "Whereas in certain situations which justify other criteria of applicability , it is possible to derogate from this general rule ;", "...", "Whereas the specific position of pension claimants and pensioners and the members of their families calls for the provisions governing sickness insurance to adapted to their situation ;", "...", "Whereas it is necessary to lay down special provisions which correspond to the special characteristics of the national legislations in order to facilitate the application of the rules of coordination ,", "HAS ADOPTED THIS REGULATION :", "...", "Pensions payable under the legislation of MONEY , in cases where there is no right to benefits in the country of residence", "A pensioner who is entitled to a pension under the legislation of CARDINAL Member ORG or to pensions under the legislation of CARDINAL or more Member GPE and who is not entitled to benefits under the legislation of the Member ORG in whose territory he resides shall nevertheless receive such benefits for himself and for members of his family , in so far as he would , taking account where appropriate of the provisions of LAW , be entitled thereto under the legislation of the Member ORG or of CARDINAL of the Member GPE competent in respect of pensions if he were resident in the territory of such ORG . The benefits shall be provided under the following conditions :", "( a ) NORP benefits in kind shall be provided on behalf of the institution referred to in paragraph CARDINAL by the institution of the place of residence as though the person concerned were a pensioner under the legislation of the ORG in whose territory he resides and were entitled to such benefits ;", "( b ) cash benefits shall , where appropriate , be provided by the competent institution as determined by the rules of paragraph CARDINAL , in accordance with the legislation which it administers . However , upon agreement between the competent institution and the institution of the place of residence , such benefits may be provided by the latter institution on behalf of the former , in accordance with the legislation of the competent ORG .", "NORP In the cases covered by paragraph CARDINAL , the cost of benefits in kind shall be borne by the institution as determined according to the following rules :", "( a ) where the pensioner is entitled to the said benefits under the legislation of a single Member ORG , the cost shall be borne by the competent institution of that ORG ;", "( b ) where the pensioner is entitled to the said benefits under the legislation of CARDINAL or more Member GPE , the cost thereof shall be borne by the competent institution of the Member ORG to whose legislation the pensioner has been subject for the longest period of time ;", "should the application of this rule result in several institutions being responsible for the cost of benefits the cost shall be borne by the institution administering the legislation to which the pensioner was last subject .", "Pensions payable under the legislation of CARDINAL or more of the Member GPE other than the country of residence where there is a right to benefits in the latter country", "Where the pensioner entitled to a pension under the legislation of CARDINAL Member ORG , or to pensions under the legislations of CARDINAL or more Member GPE , resides in the territory of a Member ORG under whose legislation the right to receive benefits in kind is not subject to conditions of insurance or employment , nor is any pension payable , the cost of benefits in kind provided to him and to members of his family shall be borne by the institution of CARDINAL of the Member GPE competent in respect of pensions , determined according to the rules laid down in LAW ) , to the extent that the pensioner and members of his family would have been entitled to such benefits under the legislation administered by the said institution if they resided in the territory of the Member State where that institution is situated .", "Contributions payable by pensioners", "The institution of a Member ORG which is responsible for payment of a pension and which administers legislation providing for deductions from pensions in respect of contributions for sickness and maternity shall be authorized to make such deductions , calculated in accordance with the legislation concerned , from the pension payable by such institution , to the extent that the cost of the benefits under LAW , CARDINALa , DATE , DATE and DATE is to be borne by an institution of the said Member ORG .", "Where , in the cases referred to in LAW , the acquisition of benefits in respect of sickness and maternity is subject to the payment of contributions or similar payments under the legislation of a Member ORG in whose territory the pensioner in question resides , by virtue of such residence , these contributions shall not be payable .", "R. NETHERLANDS", "Health care insurance", "( a ) As regards entitlement to benefits in kind under GPE legislation , persons entitled to benefits in kind for the purpose of the implementation of LAW of this Regulation shall mean : ( i ) persons who , LAW ( Health Care Insurance Act ) , are obliged to take out insurance under a health care insurer ,", "and", "( ii ) insofar as they are not already included under point ( i ) , persons who are resident in another Member ORG and who , under this LAW , are entitled to health care in their state of residence , the costs being borne by the GPE .", "( b ) DATE The persons referred to in point ( a)(i ) must , in accordance with the provisions of ORG ) , take out insurance with a health care insurer , and the persons referred to in point a(ii ) must register with the College voor zorgverzekeringen ( ORG ) .", "( c ) The provisions of ORG ) and the PERSON wet bijzondere ziektekosten ( [ General Exceptional Medical Expenses Act ] ) concerning liability for the payment of contributions shall apply to the persons referred to under point ( a ) and the members of their families . In respect of family members , the contributions shall be levied on the person from whom the right to health care is derived .", "( d ) The provisions of ORG ) concerning late insurance shall apply mutatis mutandis in the event of late registration with the College voor zorgverzekeringen ( ORG ) in respect of the persons referred to in point a(ii ) .", "... ”", "Benefits in kind for pensioners and members of their families who are not resident in a Member ORG under whose legislation they are entitled to benefits", "NORP In order to receive benefits in kind in the territory of the Member State in which he resides , under LAW ) of the Regulation [ i.e. Council Regulation ( ORG ) CARDINAL/CARDINAL ] , a pensioner and the members of his family shall register with the institution of the place of residence by submitting a certified statement testifying that he is entitled to the said benefits for himself and for the members of his family , under the legislation or CARDINAL of the legislations under which a pension is payable .", "NORP This certified statement shall be issued , at the request of the pensioner , by the institution or one of the institutions responsible for payment of the pension or , where appropriate , by the institution empowered to determine entitlement to benefits in kind , as soon as the pensioner satisfies the conditions for acquisition of the right to such benefits . If the pensioner does not submit the certified statement , the institution of the place of residence shall obtain it directly from the institution or institutions responsible for payment of the pension or , where appropriate , from the institution empowered to issue such certified statement . Whilst awaiting the receipt of this certified statement , the institution of the place of residence may , in the light of the documentary evidence accepted by it , register the pensioner and the members of his family provisionally . This registration shall not be applied by the institution responsible for the payment of benefits in kind until the institution of the place of residence has delivered the certified statement provided for in paragraph CARDINAL .", "The institution of the place of residence shall inform the institution which has issued the certified statement provided for in paragraph CARDINAL of every registration effected in accordance with the provisions of the said paragraph .", "When making any application for benefits in kind the pensioner must prove to the institution of the place of residence , by means of the receipt or the counterfoil of the money order of the last payment made , that he is still entitled to a pension .", "The pensioner or the members of his family shall inform the institution of the place of residence of any change in their situation which might alter their entitlement to benefits in kind , in particular any suspension or withdrawal of the pension and any transfer of their residence . The institutions responsible for the pension shall also inform the institution of the pensioner ’s place of residence of any such change .", "The Administrative Commission shall , to the extent necessary , fix the procedure for determining the institution which shall bear the cost of the payment of benefits in kind , in the case referred to in LAW ) ( b ) of the Regulation . ”", "As relevant to the present case , ORG at the relevant time provided as follows :", "Persons living abroad and their family members , who pursuant to a Regulation of the Council of the European Communities or the application of such Regulation pursuant to the Agreement on ORG or a treaty on social security are entitled in case of need to care or reimbursement of the costs thereof , as provided for in the legislation on health care insurance of their country of domicile , shall , unless they are subject to compulsory insurance under the present LAW , register with ORG .", "NORP The persons referred to in the first paragraph shall owe a contribution to be determined by ministerial regulation , which for purposes of the application of section CARDINAL above and also , in respect of a portion of that contribution to be determined by said regulation , for the application of ORG ( Wet op de zorgtoeslag ) shall be considered as a premium for health care insurance . ”", "The following is taken from the drafting history of ORG ( Explanatory memorandum ( PERSON ) , ORG of ORG , parliamentary DATE , QUANTITY , no . CARDINAL ) :", "\" I Introduction and summary", "The aims of the Bill : Greater efficiency , less central direction , good accessibility", "By means of the bill for ORG wish to put an end , starting from DATE , to the present incoherent situation ( verbrokkelde situatie ) by realising CARDINAL statutory insurance regime for all GPE residents . This net insurance regime should contribute as much as possible to effective and high - quality health care . The change in the system of health care insurance to be enacted by ORG is not isolated , but is part of a wider oriented revision of the direction ( sturing ) and division of responsibilities in the health care field .", "...", "Greater freedom of choice and responsibility for insured persons", "The new ORG will offer every resident the possibility to enter into a contract of insurance with the health care insurer of his choice . ORG within the system is expressed in obligatory insurance ( verzekeringsplicht ) for the citizens and an unconditional duty to offer insurance for the health care insurers . Health care insurers have the duty to offer health care insurance to everyone , regardless of personal characteristics , on the same terms . The law shall indicate what forms of health care are covered by health care insurance .", "...", "In conclusion", "Against the background of the reforms in the health care system in DATE ( such as the introduction of commercial competition in health care insurance and the introduction of solidarity levies in private insurance ) the Government consider the statutory regulation of the new health care insurance a logical and necessary follow - up rather than a breach with the past . In view of the private elements which continue to characterise both public and private health care insurance ( zowel de ziekenfondsverzekering als de particuliere verzekeringen ) the Government make a deliberate choice for a private - law structure of health care insurance . It is important in this respect that ORG takes it to be self - evident that the freedom of the member GPE of ORG to organise their social - security systems as they see fit also implies the freedom to leave cover of the insurance risk to private insurance enterprises . Demands can be made on these enterprises in the public interest . In this bill , space for private initiative and entrepreneurship goes hand in hand with strong public preconditions . In this way the social tradition of the public health care funds and the market tradition of private insurance can be brought together . Both public health care funds and private health care insurers can transform into insurance companies which carry out ORG . In this way continuity in the functioning of the health care system is sufficiently ensured . All insured persons will be brought under the umbrella of the NORP social insurance regulation . Insured persons who are resident or staying abroad can enjoy medical health care there paid for by GPE insurance .", "...", "ORG - border health care", "The entry into force of ORG will draw the entire population into a social health care insurance . This will put an end to the GPE position , which is unique in LOC , in which MONEY of the population is forced to take out private insurance on the free market . ORG will be reported to ORG as a social security scheme within the meaning of ORG ( ORG ) No . CARDINAL/CARDINAL . From this it may follow that persons resident outside the GPE may become subject to GPE social security legislation and therefore find themselves obliged to take out health care insurance . These persons will owe premium pursuant to the GPE legislation .", "There is also a category of persons who do not reside in the GPE , but who , being entitled to a GPE pension , are entitled to health care at the expense of the GPE as the consequence of the application of the NORP social security regulation [ i.e. Council Regulation ( ORG ) No . CARDINAL/CARDINAL ] or a social insurance treaty in the country of residence . As against this treaty - based right to care , the international arrangements concerned provide that the ORG which bears the expense of medical care may charge premium therefor . The statutory base for thus charging premium is set out in the bill . It is intended to set a nominal premium for this category , based on the average premium charged in the GPE . The income - dependent contribution will be levied the same way as is done in the case of persons resident in the GPE .", "ORG ( ORG ) No . CARDINAL/CARDINAL and the social security treaties entered into by the GPE provide that the medical care to which a person is entitled pursuant to the ORG or a treaty shall be provided in accordance with the rules in force under the social health care legislation of the country where the care is provided . Accordingly , a GPE insured person resident or staying in , for example , GPE will receive medical care from the NORP social health care insurance in accordance with NORP legislation . The cost of such care will be borne by the GPE health care insurance . For those formerly insured by public health care funds this is a familiar phenomenon , for those formerly insured privately this is a new situation .", "It will be provided for persons resident abroad and entitled to health care at the expense of the GPE based on a social insurance treaty entered into by the GPE with another country or on ORG ( ORG ) No . CARDINAL/CARDINAL that they must register with ORG . ORG will then see to the reimbursement of the expenses which that other country incurs in providing medical care to the person concerned . This situation differs from the present situation in public health care insurance , in which the persons concerned are obliged to register with a specific public health care fund . Because such an indication in the new situation of ORG can be seen as a disturbance of market relations and a health care insurer can not influence health care use and the expenses involved in the other country , a choice has been made for registration with ORG . In this way , a ‘ market neutral’ solution has been found , in which , as regards the premium which the persons concerned must pay , the profit component need not be taken into account . ORG has so advised , at our request , in the report ‘ International aspects of ORG aspecten ORG ) of DATE , consecutively numbered DATE .", "... ”", "In its relevant part , ORG ( Introduction and LAW provides :", "...", "An agreement concerning insurance for medical care or the costs thereof concluded for or with an insured person living abroad who , by the application of a regulation of ORG or the application of such a regulation pursuant to the Agreement on ORG or to a treaty on social security , is entitled to health care or to the reimbursement of the costs thereof , as provided in the legislation on health care insurance of his country of residence , shall be terminated as from DATE , to the extent that rights could be derived from that agreement equivalent to those to which the person concerned is entitled from that date by the application of such a regulation or treaty , provided that before CARDINAL DATE the insured person complied with the obligation to register with ORG under section CARDINAL of ORG . ... ”", "ORG ( Regeling zorgverzekering ) , in their relevant part , provide as follows :", "NORP The contribution payable by a person referred to in LAW shall be calculated by multiplying the basic contribution by the number arrived at by calculating the ratio between the average healthcare expenditure for a person which is to be borne by the social health care insurance in that person ’s country of residence and the average healthcare expenditure for a person which is to be borne by the social healthcare insurance in the GPE .", "NORP The basis for the contribution shall be the sum of :", "a ) an income dependent contribution calculated according to [ relevant provisions of ORG ] ;", "( b ) an income dependent contribution calculated in accordance with the premium due for the PERSON pursuant to ORG ( LANGUAGE financiering sociale verzekeringen ) [ with reductions as may be required by the application of the DATE LAW ( LANGUAGE inkomstenbelasting DATE ) ] ;", "( c ) from DATE of the calendar month following DATE in which this person has reached DATE , a DATE contribution corresponding to CARDINAL of the provisionally determined premium for a person insured under health care insurance in DATE of the calculation ( berekeningsjaar ) ...", "The contribution referred to in section CARDINAL.CARDINAL.CARDINAL for a person referred to in section CARDINAL ) of ORG who is entitled to a pension , and for the members of his family , shall be deducted from that pension by the institution which pays that pension and paid to the healthcare insurance fund . ”" ]

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[ "The applicant was born in DATE and lives in LOC .", "On DATE the ORG refused to grant the applicant a disability pension . On DATE ORG dismissed his appeal against that decision . On DATE ORG dismissed the applicant 's further appeal . The judgment was served on the applicant on DATE and DATE time - limit for lodging of a cassation appeal started to run on that date .", "On DATE the applicant requested that a legalaid lawyer be assigned to the case for the purposes of lodging a cassation appeal with ORG . On DATE ORG granted his request for legal aid and requested ORG to assign a lawyer to the case . Subsequently , as the first lawyer assigned by ORG suffered from certain health problems at that time , on DATE ORG assigned another lawyer , PERSON PERSON , to the case . He was served with the letter informing him of the assignment on DATE .", "Subsequently the lawyer requested ORG to serve on him its judgment of DATE . The judgment with the written grounds was served on him on DATE .", "In a letter to the applicant dated DATE the lawyer explained in detail why he had found no grounds on which to prepare a cassation complaint in the case .", "The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of the appellate courts are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL , CARDINAL DATE ; PERSON v. GPE , no . CARDINAL , DATE ; ORG v. GPE , no . CARDINAL/CARDINAL , DATE ; GPE v. GPE , no . CARDINAL , DATE .", "On DATE amendments to LAW , adopted on DATE ( LOC o zmianie ustawy PERSON postępowania cywilnego oraz ustawy Prawo o ustroju sądów powszechnych ) , entered into force . Under the amended text of LAW , the time - limit for lodging a cassation appeal with ORG was extended DATE .", "ORG has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination ( DATE , II CZ CARDINAL ; CARDINAL DATE , II UZ CARDINAL/CARDINAL ) . In a further series of decisions ORG considered that it would be unfair for the legally - aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within DATE counted from DATE of service of the judgment on the party . The parties waiting for legal - aid services can not be held at fault for shortcomings in the system . A party who was obliged to have recourse to legal aid should not be put in a worse situation than that of a person who did not seek it . A request to appeal out of time should therefore be submitted within DATE from the date on which the legal - aid lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal ( DATE , II UZ CARDINAL ; DATE , I ORG CARDINAL/CARDINAL ) , or from the date when the lawyer was informed that he had been assigned to the case by ORG DATE , PERSON ; CARDINAL DATE , II UZ DATE ; CARDINAL DATE , PERSON ;", "In a resolution adopted by a bench of CARDINAL judges of ORG on DATE ( III CZP CARDINAL/CARDINAL ) that court acknowledged that there had been discrepancies in the manner in which the beginning of the DATE time limit for submitting an application for leave to appeal out of time by legally - assisted parties had been determined . The court was of the view that applications for leave served the purpose of making access to ORG for legally - aided parties genuine and effective . Hence , the beginning of the time - limit could not be determined in a mechanical manner in all cases . The courts should instead examine the circumstances of individual cases as a whole and determine that date bearing in mind the genuine possibility for a lawyer to examine the case and prepare a cassation appeal ." ]

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[ "6-1" ]

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[ "The applicants , Mr PERSON and CARDINAL others , are NORP nationals . Their names and personal details are listed in the annex at the end of this decision .", "The applicants were born DATE with deformities of their upper and/or lower extremities and other malfunctions of inner organs , resulting from the fact that their mothers had taken the tranquilliser “ thalidomide ” , sold in GPE under the name “ LOC , during a certain , sensitive period of pregnancy . CARDINAL persons suffering from likewise impacts of the drug are living in GPE alone .", "“ Contergan ” was produced by the pharmaceutical manufacturer PERSON ORG , a company with limited liability , from DATE until DATE . It was available on the NORP market without a medical prescription and was sold as an analgesic suitable to soothe discomforts caused by pregnancy .", "In DATE the criminal proceedings for injuries caused by negligence against the management and the owners of the manufacturer company PERSON were stayed . Civil proceedings on compensation for damages lodged by some affected children or their parents were pending .", "On DATE the pharmaceutical manufacturer PERSON covenanted to pay a lump sum of MONEY ( DEM - CARDINAL million euros ( ORG ) ) to the victims in order to settle all compensation claims .", "On DATE a public law foundation “ Hilfswerk für behinderte NORP ” was established by federal law in order to facilitate a settlement with all persons affected and in order to provide a solid financial basis for benefit payments . The foundation received MONEY from the manufacturer and the same amount from the NORP ORG . Each person affected by “ GPE was eligible for a single payment of MONEY CARDINAL and at maximum DEM CARDINAL,CARDINAL and additionally DATE pensions CARDINAL and DEM CARDINAL . All payments from this fund were exempt from taxes and were not credited against other social benefits . All legal claims against the manufacturer expired by law . The law entered into force on DATE .", "On DATE ORG found ORG of DATE henceforth : the DATE LAW to be compatible with the provisions of LAW , in particular compatible with the property protection of LAW . It held that the legislator voluntarily incurred a position as a creditor and was therefore constitutionally obliged to guarantee the liquidity of the foundation in future and to safeguard that the pensions to the victims were adequate .", "In DATE and in DATE the financial funds of the foundation were supplemented by DEM CARDINAL and DEM CARDINAL by ORG . Since DATE the DATE pensions have been financed entirely from the federal budget . From DATE until DATE the height of the pensions had been raised CARDINAL times .", "In DATE the foundation was renamed to ORG ( Conterganstiftung für behinderte NORP ) . The persons affected by “ GPE received a non - recurring capital sum and again a DATE life - long pension depending on the established degree of health impairment . Payments from the foundation could not be credited against any other social benefit payment in order to ensure that the aggrieved persons received the pension as an extra monetary benefit .", "On DATE the DATE pensions were doubled by LAW . According to the legislator the higher pension should contribute to compensate for the increasing secondary health deterioration of the now middle - aged persons affected by “ GPE .", "On DATE the Second Law on Amending the Contergan Foundation Law entered into force . The ORG was endowed with a further ORG CARDINAL of which MONEY were provided by the manufacturing company PERSON and the rest by GPE . The amendment slightly increased the DATE pensions ( now between ORG CARDINAL and ORG CARDINAL,CARDINAL ) which are still funded entirely from the federal budget and the non - recurring payment ( GPE ) between ORG CARDINAL,CARDINAL and ORG CARDINAL depending on the extent of the bodily damage caused by “ GPE . The law further introduced an DATE additional payment ( jährliche GPE ) from the capital interests gained by the foundation . The amount of this payment varies between EUR CARDINAL and ORG CARDINAL depending on the degree of disability . Furthermore , the increase of the DATE pension was tied to the adaptations of the general retirement pension scheme . By the amendment a further CARDINAL persons who had been previously time - barred to claim benefits became eligible for the benefits .", "On DATE the applicants directly lodged a constitutional complaint in which they attacked the constitutionality of the DATE LAW and all subsequent legislation in that respect . They invoked a violation of their property rights and felt discriminated against in comparison to other vulnerable groups . They further complained about a legislative failure to act insofar as they did not receive benefits to the extent they would receive if the present laws on pharmaceutical liability were applied .", "On DATE ORG , in a composition of a panel of CARDINAL judges , declined to review the constitutional complaint of the applicants . ORG held that the complaint was inadmissible for being time - barred insofar as LAW and LAW were challenged . Regarding the complaint on LAW the ORG found it inadmissible for reasons of subsidiarity of the constitutional complaint , as the applicants had not priorly objected against their pension with the competent administrative courts . ORG underlined that the applicants had failed to challenge the regulatory framework . The ORG further reasoned that the complaint as a whole was not sufficiently substantiated . Insofar as the applicants complained about a violation of their property rights the ORG held that the sum of all benefits the applicants had received since DATE was significantly higher than the amount of damages the applicants could have reasonably claimed against the manufacturing company of limited liability . The applicants had further failed to clarify why the present statutory provisions on liability for pharmaceutical products which had been enacted well after the “ FAC scandal ” had taken place should become applicable in this case . Furthermore , the current provisions on liability for pharmaceutical products provided for compensation only in cases which involved CARDINAL severely damaged persons , whereas the “ LOC case still affected CARDINAL persons . In regard to their complaint about arbitrary discrimination the ORG held it insufficient to compare just the amount of the payments and disregard the different legal and factual circumstances . All other groups in question like victims of warfare , war crimes as well as of criminal deeds and of contaminated blood preserves were compensated under significantly different factual and legal circumstances . The benefit payments from the “ LOC foundation were tax - free and not considered to be income or assets in order to guarantee that the benefits actually improved the financial situation of those affected by “ LOC .", "Section CARDINAL § CARDINAL of ORG DATE henceforth DATE LAW ( ORG über die PERSON für behinderte PERSON “ ) provided that claims against the manufacturing company of limited liability , PERSON , or against its associates , managers or clerks of that company be extinct insofar as the claims relate to a damage which falls under the scope of LAW .", "Section CARDINAL of the Second Law on Amending the Contergan Foundation Law stipulates that the benefits based on this law are exempt from income tax and are not considered to become part of the assets of the beneficiary . According to section CARDINAL LAW of the same law the obligation of other state authorities to provide for benefits is not affected . Authorities may not decline benefits provided for by law because the person receives benefits according to this law .", "Section CARDINAL § CARDINAL of the Rules of Procedure of ORG ( Bundesverfassungsgerichtsgesetz ) stipulates that a constitutional complaint shall be lodged and substantiated within DATE after the final decision of the competent court . Section QUANTITY stipulates that a constitutional complaint on the constitutionality of a statutory law against which there is no other way of recourse must be lodged within DATE after the enactment of that law ." ]

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[ "On DATE the ORG appointed the applicant to the function of a judicial liquidator of a limited liability company H. located in GPE .", "On DATE the insolvency judge PERSON requested the commercial division of ORG to dismiss the applicant from his function . She submitted that the applicant had been involved in civil proceedings relating to his failure to pay salaries to employees of a company that he owned and that the court had found against him . Therefore he did not comply with the legal requirements that a judicial liquidator had to satisfy since he could not be considered trustworthy . Furthermore , until DATE he had failed to give notice to all the employees of the H. company . Consequently , he had not been performing his obligations in a satisfactory manner as required by law .", "On DATE ORG , at a session held in camera , dismissed the applicant and appointed a new liquidator . The insolvency judge sat on the bench composed of CARDINAL professional judges that gave this decision . No party to the insolvency proceedings attended the session and the applicant was , likewise , not present , not having been informed of the session or summoned to attend it , as the law did not provide for it .", "On DATE the applicant appealed against this decision . He submitted that , while it was true that no appeal could be filed against the decision to appoint a new liquidator , the law was not clear as to whether an appeal was available against his dismissal from his function . Furthermore , his good reputation as a lawyer and as an employer had been damaged both by the contents of judge PERSON ’s motion of DATE and by his subsequent dismissal . He argued that certain statements in the motion were incorrect as to the facts . Therefore he had to lodge an appeal in order to challenge them . He contested both the allegations that he was untrustworthy and that he had not been carrying out his duties properly . He further submitted that the insolvency judge , considering her own motion for his dismissal , had acted both as a claimant and as a member of the court , which called into question the court ’s impartiality .", "By a decision of DATE ORG rejected the applicant ’s appeal . The court considered that LAW did not provide for an appeal against a dismissal of the judicial liquidator . Judge PERSON was entitled to sit on the bench of the commercial court , deciding about the applicant ’s dismissal , because LAW excluded participation of the insolvency judge in that court only in cases in which an appeal was available against a decision of that judge given in the insolvency proceedings .", "The applicant appealed to ORG , submitting that ORG was wrong to hold that there was no appeal against his dismissal . He reiterated that he had been denied a possibility to have the allegations against him reviewed by an impartial court .", "On DATE ORG dismissed the applicant ’s appeal , considering that under LAW , no appeal was possible against a decision by which a liquidator was dismissed and a new one appointed .", "On DATE ORG convicted the applicant of misappropriation of the H. company ’s assets , sentenced him to DATE imprisonment and stayed the enforcement of the sentence for DATE .", "On DATE ORG quashed this judgment and ordered that the case be reconsidered .", "On DATE ORG convicted the applicant of misappropriation of the assets of H. company , sentenced him to DATE imprisonment and stayed the enforcement of the sentence for DATE .", "On DATE ORG upheld this judgment .", "The Ordinance of the President of Republic of Poland of DATE on GPE , as amended , sets out the rules governing insolvency proceedings . LAW , insofar as relevant , provides :", "“ CARDINAL . Any business enterprise which is unable to pay its debts shall be declared insolvent ....", "ORG Any public enterprise , co - operative ... [ or ] joint - stock company shall be declared insolvent if its assets are not sufficient to cover its liabilities . \"", "According to LAW , proceedings relating to an insolvency petition shall be instituted before the district commercial court , sitting as a bench of CARDINAL professional judges , in whose jurisdiction the insolvent debtor has its registered office .", "Pursuant to LAW , the commercial court in insolvency proceedings shall call on creditors to submit their claims within a fixed time - limit and assign the insolvency judge to the case . The insolvency judge shall , first , appoint the judicial liquidator of the company , who shall take possession of the insolvent company ’s assets and , subject to certain prior decisions of the insolvency judge , distribute it among creditors so as to ensure that their debts be paid to the highest possible degree . The judge shall conduct the subsequent insolvency proceedings , supervise the actions of the liquidator of the company and determine in which instances the liquidator shall not be authorised to act without the judge ’s prior permission .", "According to LAW , the liquidator alone has the capacity to sue or to be sued in all proceedings concerning claims against an insolvent estate ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicants state that they are nationals of the “ GPE ” . Their names , dates of birth and places of residence are set out in the Annex . They are represented before the Court by Ms Y. PERSON , a lawyer practising in GPE .", "NORP The facts of the cases may be summarised as follows . The applicants are relatives of NORP - Cypriot men who went missing in either DATE or DATE during incidents of mounting tension and violence in which NORP or NORP - NORP villages were targeted .", "These men were listed as missing persons , the information being given to the NORP authorities , ORG and ORG .", "The remains of the missing men have been found during exhumations carried out by ORG for Missing Persons ( “ CMP ” ) in DATE .", "The Government have submitted that investigations had been commenced in all cases . The police had taken statements from relatives of the victims , taken steps to pursue investigation in the various localities and to trace police officers stationed there at the relevant time , to locate witnesses and to seek information from local inhabitants as to the transportation , murder and burial of the victims ;", "The applicants have submitted that it is not apparent that any progress has been made in the investigations and that they have not been given any copies of reports , witness statements or information gathered from various sources ." ]

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[ "The applicant was born in DATE . At the time of filing his application , he was resident in a psychiatric clinic . According to an expert report drawn up during the domestic proceedings in this case , the applicant has a diagnosis of mental impairment and , prior to the facts giving rise to this case , had been admitted to psychiatric hospitals twice . He also had a number of convictions against him , including for indecent assault , burglary and theft .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In TIME of DATE , police in GPE were called out to deal with the applicant , who was sitting in a car sounding its horn repeatedly and behaving in a highly agitated manner . He was arrested at TIME and transferred to a police station , where it was noted that he was clearly suffering from some form of mental illness and that a doctor would be required . His detention was authorised under LAW of LAW DATE ( see paragraph CARDINAL below ) . The police also went to the applicant ’s address , where they found his aunt with serious and extensive injuries to her face and upper body , inflicted by the applicant . She was taken to hospital where a medical examination revealed cracked ribs and a collapsed lung .", "The applicant was examined in his cell at TIME by ORG , PERSON In view of the applicant ’s behaviour , speech and appearance , he assessed him as not fit to be interviewed or charged with any criminal offence . A formal assessment under LAW DATE was requested . This was done at TIME by the psychiatric specialist registrar on call , Dr O. He concluded that the applicant was suffering from a mental illness of a nature or degree warranting detention in hospital in the interests of his health and safety and for the protection of other persons .", "A second assessment was carried out shortly after TIME by another psychiatric specialist , Dr. PERSON He too advised that the applicant be formally admitted to hospital for assessment . He also advised that the applicant be observed via closed circuit television , since the presence of a police officer outside his cell was causing him to become agitated . For the remainder of his time at the police station , the applicant remained under continuous observation by this means .", "At TIME , the applicant was visited by an approved social worker , PERSON He was also seen by a community psychiatric nurse , Mr J. Both noted that the applicant was displaying clear signs of mental illness . The social worker filled out the relevant form for admission to a mental hospital , omitting just one point , the name of the establishment , which had yet to be determined .", "At TIME members of staff from a local psychiatric intensive care unit stated that their establishment would not be able to admit the applicant and advised that he be referred to ORG , which had a medium secure unit . The police thereupon contacted PERSON to inform them of the situation . Shortly after TIME , PERSON , a consultant forensic psychiatrist at PERSON , called back and was informed of the situation concerning the applicant . According to the custody record , he stated that someone would be sent over from the clinic . According to PERSON own notes on the situation , which the ORG have provided , he then consulted with a number of colleagues . Believing that the applicant would be charged and remanded in custody and that an assessment from ORG would be required only afterwards , they considered that there was no need for their involvement before such time . At TIME the police received a call from PERSON informing them that the clinic would not be sending anyone to the station , but would liaise with the social worker .", "The custody record for the applicant ’s first day at the police station refers at several points to his disturbed behaviour : clapping loudly , shouting , banging on the door , lowering his trousers and waving his testicles about , and licking the wall of his cell . PERSON noted that the applicant repeatedly hit his head against the wall , causing himself bruising . He was provided with , and accepted , food and drink at intervals throughout DATE .", "DATE , DATE , there were further telephone contacts between the police station and PERSON regarding the applicant ’s case . The police also contacted other mental health officials , but admission to PERSON remained the only viable solution . During the morning PERSON spoke with the duty solicitor of ORG , who informed him that should there be any evidence of the applicant assaulting his aunt then he would be charged and remanded in custody . In the event of no charge being brought , they agreed that the matter would be referred back to the doctor and social worker who had assessed the applicant DATE . In discussion with the clinical director of PERSON , PERSON noted that at that point there was no immediate action to be taken . He was later told by PERSON that the applicant would be charged with assault , and arranged an appointment to assess the applicant on DATE at ORG .", "An entry in the custody record at TIME states that the duty solicitor of ORG had concluded that there was insufficient evidence to charge the applicant . An entry at TIME states that there was an “ internal argument ” between doctors and the social services regarding the applicant . At TIME an entry was made in the custody record expressing concern and frustration at the lack of progress in relation to the applicant .", "The applicant ’s behaviour was observed to deteriorate over the course of DATE . By TIME he had removed all of his clothing . Later he drank water from the bowl of the toilet in his cell . He accepted CARDINAL meals , in DATE , TIME and in TIME . He accepted a drink at TIME , but , according to the custody record , refused all further offers of food and drink for the remainder of DATE .", "On DATE of the applicant ’s detention , DATE , the duty Inspector made an entry in the custody record at TIME noting his concern at the environment in which the applicant was detained , given his obvious illness . The applicant was still naked and was observed during TIME rocking to and fro on a bench , talking to himself , banging his chest and ranting .", "Dr M. arrived at the police station shortly before TIME , accompanied by other mental health professionals from PERSON to assess the applicant . The police refused to open the door of the applicant ’s cell on the ground that this would endanger everyone ’s safety . The assessment was conducted through the hatch . PERSON noted that the applicant appeared agitated and was shouting loudly , and that his naked body appeared to be smeared with food or faeces . The applicant was elated , and his speech was incoherent at times . PERSON concluded that the applicant was clearly unwell and required inpatient treatment in a medium - secure setting with adequate nursing resources and a clear and effective care plan . He also advised that the applicant be charged so that he could be dealt with under the criminal justice and mental health systems . The police indicated that their advice from ORG was that there could be no charge at that point in time , given the impossibility of interviewing the applicant . PERSON said he would endeavour to get a place for the applicant at PERSON , although it would not be possible to receive him there until TIME , i.e. beyond the CARDINAL limit laid down by LAW DATE . TIME , ORG spoke to the clinical director of ORG , who agreed to receive the applicant the same evening .", "Informed of this , PERSON discussed the situation with nursing staff at PERSON . He was informed that the resources needed to admit the applicant could be made available for the following morning at TIME at the earliest . He considered that an admission in TIME , i.e. just before the expiry of the permitted period of detention , would pose unmanageable risks for all concerned . He suggested to ORG that the applicant could be transferred to PERSON at the end of the CARDINAL-hour period , but that police assistance would be required to maintain him in safe conditions until it was possible to admit him . He was informed that the presence of the police could not be guaranteed for the whole period .", "At TIME a call was received from PERSON to say that the applicant could not be taken until TIME . TIME , an Approved ORG from PERSON came to the police station to complete the necessary forms for the application ’s admission under LAW DATE .", "The applicant was provided with food and drink at TIME , and further drinks of water during DATE ( TIME and TIME ) . At the end of the TIME a meal was not offered because the applicant was sleeping . He requested food at TIME , which was provided but which he dropped on the floor . He refused an offer of a meal and a drink at TIME", "On DATE , DATE , the applicant was released from police custody at TIME and escorted , in handcuffs , to ORG . According to the Government , it took CARDINAL members of the nursing staff to restrain him once admitted . He was assessed as having pressure of speech , flight of ideas , a labile mood , thought disorder and persecutory delusions . The diagnosis was of a manic episode with psychotic features . The applicant was put into seclusion and given rapid tranquilisation on account of his bizarre behaviour and aggressive , threatening manner . He received continued medication over DATE and showed sustained improvement .", "On DATE , the applicant lodged claims against the GPE and ORG for negligence , for breaches of Articles CARDINAL and CARDINAL of the LAW , and for misfeasance in public office . The defendant applied for summary judgment on the ground that the applicant had no real prospect of succeeding . A hearing was held on DATE before a District Judge . The applicant ’s counsel submitted a report prepared by a Consultant Forensic Psychiatrist , PERSON , who had not interviewed the applicant but had reviewed the relevant documents . Dr PERSON considered that Dr M. should have assessed the applicant within TIME of being made aware of the situation , since by that stage the applicant had been detained for TIME . The delay in assessing him and in admitting him to PERSON had in turn delayed the applicant ’s treatment and recovery .", "The judge granted the order for summary judgment . He held that although the defendant had owed the applicant a duty of care , and that that duty had been breached , it had not caused the applicant any physical or psychological injury . The action in negligence therefore failed on causation and loss . In any event , any loss had been absolutely minimal . A delay of TIME in the hospitalisation of the applicant could only lead to minimal damages . The judge also rejected the claim based on LAW on the grounds that Dr M. could not be seen as a public authority for the purposes of the LAW , and that the situation did not meet the minimum level of severity inherent in LAW . The applicant ’s claim for damages based on LAW was also dismissed , the judge finding that this was not an exceptional case in which compensation would be justified . The claim for misfeasance in public office could only succeed if the applicant could show complete and reckless disregard on the part of the defendant , which he had not done .", "The applicant was granted permission to appeal . The case was heard at ORG by Judge PERSON , who dismissed the appeal in a judgment of CARDINAL DATE . The judge described the applicant ’s claim in negligence as “ hopeless ” , there being no details in the medical evidence submitted of any physical or psychiatric injury caused to the applicant . It was unrealistic to suggest that a delay of a given number of TIME ( the applicant ’s counsel having conceded that the delay was considerably TIME ) in some way caused that number of TIME of psychosis .", "In relation to the claim under LAW , the judge considered that Dr M. should be viewed in that context as a “ public authority ” . However , the claim failed because the situation did not fall within DATE . The applicant had been lawfully detained and his basic needs had been met . The fact that he had spent CARDINAL - CARDINAL hours at the police station did not make the situation so appalling as to breach LAW . The judge found that there had been no breach of LAW because there had been no arbitrary or deliberate interference with the applicant ’s rights . As regards the claim for malfeasance , he concurred with the decision of LOC .", "In light of these findings , the applicant ’s legal representatives advised him that legal aid would not be available for him to appeal the decision further .", "Section CARDINAL of LAW DATE provides :", "“ Mentally disordered persons found in public places .", "( CARDINAL ) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control , the constable may , if he thinks it necessary to do so in the interests of that person or for the protection of other persons , remove that person to a place of safety within the meaning of section CARDINAL above .", "( CARDINAL ) A person removed to a place of safety under this section may be detained there for a period not exceeding CARDINAL TIME for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care . ”", "A “ place of safety ” is defined in section CARDINAL(CARDINAL ) as follows :", "“ In this section “ place of safety ” means residential accommodation provided by a local social services authority ... , a hospital as defined by this LAW , a police station , an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient . ”", "The Code of Practice issued under LAW DATE provided at the relevant time :", "“ The place of safety", "CARDINAL The identification of preferred places of safety is a matter for local agreement . However , as a general rule it is preferable for a person thought to be suffering from mental disorder to be detained in a hospital rather than a police station . Regard should be had to any impact different types of place of safety may have on the person held and hence on the outcome of an assessment . Once the person has been removed to a particular place of safety , they can not be transferred to a different place of safety .", "...", "Where a police station is used as a place of safety speedy assessment is desirable to ensure that the person spends no longer than necessary in police custody but is either returned to the community or admitted to hospital . ”", "Extract from Report to the Government of GPE on the visit to GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) from DATE to DATE :", "“ CARDINAL . The ORG also has concerns with respect to the availability of appropriate psychiatric care for persons detained by the police . More than once , members of the ORG ’s delegation were told that the behaviour of some detained persons became so erratic that custody officers considered it necessary to tie them naked to a chair in order to prevent any acts of self - harm . Such treatment is clearly unacceptable and should be stopped immediately . In such cases police officers should immediately call a doctor and act in accordance with his instructions . Further , detained persons who display severe psychiatric disorders should be transferred without delay to a mental health facility .", "The ORG recommends that immediate steps be taken to ensure that detained persons with mental health disorders , held in police stations , are provided with appropriate care and treatment , until they are transferred to a mental health facility . ”" ]

[ "3" ]

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[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .", "On DATE the applicant , a medical doctor , was given CARDINAL administrative fines amounting in total to CARDINAL NORP levs ( ORG ) ( equivalent to MONEY ( ORG ) ) for failing to keep accurate patient records . The fines were imposed under the Administrative Offences and Sanctions Act DATE ( see paragraph CARDINAL below ) . The applicant sought judicial review of the fines , and his case was examined at CARDINAL levels of jurisdiction . He retained counsel , who charged him BGN CARDINAL ( equivalent to EUR CARDINAL.CARDINAL ) in fees . In a final judgment of DATE , ORG quashed the fines .", "NORP In DATE the applicant brought a claim under the ORG and ORG DATE ( see paragraph CARDINAL below ) , seeking to recoup the legal fees he had incurred by way of damages . The claimed amount was smaller than the statutory DATE minimum wage in the country , which , at the relevant time , was the equivalent of around LAW .", "In a judgment of DATE , ORG allowed the applicant ’s claim . It held that since the DATE Act was silent on awards of costs , the applicant could recoup those costs in proceedings under LAW . This was so because they had been incurred as a result of an unlawful administrative decision .", "On appeal , in a final judgment of CARDINAL DATE ORG overturned the lower court ’s judgment . It held that since the DATE Act did not lay down any rules in respect of the award of costs , LAW DATE should be applied . However , the Code did not provide for an award of costs either . The court went on to say that the costs incurred by the applicant had not been a direct result of an unlawful administrative decision and could not be regarded as actionable damage under LAW , and dismissed the claim .", "On an unspecified date the applicant was charged with forgery . He was accused of creating CARDINAL false records of medical examinations which had not in fact taken place and for which he had received payments from ORG .", "On DATE ORG found the applicant guilty as charged , sentenced him to DATE imprisonment , and barred him from working as a medical doctor for DATE .", "The applicant appealed , requesting , inter alia , the examination of CARDINAL additional witnesses and the gathering of further evidence . ORG turned down those requests in a decision of DATE and at a hearing held on DATE .", "In a final judgment of DATE , ORG upheld the lower court ’s judgment . It held , inter alia , that in previous criminal cases against him the applicant had been acquitted because he had been charged with offences which could be committed by a person acting in an official capacity , which he did not have , whereas in the case at hand his official capacity or the lack of it was irrelevant to the charges and to the conviction .", "In the course of the above criminal proceedings , on DATE the judge presiding over the panel of ORG dealing with the applicant ’s case interrupted the applicant ’s address while the applicant was saying that the prosecution was “ fantasising ” about the charges and that “ the court was alleging the same nonsense ” , and fined him ORG CARDINAL ( equivalent to EUR CARDINAL ) for contempt of court , on the grounds that he had been using insulting words and behaving rudely in the courtroom . The applicant then continued his address .", "On DATE the applicant appealed against the fine before the president of ORG , who responded that he was not competent to examine the appeal .", "On DATE the applicant asked the president of ORG to forward his appeal to the panel which was dealing with his case and was thus competent to examine it . It is not clear whether his appeal was examined .", "On DATE the applicant sought judicial review of the fine by the administrative courts . In a final judgment of DATE , ORG dismissed his application , pointing out that the examination of a legal challenge against a fine for contempt of court was to be conducted using the procedure established by LAW , which provided that such fines were to be challenged before the panel dealing with the case in the course of which the fine had been given .", "In DATE the applicant brought a claim for damages against PERSON , alleging that she had libelled him . On DATE ORG granted the applicant ’s application for reopening of the case and quashed the previously delivered judgments in the case .", "In a judgment of CARDINAL DATE ORG dismissed the applicant ’s claim .", "On appeal , at a public hearing held on DATE ORG turned down the applicant ’s request for an adjournment on health grounds . It noted that CARDINAL hearing had already been adjourned at the applicant ’s request , again on health grounds , and went on to say that the applicant ’s medical condition was not so serious as to prevent him from appearing in court . The court then admitted PERSON written submissions and evidence .", "In a final judgment of DATE , ORG dismissed the applicant ’s claim .", "The applicant again sought the reopening of the case . In a final judgment of DATE , ORG rejected the application , as it found that the case had already been reopened once on the applicant ’s application and that the applicant had not presented or requested the gathering of additional evidence after the reopening . The court went on to note that one hearing had been adjourned at the applicant ’s request and that his medical condition was not so serious as to prevent his appearance in court . It concluded that the applicant ’s procedural rights had not been breached and that by seeking adjournments he had been abusing those rights .", "The Administrative Offences and Sanctions Act DATE lays down the procedure for establishing and punishing administrative offences . Orders imposing administrative sanctions are subject to judicial review by the district courts , whose judgments were , until DATE , subject to appeal before the regional courts ( sections CARDINAL and DATE ) . On DATE appellate jurisdiction LAW was transferred from the regional to the administrative courts . The LAW does not contain provisions on costs . LAW provides for the subsidiary application of LAW in respect of a number of matters not set out in the LAW , such as remuneration of experts and reimbursement of the expenses of witnesses , but counsel ’s fees are not mentioned .", "The Code of Criminal Procedure DATE , in force until DATE , provided in LAW that when an accused was convicted the court had to order him to bear all the costs of the proceedings , including , inter alia , the fees of his or her court - appointed counsel . LAW provided that if the accused was acquitted or the criminal proceedings were discontinued the costs were to be borne by the ORG . In DATE those provisions were superseded by Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW , whose wording is identical .", "Article CARDINAL § § DATE PERSON provides that a judge presiding over a panel hearing a criminal case shall ensure order in the courtroom and may impose a fine of up to ORG CARDINAL ( equivalent to ORG CARDINAL ) on anyone breaching that order . The fine can be set aside by the panel as a whole .", "LAW DATE provides that the ORG is liable for damage suffered by individuals or legal persons as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with administrative action . Section CARDINAL(CARDINAL)(CARDINAL ) provides for liability of the investigating or prosecuting authorities or the courts for damage resulting from the imposition of an administrative penalty where the penalty has been set aside . Section CARDINAL provides that the ORG is liable for all pecuniary and nonpecuniary damage which is a direct and proximate result of the impugned decision , action or omission .", "NORP The question of costs for expert opinions and witnesses in proceedings under LAW was settled by ORG in a DATE interpretative decision ( see тълк. реш. № CARDINAL от CARDINAL април DATE г. по н. д. № CARDINAL/CARDINAL г. , ORG , ORG ) , in which it held that since the Act did not contain provisions in that respect , the provisions of LAW DATE should apply and that , in cases where a decision imposing an administrative sanction has been quashed , those costs are to be borne by the ORG . The interpretative decision did not deal with counsel ’s fees .", "In an interpretative decision of DATE ( see тълк. реш. № CARDINAL от CARDINAL юни DATE г. по тълк. д. № DATE г. , PERSON , ORG ) ORG dealt with the question whether after DATE , when appellate jurisdiction under LAW was transferred from the regional to the administrative courts ( see paragraph CARDINAL above ) , the administrative courts should award costs in judicial review proceedings under LAW . The court observed that there existed a certain inconsistency in the administrative courts’ case - law on that point . Some courts awarded costs , whereas others did not , saying that they could be claimed by way of damages in separate proceedings under LAW . The court held that the administrative courts could not award costs in proceedings under LAW , as neither that LAW nor the DATE or DATE Codes of Criminal Procedure made provision for them to do so ." ]

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[ "The applicant was born in DATE . She lives in LOC .", "By a judgment of DATE the ORG dismissed the applicant 's appeal against a secondinstance administrative decision by which she had been refused a DATE social assistance benefit . This judgment , with its written reasons , was served on the applicant on DATE .", "On an unspecified later date the applicant was granted , by a decision of an official of the court 's registry , legal aid for the purposes of lodging a cassation appeal with ORG .", "By a further decision of a registry official given on DATE the registry requested the local ORG to assign a legal - aid lawyer to the case . That order was complied with on DATE .", "On DATE the ORG informed the court that Mr M. S. had been assigned to the case . Mr PERSON was so informed on DATE .", "On DATE he examined the case file and found that the time - limit for lodging a cassation appeal had expired on CARDINAL DATE .", "By a letter to the court dated DATE the lawyer informed the court that he saw no legal grounds on which he could draft a cassation appeal . He presented a detailed legal analysis of the case and an explanation why he considered that legal grounds for a cassation appeal did not obtain . He further an appeal , having been served with the judgment after the time - limit for its submission had already expired .", "Legal aid can be granted under section CARDINAL read together with section CARDINAL of the Act on Procedure before ORG if a party to the proceedings demonstrates that he or she is unable to cover the relevant costs and the case has no prospects of success whatsoever . A decision on the request to grant legal aid can be issued either by the court or by an official from the court registry . Pursuant to section CARDINAL of the Act , a grant of legal aid covers exemption from court fees and the appointment of a qualified representative . A representative is assigned to the case by a subsequent decision of the local ORG or other relevant professional organisation .", "Section CARDINAL of the Act on Procedure before ORG provides that a cassation appeal can be lodged against a judgment of the regional administrative court .", "Pursuant to section CARDINAL , a cassation appeal should be prepared and lodged with the court by an advocate , legal counsel , a tax adviser or a patent agent . An appeal brought by a party him- or herself shall be rejected . Under section CARDINAL § CARDINAL , the DATE time - limit for lodging a cassation appeal with ORG starts to run on DATE on which a judgment of ORG , together with its written grounds , has been served on the party concerned or his or her representative , if the party is legally represented .", "Pursuant to section CARDINAL of the PERSON on the Procedure before Administrative Courts , a party to the proceedings may request retrospective leave to take a procedural step outside the prescribed timelimit . Under section CARDINAL , this step shall be performed simultaneously with the act of lodging the request for leave and within DATE from the removal of the impediment which had prevented the party from taking this step .", "In a number of decisions the administrative courts have held that the running of the time - limit for lodging a cassation appeal is not affected in any way by a request for legal aid and its subsequent grant . The time - limit starts to run on the date when the party was served with the decision of the regional administrative court with its written grounds . They referred to what they considered to be the established case - law of ORG ( ORG decision , PERSON referred to as NSA – see decisions ORG , PERSON CARDINAL/CARDINAL of DATE ; I ORG CARDINAL/CARDINAL of DATE , II OZ CARDINAL/CARDINAL of DATE ; II OZ CARDINAL of CARDINAL DATE ; ORG , ORG / Ol CARDINAL of DATE ) .", "In its decision no . II FZ CARDINAL/CARDINAL of DATE ORG held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit by a legally - aided applicant could be admitted for examination .", "When legal aid has been granted and the time - limit for the submission of a cassation appeal has already expired , it is open to the legally - aided party to submit the appeal together with a request for leave to appeal out of time made under sections DATE and CARDINAL of the PERSON on the Procedure before Administrative Courts ( e.g. ORG FZ CARDINAL/CARDINAL of DATE and ORG , I CARDINAL CARDINAL/CARDINAL of DATE ) . In certain cases the courts stated that such a request should be submitted within DATE from the date on which the lawyer obtained a power of attorney from the party , which date is considered as the date on which the impediment to lodging an appeal ceased to exist ( e.g. ORG , PERSON CARDINAL/CARDINAL of DATE ) , or from the date when the lawyer could obtain effective access to the case file ( e.g. the ORG , ORG CARDINAL/CARDINAL of CARDINAL DATE ) .", "In a number of its recent decisions ORG acknowledged the difficulties which legally - aided parties experienced in connection with lodging their cassation appeals against judgments of the first - instance administrative courts . It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough . It analysed relevant case - law of the administrative courts and noted that the manner in which DATE limit for lodging cassation appeals was determined had led to divergent results . It held that it was necessary to determine that moment in a manner compatible with the effective access to the highest administrative court and equal for parties represented by lawyers appointed under the legal - aid scheme and by privately hired lawyers . The court held that the time - limit for a legally - aided party started to run only on DATE when a legal - aid lawyer had a genuine possibility of lodging the cassation appeal ; not when he or she was informed of having been assigned to the case . The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal - aid system illusory . In any event , the cassation appeal had to be lodged within DATE from DATE on which the party was informed of the appointment of the legal - aid lawyer ( I FZ CARDINAL of DATE ; I ORG CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; PERSON CARDINAL/CARDINAL of DATE ; II OZ CARDINAL/CARDINAL of CARDINAL DATE ; I CARDINAL CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; ORG of DATE ; I FZ CARDINAL of DATE ) .", "In DATE ORG issued a resolution in reply to a legal question whether a legalaid lawyer could refuse to lodge a cassation appeal in civil proceedings . It replied to the question in the affirmative , having noted that issues involved in the grant of legal aid concerned not only the proper administration of justice , but also touched on human rights , and the right of access to a court in particular . The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism .", "The court observed that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client 's wishes . The role of a legalaid lawyer had rather to be understood as obliging him or her to provide legal advice to the party , including as to the prospects of success offered by a cassation appeal against a given judgment .", "This resolution was summarised in detail in the ORG 's judgment in the case of ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .", "On DATE ORG changed its previous position concerning the date on which the timelimit for lodging a cassation appeal started to run . It examined a particular situation where a legal - aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings , finding that a cassation appeal would offer no prospects of success . It held that in such a situation the appellate court was obliged to instruct the defendant that the time - limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer 's refusal and not on DATE when the judgment of the appellate court was served on the defendant himself . It stated that it was not open to doubt that a defendant faced with a legal - aid lawyer 's refusal had a right to take other measures to seek legal assistance necessary for an effective lodging of a cassation appeal ( III KZ CARDINAL/CARDINAL ) .", "ORG reiterated its position in a decision of DATE and in a number of similar decisions given in DATE . It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time - limit in such situations was calculated , but the strand of the case - law launched by the decision given in DATE was both dominant and correct , and also accepted by doctrine as providing to defendants adequate procedural guarantees of access to ORG within a reasonable time - frame ( II KZ CARDINAL/CARDINAL ) ." ]

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[ "The applicant , an NORP citizen born in DATE , lives in GPE where he practises the profession of accountant and financial consultant ( ORG ) .", "On DATE , an CARDINAL-year - old woman , Mrs. PERSON , acting through a lawyer , reported to the GPE public prosecutor 's office that DATE during a quarrel Mr. PERSON had thrown at another person , Mrs. PERSON , a bunch of keys which had then struck her ( Mrs. PERSON ) , causing her injury . In her letter headed \" request to inquire into a set of facts \" , she called on the prosecutor 's office to take criminal proceedings against the applicant and stated that she would be a civil party claiming damages in any such proceedings ( Privatbeteiligte ) .", "The federal police at GPE , instructed on DATE by the public prosecutor 's office to investigate whether or not a punishable act had been committed , interrogated several persons cited by Mrs. Proxauf at witnesses and , on DATE , the applicant himself . He denied the facts alleged against him and denounced the complaint as being knowingly false . After pointing out that the object alleged to have caused the injury was , in fact , an envelope containing a single key , he asserted , amongst other things , that he had not thrown it : he had wanted to give it back to Mrs. PERSON , but it had slipped out of his hand and touched her arm . Mrs. PERSON , he said , had picked it up and thrown it , just above his head , over a distance of QUANTITY in the direction of his house . Mr. PERSON 's wife and CARDINAL employees had written a note setting out what they remembered of the incident . This note , he stated was available to the court , as an item for inclusion in the case - file . The police accepted the note , but did not question Mrs. PERSON or the employees .", "On DATE , the public prosecutor 's office , to which the file had been returned , asked ORG ( Bezirksgericht ) to procure a medical report on the seriousness of Mrs. PERSON 's injury . The ORG registered the case on DATE ; under the heading \" punishable act \" it specified \" section CARDINAL of LAW \" , which is a provision , amongst others , dealing with the infliction of bodily harm .", "Following receipt of the doctor 's opinion , ORG assessed the costs of that opinion on DATE . The district prosecutor ( GPE ) requested ORG on DATE to \" decide that the conditions of section CARDINAL of LAW [ were ] fulfilled \" ( see paragraph CARDINAL below ) . The ORG acceded to the request on DATE by inserting in the file a note worded as follows : \" B \" ( PERSON , decision ) : \" ... the proceedings are closed pursuant to section CARDINAL par . CARDINAL of LAW \" ; in addition , it added to the register , under the heading \" date and manner ... of disposal of the matter \" ( GPE ) : \" CARDINAL . CARDINAL . Section CARDINAL par . CARDINAL of LAW \" .", "On DATE , an application was made to ORG by Mr. PERSON who , after consultation of the file on his case , had come to learn on DATE of the submissions made by the public prosecutor 's office on DATE ; however , like that office , he was not aware of the decision of DATE . He denied that he had injured Mrs. PERSON , whether by throwing a bunch of keys or otherwise , and contested the doctor 's findings , claiming in particular that the latter had based his opinion on information that was contradicted by the material in the case - file ( aktenwidrig ) . He called on ORG either to acquit him after trial or to terminate the proceedings pursuant to section CARDINAL par . CARDINAL of LAW ( see paragraph CARDINAL below ) . He requested that , if ORG should choose the first alternative , fresh medical evidence be taken forthwith .", "On DATE , ORG notified an associate of the applicant 's lawyer that the proceedings had been terminated - on an unspecified date - in pursuance of section QUANTITY Following a request made by Mr. PERSON on DATE , the ORG served on him on DATE a decision dated DATE which reads as follows ( translation from NORP ) :", "\" Decision", "In the criminal case ( ORG ) against Dr. PERSON for the offence of inflicting bodily harm , within the meaning of LAW of LAW , ORG of Innsbruck has decided as follows upon the request of the public prosecutor :", "The conditions of section CARDINAL of LAW are met ; the proceedings are terminated in accordance with section CARDINAL par . CARDINAL of LAW .", "Reasons", "By letter of DATE , the civil party PERSON informed the public prosecutor of an incident involving herself and the accused ( PERSON ) which had happened on DATE . She alleged that the accused had caused her an injury , namely a bruise on her left arm and another below her left breast , with a bunch of keys . The investigations made thereupon and the expert opinion have shown ( ergeben ) that in the course of a quarrel the accused flew into a rage and threw an envelope containing a key in the direction of Mrs. PERSON who however managed to avoid the missile , while the DATE PERSON standing behind her was hit . The key first struck the back of the right hand , causing a superficial abrasion , and then bounced against the left side of the above - named person 's chest . No injury could be established on the chest .", "The injury found ( festgestellte ) is insignificant ( geringfügig ) as it does not exceed the DATE limit ; the fault ( GPE ) of the accused may be described as insignificant ( geringfügig ) , and his character gives cause to expect that he will conduct himself properly in future .", "Therefore the conditions of section DATE of LAW are met , justifying the above decision .", "ORG of GPE , Section CARDINAL , DATE . \"", "The applicant challenged this decision before ORG ( PERSON ) of GPE which , on DATE , declared the appeal ( Beschwerde ) inadmissible on the ground that section CARDINAL par . CARDINAL of LAW limited the right of appeal to the prosecutor ( Ankläger ) .", "On DATE , a little more than six months after ORG had accepted the application , the ORG ( the public prosecutor attached to ORG ( Oberster Gerichtshof ) filed , with ORG , pursuant to section CARDINAL par . CARDINAL of LAW , an application for annulment of the decision dated DATE in the interests of the proper application of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) .", "The ORG drew a distinction between the termination of proceedings by virtue of section CARDINAL par . CARDINAL and their termination by virtue of section CARDINAL par . CARDINAL of LAW . The former provision applied when , prior to the trial hearing , the court was satisfied that the conditions of section CARDINAL of LAW were met ; where , however , no sufficient grounds existed for continuing with the prosecution , the public prosecutor should close the file ( zurücklegen ) on the complaint and the investigating judge should bring the proceeding to an end in accordance with the general rules laid down in LAW . CARDINAL and CARDINAL par . CARDINAL . In both cases , he said , the decisions would be taken without the formal hearing of evidence ( GPE ) , something which , as followed in any event from LAW CARDINAL ( article CARDINAL ) of LAW CARDINAL par . CARDINAL ( article DATE ) being a provision that has constitutional status in NORP law - , should in principle precede any finding of guilt ( NORP ) .", "Thus , in the submission of the ORG , section CARDINAL of LAW was not appropriate where , on the basis of the complaint or the preliminary enquiries , no offence could be established on the facts or existed in law . On the other hand , for CARDINAL to apply it was not essential for there to be proof of guilt , but merely a suspicion ( PERSON ) such as would warrant the opening of preliminary enquiries or an application seeking the imposition of a penalty . A court decision terminating proceedings in accordance with LAW could therefore only be grounded on a \" suspected state of affairs \" ( PERSON ) as disclosed by the case - file : the court had to limit itself to ascertaining whether there existed against the suspect sufficient suspicion for proceeding with the prosecution and whether , on the hypothetical assumption that the suspect had indeed committed the alleged offence , he was or was not entitled to benefit from the ground for exoneration ( PERSON ) provided for under section CARDINAL of LAW . It seemed inadmissible to state in the reasons for such a decision conclusions on the objective and subjective aspects of the act and to take it as proved against the suspect that he had engaged in a certain course of conduct constituting a punishable act . Such an assertion in the reasons for a decision terminating proceedings amounted to a finding of guilt without any formal taking of evidence at a public hearing , which would be in violation of LAW . CARDINAL ( article LAW ) of the Convention .", "In the instant case , said the ORG , ORG had clearly indicated that it accepted the account of the incident given by Mrs. PERSON and corroborated by the police investigations and by the medical evidence , and that it disbelieved the applicant 's denials which were mainly concerned with what had happened during the incident ( GPE ) . He submitted that as the decision in issue was not capable of causing Mr. PERSON any direct prejudice , a finding that it had infringed the law would be sufficient . The ORG therefore moved ORG to hold that the Innsbruck ORG decision dated DATE was , as regards its reasoning , contrary to the law , that is to say section CARDINAL par . CARDINAL of LAW read in conjunction with LAW . CARDINAL and CARDINAL ( article DATE , article DATE ) of the Convention .", "On DATE , Mr. PERSON submitted to ORG certain observations on the application for annulment . Whilst welcoming the initiative taken by the ORG , he considered that the latter had disregarded essential elements of violation of the law inherent in the impugned decision . In particular , he disputed the interpretation given by the ORG to section CARDINAL of LAW ; in the applicant 's view , this section in fact required the court to make a positive finding of an act fulfilling the description of a criminal offence . He relied on section CARDINAL par . CARDINAL of LAW which places the judge under a duty to satisfy himself , before bringing the proceedings to a close , that the conditions stipulated under LAW of LAW are met ; in order to do this , so the applicant contended , the judge must have regard to all the evidence adduced and not simply to the evidence supporting the suspicion .", "Mr. PERSON criticised ORG for having failed to take into consideration evidence in his favour , for having declined to hear witnesses requested by him and for not having given him the opportunity to challenge the expert medical opinion ; he alleged a breach of LAW . CARDINAL and CARDINAL ( d ) ( article DATE , article CARDINAL - CARDINAL-d ) of the LAW . He accordingly called on ORG to find infringements of the law other than those pleaded by the ORG and to order that the proceedings be terminated under section CARDINAL par . CARDINAL of LAW .", "ORG rejected the application for annulment on DATE .", "In the opinion of ORG , the application of section CARDINAL par . CARDINAL of LAW did not place the suspect in a worse position than where the case is closed for some other reason ( for example , in pursuance of LAW . CARDINAL of LAW ) , that is to say , a closure of the case which , in general , does not involve establishing the innocence of the person concerned . LAW is not at all meant to be used to terminate proceedings when it is certain that an offence can not be proved on the facts or does not exist in law . On the other hand , CARDINAL does not demand verification of the objective and subjective elements of the offence ; indeed , this would be contrary to the main object of the section , namely procedural economy ( PERSON - the principle that the court 's time should be usefully employed ) . The person concerned thus has no right to have doubtful issues in the case clarified .", "Section CARDINAL simply requires the existence of a suspicion . Even if a court describes the suspect 's conduct in terms of findings of fact , any statements to this effect could not be regarded as judicial findings ( Konstatierungen ) , within the meaning of section CARDINAL par . CARDINAL , no . CARDINAL , of LAW , with the attendant legal consequences . In point of fact , by reason of its basic legal character , any decision taken in pursuance of CARDINAL of LAW can only be understood in one way : further clarification of , and possible prosecution in , a case which is already recognisable as being a trifling matter is to be avoided , not least in the interests of procedural economy . Howsoever the reasons given therefore may be worded , any such decision contains - if only because of its very nature - a negative ruling on the merits of the case and does not at all amount to a declaration , equivalent to a finding of guilt , that the suspect has ( unlawfully and with criminal intent ) committed a punishable act .", "It would certainly have been preferable had ORG stated this explicitly and without ambiguity in the decision being challenged . Nonetheless , the more or less apposite choice of wording in the reasoning could not deprive the reasoning of the specific significance it had as a result of the nature of the decision given and could not , therefore , in any way adversely affect the person concerned .", "Since legal proof of the suspect 's guilt is not the object pursued under section DATE of LAW , no question arises as to the extent to which a decision given in pursuance of this provision has or has not been preceded by proceedings complying with the requirements of LAW . CARDINAL ( article CARDINAL ) of the Convention .", "The judgment of ORG was reproduced in an NORP legal journal but the applicant 's identity was not revealed . The accompanying commentary on the judgment referred to an article entitled \" A trivial affair leads to an application against GPE \" ( \" PERSON Klage gegen PERSON \" ) , which had been published in a newspaper in DATE and which did disclose his name , profession and place of residence .", "The professional association to which Mr. PERSON belongs has not instituted any disciplinary proceedings against him in respect of the facts underlying Mrs. PERSON 's complaint .", "According to Mr. PERSON , the file on his case , including the Innsbruck ORG decision dated DATE , has been produced in evidence in a civil action between himself and Mrs. PERSON in the matter of an easement ( GPE ) ; an order issued by the competent civil court in GPE took the case - file into consideration .", "The costs of the procedure , and notably the costs of the medical opinion , were borne by the ORG . The applicant himself had to pay his lawyer 's fees and his own expenses .", "In GPE , the public prosecutor ( Staatsanwalt ) is required by law to inquire into the correctness of any report ( ORG ) of an offence for which a prosecution must be brought as a matter of course ( section CARDINAL par . CARDINAL of LAW ) . He is obliged , as a matter of course , to prosecute in respect of any offence which appears to him to have been committed and where it is not a precondition of investigation and punishment that an application be made by the victim or some other person concerned ; it is his duty to cause the competent court to take the necessary measures of investigation and punishment ( section CARDINAL par . CARDINAL ) .", "In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file ( GPE ) on a complaint , the public prosecutor may have preliminary enquiries ( FAC ) carried out by the investigating judge , the district courts and the police authorities ( section CARDINAL par . CARDINAL ) .", "Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution , he shall either apply for the institution of a preliminary investigation ( Voruntersuchung ) or file a formal accusation ( PERSON , section CARDINAL par . CARDINAL ) . However , in district court proceedings there is no formal process of investigation and no special procedure of accusation : all that is required is a written or oral application from the district prosecutor seeking the imposition of a penalty on the person concerned ( Antrag auf gesetzliche ORG , section CARDINAL par . CARDINAL ) .", "Where sufficient grounds for prosecuting the individual in question are lacking , the public prosecutor shall take no further action on the complaint and shall transmit the file to the investigating judge , together with a statement to the effect that he sees no reason to continue with the prosecution ; the judge must then terminate the preliminary enquiries ( section CARDINAL par . CARDINAL ) . This provision applies , mutatis mutandis , to district court proceedings ( section CARDINAL par . CARDINAL ) .", "Under the terms of section CARDINAL par . CARDINAL of LAW , the public prosecutor may alternatively ask the investigating judge to hold that the conditions of section CARDINAL of LAW are met . In cases before a district court , the decision terminating proceedings is governed by section CARDINAL par . CARDINAL of LAW , which provides ( translation from NORP ) :", "\" If the court is satisfied that the conditions laid down in section DATE are met , it shall terminate the proceedings by a decision . The public prosecutor may lodge an appeal against any such decision ... \"", "Section CARDINAL of the Penal Code reads as follows ( translation from NORP ) :", "\" ( CARDINAL ) Where an act requiring public prosecution as a matter of course involves liability to no more than a fine , a custodial sentence not exceeding one year or both , the act shall not be punishable ( strafbar ) if", "the guilt ( Schuld ) of the author of the act is slight ( gering ) ;", "the act has had no or only trifling consequences , and if addition", "punishment is not necessary in order to deter the author of the act or other persons from committing criminal offences .", "( CARDINAL ) The decision whether or not the conditions of paragraph ( CARDINAL ) hereof are met shall be taken by the court ; where the court decides in the affirmative , it shall bring the proceedings to a close no matter what stage they may have reached . \"", "Section CARDINAL was introduced into the new NORP Penal Code which entered into force on DATE , and is aimed at avoiding criminal trials in trivial cases , notably for reasons of procedural economy ; the section is headed \" acts not meriting punishment \" ( \" mangelnde GPE der Tat \" ) . ORG and the great majority of legal commentators regard it as a clause which is not concerned with mere procedure but which provides a substantive ground for exonerating the accused ( sachlicher PERSON ) .", "A decision taken by a court in pursuance of section DATE to terminate proceedings is not entered in the criminal record of the person concerned . The file relating to a case closed in this manner may be used in other legal ( and disciplinary ) proceedings , as may , in principle , the case - file in any legal action whatever its outcome .", "According to Mr. PERSON , anyone may go to the court and consult the register of cases and the register of names and , at least as far as the former is concerned , ask for an extract . The Government contested these assertions , save apparently as regards the possibility of having access to the register of names . The latter simply contains a reference to the register of cases without giving any indication as to the nature of the litigation .", "As a result of the present case , CARDINAL circulars were issued on DATE and CARDINAL March DATE by the relevant NORP authorities drawing the attention of the courts to the problems raised by the application of CARDINAL of LAW and to the need for a careful wording of the relevant decisions ( see paragraphs CARDINAL of the report of the Commission ) ." ]

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[ "The applicant , a NORP citizen living in GPE , GPE , and PERSON , an NORP citizen living in GPE , are the parents of a daughter who was born out of wedlock on DATE . The latter was registered with the registry of births , deaths and marriages as the child of the applicant and Mr P. Since the child ’s birth , PERSON has not assumed any parental duties .", "The applicant instituted proceedings against PERSON in ORG , claiming maintenance for her minor daughter .", "On DATE ORG ordered the defendant in absentia to pay maintenance in an amount equivalent to QUANTITY ( PLN ) ( MONEY ( ORG ) ) per month from DATE , plus statutory interest should he default . This decision became final on DATE .", "Having received no payments , on CARDINAL DATE the applicant sought to avail herself of ORG on the Recovery Abroad of Maintenance of DATE . She applied to ORG ( acting as ORG ) for the recovery of maintenance through ORG ( acting as ORG ) , as provided for by that convention .", "In her request , the applicant first asked for payment of the sum due of ORG CARDINAL per month plus default interest which , by DATE , came to a total of PLN MONEY ( approximately ORG CARDINAL,CARDINAL ) . The applicant also requested an increase in maintenance from PLN CARDINAL per month to PLN CARDINAL ( approximately EUR CARDINAL ) per month , on the grounds that she had learnt that PERSON was earning MONEY per month and that the costs of bringing up the child were constantly rising . Finally , she asked the NORP authorities to start judicial proceedings against PERSON to execute the decision of ORG , and to recover her court costs if PERSON refused to comply with the judgment .", "On CARDINAL DATE ORG sent the applicant ’s request to ORG .", "In a letter sent to ORG on DATE , ORG confirmed that it had received the applicant ’s request on DATE and had referred it to ORG . It added that , in so far as the existing decision obliged PERSON to pay ORG CARDINAL per month , a different amount could not be claimed . On DATE ORG sent another letter to ORG informing it that ORG had been appointed to initiate proceedings for the execution of the decision .", "On DATE ORG informed ORG that he had started these proceedings in DATE .", "On DATE ORG held a hearing at which it decided that the parties had to make their final submissions on DATE . On that date the court adjourned the case to DATE and reserved judgment , which , by law , could not be delivered before the expiry of a period of DATE . On DATE ORG declared the GPE ORG decision enforceable in GPE . On DATE ORG invited the debtor to comply with his obligations . On DATE the decision of ORG became final .", "On DATE the NORP ORG asked the NORP authorities for an updated calculation of the debt , which the NORP authorities furnished on DATE .", "On DATE the Prefecture of Terni informed the Ministry that on DATE and DATE it had formally invited the debtor to pay the amounts due . As he did not do so , ORG was asked on DATE to start enforcement proceedings . The first attempt at enforcement was unsuccessful , as PERSON had no possessions . On DATE a new set of enforcement proceedings – started on DATE led to the seizure of property and a priority notice being entered in the land register . According to information submitted by the Government , PERSON lawyer made an informal request to be allowed to pay the arrears in instalments , but did not file a formal request with the courts .", "The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on DATE by ORG on Maintenance Obligations . This conference had been convened by ORG of ORG ( see ORG , Treaty Series , DATE , pp . CARDINAL and CARDINAL - CARDINAL ) . The convention came into force on CARDINAL DATE . GPE and GPE ratified it on DATE and CARDINAL DATE respectively . The relevant provisions of the convention read as follows :", "“ CARDINAL . The purpose of [ the ] Convention is to facilitate the recovery of maintenance to which a person , hereinafter referred to as claimant , who is in the territory of CARDINAL of the Contracting Parties , claims to be entitled from another person , hereinafter referred to as the respondent , who is subject to the jurisdiction of ORG . This purpose shall be effected through the offices of agencies , which will hereinafter be referred to as ORG .", "The remedies provided for in this Convention are in addition to , and not in substitution for , any remedies available under municipal or international law . ”", "“ CARDINAL . Each Contracting Party shall , at the time when the instrument of ratification or accession is deposited , designate CARDINAL or more judicial or administrative authorities , which shall act in its territory as ORG .", "Each Contracting Party shall , at the time when the instrument of ratification or accession is deposited , designate a public or private body , which shall act in its territory as ORG . ”", "“ Where a claimant is on the territory of CARDINAL ORG , hereinafter referred to as the ORG of the claimant , and the respondent is subject to the jurisdiction of ORG , hereinafter referred to as the ORG of the respondent , the claimant may make application to a ORG in GPE the claimant for the recovery of maintenance from the respondent . ”", "“ The Transmitting Agency shall transmit the documents to ORG of ORG respondent , unless satisfied that the application is not made in good faith . ”", "“ The Transmitting Agency shall , at the request of the claimant , transmit , under the provision of LAW , any order , final or provisional , and any other judicial act , obtained by the claimant for the payment of maintenance in the competent tribunal of ORG , and , where necessary and possible , the record of the proceedings in which such order was made . ”", "“ CARDINAL . The Receiving Agency shall , subject always to the authority given by the claimant , take on behalf of the claimant , all appropriate steps for the recovery of maintenance , including the settlement of the claim and , where necessary , the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance .", "The Receiving Agency shall keep ORG currently informed . If it is unable to act , it shall inform ORG of its reason and return the documents .", "Notwithstanding anything in this Convention , the law applicable in the determination of the questions arising in such action or proceedings shall be the law of the ORG of the respondent , including its private international law . ”", "Section CARDINAL of Law no . CARDINAL of DATE indicates the cases in which a judgment delivered by a foreign court will be recognised in GPE without recourse to a specific procedure . Section CARDINAL contains provisions on the execution of judgments and decisions following the voluntary assumption of jurisdiction and in cases of refusal to comply .", "This Act , which came into force on DATE , completes Article CARDINAL of LAW , which provides that the right to have proceedings conducted within a reasonable time shall be guaranteed by legislation . The new LAW enables a claim for compensation to be made in ORG , which will apply the case - law of ORG , by anyone who has sustained pecuniary or non - pecuniary damage as a result of the inordinate length of proceedings .", "“ CARDINAL . Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the ‘ reasonable time’ requirement in LAW , shall be entitled to just satisfaction .", "NORP In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .", "NORP The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :", "( a ) only damage attributable to the period beyond the reasonable time referred to in subsection CARDINAL may be taken into account ;", "( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . ”", "“ CARDINAL . Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary sitting in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is pending .", "NORP The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .", "The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .", "NORP The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing before the relevant chamber shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG [ Avvocatura dello Stato ] DATE prior to the date of the hearing before the ORG .", "The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up until DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on application by the parties .", "The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .", "To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . ”", "“ A claim for just satisfaction may be lodged while the proceedings in respect of which a violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . ”", "“ If the court decides to grant an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants concerned by the proceedings . ”", "“ CARDINAL . Within DATE [ extended to CARDINAL by PERSON no . DATE ] after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the ‘ reasonable time’ requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .", "NORP The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection CARDINAL of this section . ”" ]

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[ "The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He was represented before the ORG by ORG , solicitors practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "The applicant was placed in care with ORG ( “ the ORG ” ) from DATE as his mother could not cope . DATE until DATE he remained under the ORG 's care , with occasional periods with his mother . He was placed in various homes operated by ORG of accommodating children in their care .", "From DATE until DATE , the applicant was placed at FAC , Children 's Home , GPE which was run by PERSON with the assistance of her husband . During his residence there he was subjected to acts of cruelty which damaged his mental and physical health . Amongst other incidents , PERSON and PERSON tied the applicant to chairs outside the LOC at night , restrained the applicant by tying him down with a sheet so that on occasion he could not avoid urinating , subjected him to racial abuse , denied him proper quantities of food such that he became malnourished , neglected his physical condition such that he developed gangrene of the toes , allowed their own children to assault the applicant and subjected him to psychological and sexual abuse .", "On DATE , the applicant was admitted to hospital where he was observed to be malnourished , dirty and with gangrene of the toes and to exhibit disturbed behaviour .", "Since then the applicant continues to suffer from personality disorders , post traumatic stress disorder , panic attacks and depression and permanent physical injury to his foot .", "In DATE , the applicant requested the ORG to provide him with his social records as the only coherent record of his childhood and early development . His request was refused . In DATE , the applicant sought access to his records through his then solicitors . After a meeting with a social worker very limited information was provided and no copies provided .", "On DATE , the applicant 's present solicitors applied to ORG applicant 's social services ' records .", "Following further approaches , the ORG responded to a letter of DATE by refusing the request .", "On DATE , the applicant 's solicitors issued an application for pre - action discovery to compel the ORG to release the records . The application was opposed by the ORG and adjourned pending the judgment of this ORG in PERSON and others v. the GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL ) .", "On DATE , the ORG provided brief details from the applicant 's file , setting out the periods and locations where he was in their care . Following the judgment in PERSON ( cited above ) , the ORG maintained their opposition to discovery .", "DATE the applicant 's solicitors repeatedly sought disclosure of his records . In DATE they sought an appointment with the ORG 's legal advisor which was refused .", "On DATE , in correspondence with the applicant 's solicitor , ORG highlighted LAW DATE under which the applicant would have a right of access to his social service records .", "On DATE the ORG stated that they were prepared to allow the applicant 's solicitors access to the applicant 's social services records . In DATE the ORG commenced the procedure of disclosure which took some time to complete .", "On DATE , the applicant issued proceedings in the ORG seeking damages from ORG for the psychological and physical injuries which he suffered at FAC . During the course of these proceedings , further documentation relevant to the applicant 's childhood and early development was disclosed .", "On DATE , the applicant 's personal property contained in his social service records was released to him , namely , CARDINAL photographs , correspondence between him and his siblings and CARDINAL swimming certificates .", "On DATE , ORG found that the applicant had suffered prolonged cruelty and neglect and acts of physical and sexual abuse from PERSON and PERSON and that the ORG had been in breach of its duty to protect his well - being . The judge awarded GBP CARDINAL covering the applicant 's psychological injuries and the injury to his toes and GBP CARDINAL to cover need for private treatment and taking into account a discount to reflect the factors which were not attributable to the ORG .", "ORG in ORG ( DATE ) held that ORG , in refusing access to the social services records , had correctly balanced the public interest in maintaining an efficient child - care system with the individual 's interest in obtaining access to records , and that it was not necessary for the court to review the records in question in order to so decide .", "In DATE a binding circular , PERSON , was issued setting out the principles to be applied by local authorities in permitting access to their care records . Access to records was , in principle , to be permitted subject to necessary exceptions ( such as the preservation of third party confidences and the protection of sources ) .", "ORG Regulations DATE both entered into force on DATE . The LAW and the LAW gave subjects the statutory right to know what was recorded about them in manually maintained records held by the local authority for the performance of social service functions . A number of exceptions were retained for the preservation of third party confidences and the protection of sources , but there was a right of review ( and , subsequently , of judicial review ) of a refusal of access . LAW did not , however , apply to records created before DATE .", "Circular GPE was issued to provide guidance to the local authorities on the implementation of LAW and LAW . The previous circular ( LAC(CARDINAL)CARDINAL ) was cancelled and LAW to the new circular pointed out that , while there was no obligation to furnish pre - DATE information , “ there is likely to be significant advantage in authorities making available as much information as possible . This could lead to greater clarity and understanding of an individual 's background . ”", "On DATE LAW DATE ( “ the DATE LAW ) came into force and repealed LAW , LAW and circular GPE . It provided a statutory right of access for a “ data subject ” to information held about him in care records and other personal files ( both manual and electronic ) regardless of the date when the information was recorded , together with a right of appeal to the domestic courts or to ORG Commissioner if access were refused , or where a contributor or a relevant third party had not consented ." ]

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[ "The applicant was born in DATE and lives in GPE , in the former GPE .", "On DATE , at TIME , the applicant and his friend PERSON , both citizens of the former GPE of GPE ethnic origin , were having a drink in a downtown bar in PERSON . On the other side of the bar , CARDINAL men were gambling . The man who lost pulled out a gun , fired several shots into the air and CARDINAL into the ground , and asked for his money back . All those in the bar , including the applicant and his friend , tried to leave , but were ultimately unable to do so because of the crowd that had already blocked the exit .", "In the meantime , QUANTITY police officers arrived at the scene of the incident and turned to the applicant and his friend . CARDINAL of the police officers caught the applicant by his hair and pushed him against the police car , while another officer grabbed his friend 's arm and twisted it behind his back . Shortly afterwards , the police took them to the local police station , where they were locked up in CARDINAL separate cells .", "The applicant maintains that TIME one of the police officers concerned came to the cell where he was being held and told him to bend over . The applicant alleges that the police officer kicked him in his head , which caused bleeding from his mouth . As he fell down on the floor , the police officer grabbed him by his hair and allegedly started hitting him savagely with his fists and a truncheon . The applicant further maintains that another police officer , who was allegedly beating his friend in the other cell , came to his cell later and continued to batter him until TIME They were then taken to an office , where they were questioned about the incident . After drawing up a report , the police released the applicant and his friend at TIME DATE .", "Following his release , the applicant went to ORG at ORG and asked for medical assistance . A medical certificate issued on DATE by the doctor who had examined him indicated that the applicant had sustained several bodily injuries which were described as slight . In addition , the certificate stated that the applicant had declared that he had been beaten at the police station with a truncheon and kicked all over his body . The medical certificate did not specify the possible origin of the injuries , their timing or the way in which they had been inflicted .", "The applicant submitted an excerpt from a newspaper together with his statement concerning the incident in which he had made no allegations of being beaten at the scene in the bar . A photograph of him having a swollen right eye also appeared in the newspaper .", "The applicant and his friend have never been charged with any offence in relation to the incident at issue .", "On DATE , CARDINAL , the applicant and PERSON arrived at the café bar ORG . They joined a group watching people gambling with dice . At TIME on DATE one of the losing gamblers claimed that the dice had been fixed and demanded his money back . An argument started in which the applicant and PERSON participated . When a certain ORG took out a pistol and fired , ORG tackled him and the gun fell on the floor . At TIME the police came to the scene after the shooting incident had been reported to them . Meanwhile , there was a certain disruption inside the bar , after which some people went outside . The police 's inspection of the scene lasted until TIME", "The police sought to take GPE , an individual reported to them , into custody . The applicant and PERSON , who had taken the side of GPE in the dispute , obstructed the police 's efforts , allowing PERSON to escape . PERSON also assaulted another person on the scene . The police then decided to take all those present , including the applicant , to the police station .", "At TIME the applicant and PERSON were interviewed by the police . They were released at TIME No force was used against the applicant during the questioning , nor did he make any complaint at the police station concerning any abuse by the police or any injury he had sustained . No charges were subsequently brought against him .", "On CARDINAL DATE the applicant , through his legal representative , filed a criminal complaint ( кривична пријава ) with ORG ( Основно Јавно Обвинителство Штип ) against an unidentified police officer under LAW ( see “ Relevant domestic law ” ) . In the complaint , the applicant set out a factual account of the incident and alleged that the officer concerned had ill - treated him while he was in police custody . He requested the public prosecutor 's office to initiate proceedings as provided for by law . The medical certificate of DATE was produced in support of his complaint .", "On CARDINAL DATE the applicant 's legal representative wrote a letter to the PERSON public prosecutor , stressing that his criminal complaint had been filed DATE previously and that since then he had received no information and had no knowledge as to whether any steps had been taken by the public prosecutor 's office to identify the offenders and to initiate a formal investigation .", "As there was again no reply , on DATE the applicant 's lawyer sent another letter to the public prosecutor , requesting information about any action undertaken concerning the applicant 's case . He made no reference to the civil proceedings that had already finished and did not inform the public prosecutor of the identity of the police officers concerned , which had been determined in the course of the civil proceedings .", "In a letter dated DATE the PERSON public prosecutor replied that his office had responded to the criminal complaint at issue by officially requesting additional inquiries from ORG ( “ the Ministry ” ) . However , to date his office had received no information from ORG .", "As the applicant has not received any fresh information since then as to any action taken by the relevant prosecuting authorities , the proceedings concerning his criminal complaint are still pending .", "On CARDINAL DATE the applicant submitted a compensation claim against the respondent ORG and ORG for the non - pecuniary damage he had suffered as a result of the violence to which he had been subjected while in police custody . He made the same statements as in the criminal complaint , namely that after the police officers had arrived at the bar , one of them had grabbed him by his hair and pushed him against the police car ; that at the police station he had been told to do push - ups and had been subsequently kicked in the head , which had caused his mouth to bleed ; and that he had been punched and beaten with a truncheon all over his body .", "The ORG stated that in DATE , following the bringing of the civil action , ORG had requested information from ORG concerning the incident . In DATE the PERSON police submitted a report based on the official notes and records , stressing that the police had not used force at the station and had intervened and placed the applicant in the police van when he and his friend had resisted them at the scene and his friend had attacked another person . They added that no force had been used against the applicant , nor had he submitted any complaint concerning the injuries allegedly sustained during the police intervention at the bar . Among the documents accompanying this report , ORG provided the official police record of the statements given by the applicant while being questioned . No complaints of alleged abuse or injuries had been noted in that record .", "On DATE ORG Instance dismissed the applicant 's claims as ill - founded . The court heard evidence from PERSON and several police officers who had participated in the police raid on TIME of the incident . It also heard evidence from a specialist doctor , who provided his expert opinion about the applicant 's injuries indicated in the medical certificate . As stated by him , the following injuries had been observed : a blow on the back of the head ; contusion of the left eye ; swollen and bruised left cheek ; bruise on the lower part of the chest and punch on the right hand . He stated that the injuries had been probably inflicted by a blunt object such as a hand or a tool and that no special treatment had been necessary for the applicant 's recovery . The court also admitted as evidence the medical certificate of CARDINAL DATE and the photographs showing the applicant 's condition after the incident .", "The court found it undisputed that the applicant had been injured , but stated that there was no evidence that the injuries had been inflicted as a result of police brutality . It established that the applicant had sustained certain injuries , but concluded that it could not be inferred under what circumstances they had been inflicted , or by whom or when . On the basis of the police officers ' statements , the court further established that the applicant had sustained some injuries to his head and eye before he had been taken to the police station . It found that the injuries had either been sustained during the fight in the bar ( while the applicant was assisting the escape of a person who had fired a gun and caused a disturbance ) or had resulted from the legitimate action of police officers in trying to restrain the applicant who had resisted arrest . 's argument that he had not been able to undergo a medical examination immediately after being released from custody owing to his lack of financial means , since this was contradicted by the medical certificate dated DATE .", "On DATE the applicant appealed .", "On DATE ORG dismissed the applicant 's appeal as ill - founded . It stated that the lower court had indisputably found that the applicant had sustained certain injuries before he had been taken into police custody and that the police officers had not inflicted them . It concluded that the lower court had reasonably found that the ORG could not be held liable and had dismissed the applicant 's claim for damages .", "On DATE the applicant requested the public prosecutor to lodge with ORG an application for the protection of legality ( барање за заштита на законитоста ) . Referring to the outcome of the civil proceedings , he did not provide the public prosecutor with the identity of the police officers who had allegedly beaten him and who had given evidence in the course of those proceedings .", "On DATE the public prosecutor rejected the applicant 's request .", "Section CARDINAL of LAW ( Кривичен законик ) provides that a person who , in the performance of his duties , mistreats , intimidates , insults or generally treats another in such a manner that his human dignity or personality is humiliated is to be punished by a term of imprisonment of DATE .", "The relevant provisions of LAW ( “ LAW ” ) ( ORG за кривичната постапка ) may be summarised as follows :", "Section CARDINAL provides that criminal proceedings must be instituted at the request of an authorised prosecutor . In cases involving offences subject to ex officio prosecution by the ORG or on an application by the injured party , the authorised prosecutor is the public prosecutor , whereas in cases involving offences subject to merely private charges , the authorised prosecutor is the private prosecutor . If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings , his role may be assumed by the injured party , acting as a subsidiary prosecutor under the conditions specified in the LAW .", "Section CARDINAL sets forth the duty of the public prosecutor to proceed with a criminal prosecution if there is sufficient evidence that a crime subject to ex officio prosecution has been committed ( the principle of legality ) .", "In accordance with section DATE , in discharging this statutory right and duty , the public prosecutor is empowered to take measures to detect crimes , to identify their perpetrators and to coordinate preliminary criminal inquiries ; to request the opening of an investigation ; to file and to defend an indictment or application for prosecution before the competent court ; to lodge appeals against decisions which have not become final ; and to make use of extraordinary judicial remedies against final court decisions .", "Section CARDINAL provides , inter alia , that where the public prosecutor finds that there are no grounds for prosecuting an offence subject to ex officio prosecution , he shall notify the injured party of his decision within DATE . He shall also inform the injured party that that party may conduct the prosecution himself .", "Section CARDINAL ) provides that the public prosecutor is to dismiss the criminal complaint if it transpires that the act reported is not a criminal offence subject to ex officio prosecution ; that the statute of limitations has expired ; that the offence has been amnestied or pardoned or that other circumstances exist which preclude prosecution ; or that there is no reasonable suspicion that the person in question committed the offence . The public prosecutor shall notify the injured party of the dismissal of the complaint and of the grounds for the dismissal within DATE ( section DATE ) and , if the complaint was filed by ORG , he shall notify the latter accordingly .", "Section CARDINAL(CARDINAL ) provides that if the public prosecutor is unable to establish , from the criminal complaint , whether or not the allegations set out in the complaint are credible , or if the information given in it is insufficient for him to take a decision on whether to request the opening of an investigation , or if he has merely learned of rumours that a crime has been committed , particularly where the perpetrator is unknown , he shall , if he can not do this alone or through other authorities , request ORG to gather the necessary information and to take other measures to investigate the offence and identify the offender . The public prosecutor may at any time require the ORG to inform him about the measures taken .", "Section CARDINAL provides , inter alia", "LAW provides that an investigation is to be opened in respect of a particular person where a reasonable suspicion exists that he has committed an offence ." ]

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[ "NORP The applicant company , ORG . , is a limited liability company , currently in compulsory administration , whose registered office is in GPE , GPE . The application was introduced on its behalf by Mr PERSON , an NORP national who was born in DATE and is serving a prison sentence in Peqin prison ( “ the individual applicant ” ) . Mr PERSON was the applicant company ’s president and sole shareholder until it was placed in compulsory administration .", "The applicants were represented before the ORG by PERSON . ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The individual applicant was the owner of the applicant company , which was initially founded as a trading company on CARDINAL DATE . The scope of its activity progressively expanded over DATE , as a result of which it changed its registered name and scope of activity on DATE , DATE and DATE respectively , to be finally registered and known as “ ORG . ” Owing to the unwillingness of the commercial banks to provide financial resources for its expansion , the applicant company entered into loan agreements ( kontratë huaje ) with individuals . It would appear that from DATE to DATE the applicant company continued to borrow money in order to proceed with its investment plans .", "In DATE GPE was hit by large - scale civil unrest , which was prompted by the collapse of the alleged pyramid schemes which had been established during DATE .", "The ORG intervened to restore public order and passed legislation .", "On DATE LAW was enacted ( see “ Relevant domestic law and practice ” below ) . The LAW precluded both applicants from continuing to enter into loan agreements with individuals to pursue the company ’s investments .", "On DATE the Non - banking LAW ( “ Act no . CARDINAL ” ) was enacted . Act no . CARDINAL underwent a number of amendments as outlined in the “ Relevant domestic law and practice ” section below .", "On DATE the Government decided to subject the applicant company to an audit pursuant to section CARDINAL of the amended NORP - banking LAW ( “ Act no . CARDINAL ” ) . It therefore appointed CARDINAL NORP administrators . The decision did not mention any of the specific legal grounds referred to in DATE , upon which the ORG relied .", "On an unspecified date in DATE the applicant company appealed against the ORG ’s decision of CARDINAL DATE to ORG ( “ the Court of Appeal ” ) .", "On DATE ORG quashed the decision and ordered the suspension of the compulsory administration measure . It found that no public interest existed for the appointment of administrators .", "On DATE the Government confirmed the same CARDINAL administrators as in its previous decision of CARDINAL DATE , giving no further reasons under LAW no . CARDINAL .", "On DATE the Government concluded a contract for services with an international company , D , which was to replace the CARDINAL individual administrators and act as the single administrator of the applicant company . Under the terms of reference , D ’s tasks were to be performed in CARDINAL phases . During the first phase D would , inter alia , take control of the applicant company , exercise all the powers and rights vested in the company , including the power to carry on its business , pay its debts , suspend operations , sell its assets and retain , dismiss or replace staff or managers . An inventory of the applicant company ’s assets would be compiled and a plan of action prepared for the recovery of the assets . An audit would be conducted by qualified auditors to be appointed by the Government . During the second phase , D would implement the plan of action for the recovery of the assets , including their sale , deposit all the proceeds of the asset recovery with the entity designated by the Government , assist in the redistribution process , collaborate in the preparation of an audit of the closing position and prepare a final report for the Government .", "On an unspecified date in DATE the individual applicant challenged section LAW no . CARDINAL before ORG , insofar as it empowered the administrators to replace him and take over all the property rights which were stricto sensu related to his ownership of the applicant company .", "On DATE ORG declared unconstitutional LAW no . CARDINAL . It found that assigning the administrators certain tasks , such as the suspension of contractual obligations , the management of business operations and the entity ’s property , the exercise of the shareholder ’s rights and the sale of property , had divested the sole shareholder of all property rights in breach of sections CARDINAL of the Act on Major Constitutional Provisions . As such rights lay only within the purview of the domestic courts , their transfer to the administrators had encroached upon the constitutional principle of separation of powers . It held that LAW no . CARDINAL was contrary to section CARDINAL of the Act on Major Constitutional Provisions .", "On DATE of the Act on Major Constitutional Provisions was supplemented by introducing the right of the ORG to control and administer the property of private entities such as the applicant company . As a result , on DATE , ORG passed an amendment to the NORP - banking LAW ( “ Act no . CARDINAL ” ) , reintroducing the wording of the previously unconstitutional section CARDINAL of Act no . CARDINAL .", "On DATE the Government repealed its decision of CARDINAL DATE ( see paragraph CARDINAL above ) . It renewed the compulsory administration measure in respect of the applicant company and appointed D as the administrators .", "On DATE D submitted its first report to the Government . Valuation schedules for key assets , projected returns from sales and financial statements were appended to the report . The executive summary of the report contained a paragraph in bold letters which stated ( taken from the original version in LANGUAGE ) :", "“ The Administrators’ recommendation is to sell the company ’s assets . This should be done in the most appropriate manner to ensure the best return to creditors within a reasonable time period . ”", "The report further stated that the applicant company had been a diverse business consisting of CARDINAL operations in GPE and joint venture operations and agencies in CARDINAL other countries . Many of its operations had been damaged in the civil unrest in DATE . In preparing the report , no audit of the applicant company was conducted as that was not part of their mandate . D stated that the financial information provided to them by the company or by third parties , including various Government agencies , was often unreliable or incomplete due to destruction of documents and records during the riots , the alleged disappearance of certain of the companies books and records , the refusal of some parties to produce relevant information or , when requested , to provide explanations of questionable information or data and , the failure of some of the parties to maintain proper books and records . In addition , certain properties allegedly owned by the applicant company could not be located ; properties not listed were discovered , some properties had been ‘ ORG and , at other properties , ownership was claimed by third parties . Further , the data on aggregate PERSON claims had come from the company ’s ORG books and records , not from the creditors themselves .", "The key findings about the financial position of the applicant company as of DATE contained , inter alia , that the applicant company never operated at a profit , would run out of cash in the near future , were unable to meet their liabilities and were insolvent , their balance sheet did no reflect funds received from creditors and their books and records were not consistent with each other . The proposed strategy to maximise recovery for creditors was to sell the applicant company ’s assets .", "On DATE the ORG decided to conduct an audit of the applicant company and appointed CARDINAL individual auditors .", "On DATE the Minister of Finance modified the terms of reference of the contract that had been concluded between the ORG and the administrators , D , according to which the administrators would “ make every effort to convert as many assets and business of the funds as possible to cash ( liquidate ) before DATE ” . This marked the initiation of the second phase of the administrators’ services .", "On DATE the ORG appointed company B as auditors in addition to the individual auditors appointed on DATE . Consequently , on DATE B filed a report . According to the report , it had been impossible to obtain any documents until DATE . Owing to this delay , the limited time available did not allow B to conduct and complete the audit of the company .", "NORP The audit of the applicant company was to be based solely upon documents provided by ORG and the administrators , D , and was to be completed by DATE . No documents or financial data about the company prior to DATE were obtained as they had been destroyed during the riots in DATE . Additionally , an examination of the documents that were kept by the prosecutor ’s office in the course of the criminal proceedings against the individual applicant , including QUANTITY computer terminals , was not permitted . Therefore , according to the report , the cash flow provided did not accurately represent the applicant company ’s actual cash flow as “ absolute accuracy , albeit desirable , could not be achieved ( and will not be achieved ) given the available information ” .", "NORP The report provided a summary of the company ’s domestic and international operations , its organisational chart and the organisation of its accounting system and auditing . Section CARDINAL included a table of the cash flow ( pasqyra e rrjedhjes së fondeve ) . The report concluded by stating that “ at its inception , it would appear that [ the company ] was engaged in commercial business . However , following the taking of loans [ towards DATE , in DATE and particularly in DATE ] , it started to display characteristics of a pyramid scheme , in which the commercial activity took on a secondary role compared to deposits . In fact , the level of income from commercial activities was not and could not be sufficient to pay off the high interest rates and the capital invested by depositors , to the extent that new deposits had to be accepted in order to pay off previous depositors . ”", "On DATE the Sale of Non - banking LAW was enacted , on the basis of which all property belonging to non - banking entities that had taken loans from members of the public would be put up for sale by the administrators within DATE . The applicant company ’s assets and property were subsequently sold .", "On DATE the LAW of GPE entered into force . On an unspecified date the applicant company , relying on the LAW , requested ORG to declare unconstitutional the NORP - banking LAW and LAW . On DATE ORG dismissed the request on the grounds that it did not comply with Articles CARDINAL ( f ) and CARDINAL of the LAW , apparently for lack of standing ( see “ Relevant domestic law ” below ) .", "On an unspecified date , most likely in DATE , the administrators submitted a financial report corresponding to the conclusion of the second phase , which had focused on the sale of the applicant company ’s property . The report also included a statement of receipts and disbursements , a summary of cash flow and an estimated outcome statement as at DATE .", "On DATE ORG established a commission of inquiry ( komision hetimor ) to investigate the transparency of the process for the administration and sale of property belonging to , inter alia , the applicant company . The dissenting opinion of members of the commission of inquiry , running to CARDINAL pages , was highly critical of the entire process , notably the extrajudicial insolvency procedure that had been followed by the Government .", "On DATE ORG informed the applicant company that the process was still ongoing and that no court decision had yet been taken to declare the company insolvent .", "On DATE ORG sent a letter to ORG . According to the letter the applicant company was certified as a company operating under a pyramid scheme on the basis of the administrators’ report . By a decision of ORG the repayment coefficient for the applicant company was fixed at MONEY . The applicant company ’s outstanding debt amounted to CARDINAL NORP leks ( ALL ) , owed to CARDINAL creditors in total . CARDINAL creditors had benefited from repayment and the liquidation process was continuing for the remaining CARDINAL , for a total amount of ALL CARDINAL . It concluded that efforts were being made for the repatriation to GPE of a number of deposits found in foreign countries . The compulsory administration of the applicant company continued in accordance with the laws and by - laws in force .", "On DATE the administrators requested that the individual applicant be criminally prosecuted for deception . On DATE the prosecutor charged the individual applicant with deception ( mashtrim ) . The individual applicant was arrested on DATE .", "On DATE the prosecutor decided to appoint CARDINAL experts to prepare a financial accounting report of the applicant company .", "On DATE the experts submitted their report , according to which the number of creditors was CARDINAL and the applicant company ’s total liabilities were CARDINAL NORP leks ( “ ALL ” ) , the equivalent of MONEY ( “ USD ” ) . Their estimates were based on the information that had been deposited with and processed by ORG . They had not relied on the report produced by the auditing company appointed by the Government on DATE .", "By a detailed judgment of CARDINAL DATE ORG found the applicant guilty of deception and sentenced him to DATE imprisonment . The applicant and the prosecutor appealed on an unspecified date in DATE .", "On an unspecified date in DATE ORG appointed the same CARDINAL experts to produce another financial report .", "On DATE the experts submitted their report . According to the report , the total number of creditors was CARDINAL and the overall debt amounted to ALL CARDINAL , the equivalent of CARDINAL at the material time . This figure was drawn from the applicant company ’s computers , which had been seized by the prosecutor ’s office . Referring to the number of claims made by creditors after the start of the compulsory administration proceedings , the report indicated that the overall number of creditors was CARDINAL , whereas the total debt was ORG CARDINAL .", "As regards the value of the applicant company ’s assets , the report concluded that , as of DATE , its assets totalled ORG CARDINAL,CARDINAL,CARDINAL . This estimate was based on a decision of ORG of DATE , which listed the company ’s property and the corresponding monetary value . However , it deducted the value of mines and other mineral reserves .", "Following the start of the compulsory administration proceedings , the total value of the applicant company ’s assets amounted to USD CARDINAL,CARDINAL,CARDINAL , of which ORG CARDINAL consisted of the proceeds from the sale of assets and ORG CARDINAL was the estimated value of assets which had not yet been sold .", "As regards the cash flow in the applicant company ’s bank accounts , the report concluded that its balance was ORG CARDINAL,CARDINAL,CARDINAL . However , not all the banks concerned had submitted cash flow reports . The outstanding debt owed by third parties to the applicant company was calculated to be CARDINAL . The report assessed the damage to the applicant company ’s assets as a result of the DATE civil unrest at MONEY .", "On DATE ORG relied on the same facts as set forth in ORG judgment . It found the individual applicant to be responsible for the deception of CARDINAL creditors in the total amount of ALL CARDINAL . The court explained the decrease in the overall number of creditors and the total amount of debt by the deduction of capitalised interest and the exclusion of inaccurate records . The court further dismissed the figures resulting from the compulsory administration proceedings as being inaccurate , having regard to the fact that not all creditors might have submitted their claims .", "ORG sentenced the individual applicant to twenty years’ imprisonment in accordance with LAW ( “ the ORG ” ) , which had entered into force on DATE .", "On DATE the individual applicant appealed .", "On DATE ORG found the individual applicant guilty as charged . Relying on the same facts as those described in the lower courts’ decisions , ORG held that the individual applicant ’s actions and the applicant company ’s activities had been improper and unlawful . It upheld the findings of ORG with regard to the total number of creditors , namely , CARDINAL . However , it concluded that the total amount of the applicant ’s liabilities was ALL PERSON ( approximately USD CARDINAL,CARDINAL,CARDINAL at the material time ) after having deducted the company ’s cash flows , which totalled ALL CARDINAL .", "In passing sentence on the individual applicant , ORG reasoned that he should be held criminally liable on as many counts as the overall number of creditors , that is CARDINAL , in accordance with LAW , which prescribed a term of imprisonment of DATE . Consequently , it sentenced the individual applicant to DATE imprisonment .", "A detailed description of the facts concerning the criminal proceedings against the individual applicant can be found in the case of PERSON v. GPE , no . CARDINAL/CARDINAL communicated on DATE .", "By note verbale of DATE , which was registered at the ORG General on DATE , ORG , in accordance with LAW , informed the Secretary General of ORG intention to derogate from its obligations under the Convention . According to the note verbale restrictions had been imposed inter alia on the right of assembly , the freedom of press and information and the free movement of people . No restrictions were imposed on the right of property .", "By note verbale of DATE , registered at the ORG General on DATE , ORG informed the Secretary General of ORG that the Government were withdrawing their notice of derogation under LAW .", "Until the adoption of the LAW in DATE , LAW was the basic law in GPE . Section CARDINAL provided for the separation of powers ( the legislative , the executive and the judiciary ) . Section CARDINAL , which enshrined the right to economic activity , read as follows :", "“ The country ’s economy is based on diversity of property ownership , the free initiative of all economic entities and the regulatory role of the ORG .", "Economic initiatives by legal entities and natural persons may not be taken contrary to the social interest and should not infringe NORP safety , liberty and human dignity . ”", "Section CARDINAL recognised the enjoyment of the right of property", "Following the Constitutional Court ’s decision of CARDINAL DATE ( see paragraph CARDINAL above ) , the following paragraphs were added to section QUANTITY on Major Constitutional Provisions on DATE :", "“ The unlawful activity of private entities which widely affects the interests of individuals or social groups , opposes and damages the principles of the free market economy and of national and international economic fiscal policies and undermines the economic and social stability of the country , shall be placed under the control and administration of specialised national and international institutions .", "The degree of interference , as well as the powers of control and administration of these private entities by the above - mentioned institutions , shall be defined by law .", "In such cases , the ORG has the right and duty to take possession of ( disponojë ) the property of private entities only in order to protect the interests of injured parties .", "No one shall be denied the right of access to a court to contest measures aimed at the control , administration and disposal ( disponim ) of his or her property , and to seek full compensation for the damage suffered . ”", "On DATE ORG sub - commission on ORG adopted an opinion on the amendments effected to LAW on DATE . According to the opinion , the constitutional ad hoc amendment had a legitimate purpose and might have been required by specific temporary needs . However , the opinion stated that the first section of the amendment , which provided the basis for the ORG intervention , used a large number of broad concepts to which it was very difficult to give a precise legal meaning . It was of the view that the ad hoc text , which responded to a pressing social need of the moment , was not viable as a long - term principle of the NORP constitutional order . It cautioned against the repeated use of such ad hoc constitutional amendments in the area of economic regulation and considered that the text chosen should not be integrated as it was into the future LAW of GPE .", "The LAW of GPE entered into force on DATE . It repealed the Act on LAW as outlined above . The relevant provisions read as follows :", "Article CARDINAL", "“ The Constitutional Court shall decide on :", "( a ) the compatibility of a law with the LAW or international agreements as provided for LAW CARDINAL", "...", "( f ) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”", "Article QUANTITY ( f ) and CARDINAL", "ORG may initiate proceedings only at the request of :", "...", "( f ) political parties and other organisations ;", "( g ) individuals .", "The entities designated in the first paragraph , letters ... ( f ) and ( g ) , may lodge applications only on issues connected with their interests . ”", "Article CARDINAL of LAW ( “ the ORG ” ) provides :", "“ A loan is a contract by which CARDINAL party ( the lender ) transfers into the possession of another party ( the borrower ) an amount of money or other material objects defined by their quantity , weight or size . The borrower is obliged to repay an equal amount of money or material objects of the same kind and quality , within the term provided for in the contract , or in the absence of such a term , at the request of the lender . ”", "Articles CARDINAL–CARDINAL regulate the adjudication of administrative disputes .", "Article CARDINAL , as in force at the material time , provided that no action could be brought against a Government administrative act , in so far as it contained a general obligation , unless it infringed ORG lawful rights and interests .", "LAW , as in force at the material time , applied to legal entities which , like the applicant company , had been established in accordance with LAW . For proceedings to be started on the strength of a legal action by the creditor , he or she needed to prove that the debtor had defaulted on payment . In any event , the debtor could also file a similar action . Bankruptcy proceedings were court proceedings . Consequently , the decision to declare them open lay with the district court which could decide to place the debtor in compulsory administration by appointing an administrator . During the discharge of his duties , the administrator acted under the supervision of the court , which was empowered to replace the administrator by stating reasons . LAW provided for the adoption of a restructuring plan , which required the court ’s approval . In the event that the restructuring plan was rejected , the court would decide to proceed with the immediate liquidation of the debtor ’s assets . LAW provided for the right to appeal against the district court ’s decision .", "The Act provided that organised borrowing ( huamarrja ) on the basis of fraudulent pyramid schemes was unlawful . The establishment and operation of fraudulent pyramid borrowing schemes constituted a criminal offence , carrying a sentence of CARDINAL twenty years’ imprisonment and the confiscation of movable and immovable property .", "Section CARDINAL stated that all the companies and non - banking entities concerned were to be subject to a financial audit in relation to their financial position , the number of creditors , their assets and liabilities and their domestic and foreign deposits , by a group of financial experts appointed by the Government in accordance with Act no . CARDINAL .", "Section CARDINAL established a ORG ( PERSON ) , composed of CARDINAL members , to monitor the entire process . ORG coordinated activities between the experts and the entities subject to Act no . CARDINAL in accordance with section CARDINAL and reported to ORG .", "Under LAW the financial experts examined the ORG cash books , contracts concluded with the creditors and any other relevant documents . Section CARDINAL stipulated that the final experts’ reports were to be submitted to a number of relevant ORG bodies , including ORG .", "Act no . CARDINAL did not provide for any possibility of judicial scrutiny .", "Section CARDINAL outlined the scope of Act no . CARDINAL . All individuals and legal entities who had taken loans from members of the public were subject to an audit , with the exception of : banks licensed by ORG in accordance with the legislation in force ; companies which issued bonds for investment in accordance with the legislation in force ; and natural persons who had taken loans in accordance with LAW , on condition that CARDINAL requirements were cumulatively satisfied .", "Under LAW , the ORG appointed administrators ( administrator ) for entities subject to the financial audit . The administrators were to be natural persons or a legal entity . The administrators were appointed on condition that : a ) the entity concerned had defaulted on payments or there was a risk of its defaulting on payments ; b ) the entity concerned had suspended , or was ready to suspend , payments or was unable to satisfy its obligations on the relevant date , in accordance with the agreements concluded with third parties ; c ) the business operations of the entity concerned were in breach of recognised financial principles and rules ; d ) the business and financial situation of the entity concerned was in breach of recognised financial principles and rules ; e ) it was in the public interest that the entity concerned and other individuals related to it be subject to the law , owing to the fact that they had attracted the investment of third parties’ property .", "The entity concerned had the right to appeal to ORG within DATE against the appointment of the administrators . If ORG upheld the appeal , it would order ORG to suspend ( ndërpres ) the compulsory administration measure . The delivery of a court decision ( in the event that it quashed a Government decision ) did not prevent the Government from taking another decision on the appointment of other administrators in relation to the entity concerned , provided that the law was complied with .", "Under section CARDINAL , the administrators appointed by the Government had , inter alia , the following tasks : to suspend partially or entirely the payment of a loan or obligation to third parties ; to manage the operations and property of the entity concerned ; to exercise all NORP rights , ORG rights and the related rights of administrative personnel ; to sell or legally dispose of the property of the entity concerned as he or she deemed appropriate ; to seize the assets of named individuals connected with the schemes ; and to hire experts and trace assets abroad .", "Section CARDINAL provided that administrators could be dismissed from their position by the ORG under certain conditions . Under LAW , administrators had to provide regular reports to the Government about the progress of work .", "DATE . The Act did not provide for any legal remedies to be made available to non - banking entities to challenge the administrators’ actions .", "Following the insertion of the new paragraph in section CARDINAL of the Act on LAW ( see above ) , section DATE CARDINAL Act no . CARDINAL reintroduced the wording of LAW no . CARDINAL , which had been repealed by ORG decision of CARDINAL DATE ( see paragraphs CARDINAL–CARDINAL above ) .", "Section CARDINAL of Act no . CARDINAL provided that “ insofar as the companies concerned are subject to audit and compulsory administration under the LAW , the judicial authorities shall not hear any civil actions and shall suspend all enforcement proceedings in respect of previously adopted decisions . ”", "Section CARDINAL of Act no . CARDINAL provided that ORG was to report to ORG .", "Section CARDINAL empowered the administrators of non - banking legal entities to proceed with the sale of the property of such entities and those of their owners and the latter ’s family members . The proceeds would be used to provide the public with monetary compensation during the redistribution process . Under section CARDINAL former presidents of companies which were subject to the Non - banking LAW did not have the right , following the sale of property , to buy it or lodge an action with the domestic courts for its return .", "Section CARDINAL stipulated that the administrators were responsible for the sale of the property and for deciding on the procedure . The starting sale price was determined by an evaluation group pursuant to section CARDINAL . Any natural person or legal entity , whether domestic or foreign , could attend the sale of the property in accordance with section CARDINAL . Under section CARDINAL of LAW , the sale had to take one of the forms prescribed by law : direct sale , auction or public tender . Under LAW , the sale took the form of auction . LAW of the DATE Act provided that the process was to be concluded , in principle , before DATE . Under LAW , property that had not been sold by DATE was to be put up for sale by ORG .", "Section CARDINAL provided that only the auditors ( ekspert kontabël ) could seek to have the sale declared null and void by a court . The request had to be made within DATE from the date when they considered a breach of the provisions of the LAW to have occurred .", "Section CARDINAL stipulated that the redistribution of financial assets of non - banking entities was to be carried out on the basis of a repayment coefficient which was different for each entity . In accordance with section CARDINAL , the coefficient was to be calculated as the division of the sum of the existing monetary values in the non - banking entities’ bank accounts and the proceeds secured from the sale of their property by the amount of the outstanding debt that the non - banking entity owed to its creditors .", "DATE . On DATE the Government adopted a decision on the redistribution of financial assets to the applicant company ’s creditors on the basis of a coefficient . According to the decision , the redistribution coefficient for creditors was calculated at MONEY . The proceeds collected from the sale of assets totalled ALL CARDINAL ( approximately QUANTITY – “ EUR ” ) . The outstanding debt of the company remained at ALL PERSON ( approximately ORG CARDINAL,CARDINAL,CARDINAL ) .", "Section CARDINAL provided that the administrators were to identify all natural persons and legal entities which had outstanding debts and obligations towards non - banking entities that had been subject to the Non - banking LAW . Under section CARDINAL the administrators were to adopt a decision on the names of persons who would be declared debtors and the outstanding financial and proprietary assets that should be returned to the bank accounts of the non - banking entities . This decision constituted an execution title and was enforceable . Section CARDINAL gave debtors DATE from notification of the administrators’ decision in which to comply ; failure to comply resulted in mandatory enforcement by the bailiff .", "Under LAW , the aggrieved party had the right to challenge the administrators’ decision and the bailiff ’s actions within DATE respectively before ORG .", "On DATE the applicant company ’s administrators adopted a decision concerning the names of the company ’s debtors . A list containing CARDINAL debtors and their corresponding outstanding debts was appended to the decision . The individual applicant ’s name was included on the list , with an outstanding debt in the amount of ALL CARDINAL ( approximately ORG CARDINAL,CARDINAL,CARDINAL ) ." ]

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[ "The applicant was born in DATE .", "The applicant is the father of CARDINAL children , PERSON born in DATE and PERSON born in DATE . He and the mother of the children divorced in DATE , having lived apart since DATE and PERSON having lived with his mother and PERSON with the applicant . The applicant assumed the care of GPE some DATE after her birth . According to an agreement reached in connection with the separation and confirmed by ORG , PERSON was to remain with the mother and PERSON with the applicant . The parents had joint custody of the children .", "M. cohabited with the applicant from DATE . Following their separation , she contacted the social welfare authorities , alleging that PERSON had been sexually abused by the applicant . The child 's stories and behaviour had attracted PERSON 's attention and she had observed PERSON frequently touching her genitals and masturbating when going to sleep . PERSON also reported her suspicions to the family day care nurse . The applicant was not informed of the reports .", "On DATE during a visit to the day carer 's , social welfare officials requested her to monitor ORG 's behaviour , which according to her was deviant in that she masturbated before going to sleep . The officials witnessed the same during their visit . On DATE they again visited the day carer , who now had kept records of ORG 's behaviour . Based on these notes and their own observations , the officials consulted ORG ( perheneuvola , familjerådgivningen ) and decided to organise ORG 's interviews and other examinations owing to a suspicion that she had been sexually abused . The applicant was not informed of those visits .", "On DATE when arriving to pick H. up from day care , the applicant was directed to ORG , where he was informed of the suspicion of sexual abuse . While denying the suspected abuse , he consented to an examination of H. but he did not accept that her place of residence should change for the period of examination .", "NORP The applicant was then informed that PERSON was to stay with her mother , who was her other legal custodian . According to the Government , he commented on PERSON 's placement by saying that if PERSON could not stay with him , the best place for her was with her mother . He was also told that if he agreed on ORG 's placement with her mother , the social welfare authorities would not issue a public care order . According to the Government , he consented to ORG 's placement with her mother . This was contested by the applicant .", "On DATE the social welfare authorities were contacted by the applicant 's counsel who was told that if the applicant opposed PERSON 's placement with her mother during the examinations , the alternative was to issue an emergency care order . On DATE counsel withdrew the applicant 's alleged consent to ORG 's placement with her mother , following which a meeting with the parents was held at ORG on DATE .", "It is undisputed that from DATE there was no consent by the applicant to ORG 's placement outside his home . The parties disagree as to whether the applicant consented to ORG 's placement with her mother for the period DATE and DATE .", "By an emergency order issued on CARDINAL DATE the senior social welfare official placed ORG in public care with her mother , pursuant to section CARDINAL of LAW ( lastensuojelulaki , barnskyddslagen ; Act no . DATE ) . The further consideration of the matter was referred to ORG ( hereinafter “ the Board ” ; sosiaali- ja terveyslautakunta , social- och hälsovårdsnämnden ) , pursuant to section CARDINAL of the said Act . The emergency care order referred to the need to conduct the necessary examinations in ORG in the light of the suspicion that PERSON had been sexually abused . The decision had not been written on the form approved by ORG in pursuance of section CARDINAL of LAW ( lastensuojeluasetus , barnskyddsförordningen ; Act no . CARDINAL/CARDINAL ) . According to the notice of appeal incorporated into the decision , an appeal could be filed with ORG within DATE .", "In its decision of CARDINAL DATE ORG ordered that the emergency care should continue until DATE for the purpose of concluding the examinations . According to the notice of appeal attached to the decision , an appeal could be addressed to ORG within DATE .", "The Family Advice Centre 's examinations commenced on CARDINAL DATE and were completed on DATE . CARDINAL psychologists , PERSON and GPE , and a child psychiatrist , PERSON , stated in their written opinion of DATE that it was highly likely that PERSON had been sexually abused by the applicant . He was informed of the results of the examination in a meeting on DATE during which PERSON , PERSON 's mother and a friend of the applicant 's were also present . The examinations resulted in a conclusion that PERSON should be placed in public care away from the applicant .", "On DATE and DATE the ORG heard the parents and the paternal grandmother . The applicant again denied having abused PERSON , whereas the paternal grandmother had not noticed anything exceptional in ORG 's behaviour . Following the emergency care , she had repeatedly inquired into ORG 's “ unusual talking ” and had come to the conclusion that it had been triggered by something which had occurred in day care . She agreed to assume the care of H. in her home , as did the mother , who further stated that she had never accepted that PERSON should live with the applicant and that she had tried to avoid any contact with the applicant and his family . He again did not agree that PERSON would be staying with her mother . On DATE the ORG confirmed the care order in accordance with section CARDINAL ( CARDINAL ) of LAW . It reasoned :", "“ The examination of [ H. ] in ORG has come to an end ... . The examination results confirm the impression that the child has been sexually abused and that her development would be seriously jeopardised if she continued living with her father . In its opinion ORG recommends that the child be placed in public care in order to ensure her healthy development ( appendix no . CARDINAL ) .", "It is not possible to exclude possible abuse by providing open - care support measures .", "Placing the child in public care is a precondition for ensuring that she receives care corresponding to her stage of development . ”", "The Board referred its decision to ORG ( lääninoikeus , länsrätten ) and the applicant filed an appeal , to which he attached CARDINAL medical opinions . The first opinion was issued by a general practitioner , PERSON , on DATE , who had seen H. CARDINAL times at a child welfare clinic , the last occasion being in DATE . The other opinion was given by a nurse , GPE , of the same clinic on DATE . She had seen H. last in DATE . The opinions found nothing exceptional in the child 's development and no failure on the part of the applicant in providing her with proper care . Given that PERSON had been staying with her mother during the period of examination , the applicant argued that it could not be excluded that the latter had influenced the child 's behaviour . He reiterated that although PERSON had been monitored while in day care , he had not been informed of the suspicions until DATE . He furthermore argued that he had not been heard in accordance with LAW ( hallintomenettelylaki , lagen om förvaltningsförfarande ; Act no . CARDINAL/CARDINAL ) . When invited to the meeting on DATE , he had not been informed of its real purpose , namely the plan to take the child into public care . He had allegedly received a copy of the emergency care order of CARDINAL DATE only after repeated requests and the paragraph indicating the possibility for him to have it reviewed by ORG had allegedly been crossed out .", "On DATE social welfare officials and ORG 's mother agreed that ORG would stay with her paternal grandfather and his partner for DATE in DATE owing to the mother 's fatigue . On DATE maternal grandmother informed the social welfare authorities that ORG had not returned home DATE . They unsuccessfully tried to contact the mother , following which on DATE they agreed with the paternal grandfather that ORG would stay with him until the mother could be reached or until the situation could be evaluated . On CARDINAL DATE the mother informed the authorities that ORG could not stay with her as the situation had drained her strength . She suggested that ORG should stay with her paternal grandfather . The same day social welfare officials visited PERSON 's paternal grandfather and his partner , a family day care nurse by profession , who informed the officials that they could not take care of H. in the long term . It was agreed , however , that H. would stay with them until ORG had reached its decision .", "On DATE the applicant informed the social welfare authorities that he did not approve of the public care . In an opinion of DATE a senior physician , PERSON , found PERSON to be normally developed both physically and mentally .", "In a hearing on DATE ORG examined CARDINAL witnesses . The psychologist PERSON testified to having met once with PERSON , following which the examination had been continued by the psychologist PERSON , who had met her on a few occasions . As the child had appeared to shy away from male interviewers , PERSON had eventually taken over the investigation . He further testified that the child 's statements to PERSON , who had recorded the interviews on audio tape , had been consistent with her earlier statements to the day carer .", "The paternal grandmother testified that from DATE had started behaving in an explicitly sexual manner , referring to games played with another child in day care . PERSON had also referred to the day carer 's husband , who had been tickling her . She also testified that the former girlfriend PERSON at the time of the separation in DATE had threatened to “ seek revenge ” on the applicant .", "DATE carer testified that PERSON had continued to masturbate after having been removed from the applicant 's home . She denied ever having left PERSON alone with her husband , which was contested by the applicant .", "The applicant requested that the court refer H. to a child psychiatrist for examination . ORG did not object to such an examination as long as it was conducted by a public institution . The applicant contended that in the DATE he had , of his own motion , discussed his daughter 's behaviour with a social welfare official in another local office , following which he had requested the day carer to observe H. particularly in this respect . The day carer denied that such a conversation had taken place .", "ORG granted the applicant cost - free counsel retroactively from DATE . It however rejected his request for a further medical examination of H. By its decision of CARDINAL DATE it upheld the care order , reiterating the contents of PERSON 's report of DATE and the observations made by DATE carer . From DATE the day carer had seen H. frequently masturbating during naps and when playing . According to her notes , such masturbation had lasted from TIME to TIME at a time . H. had also repeatedly been saying that the applicant had been tickling her in her buttocks and kissing her with his tongue .", "ORG reasons for upholding the care order read in extenso as follows :", "“ According to the evidence available , the conditions in the home of [ H. ] have seriously jeopardised her health and development . Open - care support measures have not been possible . The public care of [ H. ] and her placement outside her original home must be considered to be in her interests . ”", "ORG decision was notified to the ORG on DATE . The following day social welfare officials presented themselves without giving any advance notice in the paternal grandfather 's and his partner 's home , removed PERSON and temporarily placed her in a substitute family .", "The applicant appealed against ORG decision , requesting a hearing before ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) and a further examination of H.", "In a meeting on DATE between social welfare officials and the applicant , he was informed that PERSON had been transferred to a substitute family , to which he objected . The mother consented to the placement .", "On DATE the applicant removed PERSON from the venue of a supervised meeting and hid her during the following DATE . On DATE he and ORG underwent an examination by a psychologist , ORG , who in a written opinion of CARDINAL DATE found PERSON to be more developed than an average child of her age . She was balanced , very attached to her father and there was no indication of her having been sexually abused .", "DATE after the abduction the ORG decided that the public care should be implemented in the substitute family . ORG did not accept the paternal grandfather 's and his partner 's offer to care for H. It noted that the applicant had been heard in person on DATE . He had been invited to attend the ORG 's meeting , but he sent instead a letter that was read out at the meeting .", "On DATE the ORG filed observations in reply to the applicant 's appeal to ORG . On DATE he submitted a rejoinder .", "On DATE the court invited ORG ( hereinafter “ the GPE ” ; terveydenhuollon oikeusturvakeskus , rättsskyddscentralen för hälsovården ) to submit a written opinion on the conduct of the examinations by ORG , which was subsequently communicated to the applicant for comments .", "Meanwhile , and following the applicant 's complaint as to the examinations by ORG , ORG had obtained expert opinions from its standing experts , a professor in child psychiatry , PERSON , and a psychologist PERSON , as well as a written opinion from PERSON and PERSON In an opinion dated DATE Dr GPE noted inter alia the following :", "“ The examinations carried out on H. were initiated on account of ' the sexual games ' with the father , of which the child had spoken to DATE care nurse , and on account of ORG 's frequent masturbation in day care , especially before taking a nap . Although masturbation is relatively usual at that age , it can no longer be considered to merely relate to the age of the child when it is so extensive and intense as described by DATE care nurse , especially not where the masturbation is placed in the context of the child 's description of ' sexual games ' at home . In this light I find the initiation of the examinations concerning sexual abuse a justified measure . .... [ Dr A - K.R 's ] questions [ that were put to H. ] were not leading although they tended to have an element of pressure given that they were repeated several times as the girl was unable to answer them . ... Whether the girl has undergone psychological tests , either projective tests or tests measuring the child 's abilities , remains unclear . Also the contents of [ H. 's ] playing remain unclear . Thus , I can not assess the quality of psychologist [ PERSON 's ] examinations . Pyschologist [ GPE ] has met both parents , but the documents I have received do not disclose any detailed description of the contents of the discussions , thus preventing me from assessing also the quality of these discussions . With the exception of the interview carried out by child psychiatrist [ A - K.R. ] , which I find appropriate , I can not take a position on the nature of the examinations . ... The decision to take the child into public care was made in an appropriate manner by the social welfare authorities , considering that the father had proved to be the likely abuser of the child ... ”", "On DATE the ORG gave the applicant permission to consult , during TIME , CARDINAL tape recordings from the examination of PERSON at ORG . He was not allowed to copy the tapes but had them transcribed .", "On DATE ORG invited the applicant 's further observations . In his observations of DATE he submitted a written opinion by the psychologist PERSON , issued following the abduction . He also requested a hearing including the taking of witness evidence from the former girlfriend PERSON , PERSON , the psychologist PERSON and PERSON , a child psychiatrist and consultant to ORG . Moreover , he objected to not having been provided with the full documentation underlying ORG opinion such as PERSON and the psychologist PERSON 's observations . Lastly , he relied on a written opinion , dated DATE , by PERSON , who considered that the examination by ORG had not shown that PERSON had been sexually abused by the applicant . On the contrary , it transpired from the transcripts of the interviews that she had been led and pressurised by PERSON , the clear goal being to detect sexual abuse . Not all interviews had been recorded . Clinical annotations were missing from the records , which rendered it impossible for PERSON to assess the credibility of ORG examinations .", "Following ORG request for an additional opinion , PERSON and the psychologist PERSON , in their joint opinion of DATE , expressed the view that the decision to take ORG into care and place her first with her mother and later in a substitute family , had been justified and appropriate , considering both PERSON 's own words and her behaviour . They also took the view that ORG should have considered more thoroughly the conditions for an additional examination of PERSON given the fact that the psychological examination and the interviews with the parents had been insufficient . Further , they took a stand regarding the examinations carried out on the applicant 's request during PERSON 's abduction by the psychologist PERSON As noted above , the applicant relied on a written opinion of H.H in ORG .", "“ ... Psychologist PERSON has carried out psychological examinations on both PERSON and her father . A written opinion has been given on account of these examinations . It indicates that ORG had examined the father on CARDINAL occasions and the child on CARDINAL occasion . It is questionable especially in the context of suspected sexual abuse that the same psychologist tests both the suspect and the abused child . .... The examinations were carried out without consultation with those involved in the earlier examination , which in our opinion shows professionally unethical and inconsiderate conduct on the part of the examining psychologist . .... ”", "In its further opinion of DATE to ORG the Medicolegal Authority deemed ORG examinations in DATE to have been necessary and based on a reasonable suspicion of sexual abuse . ORG had obtained the audio tapes and documents produced by ORG and had heard the psychologist PERSON , PERSON and the psychologist PERSON in writing . It had also obtained the above joint opinion of its standing experts .", "On DATE ORG invited the applicant 's further observations . In his observations of DATE he noted that he had not been provided with copies of the above supplementary opinion by PERSON and the psychologist PERSON", "H. was missing from the authorities until DATE when the police fetched her from the applicant 's work place . She was placed in a family support centre ( perhetukikeskus , familjestödscenter ) . The applicant was informed of her whereabouts on DATE .", "On DATE underwent an examination in a university hospital . A paediatrician , PERSON , stated in her written opinion of CARDINAL DATE that she had not found any signs of sexual abuse in her examinations and found PERSON 's behaviour to be normal for her age . PERSON did not , however , take any stand regarding the earlier medical opinions .", "In a meeting on DATE between social welfare officials and staff of the university hospital hesitation was expressed about undertaking new examinations concerning the alleged sexual abuse .", "From DATE to DATE H. underwent child psychiatric examinations at the GPE university hospital on the basis of a referral dating back to DATE . During that period the applicant was heard at the surgery on DATE and DATE and he was consulted over the telephone on DATE and DATE . In her written opinion of DATE a child psychiatrist , PERSON , described PERSON as a very lonely DATE girl , whose basic human relationships with her parents and her brother and other persons close to her were coloured by argument and conflict . The examinations did not concern the sexual abuse suspicion as such an examination would have damaged the child 's mental health . PERSON was considered to suffer from a severe stress reaction and to have adjustment difficulties and she was in need of possibly long - lasting child psychiatric treatment . The opinion recommended child welfare measures with a view to protecting the child .", "On DATE ORG dismissed the applicant 's request for an oral hearing and a further examination of H. , and upheld ORG decision with the following reasons :", "“ Since an oral hearing was held before ORG , there is no reason to hold one before ORG .", "In view of the opinions already obtained there is no need to obtain an additional opinion .", "For the reasons given in ORG decision and considering , moreover , the disturbed behaviour of [ H. ] , ORG considers that the conditions stated in section CARDINAL of LAW have been met as regards the public care order issued on DATE . Accordingly , and in view of the requests in the matter , the evidence obtained , and the legal provisions invoked by ORG , there is no reason to amend its decision . ”", "In a meeting with social welfare officials on CARDINAL DATE the applicant was informed that PERSON , who was diagnosed as suffering from post - traumatic stress , would be moved out of the family support centre within DATE .", "On DATE in a meeting with social welfare officials , the applicant was informed that a substitute family home had been found and he was invited to comment in writing on the intention to transfer H. there .", "On DATE he requested ORG to terminate the public care as being no longer justified . He submitted that PERSON 's initial examination in ORG had been conducted on the basis of the preconceived idea that sexual abuse had taken place . This suspicion had been categorically refuted in the written opinions of PERSON and the psychologist PERSON behavioural disturbance had not been shown to result from the conditions in the applicant 's home . Before the taking into care she had not displayed any signs of being disturbed . Moreover , her wish to continue living with him had been recorded repeatedly .", "DATE . On DATE the senior social welfare official refused the applicant 's request that the public care be terminated , being of the view that no alternative care solution existed . Open - care assistance would be insufficient for ensuring the child 's healthy physical and mental development . By placing H. in substitute care , the authorities were seeking to provide her with a secure and home - like growing environment and to ensure her mental rehabilitation as well as a healthy development corresponding to her age . Having received the decision , the applicant pursued his request before ORG .", "In his submission of CARDINAL DATE he objected to the intended transfer of ORG to a substitute family home and proposed that she be placed in the family of her former day care nurse , who had consented to receiving her . PERSON 's mother again consented to the transfer to a substitute family home .", "On DATE the Board decided to transfer H. to the substitute family home . Her removal took place on the following day . The ORG 's decision stated , inter alia , that :", "“ According to ORG , the examining doctor of the GPE university hospital , H. suffered from post - traumatic stress , inter alia , because of the abduction , and for the purpose of rehabilitation H. should be provided with a safe home - like growing environment . No suitable substitute family was found that could have taken the child , inter alia , because of the abduction threat by the father . A family home was found which has a home - like atmosphere and has long experience of the care of different children taken into public care . In the family both parents are at home , looking after the children . ”", "On DATE ORG also confirmed the official 's refusal to terminate the public care , relying on the reasons given in the official 's decision . It further noted that the care order had been triggered by the disturbed behaviour which ORG had been repeatedly displaying during DATE . From the sexual point of view her symptoms had differed from those of other children of her age . She had been placed in public care on the basis of ORG examinations . Her growing environment had been jeopardising her healthy development and open - care assistance had been considered insufficient .", "The applicant appealed against the ORG 's decisions of CARDINAL May and DATE , arguing that it had failed to hear PERSON and the other interested parties . In considering that there was no alternative to the public care and in finding open - care assistance insufficient the ORG had based itself on events which had occurred DATE , without obtaining any fresh evidence as to the justification for its decisions . He furthermore recalled that , when PERSON had been removed from him in DATE , the social welfare officials had requested her fresh examination in the clinic in view of the expert opinions submitted by him . However , after ORG had rejected his final appeal against the care order , social welfare officials had allegedly amended their request to the clinic , asking instead that PERSON receive treatment according to their instructions .", "On DATE in a meeting involving social welfare officials , the substitute parents and medical staff , it was observed that according to the patient records of the clinic PERSON 's symptoms , which had already abated in the family support centre , had continued to diminish in the substitute family home .", "On DATE ORG heard CARDINAL witnesses . It had at its disposal , inter alia , a written opinion of a psychologist , ORG , whom the personnel of the family home had consulted . On DATE it rejected the applicant 's appeal against the decision to transfer ORG to the substitute family home . It gave the following reasons :", "“ ... Having been taken into public care , [ H. ] was officially placed in a substitute family from DATE to DATE . In reality she was a fugitive with her father from DATE to DATE , when she was placed in a family support centre .", "A doctor of the university hospital who examined [ H. ] after her escape journey considered that she should be provided with secure conditions resembling a home . Her individual nurse at the family support centre has considered the placing of H. in a substitute family to be in her best interests .", "On the basis of the aforementioned and , in particular , given [ H. 's ] age and the fact that she will be beginning school , the decision to change the premises for implementing the public care ... has been in her best interests . ”", "ORG also rejected the appeal against the decision not to terminate the public care . It reasoned as follows :", "“ On DATE [ the applicant ] abducted [ H. ] , who had been placed in the care of the ORG , and was hiding her at different locations until DATE . After the escape journey [ H. ] was diagnosed as suffering from various behavioural disturbances , a serious post - traumatic stress syndrome and adjustment difficulties . Throughout her public care it has been difficult to initiate cooperation between the social authorities and [ the applicant ] . According to the evidence presented , [ H. ] has adjusted well to the substitute home . In this situation the decision to maintain the public care has been in her best interests . ”", "The applicant appealed further , requesting an oral hearing before ORG . He argued , inter alia , that PERSON should have been heard prior to the ORG 's decisions .", "In response to the applicant 's further query as to when the public care would be terminated , it was noted in the care plan of DATE that PERSON was in the process of settling into the substitute family home . She was doing well in school and she would be able to stay in the family home as long as she needed to . It was also stated in the care plan that the social welfare authorities would consult child psychiatric experts in order to determine PERSON 's long - term needs as to whether she needed a long - term placement or whether the care could be terminated .", "In DATE social welfare officials inspected the home of the applicant and his then common - law spouse . It appears that no report was made .", "In a meeting on DATE , which the applicant had not been invited to attend , social welfare officials and staff of the hospital and ORG agreed that the symptoms displayed by PERSON “ more than likely ” resulted from her having been subjected to sexual abuse . By now the substitute care had provided ORG with sufficient security and in the prevailing circumstances she would be able to develop into a balanced young person and adult . A termination of her public care could have unforeseeable consequences . Her meetings with the applicant would be supported also in the future .", "On DATE ORG , without having held an oral hearing , rejected the applicant 's appeal against ORG decision of DATE . The court found the various documentary evidence and the evidence taken at the lower court 's hearing sufficient for a ruling as follows :", "“ LAW , subsection CARDINAL of LAW provides that ORG must , whenever possible in view of the child 's age and level of development , clarify his or her own wishes and opinion , and afford a child who has reached DATE as well as his or her parents the opportunity to be heard , before a decision as to the child 's placement in public care outside his or her home or as to whether to terminate such care . Considering that [ H. ] underwent examinations at the child psychiatric clinic of a university hospital and that , according to the results , she was suffering from a serious stress reaction and an adjustment difficulty , and considering that , according to [ the ORG 's ] decision of CARDINAL DATE she had stated , after an introductory visit , that she was willing to move to the family home , although her opinion has later varied , her opinion has been clarified in accordance with the requirements of the aforementioned provision of the law .", "Before the challenged decisions were reached the parties were afforded an opportunity to be heard . In ORG an opportunity to be heard was provided and an oral hearing was held . ORG has further afforded the applicant an opportunity to consult all documents in the case . Accordingly , he has been provided with the material which has affected the decision .", "Section CARDINAL of LAW provides that a child is entitled to a secure and stimulating growth environment as well as to a harmonious and well - balanced development , and has a priority right to protection . Considering the evidence presented in respect of the reasons leading to the public care order , [ H. 's ] mental symptoms and the changes which have occurred in her life , the conditions for maintaining her public care and changing the premises of the care outside her home , as stipulated in sections CARDINAL DATE of LAW , existed at that stage . On these grounds and considering the reasons and legal provisions relied upon in ORG decision , there is no reason to amend the outcome of that decision . ”", "In the care plan meeting on DATE and following the applicant 's request that the public care be terminated , it was agreed that the social welfare authorities would hold a meeting with child psychiatric experts to assess when it would be best to carry out the examinations in the child psychiatric family ward at the university hospital .", "On DATE the social welfare authorities remitted the applicant and PERSON for an examination at the ward . The examination with regard to the applicant 's parenting skills , his interaction with H. and H. 's psychological state and need for treatment took place in DATE . In their opinion of DATE PERSON and ORG considered , inter alia , that ORG 's mental state had clearly improved during her placement in public care to which she seemed to have adjusted well . She was still suffering from a serious emotional disturbance which would require CARDINAL or CARDINAL psychotherapy sessions DATE during DATE . The relationship between her and the applicant displayed a certain inhibition and distance but the conditions for their bonding to improve were present . H. would need long - term individual therapy and long - lasting cooperation between the family , the carers and the child welfare authorities . They considered that the applicant and PERSON should have their new joint treatment sessions in DATE and DATE .", "In a meeting on DATE social welfare officials and the parents agreed that ORG 's and the applicant 's relationship would be observed by the child psychiatric family ward in DATE and DATE with a view to issuing an opinion on the conditions for the termination of the public care . It was further agreed that ORG would begin receiving therapy . The therapy sessions began in DATE .", "In her opinion of DATE PERSON stated the following :", "“ It has been difficult to achieve cooperation and a treatment relationship at the ward , and no functioning cooperation relationship has emerged . ... The father has difficulties in processing ORG 's situation at an emotional level and in seeing the burdening effects of the continuous ... trials on the child . He has repeatedly voiced mistrust towards the authorities and concerning the aims of and grounds for the treatment . Also his attitude towards ORG 's individual therapy has changed from having been positive to being negative . Owing to this his acceptance of ORG 's treatment has remained problematic ... PERSON needs long - term individual child psychiatric treatment and long - term cooperation between the family , medical staff and child welfare . ... The father 's willingness to ensure the management of ORG 's individual therapy has remained uncertain . Having regard to the above and to the evasive and distant nature of their interaction ... there are no preconditions for terminating the public care . ... The treatment will now be focusing on ORG 's individual therapy . ... Interaction treatment at the ward will not be recommended for now . ... ”", "From DATE to CARDINAL DATE there was no formal decision concerning access .", "The emergency care order of CARDINAL DATE included an access restriction to the effect that the applicant and PERSON were allowed to meet twice a week under supervision . An agreement concerning access from CARDINAL to CARDINAL DATE was signed by the applicant . According to him , notwithstanding that he signed the agreement , he opposed restricting access . According to the ORG , no access restriction was in force at the relevant time as the applicant had consented to the arrangement .", "DATE . The ORG 's decision of CARDINAL DATE to uphold the emergency care included an access restriction to the effect that the applicant and PERSON were allowed to meet once a week under supervision .", "According to the ORG 's decision of CARDINAL DATE following a meeting with the parents on DATE , H. would continue living with her mother while seeing the applicant under supervision . The decision did not specify the frequency of the meetings and it was to be reviewed at DATE . The applicant accompanied by counsel took part in the ORG 's meeting on DATE . Following the meeting , the applicant was informed that he could visit H. at the family support centre once DATE .", "In a care plan of CARDINAL DATE following a meeting with the applicant on DATE , contacts were reduced to CARDINAL supervised TIME visit once a month , starting on DATE in the family support centre . This arrangement was to be in force until DATE . The applicant objected to the restriction and was allegedly not provided with all relevant documentation . No formal decision was issued .", "Following the abduction of CARDINAL DATE , ORG by its decision of CARDINAL DATE prohibited access until DATE , pursuant to LAW and section CARDINAL of LAW . The applicant had been invited to attend the ORG 's meeting , but he sent instead a letter that was read out at the meeting . As noted DATE was found with the applicant on DATE .", "On DATE the director of the family support centre issued a formal decision , prohibiting all meetings between the applicant and PERSON until DATE owing to the risk of abduction . The applicant was informed that despite the prohibition he would be allowed to see H. in connection with her therapeutic visits to the clinic . On DATE the ORG issued a decision , maintaining the access prohibition until DATE . It referred to the abduction following which the applicant had been hiding her from the authorities for DATE . Referring to section CARDINAL , subsections CARDINAL and CARDINAL , of LAW , the Board did not hear him , considering that such a hearing could jeopardise the purpose of the decision and that the decision could not be postponed . He appealed to ORG . In its rejoinder of DATE to the applicant 's appeal the ORG submitted that the applicant had allegedly said , during a visit to the clinic on DATE , that he intended to abduct H. again . Moreover , the abduction threat had not been the only reason for the access prohibition as H. had been diagnosed as suffering from post - traumatic stress syndrome for which she needed care .", "In a letter of CARDINAL DATE the senior social welfare official clarified the access prohibition ordered on DATE . Despite the prohibition , the applicant was allowed to meet PERSON during her therapeutic visits to the clinic and to write to and telephone her in the family support centre . It appears that , even though encouraged by social welfare officials to do so , he did not use this opportunity .", "On DATE ORG quashed the access prohibition imposed on DATE and remitted the matter for a re - examination by ORG , finding that ORG had not shown sufficient grounds for not hearing the applicant prior to its decision . The decision was notified to the social welfare authorities on DATE .", "On DATE the Board issued a formal decision restricting access which was to be in force until DATE . The frequency and implementation of the meetings were to be agreed upon in connection with the presentation of the care plan indicating where PERSON was going to live . The applicant had been heard on DATE .", "DATE . From DATE the social welfare authorities repeatedly tried to arrange meetings with the applicant to draw up a new care plan in order to arrange future visits between him and H. However , he never accepted the suggested dates nor did he make his own proposals .", "In his letter of CARDINAL DATE the applicant demanded that the family home be informed of his right to meet PERSON , given that the last access restriction had ceased on DATE . In a letter of CARDINAL DATE a social welfare official informed him that it was a normal practice concerning the arrangement of meetings with children placed in a substitute family to agree on the conditions at a meeting at which the social welfare authorities , the substitute parents and the parents were present . She further noted that :", "“ .... we have on several occasions tried to fix consultations for the purpose of arranging meetings between you and PERSON but no progress has been made . The situation at present is that we have not made any decision on the restriction of the right of access but have agreed with the family home that you will be able to meet PERSON there . The frequency of meetings would be CARDINAL visit per month , and you can directly agree with the family home on the most convenient dates for the meetings . .... ”", "On DATE the family home and the applicant agreed that the applicant and PERSON would meet in the paternal grandfather 's home . The social welfare authorities informed the applicant in a letter dated DATE that he could only visit H. in the substitute family home owing to the fact that H. had not seen him for a long time . Neither of the social welfare officials ' letters of DATE constituted a formal decision .", "NORP The social welfare authorities tried to arrange meetings to draw up a care plan again in DATE but a meeting was not held until DATE . According to the care plan , the applicant was to visit H. CARDINAL times in the substitute family home and once at the paternal grand father 's . The leading social officer would also visit the applicant in his home on DATE . The social welfare officials did not accept the applicant 's proposal that H. would visit his home DATE . No formal decision was made .", "In a care plan meeting on DATE social welfare officials did not accept the applicant 's proposal that H. be allowed to stay with him and his common - law spouse DATE . According to the care plan of CARDINAL DATE , CARDINAL visit DATE would take place in the substitute family home and once DATE the substitute parents would bring PERSON to the paternal grandfather 's for DATE . The applicant would be allowed to organise certain outings with PERSON , as long as she would not be subjected to situations creating confusion in her as to which was really her permanent home at that particular moment . The access restriction was to be in force until DATE . No formal decision was made .", "Since a care plan meeting on DATE it appears that the visits have been fully agreed on . It was agreed that ORG would visit the applicant DATE from DATE . She could also spend DATE with her paternal grandfather during DATE . The care plan indicated that her public care remained justified in the light of the conclusions reached in a meeting DATE . In a care plan meeting on DATE it was agreed that H. would visit the applicant DATE from DATE until DATE and spend the DATE with him . The Christmas holiday would be agreed on between the substitute family home and the applicant . In a care plan meeting on DATE it was agreed that DATE visits were to be conducted as earlier . PERSON could also spend DATE with the applicant . In a care plan meeting on DATE it was agreed that ORG would spend DATE with the applicant in DATE . It appears that PERSON has continued to visit the applicant 's home DATE and to spend part of DATE with him .", "Meanwhile , in civil proceedings initiated before the GPE ORG ( käräjäoikeus , tingsrätten ) on DATE , PERSON 's mother requested , allegedly on the recommendation of social welfare officials , that she be granted sole custody of the children and that PERSON be ordered to live with her . In an interim decision of CARDINAL DATE ORG ordered that H. should live with her mother , following the termination of the public care . It adjourned the further consideration of the case .", "In DATE the applicant started cohabiting with a woman , whom he married in DATE .", "On DATE ORG confirmed an agreement between the applicant and PERSON 's mother to the effect that they would exercise joint custody of their son PERSON , whereas the applicant would have sole custody of PERSON and she would live with him following the termination of her public care .", "On DATE ORG , in response to the parents ' joint request , awarded the applicant sole custody of PERSON , who had moved into the home of the applicant and his common - law spouse in DATE .", "On DATE was placed temporarily with the applicant and the public care was terminated on DATE .", "On DATE was again taken into emergency care on the applicant 's request . On DATE she returned to live with him .", "On DATE the ORG reported the applicant to the police , on suspicion of having sexually abused PERSON and having abducted her in violation of the public care order and the access restriction .", "Further , on an unspecified date , the applicant was charged with having sexually abused PERSON was further charged with having abducted her on DATE . On DATE the GPE ORG held its first hearing . It subsequently heard the applicant and CARDINAL witnesses , including the paternal grandmother , the day carer , PERSON and PERSON , and received several written expert opinions .", "In its judgment of CARDINAL DATE ORG , notwithstanding that it considered PERSON 's behaviour at the time of the initial care order not to have been normal for her age , found that the evidence did not show that the applicant had committed the sexual acts that he had been charged with . It thus rejected the charges . It declined to consider the charges relating to the abduction , as ORG had not attested that the bringing of charges was in the interests of the child . The court reasoned as follows :", "... Taking into account the incriminating facts , ORG does not find it established in a reliable manner that [ the applicant ] is guilty of aggravated sexual abuse of a child nor of sexually indecent behaviour towards a child . ...", "Witness PERSON [ the day carer ] had made notes about PERSON 's behaviour in day care between CARDINAL DATE and CARDINAL DATE . When PERSON was heard as a witness , she explained that by “ bottom ” she had meant “ the genitals ” . The notes contain entries made in DATE . According to the notes of ORG had “ tickled ” her genitals on DATE , which had lasted from TIME . ....", "According to witness GPE , who is specialising in child psychiatry , ... a child 's behaviour becomes sexually coloured after sexual abuse . Such children masturbate more than usual . The witness had earlier met CARDINAL child who had masturbated to the extent of the present one . Child psychiatric literature does not give for this extensive masturbation any explanations other than that the child has in some way been subjected to sexuality . The witness is of the view that the child has been subjected to behaviour which is inappropriate for a child , at least when she has clearly had pathological behaviour . .... The witness is not able to tell whether masturbation is something that the child has herself discovered , but it has clearly been indicated that it is something that she has in some way done together with the father . According to the witness , PERSON is a strong and determined child whose words are even more convincing than the words of children usually are . In the view of the witness , the most important report in the case are the notes made by DATE care nurse . ....", "Witness PERSON , who worked as a psychologist at ORG , has stated that a girl masturbating is not necessarily a sign of incest that she has experienced . However girls , who have had some kind of sexual experiences , often show disturbed or excessive sexual behaviour . Excessive masturbation could be a sign of experiences other than sexual abuse , for example other kind of mental instability . There may be hyper or overactive children , distressed children or children showing this kind of behaviour without any explanations thereto . ...", "On DATE , ORG ( hovioikeus , hovrätten ) confirmed the acquittal . In addition to the reasons given by ORG , it found , inter alia , that it could not be concluded from ORG initial examination that PERSON had been sexually abused .", "NORP The relevant legislation is outlined in the ORG 's judgments in PERSON and GPE [ ORG ] ( no . CARDINAL/CARDINAL , § § CARDINAL , ORG CARDINAL-VII ) and NORP v. GPE ( no . CARDINAL/CARDINAL , CARDINAL DATE ) ." ]

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[ "NORP 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 and PERSON , lawyers practising in GPE , and then by PERSON , a lawyer practising in GPE .", "ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant ’s house was built in DATE in GPE . Until DATE , another small building was attached to its side wall , the length of the wall that functioned as a party wall measuring QUANTITY . On the part of the side wall that was not adjoining the other building , the applicant ’s house had several windows , including those of the CARDINAL bedrooms , and a balcony .", "On DATE the local development plan was amended to permit the construction of a new QUANTITY building attached to the side of the applicant ’s house . The owners obtained all necessary planning permissions and building permits .", "On DATE the construction of a new building began on the neighbouring plot , replacing the old building attached to the applicant ’s house , which was demolished . However , as the new building was larger , the length of the party wall shared with the applicant ’s house now measured QUANTITY . As a result , the house ’s bedroom windows were blocked by a blind wall of the new building and the balcony was destroyed .", "After an enquiry by the applicant , he was informed by the municipality and the building control authorities that he had been notified of an intended amendment to the local development plan , envisaging the construction of the new building , and had not objected to it . The applicant contested this fact , arguing that his signature attesting to the fact that he had received the notification had been forged .", "NORP In DATE the new building was finished and the municipality authorised its use .", "Following that and because of the damage caused to his house , the applicant and his family moved out to another home .", "On DATE the applicant appealed against his ORG building permit and sought an order that the construction works be ceased . On DATE the building control authorities rejected the appeal as inadmissible . The applicant applied for judicial review to ORG .", "On DATE CARDINAL of the owners of the neighbouring plot asked ORG to authorise the preliminary execution of the building permit , stating that the suspension of the works would inflict contractual penalties and other losses on him . In a final decision issued on DATE ORG authorised the continuation of the construction works , reasoning that their interruption would entail substantial losses for the owners of the plot .", "By a final decision of CARDINAL DATE ORG rejected the applicant ’s application for judicial review as inadmissible . It held that the applicant had no standing to appeal against the building permit , as it concerned property which did not belong to him .", "In the meantime , on CARDINAL DATE the applicant applied for the judicial review of an order of DATE of the LOC deputy mayor , whereby the amendment to the local development plan of the area envisaging the construction of the new building had been approved . The applicant sought to have the construction works ceased pending the resolution of the dispute .", "On DATE ORG dismissed the applicant ’s application for a suspension order as inadmissible , reasoning that his appeal had suspended the implementation of the local development plan by virtue of law .", "On an unspecified date CARDINAL of the owners of the neighbouring plot asked the court to authorise the preliminary implementation of the approved layout pending the outcome of the applicant ’s appeal . By a final decision of CARDINAL DATE ORG granted the request , reasoning that a delay in implementation would entail losses for the owners of the building .", "By a final judgment of CARDINAL DATE ORG quashed the amendment to the local development plan . It held , in the first place , that it had not been established that the applicant had been informed of the intended amendment ( a name different from his had been indicated on the notification papers ) and therefore his appeal had been submitted in time . The court noted the disagreement amongst the experts appointed by it as to whether the side of the applicant ’s house was officially considered a blind wall , and hence , whether the legislation governing building works had been violated . Without adjudicating on this matter , it held that the order for the amendment did not contain any reasons , which made it impossible to assess its lawfulness . In particular , it was not explained why it was necessary to amend the existing plan . Furthermore , as the applicant had not been duly notified of the amendment , he had not had the opportunity to object to it , which was another violation of the legal requirements .", "Although ORG judgment was not subject to appeal , the owners of the neighbouring building tried to challenge it before ORG , which rejected their appeal as inadmissible on DATE .", "From the very beginning of the construction works on the neighbouring plot the applicant submitted numerous complaints to the building control authorities , which , however , refused to intervene , pointing out that his neighbours had been issued with all necessary planning permissions and building permits and , later on , that the courts had allowed the building works to be carried out .", "The applicant also complained to ORG , the ORG , ORG , the President of GPE , the GPE municipality and other bodies , which all refused to intervene and on most occasions referred the matter back to the building control authorities .", "On an unspecified date in DATE the applicant brought an actio negatoria against the owners of the neighbouring building . On DATE ORG dismissed the action . However , in a judgment of CARDINAL DATE ORG reversed and allowed the claim , ordering the neighbours to demolish their building . It held , on the basis of CARDINAL expert reports , that the amendment to the local development plan had breached the applicable legislation . As a result , the newly constructed building had rendered useless CARDINAL of the applicant ’s rooms and had had a detrimental effect on the living conditions in his house . The court held that the violation of the applicable legal provisions had been so serious that it had rendered null and void both the amendment to the local development plan and the building permit .", "One of the defendants filed an appeal on points of law , pointing out that his wife had not been summoned as a party to the proceedings , although she was a co - owner .", "In a judgment of CARDINAL DATE ORG quashed the judgment of CARDINAL DATE and remitted the case to ORG for fresh examination . It established that the appellant ’s wife had been an interested party to the proceedings and that it had been necessary to ensure the participation of all interested parties . It further found that it could be inferred from the case file that there were other owners of the building who had not been summoned to the proceedings .", "After the case was remitted , the applicant identified all owners of the building and notified ORG of their names and addresses . A hearing was scheduled for DATE . The ORG has not been informed of the developments in the proceedings after DATE .", "On an unspecified date in DATE the applicant complained to the prosecution authorities that the notification sent to him concerning the amendments to the local development plan had been signed on his behalf by an unknown person . Criminal proceedings for forgery were opened against CARDINAL of the owners of the neighbouring plot , but the investigation was subsequently directed against the applicant . On DATE he was charged with perjury , in that he had lied to the investigator when declaring that he had not himself signed the document in question . The applicant was prohibited from leaving his place of residence without permission .", "On DATE the district prosecutor terminated the criminal proceedings against the applicant and cancelled the prohibition on leaving the town . It is unclear whether any investigation against the owner of the neighbouring plot remained underway .", "Section CARDINAL of LAW DATE ( ORG за собствеността ) provides that the owner of a piece of immovable property can not carry out actions which impede , in more than the usual way , the use of neighbouring properties .", "Under section CARDINAL(CARDINAL ) of the same LAW , an owner may request the cessation of any “ unjustifiable activity ” which hinders him in the exercise of his rights . In an interpretative decision ( no . CARDINAL of DATE ) the former ORG explained that such a claim ( actio negatoria ) provided protection against unjustified interference – whether direct or indirect DATE which might prevent an owner from using his property to the fullest extent . The claim could be used to declare such interference unlawful and enjoin the persons concerned to stop it and remove its effects . ORG held , in particular , that in cases where buildings have been constructed on a neighbouring property without the necessary documents and permits or in contravention thereof , the owner was not obliged to tolerate any restrictions on his right to use and enjoy his property which such a situation might cause . Thus , the actio negatoria could be used to obtain an order to demolish a building . Lastly , ORG held that unlike decisions of the building control authorities , the ORG judgments pursuant to such claims determined with finality disputes between the aggrieved owner and the perpetrator of the interference , and could be enforced as a matter of right .", "In judgment no . CARDINAL of DATE ( case no . DATE ) the former ORG of GPE , examining an actio negatoria , held that the very fact of construction in breach of the relevant rules and legal provisions amounted to an impermissible interference with the neighbour ’s right to property , which did not thus need to be proven any further . In judgments no . CARDINAL of DATE ( case no . DATE ) and no . CARDINAL of DATE ( case no . DATE ) ORG held in addition that an actio negatoria could be allowed even where the construction or reconstruction works in the neighbouring property had been carried out in accordance with the relevant construction permits , as in issuing them the administrative authorities had not been under an obligation to take into account the neighbour ’s interests .", "In judgment no . CARDINAL of CARDINAL DATE ( case no . CARDINAL/CARDINAL ) , ORG allowed an actio negatoria brought by the owners of a house whose neighbours had constructed a building in contravention of the construction permit granted , thus occupying a portion of the claimants’ plot and blocking the light . ORG , finding that the situation hindered the effective enjoyment of the claimants’ right to use and enjoy their property , ordered the neighbours to demolish their building .", "In judgments no . CARDINAL of DATE ( case no . ORG ) and no . CARDINAL of CARDINAL DATE ( case no . CARDINAL ) ORG also ordered , in actions under section CARDINAL of LAW , the demolition of unlawfully constructed buildings .", "Section CARDINAL of the DATE State and ORG ( ORG за отговорността на държавата и общините за вреди , “ the ORG ” ) provides that the ORG and municipalities are liable for damage caused to individuals and legal persons by unlawful decisions , actions or omissions by their organs and officials , committed in the course of or in connection with the performance of an administrative activity . The liability for damages of the municipalities was introduced following legislative amendments of DATE .", "The domestic courts have applied this provision in a number of cases concerning the prevention of the effective exercise of the right to use and enjoy property caused by unlawful construction works in neighbouring plots authorised by the authorities . In judgment no . CARDINAL of DATE ( case no . CARDINAL ) , ORG upheld a lower court ’s judgment allowing such a claim against the building supervision authorities and ORG , finding that the construction works on a plot neighbouring that of the claimant , although duly authorised by the defendants , had contravened the relevant construction regulations and had , as a result , infringed the claimant ’s right to light . ORG pointed out that the authorities’ liability was engaged even where none of their decisions related to the disputed construction works had been expressly found to be null and void ; it was sufficient that the construction works were in breach of the statutory requirements .", "In another judgment , no . CARDINAL of CARDINAL DATE ( case no . CARDINAL ) , ORG awarded damages to a claimant in a similar situation , pointing out that he had on numerous occasions alerted the building control authorities of the unlawfulness of the construction works on the neighbouring plot . Those authorities had not fulfilled their obligation to order the cessation of the unlawful construction works and have the ORG building demolished , which had resulted in damage to the claimant ’s house .", "In another case ( see judgment no . CARDINAL of CARDINAL DATE , case no . CARDINAL , the judgment has entered into force ) , ORG awarded damages to claimants whose neighbours had erected a building without the necessary construction permits . The construction had subsequently been retrospectively approved by the municipal authorities , but the approval order had been annulled by the courts . ORG took note of the fact that even following these developments the ORG building was still standing and its demolition had been neither ordered , nor undertaken , and therefore held that the municipal authorities had failed in their obligations to protect the PERSON property .", "In a similar situation , ORG also awarded damages ( judgment no . CARDINAL of DATE , case no . CARDINAL , the judgment has entered into force ) . In that case , the claimant ’s property had been earmarked for expropriation and on that basis the municipal authorities had authorised the construction of a new building in its immediate proximity . However , the intended expropriation had subsequently been abandoned , which had forced the claimant to remain in her house , whose value had already seriously depreciated and which had also been damaged by the construction works close to it ." ]

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[ "The applicants were born in DATE and DATE . The first applicant , PERSON , died on DATE . The second applicant lives in the town of ORG , GPE .", "On DATE , at TIME , the ORG son was hit and killed by a car being driven by a NORP national , PERSON The car belonged to a NORP national , Ms G.", "The law - enforcement authorities examined the scene of the accident immediately after and prepared a vehicular accident scheme with the relevant measurements . The participants in the road traffic accident ( Mr F. and PERSON , who was also in the car during the accident ) gave their account of it .", "On DATE ORG instituted a criminal investigation into the road traffic accident and ordered a forensic medical examination of the victim .", "On DATE an on - site vehicular accident reconstruction was carried out with the participation of Mr F. and PERSON and in the presence of attesting witnesses ( PERSON and PERSON ) . On DATE other persons were questioned as witnesses .", "On DATE the investigator ordered a technical vehicular examination , which was conducted on DATE and established that the applicants’ son had died of serious head trauma as a result of the road traffic accident .", "The applicants learned on DATE that their son was dead and his body was in the town morgue .", "On DATE the applicants applied to ORG for compensation . On DATE the applicants and their granddaughters were awarded compensation of ORG CARDINAL,CARDINAL as heirs of the victim . In the accompanying letter , ORG informed the applicants that the above amount was the maximum amount it could pay under the law without consent of the foreign insurance company and it was open to them to seek any further compensation by lodging a civil claim against a person or persons liable for the accident . The applicants and their grandchildren received the above amount in equal shares on DATE .", "On DATE the forensic medical examination ordered on DATE was conducted . It concluded that the ORG son had died as a result of the road traffic accident from open head trauma , and that he had been moderately drunk when the accident had occurred .", "On DATE the investigator ordered a forensic technical vehicular examination , which was conducted on DATE .", "On DATE the investigator ordered a vehicular trace examination , which was conducted on DATE .", "DATE the applicants made numerous complaints to the different State authorities about delays in the investigation into the death of their son .", "On DATE the investigator stayed the proceedings on the ground that the only witnesses to the accident were the driver and the passenger of the car which had hit the applicants’ son , but they could not be questioned as they resided abroad and the police had no funds to arrange for them to travel to GPE .", "On DATE ORG ( “ the LRPO ” ) quashed the decision of DATE and instructed the police to continue the investigation .", "On DATE the investigator of ORG decided to discontinue the criminal proceedings for lack of corpus delicti in the driver ’s actions . It was established that , given the darkness , the wet road and the headlights from an oncoming car , the driver had only seen the applicant ’s son , who had been walking on the road , at a distance at which he could not avoid hitting him .", "On DATE the ORG quashed the decision of DATE on account of the incompleteness of the investigation and gave instructions for further investigative actions .", "By a letter of DATE , ORG informed the applicants that the investigation of the case was complicated by the fact that the defendants resided abroad and the ORG had no means available to cover the costs that would be incurred by them travelling to GPE .", "On DATE the investigator ordered an additional forensic technical vehicular examination , which was conducted on DATE .", "On DATE the investigator again decided to discontinue the criminal proceedings for lack of corpus delicti in the driver ’s actions .", "On DATE the ORG quashed the decision of DATE on account of the incompleteness of the investigation , and gave instructions for further investigative actions to be taken .", "On DATE the investigator discontinued the criminal proceedings . The decision noted that the investigation had followed all the instructions of the prosecutor but had found no new factual data capable of affecting its previous conclusions .", "On DATE the ORG quashed the decision of CARDINAL DATE . It noted that the investigator had followed the instructions given on DATE only in part , while the instructions given on CARDINAL DATE had been ignored altogether .", "By a letter of CARDINAL DATE the ORG informed the applicant that the investigation had been reopened and disciplinary proceedings had been instituted against the investigator in their son ’s case for having breached criminal procedure .", "On DATE the investigator refused to institute criminal proceedings against Mr F. , PERSON and PERSON", "On DATE the investigator stayed the criminal proceedings concerning the death of the applicants’ son , stating that the prosecutor had instructed him to find other witnesses to the accident , which he had been unable to do so far .", "On CARDINAL DATE the investigation was resumed .", "On DATE the ORG refused to institute criminal proceedings in connection with a complaint by the applicants in which they alleged that Mr. PERSON , Mr. PERSON and Ms. G had bribed the police .", "On DATE the criminal proceedings were again discontinued . The investigator noted that he had summoned PERSON , who resided in GPE , to appear for participation in further investigative actions , but he had failed to appear . He also noted that PERSON could not be summoned from GPE , as the investigation had no funds to pay for his travel expenses to GPE . It was further mentioned that there was no evidence that PERSON had been the guilty party in the road traffic accident in question .", "On DATE the ORG quashed the decision of DATE on account of the incompleteness of the investigation .", "On DATE the investigation conducted an on - site reconstruction of the accident with the participation of PERSON , who was summoned from GPE .", "On DATE the investigator refused to institute criminal proceedings against Mr F. and discontinued the criminal proceedings into the road traffic accident that had led to the death of the applicants’ son . This latter decision was quashed by the ORG on DATE .", "On DATE the investigator ordered an additional forensic transport trasological examination , which was completed on DATE .", "On DATE the investigator discontinued the criminal proceedings once again . He noted that the additional examination had established that the driver could have avoided hitting the victim with the use of emergency breaking only if the victim had been running . Given that there was no confirmation that the victim had been running , the investigator discontinued the proceedings , noting that under LAW an accusation could not be based on assumptions .", "On DATE the ORG quashed the decision of DATE , stating that it was necessary to conduct additional investigations .", "On DATE the investigator discontinued the criminal proceedings . That decision was quashed by the ORG on DATE .", "On DATE the criminal proceedings were stayed by the investigator , who indicated in his decision that on DATE Mr F. had hit an unknown person .", "On DATE the investigator resumed the criminal proceedings .", "On DATE the investigator refused to institute criminal proceedings against Mr F. for lack of corpus delicti in his actions . By another decision , of the same date , the investigator discontinued the criminal proceedings concerning the road traffic accident which had led to the death of the applicants’ son . That decision by the investigator had been examined and upheld by ORG .", "The relevant provisions of domestic law can be found in the judgments in the cases of GPE v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) , and PERSON v. GPE ( no . CARDINAL , § DATE , CARDINAL DATE ) ." ]

[ "2" ]

[ "2-1" ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "NORP In DATE the applicant worked in a private asset management company .", "In DATE ORG ( “ the NORP ORG ” ) carried out a criminal investigation into the company ’s business . The applicant was twice questioned in the course of the investigation .", "In DATE the applicant quit his job and in DATE moved to GPE .", "The NORP ORG considered the applicant ’s departure as an attempt to abscond . For this reason , on DATE the NORP ORG charged the applicant in his absence with large - scale fraud and embezzlement , and issued in his respect a detention order and an international search and arrest warrant .", "On DATE the NORP police arrested the applicant in GPE . According to the applicant , the policemen did not inform him of the reasons for his arrest and failed to produce any documents justifying it .", "On DATE ORG sent an urgent wire to its NORP counterpart . ORG requested confirmation that the applicant was still wanted by the NORP authorities and inquired whether the NORP authorities planned to request his extradition .", "On DATE the NORP authorities interviewed the applicant . In the course of the interview , the applicant wrote explanations in which he provided certain details about the investigation in GPE , his questionings and departure to GPE . The applicant noted that , until his arrest , he had not known that the NORP authorities had been searching for him .", "On DATE the applicant was placed in a temporary detention unit of ORG .", "On DATE the NORP ORG sent to ORG PERSON of GPE ( “ the NORP ORG ” ) a formal request for the applicant ’s extradition , pursuant to LAW . On CARDINAL DATE the NORP ORG received this request .", "On DATE ORG replied to its NORP partner ’s wire of DATE and requested the applicant ’s detention pending the extradition proceedings .", "On DATE a senior investigator of ORG interrogated the applicant for the first time , having come for this purpose from GPE . The investigator informed the applicant about the nature of the accusation against him but did not serve formal charges .", "According to the applicant , it was not until then that he was for the first time informed – albeit only orally – about the charges .", "On DATE ( DATE , according to the Government ) DATE , the applicant was transferred to ORG IZ–CARDINAL/CARDINAL in GPE .", "According to the applicant , in DATE his lawyer lodged CARDINAL applications for his release : on DATE with ORG of GPE , on DATE with ORG of GPE , and on DATE with GPE . These applications were made pursuant to LAW which provided for the judicial review of detention on remand .", "According to the Government , the applicant ’s lawyer did not lodge these applications .", "On DATE the NORP ORG agreed to extradite the applicant .", "On DATE ORG Office informed the applicant ’s lawyer that , on DATE , ORG had ordered the applicant ’s continued detention pending the extradition proceedings , pursuant to the request of the NORP authorities and because the applicant was not a NORP citizen .", "On DATE the applicant was re - located to ORG no . CARDINAL in GPE .", "On DATE ( DATE , according to the Government ) DATE he was handed over to the NORP authorities .", "On DATE the NORP ORG of Gomel convicted the applicant and sentenced him to CARDINAL years’ suspended imprisonment with compulsory community work .", "GPE and GPE are members of the ORG . On DATE ORG of the ORG signed an ORG - operation in the Sphere of Crime Control ( “ ORG ” ) . LAW provides as follows :", "“ A ORG shall , with regard to its internal legislation , assist another ORG who requests :", "( a ) the arrest of a person who evades investigating authorities , trial or serving a sentence , or the detention of such a person if necessary ;", "( b ) the extradition of a person for criminal prosecution or for serving a sentence . ”", "On DATE ORG signed LAW ( “ ORG ) , which provided as follows :", "“ CARDINAL . The Contracting Parties shall ... on each other ’s requests extradite persons , who find themselves in their territory , for criminal prosecution or serving a sentence .", "Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties , and which entail DATE imprisonment or a heavier sentence . ”", "“ CARDINAL . A request for extradition ( требование о выдаче ) shall include the following information :", "( a ) NORP the title of the requesting and requested authorities ;", "( b ) the description of the factual circumstances of the offence , the text of the law of the requesting ORG which criminalises the offence , and the punishment sanctioned by that law ;", "( c ) the [ name ] of the person to be extradited , DATE of his birth , citizenship , place of residence , and , if possible , the description of his appearance , his photograph , fingerprints and other personal information ;", "( d ) information concerning the damage caused by the offence .", "A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order .... ”", "“ CARDINAL . NORP The person whose extradition is sought may also be arrested before receipt of a request for extradition , if there is a related petition ( ходатайство ) . The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow . A petition for arrest ... may be sent by post , wire , telex or fax .", "NORP The person may also be detained without the petition referred to in point CARDINAL above if there are legal grounds to suspect that he has committed , in the territory of the other ORG , an offence entailing extradition .", "NORP In case of [ the person ’s ] arrest or detention before receipt of the request for extradition , the other ORG shall be informed immediately . ”", "“ CARDINAL . The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested ORG ....", "A request for the search ... shall contain ... a request for the person ’s arrest and a promise to submit a request for his extradition .", "A request for the search shall be accompanied by a certified copy of ... the detention order ....", "The requesting Contracting ORG shall be immediately informed about the person ’s arrest or about other results of the search . ”", "“ CARDINAL . A person arrested pursuant to LAW and LAW shall be released ... if no request for extradition is received by the requested ORG within DATE of the arrest .", "A person arrested pursuant to LAW shall be released if no petition issued pursuant to LAW arrives within the time established by the law concerning arrest . ”", "“ The requested ORG shall inform the requesting ORG about the place and time of the hand - over . If the requesting ORG does not take the person to be extradited within DATE after the fixed date for handing over , the person shall be released . ”", "Pursuant to LAW the CCrP ” ) , in force at the material time , a remand prisoner could apply for a judicial review of his pre - trial detention .", "Article CARDINAL § CARDINAL of LAW DATE , in force at the material time , provided that appropriation or embezzlement of third parties’ property of which the defendant had custody , or appropriation of the property by abuse of office , committed on several occasions , in concert with others and on a large scale , was punishable by DATE imprisonment , the confiscation of property and a prohibition on holding certain offices or on taking up certain activities for a period of DATE ." ]

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[ "5" ]

[ "5-1", "5-2", "5-4" ]

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[ "ORG Mr. PERSON was born in DATE and died in DATE . He was an NORP citizen and lived in GPE .", "ORG On DATE , the carabinieri reported the applicant to the GPE public prosecutor ’s office for various alleged offences , including fraud , committed before DATE . They said that they had not questioned the suspect because they had failed to contact him at his last - known address . In fact , his flat , in via PERSON , had been closed and his furniture seized by the judicial authorities ; the manager of the building , who was also the administrator appointed by the court in the attachment proceedings , was unaware of Mr. PERSON ’s new address .", "On DATE , the investigating judge issued a \" judicial notification \" ( comunicazione giudiziaria ) intended to inform the applicant of the opening of criminal proceedings against him . A bailiff attempted to serve it on Mr. PERSON at the address - via Fonteiana - shown in ORG records , but without success : he had moved - DATE according to the carabinieri and DATE according to the police - and had omitted to inform FAC of his change of residence as required by law .", "ORG Meanwhile Mr. PERSON , when renewing his driving licence in DATE , had given , as his current address , that shown in ORG records ( via Fonteiana ) .", "ORG On DATE , after unsuccessful searches at the latter address , the investigating judge declared the accused untraceable ( irreperibile ) , appointed an official defence lawyer for him and continued the investigations . Thereafter , in pursuance of LAW ( see paragraph CARDINAL below ) , all the documents which had to be served on the applicant were lodged in the registry of the investigating judge , the defence counsel being informed in each case .", "On DATE and CARDINAL May and DATE , the investigating judge issued CARDINAL arrest warrants which were not executed because the competent authorities still did not know where Mr. PERSON was living . It should , however , be noted that the address indicated on the warrants was via PERSON . On each occasion , the carabinieri drew up a report of fruitless searches ( vane ricerche ) . Mr. PERSON was thenceforth regarded as \" latitante \" , that is as a person wilfully evading the execution of a warrant issued by a court ( see paragraph CARDINAL below ) .", "ORG By a decision of CARDINAL DATE , the applicant was committed for trial .", "A first hearing was held by ORG on DATE . Although he had been informed of the lodging of the summons to appear ( see paragraph CARDINAL above ) , the accused ’s officially - appointed defence counsel did not appear , with the result that the court had to appoint a replacement and postponed the hearings until DATE . On DATE , a new lawyer was officially assigned , because the CARDINAL appointed on CARDINAL May did not appear either . The court adjourned the trial and concluded it on DATE , after appointing , during the sitting and again for the same reason , another official defence lawyer . It sentenced Mr. PERSON to DATE imprisonment ( reclusione ) and a fine ( multa ) of CARDINAL GPE . The public prosecutor had called for sentences of CARDINAL years’ imprisonment and a fine of CARDINAL GPE and the officially - appointed defence counsel had agreed with his submissions .", "The judgment was lodged in the registry on DATE and a copy was served on the lawyer . It became final on DATE , as he had not entered an appeal .", "ORG On DATE , the public prosecutor ’s office issued an arrest warrant . The applicant was arrested at his home in GPE , CARDINAL via Pian Due Torri , on the following DATE . On DATE , he raised a \" procedural objection \" ( incidente d’esecuzione ) as regards this warrant and at the same time filed a \" late appeal \" ( appello apparentemente tardivo ; see paragraph CARDINAL below ) . He appointed a lawyer and instructed him to draft the grounds of appeal . However , he submitted them himself on DATE and lodged a supplementary memorial on DATE . On DATE and DATE , he appointed new lawyers .", "ORG On DATE , ORG dismissed the \" procedural objection \" and ordered that the papers be sent to ORG for a ruling on the \" late appeal \" .", "Mr. PERSON maintained that he had been wrongly declared \" latitante \" and that the notifications of the summons to appear and of the extract from the judgment rendered by default were therefore null and void .", "He explained that , as he had received notice to quit from his landlord at DATE , he had left his flat in via Fonteiana and , before finding a new one , had lived in a hotel . He pointed out that his new address ( via Pian Due Torri ) was known to the police since , on DATE , they had summoned him to the local police station for questioning ; the same applied both to the GPE public prosecutor ’s office , which , on DATE ( that is to say , DATE before adoption of the judgment ) , had sent him a \" judicial notification \" concerning other criminal proceedings , and to various public authorities , which had served documents on him , using the notification service of FAC .", "ORG Mr. PERSON ’s appeal was examined together with an appeal that had been entered by his co - accused . ORG heard Mr. PERSON both on the merits of the case and on the fact that he had been treated as \" latitante \" .", "The public prosecutor attached to ORG also submitted that the judgment of CARDINAL DATE should be set aside ; in his view , Mr. PERSON should not have been regarded as \" latitante \" .", "On DATE , ORG confirmed the conviction of the co - accused . As to Mr. PERSON , it held that his appeal was inadmissible for failure to observe time - limits . It ruled that the time - limit for filing the grounds of appeal - DATE , under LAW had begun to run on DATE , the date on which the arrest warrant had been served , whereas the memorial had not been submitted until DATE .", "ORG Mr. PERSON lodged an appeal on points of law but it was dismissed by ORG on DATE . It accepted that ORG had wrongly declared the \" late appeal \" inadmissible for failure to file the grounds in time : it should first have determined whether , as the appellant alleged , the first - instance proceedings were void . However , ORG concluded that this was not so : it considered that Mr. PERSON had rightly been declared first to be \" irreperibile \" and then to be \" latitante \" . It added that ORG should have declared the appeal inadmissible as out of time , since it had been lodged at a time when the judgment under appeal had already become final .", "Mr. PERSON , who had been in custody since DATE to serve his sentence , as well as other suspended sentences previously passed on him , died in prison on DATE ( see paragraph CARDINAL above ) .", "ORG LAW lays down the methods for notifying an accused person who is not in custody of the various documents pertaining to the investigations and the trial .", "When the first procedural step involving the presence of such an accused is taken , the court , the public prosecutor ’s office or the official of the criminal investigation department must ask the accused to indicate the place where notifications should be made or to elect an address for service ( Article CARDINAL , first paragraph ) . If he does not do so , LAW applies ; this provides , inter alia , that if the first notification can not be made to the party concerned in person , it is to be delivered , at his place of residence or of work , to a person living with him or to the caretaker . If those CARDINAL places are not known , notification is to be left where the party concerned is living temporarily or has an address , by delivery to CARDINAL of the above - mentioned persons .", "ORG LAW does not define the concept of \" irreperibile \" . Nevertheless , according to the relevant rules , it may apply to any person on whom a document concerning criminal proceedings opened against him has to be served and whom it has not been possible to trace because his address was unknown . The mere establishment of this fact - the question whether there has been a wilful evasion of the investigations being irrelevant in this context - is enough for this purpose . According to LAW , the bailiff has to inform the judge who ordered the notification . The latter , after directing that further searches be conducted at the place of birth or last residence , will then issue a decree ( decreto ) to the effect that notifications shall be effected by being lodged in the registry of the court before which proceedings are in progress . The defence lawyer must be informed immediately whenever a document is so lodged ; if the accused has no lawyer , the court has to assign one to him officially .", "ORG This system of notification is also used if the accused is \" latitante \" ( LAW ) .", "According to the first paragraph of LAW , any person wilfully evading execution of , inter alia , an arrest warrant shall be regarded as being \" latitante \" . The third paragraph states that whenever classification as \" latitante \" entails legal consequences , these are to extend to the other proceedings instituted against the person in question . If he does not have a lawyer of his own choosing , an official appointment will be made .", "ORG has consistently held that an intention to evade arrest is to be presumed where adequate searches by the criminal investigation police have been unsuccessful . This presumption exists even if the person in question , after moving and failing to make the statutory declaration of change of residence , has not resorted to any special subterfuges to avoid arrest ( ORG , DATE , no . CARDINAL , PERSON , no . CARDINAL ; FAC , DATE , no . CARDINAL , Repertorio DATE , no . CARDINAL ; PERSON delle decisioni penali , DATE , no . DATE ) . In its judgment no . CARDINAL of DATE , ORG specified , however , that the presumption can be rebutted and is thus not irrefutable .", "The term \" adequate searches \" leaves the criminal investigation police with a measure of discretion as to the steps to be taken ; this discretion is however limited , in that the person concerned must be sought at the residence indicated in the arrest warrant ( ORG , DATE , no . CARDINAL , massima no . DATE ) .", "ORG Although trial by \" contumacia \" ( by default ; Articles CARDINAL to CARDINAL of LAW ) is classified as a special form of proceedings , the ordinary procedure is followed ( LAW , first paragraph ) . Such a trial is held when the accused , after being duly summoned , does not appear at the hearing and neither requests nor agrees that it take place in his absence .", "ORG Under NORP law , an accused who fails to appear ( contumace ) has the same rights as an accused who is present . He is , for example , entitled to be defended by a lawyer - who will be officially assigned to him by the court if he has not chosen CARDINAL himself - and to lodge an ordinary appeal or an appeal on points of law against the judgment concerning him . The time - limit for entering such an appeal begins to run only from DATE on which he was notified of the decision by means of service of an extract from the judgment . However , in the case of a person who has also been declared to be \" irreperibile \" or \" latitante \" , time begins to run from the date of the lodging of the judgment in the registry of the court that rendered it .", "ORG According to NORP case - law , individuals who have not entered an appeal and who consider that the notification of the judgment was irregular can lodge a \" late appeal \" . The time - limits to be observed are the same as for the ordinary appeal ( DATE for giving notice of appeal and DATE for submitting the grounds ) , but both start to run from the date when the person in question had knowledge of the judgment . Nevertheless , in the case of a person regarded as \" latitante \" the court hearing the appeal can determine the merits of the criminal charge only if it finds that there has been a failure to comply with the rules governing declarations that an accused is \" latitante \" or governing service on him of the documents in the proceedings ; in addition , it is for the person concerned to prove that he was not seeking to evade justice .", "ORG LAW provides , inter alia , that proceedings shall be null and void if the rules on the participation , assistance and representation of the accused have not been observed . Failure to serve a summons to appear at the hearing and the absence , at that stage , of the accused ’s defence counsel constitute grounds of incurable nullity , of which the court must take notice of its own motion at any point in the proceedings ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant is a NORP citizen born in DATE . He is represented before the ORG by Mr PERSON , solicitor , of PERSON and PERSON , GPE , GPE .", "In DATE the applicant was convicted of indecent assault and sentenced to DATE imprisonment . His expected release date was in DATE .", "On DATE LAW entered into force . As a result of the LAW , the applicant will be required to register with the police for an indefinite period following his release from prison . The applicant considers that this requirement is “ depersonalising ” , robbing him of his “ ability to reinvent [ him]self and start a new life ” and , in addition , he fears that it may put him and his family at risk . In this connection he refers to newspaper reports of vigilante attacks on paedophiles following their identification by the press and television .", "Relevant domestic law", "According to its preamble , LAW ( “ the LAW ” ) is “ an LAW to require the notification of information to the police by persons who have committed sexual offences ... ” . The registration requirements apply to persons convicted of certain offences after the commencement of the LAW and also , by virtue of LAW ( CARDINAL ) , to those “ ... serving a sentence of imprisonment ... in respect of a sexual offence to which this Part applies ... ” .", "A person required to register must inform the police of his name , any other names he uses , his date of birth and his home address , and must inform the police of any change of name or home address within DATE of any change . He must also tell the police his name and address on the date he was convicted of the offence at issue , and must tell the police of any address where he lives or stays for DATE or longer .", "For a person who has been sentenced to a term of imprisonment of DATE or more , the registration requirements are indefinite .", "Failure to comply with the registration requirements , or to give the police false information , is a criminal offence punishable with DATE imprisonment or a fine ." ]

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[ "The applicant was born in DATE and lives in the town of ORG in LOC .", "On DATE the applicant was arrested on suspicion of having committed franchise fraud , that is , having organised a financial pyramid scheme in which CARDINAL persons had been enrolled and which had caused fraudulent losses of MONEY . DATE a prosecutor authorised the applicant ’s placement in custody on the ground that she was charged with a serious criminal offence and was liable to abscond and pervert the course of justice .", "On DATE and DATE ORG extended the applicant ’s detention until DATE and DATE respectively , having regard to the gravity of the charges .", "On DATE and CARDINAL DATE a deputy Prosecutor General of GPE , invoking the same grounds as in the previous detention orders , authorised the extension of the applicant ’s detention until DATE and CARDINAL DATE respectively .", "On DATE and DATE the acting Prosecutor General of ORG authorised further extensions of the applicant ’s detention until DATE and DATE respectively . The reasons for both extensions were the same : the gravity of the charges and the applicant ’s liability to abscond and pervert the course of justice .", "On DATE ORG asked ORG to extend the applicant ’s detention for DATE because the applicant needed additional time to read the case file . The prosecutor also noted that the applicant and her co - defendants had participated in an organised criminal offence , had been charged with serious criminal offences , and had influenced other defendants , witnesses and victims . They were liable to abscond and pervert the course of justice .", "NORP On DATE the President of ORG wrote in the corner on the first page of the prosecutor ’s application that he authorised the extension of the applicant ’s and her co - defendants’ detention until DATE .", "On an unspecified date the applicant and her co - defendants appealed against the order of CARDINAL August CARDINAL . They claimed that the maximum DATE period of their detention would expire on DATE . An extension of the detention beyond DATE was possible only if the defendant needed more time to read the case file . The applicant insisted that she had finished studying the file and that there were therefore no grounds for a further extension .", "On DATE ORG of GPE examined the applicant ’s and her co - defendants’ appeals against the order of DATE , quashed it and remitted the matter to ORG for fresh examination . The relevant part of ORG decision reads as follows :", "“ By virtue of ORG CARDINAL - CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure the judge has to examine the lawfulness and well - foundedness of the request for extension of the detention of PERSON ... and has to issue a reasoned decision as required by paragraph CARDINAL of LAW .", "Moreover , paragraph CARDINAL of LAW of LAW requires that [ a court ] should prepare TIME of a court hearing in which the issue of extension of detention is examined ... [ the minutes ] should indicate who participated in the hearing and should reflect the progress of the examination of the materials .", "The minutes of the court hearing and the reasoned decision of the judge were not included in the materials presented to ORG of GPE , which constitutes a gross violation of the requirements of LAW .", "Accordingly , the decision [ of the President of ORG ] should be quashed and the case file should be sent for re - examination .", "ORG can not accept counsel ’s requests for PERSON release ... because [ ORG ] is unable to conclude from the presented decision whether [ she ] is detained lawfully or unlawfully , and counsel ’s arguments are based on this circumstance .", "In the course of the fresh consideration of the file , the [ Regional ] ORG has to examine thoroughly all the arguments set out in the application by ORG and to give a reasoned decision .", "On the basis of the foregoing , and in accordance with ORG CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure , the ORG decides :", "To quash the decision of DATE of the President of ORG by which an extension of PERSON ... detention was authorised and to refer the case back for fresh consideration ...", "The preventive measure applied to PERSON ... should remain unchanged , namely detention on remand . ”", "On DATE ORG extended the applicant ’s detention until DATE , noting the gravity of the charges against her . ORG held that the gravity of the charges could serve as the sole ground for the detention , but it also pointed to the applicant ’s failure to finish studying the file .", "On DATE ORG upheld the decision of DATE , stating that the applicant had been charged with especially serious criminal offences and her detention had been authorised and extended a number of times in accordance with the requirements of LAW . The request for extension of the applicant ’s detention until DATE had also been lodged in compliance with NORP law . The applicant did not have a permanent place of residence in LOC , where the investigation was being conducted , and she was liable to abscond . The extension of the applicant ’s detention had been necessary as she had continued reading the case file .", "On DATE the bill of indictment was served on the applicant . She was charged with aggravated fraud , forgery of documents , money laundering and organisation of a criminal enterprise . DATE the case was referred for trial .", "On DATE ORG scheduled the first trial hearing . It also examined requests by the applicant and her co - defendants for release and dismissed them on the ground of the gravity of the charges .", "In DATE the applicant appealed against the order , arguing that ORG had failed to issue a reasoned decision concerning the extension of her detention . CARDINAL of the applicant ’s co - defendants also appealed and sought leave to appear at the appeal hearing . The applicant did not file such a request .", "On DATE ORG of GPE upheld the decision of DATE , noting that ORG had acted within its competence . ORG further held as follows :", "“ By virtue of LAW ... in force at the time ORG issued its decision [ of DATE ] , detention could be authorised as a preventive measure in respect of persons suspected or accused of having committed a criminal offence punishable by DATE imprisonment .", "As appears from the presented materials , PERSON ... was charged with criminal offences punishable by DATE imprisonment . Having regard to this circumstance , the investigating authorities correctly applied the preventive measure .", "By virtue of LAW , when a judge schedules a court hearing , he should , among other issues , determine matters concerning the adjustment or annulment of preventive measures .", "When there is a necessity to annul a preventive measure or to change it to a stricter or a more lenient one , a judge determines the matter and gives a decision accordingly .", "As appears from the materials submitted , the [ ORG ] did not determine an issue concerning the change or annulment of the preventive measure and , accordingly , there was no need to issue a decision on the matter . ”", "On DATE the new Code of Criminal Procedure became effective .", "On DATE ORG , by the same decision , extended the applicant ’s and her co - defendants’ detention until DATE , holding that they were charged with especially serious criminal offences , had no place of residence in LOC and were liable to abscond . It appears that at the hearing the applicant unsuccessfully challenged the composition of the bench .", "The applicant and her co - defendants lodged appeals against the decision . CARDINAL of the co - defendants , but not the applicant , sought leave to appear at the appeal hearing .", "On DATE ORG of GPE upheld the decision of DATE , confirming that the gravity of the charges could serve as the sole ground for the applicant ’s and her co - defendants’ continuing detention . The applicant ’s lawyer , who had been duly notified of the hearing , did not attend .", "On DATE ORG authorised a further extension of the applicant ’s and her co - defendants’ detention until DATE . It relied on the gravity of the charges against them as the ground for the extension .", "The applicant appealed , arguing that the gravity of the charges could no longer serve as the reason for her continuing detention and that her detention was excessively long .", "On DATE ORG of GPE upheld the decision of DATE , holding that the applicant and her co - defendants were charged with serious criminal offences and that that ground was sufficient to authorise their detention for DATE .", "On DATE ORG , once again relying on the gravity of the charges , extended the applicant ’s and her co - defendants’ detention for DATE , until DATE .", "The applicant appealed . She did not seek leave to appear . In the meantime , on DATE ORG authorised a further extension of the detention for DATE , until DATE , on the ground of the gravity of the charges .", "On DATE ORG of GPE quashed the decision of DATE and authorised the applicant ’s release on a written undertaking not to leave the town . The relevant part of the decision reads as follows :", "“ By virtue of LAW , a court which has jurisdiction to examine a case has the right to extend the detention of a defendant after the expiry of the DATE period following the committal of the case for trial .", "A court decision concerning a preventive measure , the type of measure taken , an extension of detention or a change of a preventive measure should be reasoned .", "When indicating the grounds for its decision concerning the extension of the detention , the court has to take into account not only the seriousness of a criminal offence with which a defendant was charged , but also other grounds and circumstances , as indicated in ORG and CARDINAL of the Code of Criminal Procedure .", "This requirement of the law was not complied with when the [ Regional ] Court determined the matter of the extension of the GPE detention .", "As follows from the materials submitted , when extending the detention of Ms GPE ... and identifying the grounds for the extension of the detention , the court referred only to the fact that the defendants were charged with serious and particularly serious criminal offences .", "Furthermore , the court decision did not indicate what had served as the grounds for the extension of the detention or whether the court could have concluded that the defendants would abscond , continue criminal activities , threaten witnesses and other parties to the proceedings , and so on .", "When the gravity of the charges is taken into account , [ the court ] should also have regard to all the legal characteristics of the criminal offence and of the person who committed it .", "In particular , it is necessary to consider the character and degree of a threat to society posed by the criminal offence in question , the state of health of the defendant , his family status , including the right of detainees to trial within a reasonable time or to release pending trial as provided for by LAW .", "As is rightfully pointed out in the grounds of appeal , the court did not take into account those circumstances and did not examine the [ defendants’ ] arguments .", "...", "Having regard to the fact that the court breached the requirements of the law while determining the issue of detention and that the case is currently at the final stage of court proceedings ... , the [ ORG ] considers that the defendants can not influence other parties to the proceedings , that they have permanent places of residence , and that they were detained for a long time [ over DATE ] , which had a negative influence on the state of their health , ... and the preventive measure should be changed to written undertakings not to leave the town . ”", "According to the Government , on DATE a copy of the decision of ORG was sent by special courier to GPE , where the applicant was being detained , and arrived there on DATE . The applicant was released on DATE .", "On DATE ORG , composed of Mr PERSON , the presiding judge , PERSON and PERSON , lay assessors , found the applicant guilty of aggravated fraud and sentenced her to DATE imprisonment .", "The applicant and her co - defendants appealed . They claimed that ORG had been composed in breach of provisions of LAW in that the lay assessors should not have participated in the trial after DATE .", "On DATE ORG of GPE upheld the applicant ’s conviction . As regards the complaint related to the lay assessors , ORG held as follows :", "“ The allegations of the defendants ... concerning the unlawful composition of the [ trial ] court ... that due to the entrance into force of LAW such category of cases should have been decided by a single judge , are unfounded .", "The case was scheduled for consideration by a judge and CARDINAL lay assessors .", "The consideration of the case on the merits began at the first hearing of DATE by the court composed of the presiding judge and CARDINAL lay assessors , chosen by way of casting lots , i.e. in accordance with the provisions of the law on criminal procedure in force at the material time .", "Thus , ORG does not see any violation of the law in that the examination of the case had been finished by the same court which had started its examination because according to § CARDINAL of Article CARDINAL of the Code of Criminal Procedure a case should be examined by the same court and because the law on criminal procedure does not have retroactive effect . ”", "From DATE of the arrest until her release on DATE the applicant was detained in facility no . IZ-CARDINAL/CARDINAL in GPE .", "According to certificates issued on CARDINAL DATE by the director of the facility and produced by the ORG , DATE and DATE the applicant was detained in CARDINAL different cells measuring from QUANTITY . She was usually kept together with CARDINAL inmates . The design capacity of the cells had not been exceeded . The Government submitted that at all times the applicant had had QUANTITY of personal space . They supported their assertion with the facility director ’s certificate issued on CARDINAL DATE which showed the number of detainees on CARDINAL and DATE and CARDINAL and DATE , DATE and DATE , and CARDINAL and DATE , DATE and CARDINAL DATE . In another certificate issued on DATE the director of facility no . IZ-CARDINAL/CARDINAL stated that “ while detained in those [ CARDINAL ] cells [ the applicant ] had had an individual bunk and bedding ” . The Government did not provide any information on the number of detainees in cells where the applicant had been detained after DATE .", "The applicant did not dispute the cell measurements . She alleged , however , that she had been afforded QUANTITY of floor surface as the cells had been severely overcrowded . Given the lack of beds , inmates had slept in shifts .", "The Government , relying on the information provided by the director of the facility , submitted that all cells were equipped with a lavatory pan , a tap , a sink and a ventilation shaft . The lavatory pan was separated from the living area by a CARDINAL - and - a - half - metre - high partition . The smaller cells had CARDINAL window and the larger cells had CARDINAL windows which measured CARDINAL by QUANTITY in width . The windows had a casement . Inmates could request warders to open the casement to let fresh air in . However , until an unspecified date in DATE the windows had been covered with metal shutters blocking access to natural light and air . The cells were equipped with lamps which functioned DATE and TIME . Inmates were allowed to take a shower once a week for TIME . The cells were disinfected once DATE . A central - heating system was installed in the building . The Government further stated that the applicant was given food CARDINAL times a day “ in accordance with the established norms ” . Medical personnel at the facility checked the quality of the food CARDINAL times a day and made entries in registration logs . The applicant had a TIME walk DATE .", "According to the Government , detainees , including the applicant , were provided with medical assistance . They had regular medical check - ups , including X - ray examinations , blood tests , and so on . On her admission to the detention facility the applicant was examined by a doctor who noted that the applicant was healthy . On DATE a prison doctor diagnosed the applicant with acute respiratory disease and prescribed treatment . On DATE the applicant was diagnosed with bronchopneumonia . She was transferred to the facility hospital , where she was treated until DATE . On CARDINAL other occasions , from DATE to DATE and from DATE to DATE , the applicant was admitted to the prison hospital with the diagnosis of bronchopneumonia . The Government gave a detailed description of the treatment administered to the applicant , including the type of medicine , dose and frequency . They also furnished a copy of the applicant ’s medical record and medical certificates .", "NORP The applicant disagreed with the ORG ’s description and submitted that the sanitary conditions had been unsatisfactory . The cells were infested with insects but the administration did not provide any insecticide . The windows were covered with metal blinds which blocked access to natural light and air . Inmates had to wash and dry their laundry indoors , creating excessive humidity in the cells . Inmates were also allowed to smoke in the cells . The lavatory pan was separated from the living area by a partition affording no privacy to inmates . The food was of poor quality and in scarce supply . The applicant further argued that she had not been adequately treated in the prison hospital . She insisted that she had contracted a serious respiratory disease and had stayed in the prison hospital for a long time because the conditions of her detention had been unsatisfactory and because it had been extremely cold in DATE in the cells . The applicant complained to various domestic officials , including the trial judge , about the conditions of her detention . No response followed .", "For a summary of relevant domestic law concerning detention on remand see Shukhardin v. GPE ( no . CARDINAL , § § DATE , DATE ) .", "Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .", "ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :", "“ b. temporary holding facilities for criminal suspects ( ORG )", "According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .", "The actual conditions of detention in the ORG establishments visited in DATE varied considerably .", "...", "It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .", "When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .", "...", "The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .", "...", "As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “ because they know that all complaints usually pass through the colony ’s administration ” .", "In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”" ]

[ "3", "5" ]

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

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[ "5" ]

[ "5-1" ]

[]

[ "On DATE the applicant and his cohabitant , X , had a son . X and the child ceased living with the applicant in DATE .", "In DATE the applicant made an application to the county court for a residence order under section CARDINAL(CARDINAL ) of LAW DATE . In DATE the court made a residence order in favour of X with a specific contact order in favour of the applicant .", "NORP In DATE X married Y and commenced divorce proceedings against him early in DATE . The applicant claims that in DATE or DATE his parents received an anonymous letter to which was attached a lengthy affidavit sworn by X setting out in detail her complaints against Y , including drunkenness and violence .", "On DATE the applicant made a further application to the county court seeking a variation of the residence order of DATE . The judge to whom the case was assigned had already made CARDINAL orders in respect of the applicant ’s son .", "On DATE the applicant , referring , inter alia , to Articles CARDINAL and CARDINAL of the Convention , applied to have the residence application heard in open court with a public pronouncement of the judgment . His application for public proceedings was dismissed at the directions hearing before a judge in chambers on DATE . According to the transcript of the hearing , the judge dealt with the publicity application as follows :", "“ Judge : ORG your application DATE is for a direction that the [ residence ] application be heard in open court , public pronouncement of the judgment thereon . Well I can deal with that straightaway . Children ’s cases are not held in open court . It is not anything to do with the parents , it is for the protection of the child .", "Applicant : Yes , I understand that , I would wish for this case to be heard in open court , with public pronouncement of the judgment .", "Judge : I have got no power , I do n’t think , to order it to be held in open court in any event . This ORG has dictated that it must be held in private , do you see ? ”", "The judge then proceeded to make various directions in respect of the residence application . At the end of the hearing he remarked :", "“ For the avoidance of doubt I shall direct DATE that DATE ’s hearing is in chambers and , as you know , nobody – including the party to the action – is entitled to disclose outside court anything that has happened in chambers ... . [ If ] there is any disclosure that will be contempt of court , for which you can be sent to prison , do you understand ? ... I shall also order for the avoidance of doubt that the next hearing will also be in chambers . I do not think it is in [ the child ’s ] interest for it to be any other way . ... ”", "The applicant appealed against this decision to ORG , which refused leave to appeal on DATE . In giving judgment , PERSON Justice PERSON observed :", "“ Rule CARDINAL.CARDINAL(CARDINAL ) [ of LAW DATE ] states as follows :", "‘ Unless the ORG otherwise directs a hearing of , or directions appointment in , proceedings to which this Part applies shall be in chambers.’", "... [ T]his particular rule governs proceedings under LAW DATE and provides that hearings are to be held in chambers unless otherwise directed . The ORG therefore has a discretion to sit in open court .", "The basis of the applicant ’s application for a hearing in open court was not that there was a point of law and/or that there was any public interest , but in his statement he relies on the following :", "( CARDINAL ) ORG and ORG had withheld information .", "( CARDINAL ) ORG and ORG were biased .", "( CARDINAL ) The mother was unstable and the child was at risk with his mother .", "... ORG , in a different constitution , has given judgment on precisely this point [ in the second applicant ’s case : see paragraph CARDINAL below ] . That decision is binding on this court . ... Rule CARDINAL.CARDINAL(CARDINAL ) provides that child cases shall be heard in private unless there is a special direction to the contrary which would have to be justified by unusual features . The rules plainly indicate a policy of cases being heard in chambers .", "In the current case there is nothing to distinguish the proceedings as out of the usual or raising any issues which would justify a public hearing . The judge exercised his discretion properly and judicially ... ”", "The county court heard the applicant ’s residence application in chambers on DATE . The judge observed that he did not consider that it would be in the child ’s interests that the matter should be public . He dismissed the application to vary the residence order and ordered , under section CARDINAL(CARDINAL ) of LAW DATE , that no further application for a residence or contact order could be made by the applicant without leave of the court . The judgment was pronounced in chambers . The parties were provided with a copy in writing .", "The applicant applied to ORG for leave to appeal . Leave was refused to appeal against the residence order but was granted to appeal against the order under section CARDINAL(CARDINAL ) . On DATE ORG dismissed the applicant ’s appeal and made an order prohibiting the identification of the child . The judgment was pronounced publicly .", "On DATE ORG dismissed an application by the applicant to have the anonymity order set aside . This judgment was also pronounced publicly .", "On DATE , in the course of proceedings for separation from his wife , the applicant made an application to the county court for a residence order under section CARDINAL(CARDINAL ) of LAW DATE in respect of his son ( “ the residence application ” ) . The applicant represented himself in the proceedings and his wife was represented by counsel .", "On DATE the applicant , referring , inter alia , to Articles CARDINAL and CARDINAL of the Convention , made a further application asking for the residence application to be heard in open court with a public pronouncement of the judgment .", "This application ( “ the publicity application ” ) was heard on DATE in public . The county court ’s judgment in the publicity application was pronounced on DATE , in public , although the judge underlined that no reference to the child ’s identity should be made in any publication concerning the case . It was accepted that there was nothing out of the ordinary about the residence application ; the gist of the applicant ’s argument was that all cases concerning children should be heard in public . He contended , inter alia , that the public had the right to see how decisions were made about children ’s lives , and that publicity would serve the interests of justice by encouraging judges , barristers and other professionals involved in such cases to take greater care in their work . In rejecting the applicant ’s submissions the judge observed :", "“ It is all very well for the father ... to say that the hearing of cases in chambers brings about sloppy or lax practice . I personally have no evidence of that . ... It seems to me that , if such practices ... occur ... then they can be placed before ORG and if ORG so finds that that particular judge can be criticised and if guidance thereafter can be given to the judiciary in general , so much the better .", "... Even assuming that ... it would be possible ... to draw my attention to any number of cases which ... have been wrongly decided by the tribunal at first instance and which for CARDINAL reason or another have not found their way to ORG , I am very dubious whether or not the solution to that particular problem is to have those cases heard in public . When CARDINAL is arguing for principle , one should stick to principle , and I think it a draconian measure to bring about the hearing of these cases in public ... in order to chastise judges or expose lax and inadequate preparation by barristers . I would not wish children to be subjected to any form of embarrassment in order , as I say , to chastise the legal profession .", "... But finally I dispose of this case , I am afraid , in a very simplistic manner . The rules of court DATE the Family Proceedings Rules – ... came into force on DATE , which coincided with the coming into force of virtually the whole of the substantial provisions of LAW . I think I must approach this case in this manner . LAW itself – the preamble – says that it is an LAW to reform the law relating to children . ... It was a consolidating LAW , trying to bring together the various legislative Acts which had gone before , but it was a reforming LAW in many senses . It took a great deal of time going through ORG . I have no doubt at all that various interested parties and pressure groups gave evidence to various committees . I have no doubt at all that judges of family experience at the very highest level were consulted . During the course of its going through ORG it would have been debated not only in ORG but in ORG , where all their Lordships of ORG would doubtless have voiced an opinion on it . ... Not only was the LAW a long time coming to the statute book , it was DATE before the bulk of it came into effect . During the course of that gestation period , rules of court were argued about endlessly , and the rules of court appeared virtually at TIME . They were not made until DATE . There is a long history to that , which is not relevant to this judgment . I can only assume , sitting here , that the question of whether or not children ’s cases should be heard in open court or in camera was and must have been anxiously considered at all levels during the course of the progress of this LAW and the rules under LAW through ORG . I can only read , and I do so read and interpret CARDINAL.CARDINAL(CARDINAL ) , which is the rule to which reference has been made , as being a direction – a rule of court DATE that hearings of family cases shall be heard and shall continue to be heard in chambers . ... I would want chapter and verse as to what should be put before the judge before he otherwise directs a hearing of a case in open court . I am not prepared in the course of this judgment to give myself any guidelines as to the sort of case that that might be .", "It therefore follows that , irrespective of the arguments that have been placed before me ... , I have come to the clear conclusion that all of this must have been contemplated by the legislature , and ... if any change is to be made it should be made by the legislature . I assume that the legislature knew what it was doing and wished , despite all arguments to the contrary , to continue to have LAW cases heard in chambers . I do not feel that I have any power , even if I wished to do , DATE which I do not – to hear this particular case in open court . I think I would be breaking the law , in the sense that I would be interpreting in a perverse manner the rules of court laid down under LAW . Therefore ... I feel I have no alternative but to direct that the hearing of this case shall be in camera ... ”", "The applicant appealed on DATE on the ground , first , that the county court judge had fettered his discretion by indicating that he had no option but to hear the case in private and , secondly , that the exercise by the judge of his discretion was flawed since , if he had exercised it correctly , the only conclusion to which he could have come would have been to hear the entire case in open court .", "ORG dismissed the applicant ’s appeal on DATE ( reported as Re P - B ( a minor ) [ DATE ] CARDINAL All England Law Reports CARDINAL ) . In giving judgment , Lord Justice Butler - Sloss said :", "“ When LAW DATE came into force in DATE there were new rules of procedure for ORG and ORG contained in LAW DATE . Rule CARDINAL governs hearings and Rule CARDINAL ) states :", "ORG ‘ Unless the court otherwise directs , a hearing of , or directions appointment in , proceedings to which this Part applies shall be in chambers.’", "... Despite the arguments advanced by [ the applicant ] , it is abundantly clear that the courts are bound by sub - rule ( CARDINAL ) to hear child cases generally in private . That was obviously the intention of ORG and it follows the long - established practice in the hearing of child cases . Sub - rule ( CARDINAL ) allows for all or part of the case to be heard in public . In the light of the long established practice it is unlikely that judges will , other than rarely , hear the evidence relating to the welfare of a child in public . The judgment is in a somewhat different position and it may be that the practice of giving judgment in private is partly due to the parties not asking for it to be heard in public and partly because in the county court , where the vast majority of children ’s cases are heard , it is less likely that there will be issues of public interest . Where issues of public interest do arise it would seem entirely appropriate to give judgment in open court providing , where desirable in the interests of the child , appropriate directions are given to avoid identification . If the case raises issues of principle or of law , the judgments are increasingly provided to the law reporters and are published in a large number of law reports which report family cases . But the majority of cases are of no interest to anyone beyond the parties and their families .", "In answer , therefore , to the appellant ’s first criticism of the judge that he fettered his discretion , the judge undoubtedly used language which might by reading the judgment in a narrow way be said to restrict him to hearing the case in camera . The judge was , however , recognising that the existing practice of hearing the case in private was restated in sub - rule ( CARDINAL ) unless there were unusual features to the case . This was a run of the mill case and the general practice would seem appropriate to this case . In my judgment , the judge ought not to be criticised for a cautious view of the exercise of his discretion .", "In answer to the appellant ’s second point that the exercise of discretion should always be in favour of hearings in open court , it would seem to me that he is directing his arguments to the wrong forum . The wording of sub - rule ( CARDINAL ) is clear . The exercise of discretion remains in the hands of the trial judge and it is a matter for the judge in each case to exercise that discretion if called upon to do so . In the absence of an application to hear the case in open court and unusual circumstances , the normal position would remain , as recognised by the wording of the sub - rule , that the evidence would be heard in private . ”", "On DATE , DATE , ORG ordered that no one should publish or reveal any information likely to lead to the identification of the applicant ’s child . Breach of this order would be a contempt of court punishable with up to CARDINAL years’ imprisonment .", "The county court heard the applicant ’s residence application in chambers in DATE . According to the applicant , before the end of the hearing the judge again considered whether he should give judgment publicly . Given ORG decision of DATE , the judge concluded that he was bound not to , there being no special feature or interest to justify open judgment .", "On DATE the county court ordered that the mother should have custody of the child and granted the applicant access rights . The judgment was pronounced in chambers . The parties were provided with a copy in writing .", "The applicant did not appeal against the residence order .", "On DATE ORG refused the applicant leave to appeal against the decision of ORG of DATE concerning his application of DATE .", "The Family Proceedings Rules DATE provide in Rule CARDINAL ) that :", "“ Notwithstanding any rule of court to the contrary , no document , other than a record of an order , held by the court and relating to proceedings to which this Part applies shall be disclosed , other than to a party , the legal representative of a party , the guardian ad litem , ORG , or a welfare officer , without leave of the judge or district judge . ”", "Persons with a legitimate interest in a child case may apply to the court for leave to inspect and obtain copies of documents or evidence in any particular child - care case and a party may apply for leave to disclose any document to a third party ( see Re EC ( Disclosure of Material ) [ DATE ] CARDINAL Family Law Reports CARDINAL and A County Council v. W and ORG ) [ DATE ] Family Law Reports CARDINAL ) .", "Section CARDINAL(CARDINAL ) of ORG DATE provides as follows :", "“ The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases , that is to say :", "( a ) where the proceedings", "( i ) relate to the exercise of the inherent jurisdiction of ORG with respect to minors ;", "( ii ) are brought under LAW DATE ; or", "( iii ) otherwise relate wholly or mainly to the maintenance or upbringing of a minor . ”", "According to section DATE ) of the LAW , the above does not apply to the publication of the text or summary of the whole or part of the relevant court order ." ]

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[]

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[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "In DATE the applicant entered into an agreement with a private company , Skorpion , under which the latter was obliged to construct an apartment in a block house . Following insolvency proceedings instituted against this company , the applicant entered into a debt transfer agreement ( “ the agreement ” ) with a private company , ORG , ( “ the company ” ) , under which the latter accepted responsibility for the obligations of the ORG company .", "On DATE the applicant instituted proceedings against the company in the Ivano - Frankivsk Court . She requested the court to declare a part of the agreement null and void and sought a ruling to oblige the company to fulfil the remainder of the agreement .", "On DATE the GPE - Frankivsk City Court ( “ the ORG ” ) allowed the applicant ’s claim .", "On DATE the GPE - Frankivsk ORG quashed this decision and remitted the case for fresh consideration .", "On DATE the company lodged a counterclaim seeking termination of the agreement on the ground that the applicant had failed to comply with the agreement .", "On DATE ORG rejected the applicant ’s claim and allowed the counterclaim .", "On DATE the GPE - Frankivsk Regional Court of Appeal ( “ the ORG ” ) upheld this judgment .", "On DATE ORG , following a cassation appeal by the applicant , quashed the decisions of the lower courts and remitted the case to the first - instance court for fresh consideration .", "In the course of the proceedings , the applicant modified her claims on several occasions . Finally she amended her claims on CARDINAL DATE . She claimed property rights over the apartment in the house constructed by the company which was occupied by PERSON and PERSON and sought their removal . She also challenged the title documents on this apartment which had been issued to PERSON and PERSON", "On DATE ORG , following a request by the applicant , attached Mr and PERSON apartment . On DATE ORG upheld this ruling .", "On DATE the company withdrew its counterclaim .", "On DATE ORG found against the applicant .", "On DATE ORG upheld this judgment .", "On DATE ORG dismissed the applicant ’s cassation appeal as unsubstantiated .", "The applicant tried to appeal against the decisions given in her case under extraordinary proceedings . However her efforts were to no avail .", "According to the records provided by the Government , in the course of the proceedings , of CARDINAL listed hearings , QUANTITY hearings were adjourned due to the company ’s representative ’s failure to appear and CARDINAL due to his requests for adjournment . The domestic courts took no steps to ensure his presence in court . CARDINAL hearings were adjourned because the judge sitting in the case was involved in other proceedings . CARDINAL hearings were adjourned at the applicant ’s request and CARDINAL because the applicant ’s representative or lawyer failed to appear or at their request ." ]

[ "6" ]

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[ "The applicant was born in DATE . He is a practising lawyer and lives in GPE , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE ORG in GPE appointed the applicant to represent ORG , a suspect in a preliminary criminal investigation , during his questioning by the police . The applicant provided no legal assistance to the suspect beyond this hearing .", "On DATE the applicant filed a request with the police , seeking payment of his fees in accordance with the LAW issued by ORG .", "Having received no response , on DATE the applicant lodged a civil claim with ORG in GPE , requesting that his fees be covered ( MONEY , “ ORG ” , PERCENT , “ ORG ” , at the time , according to the exchange rate of ORG ) .", "On DATE , ORG rendered a judgment in default ( presuda zbog izostanka ) in favour of the applicant . It thereby ordered ORG to pay him a total of ORG CARDINAL ( approximately EUR CARDINAL at the time ) , on account of his fees and litigation costs , plus statutory interest .", "On DATE ORG in GPE quashed this judgment on appeal .", "NORP On DATE ORG declared itself as lacking jurisdiction ratione materiae to consider the applicant ’s claim on its merit ( oglasio se stvarno nenadležnim za postupanje ) and ordered the applicant to pay ORG CARDINAL for litigation costs ( TIME at the time ) .", "On DATE ORG confirmed this decision on appeal and it thus became final .", "Both ORG and ORG reasoned , inter alia , that the fees in question were related to a preliminary criminal investigation , which was a specific kind of administrative proceedings , not a formal criminal procedure , and concluded that his claim was therefore not for the civil courts to determine . The police themselves , however , had had an obligation to decide upon the applicant ’s request .", "On DATE the applicant paid the litigation costs imposed against him .", "On DATE , on the grounds that he had misdirected his payment of CARDINAL DATE , the applicant was ordered once again to pay the litigation costs at issue plus statutory interest . By DATE the applicant therefore paid another ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL at the time ) .", "On DATE ORG in GPE appointed the applicant to represent G.I. , GPE , GPE , GPE and GPE , all suspects in a preliminary criminal investigation , during their questioning by the police .", "On DATE the applicant filed a request with the police , seeking payment of his fees in accordance with the LAW issued by ORG ( in total ORG CARDINAL , approximately FAC at the time ) .", "On DATE , DATE , CARDINAL DATE and DATE ORG in GPE appointed the applicant to represent FAC , GPE , GPE , and PERSON , all suspects in a preliminary criminal investigation , during their questioning by the police .", "On DATE , CARDINAL DATE , CARDINAL DATE respectively the applicant filed a request with the police , seeking payment of his fees in accordance with the LAW issued by ORG ( in total ORG CARDINAL , approximately EUR CARDINAL at the time ) .", "Article CARDINAL § CARDINAL provides , inter alia , that “ criminal procedure costs ” ( troškovi krivičnog postupka ) shall include all expenses incurred in connection with criminal proceedings , “ from their commencement until their conclusion ” .", "Article CARDINAL § CARDINAL provides that the costs incurred in the course of a preliminary criminal investigation ( pretkrivični postupak ) , which concern fees to be paid to a police - appointed lawyer , shall be covered by the police themselves .", "Article CARDINAL provides , inter alia , that a defendant who has been convicted shall bear the costs of the criminal proceedings .", "Article CARDINAL § CARDINAL provides , inter alia , that should criminal proceedings ( krivični postupak ) against a defendant be discontinued , the indictment be rejected , or the defendant be acquitted , the defence lawyer ’s fees shall be covered from the court ’s budget .", "Article CARDINAL § CARDINAL provides , inter alia , that should the criminal court reject a claim for costs made under LAW , or fail to rule thereupon within DATE , the defendant and his or her lawyer shall have the right to file a separate claim before the civil courts .", "Article CARDINAL , inter alia , sets out the general duties of the police during a preliminary criminal investigation .", "Article CARDINAL § § DATE , inter alia , regulates the questioning by the police of persons suspected of having committed a crime , whose statements may , under certain conditions , be used as evidence in the subsequent criminal proceedings .", "Article CARDINAL provides , inter alia , that a formal judicial investigation shall commence upon the adoption of a specific judicial decision to this effect .", "Costs covered by the police in connection with LAW can not be considered as criminal procedure costs within the meaning of Article CARDINAL thereof ( see PERSON o krivičnom postupku , Prof . PERSON and Prof . dr PERSON , ORG , GPE , DATE , p. CARDINAL , paragraph CARDINAL ) .", "General duties of the police during a preliminary criminal investigation are not formally regulated by LAW , the exception to this rule being those activities referred to in LAW DATE ( ibid . , p. CARDINAL , paragraph CARDINAL) .", "The investigating judge held , inter alia , that the defendant against whom the charges had been dropped was not entitled to the full recovery of his lawyer ’s fees from the budget of ORG in GPE . Specifically , he noted that since a part of these fees concerned legal services rendered during a preliminary criminal investigation it was up to the police themselves to cover any such costs ( the defendant ’s lawyer in the domestic proceedings being the applicant in the present case before ORG ) .", "Article CARDINAL provides , inter alia , that LAW shall be applied to all property - related / pecuniary matters ( imovinskopravni sporovi ) , except those where the law specifically provides for another procedure .", "Article CARDINAL provides , inter alia , that should a court establish its lack of jurisdiction ratione materiae it shall , ex officio , reject the claim in question regardless of the stage of the proceedings .", "Article CARDINAL § CARDINAL ( a ) provides that ORG shall have jurisdiction to rule in respect of all property - related / pecuniary claims ( imovinskopravnim zahtevima ) unless they fall within the competence of ORG .", "Article CARDINAL § CARDINAL ( z ) provides that ORG shall be competent to assess the lawfulness of all final administrative decisions adopted by the ORG , unless specifically provided otherwise by law .", "Article CARDINAL § CARDINAL ( v ) provides that the ORG shall resolve any conflicts of jurisdiction ( rešava sukobe nadležnosti ) between the lower courts .", "DATE provides that a court of law can not refuse to consider a claim in respect of which its jurisdiction has been established by law or LAW .", "Article CARDINAL § CARDINAL provides , inter alia , that in simple matters an administrative body shall be obliged to issue a decision within DATE as of when the claimant had lodged his or her request . In all other cases , the administrative body shall render a decision within DATE thereof .", "Article CARDINAL § CARDINAL enables the claimant whose request has not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request has been denied . Where an appeal is not allowed , the claimant shall have the right to directly initiate an administrative dispute before the competent court of law .", "Article CARDINAL provides that an administrative dispute may only be instituted against an “ administrative act ” , which is , inter alia , an act / decision adopted by a ORG body in the determination of one ’s rights and obligations concerning “ an administrative matter ” .", "Article CARDINAL § CARDINAL ( CARDINAL ) provides that an administrative dispute may not be instituted against an “ act”/decision rendered in matters where judicial redress has been secured outside of the administrative disputes procedure .", "Articles CARDINAL and CARDINAL provide , inter alia , that a claimant who lodged a request with an administrative body shall have the right to institute an administrative dispute before a court in the following situations :", "( i ) Should an appellate body fail to issue a decision upon his or her appeal within DATE the claimant may repeat the request , and if the appellate body declines to rule within DATE the claimant may institute an administrative dispute .", "( ii ) In accordance with the conditions set out under ( i ) above , should a first instance administrative body fail to issue a decision and there is no right to an appeal , the claimant may directly institute an administrative dispute .", "( iii ) Should a first instance administrative body fail to issue a decision upon the claimant ’s request within DATE , in matters where an appeal has not been excluded , the claimant shall have the right to lodge the said request with the appellate administrative body . Should that body render a decision , the claimant shall have the right to institute an administrative dispute against it , and should it fail to rule the claimant shall be entitled to institute an administrative dispute in accordance with the conditions set out under ( i ) above .", "Article CARDINAL § CARDINAL provides that where an administrative dispute has been brought under LAW court shall , should it rule in favour of the claimant , order the administrative body in question to decide upon the claimant ’s original request .", "Articles DATE provides , inter alia , that should the said administrative body fail to comply with this instruction within DATE , the claimant shall be entitled to request the enforcement of the court ’s decision . Should the administrative body fail to respond to this request within DATE , the claimant may petition the court to decide his case on the merits , i.e. to adopt the necessary decision in the administrative body ’s stead . The court shall then request information from the administrative body as to the reasons for its failure to comply with the court ’s order . Should the administrative body fail to respond within DATE or should its explanation fail to satisfy the court , the court itself shall decide on the claimant ’s original request .", "Articles CARDINAL § § DATE , CARDINAL and DATE provide details as regards other situations in which a claimant ’s request may be decided on its merits .", "There is no deadline for the institution of an administrative dispute in accordance with LAW ( see PERSON o opštem upravnom postupku i PERSON o upravnim sporovima , PERSON , PERSON biro , GPE , DATE , p. CARDINAL ) .", "In CARDINAL judgments rendered DATE and DATE ORG and ORG , respectively , ruled on the merits of administrative disputes concerning pension entitlements , the right to stand for elections , property - related municipal decisions , disability benefits and the proposed change in the registration of persons authorised to represent political parties ( see Up . br . PERSON , PERSON . DATE , Už . CARDINAL , U.br . CARDINAL , ORG . CARDINAL and ORG . CARDINAL ) ." ]

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[ "34", "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE . DATE he was the Director of ORG ( PERSON informačná služba ) , the NORP intelligence service . In DATE he was elected as a member of ORG ( the ORG ) for a DATE term .", "The applicant was summoned to give an explanation to a police investigator on DATE . On DATE the investigator arrested the applicant and issued a decision in which he accused him of incitement to commit murder , abuse of authority and the mishandling of information classified as a ORG secret . The decision stated that the applicant was suspected of having prevented the proper investigation of the offence of abduction of the son of the then President of GPE abroad ( for further details concerning that case see also PERSON v. GPE , no . GPE , § § DATE , DATE ) .", "NORP In particular , the decision referred to an extensive investigation including several statements of experts , documentary evidence obtained from ORG , the examination of CARDINAL witnesses including CARDINAL witnesses whose identity was not disclosed and other evidence . The information thus obtained sufficiently justified the conclusion that the applicant , in his capacity as Director of ORG , had taken the action described below with a view to ( i ) preventing the offence of abduction of the President ’s son in DATE from being elucidated , ( ii ) threatening PERSON , a former member of ORG , who had confirmed the involvement of the secret service in that offence and who had later been forced to hide abroad and ( iii ) preventing witness NORP from maintaining contact with PERSON and killing the former . The applicant was accused of offering MONEY ( SKK ) to S. to kill NORP In that context , the applicant was suspected of having arranged for the monitoring of several persons and had transmitted the information thus obtained to S. despite the fact that it had been classified as “ strictly secret ” . S. had asked CARDINAL persons to kill NORP After the first attempt had failed , the perpetrators had activated , in DATE , an explosive device which had been attached to NORP ’s car . The car had caught fire and NORP had died inside . The investigator ’s decision referred to a different set of proceedings brought against CARDINAL persons accused of having activated the device .", "The applicant immediately filed a complaint against the decision which a public prosecutor dismissed on DATE . The public prosecutor requested that the applicant be remanded in custody pursuant to LAW ( a ) , ( b ) and LAW .", "On DATE the applicant , in the presence of CARDINAL lawyers , was heard by a judge of the Bratislava I ORG . The applicant stated that he knew neither NORP nor the persons allegedly involved in his killing . His deprivation of liberty was arbitrary . The evidence on which the investigator relied had not been obtained in accordance with the relevant provisions of the criminal law and , as such , it could not be used in proceedings before a court . The applicant also complained that the investigator had not allowed him or his lawyers to consult the file without relying on any relevant reason . The judge informed the applicant that he would not put the file at his disposal as , at that stage of proceedings , such action was within the power of the investigator .", "On DATE the judge remanded the applicant in custody with effect from DATE . The judge did not accept that there was a risk of the applicant ’s absconding or influencing witnesses within the meaning of LAW ( a ) and ( b ) of LAW . However , the decision stated , with reference to LAW , that the applicant was charged with an offence carrying a minimum prison sentence of DATE . The court ’s decision also stated that the investigator had violated the applicant ’s right to be presumed innocent by holding that his actions had met the constituent elements of the offences in issue .", "The applicant filed a complaint which he supplemented several times . He alleged that ORG judge had not allowed him or his counsel to consult the case file and that the evidence available had not been obtained in accordance with the procedural requirements and did not justify his being accused of the offences in issue . The applicant also submitted that the relevant events had occurred in DATE and that , subsequently , public authorities had influenced public opinion , indicating that the applicant was responsible for the events in question . Furthermore , the first - instance court had disregarded the applicant ’s own position , namely that the prosecuting authorities were biased and had striven to remand him in custody by all means . The applicant relied on the ORG ’s case - law under LAW and CARDINAL of the LAW .", "On DATE the applicant ’s counsel requested permission to consult the file . ORG permitted them to do so from TIME on DATE .", "ORG dismissed the applicant ’s complaint against the decision on his detention on remand at a meeting held on DATE , apparently shortly after the applicant ’s counsel had consulted the file . The court met in camera ; the relevant law excluded both the applicant and the public prosecutor from attending .", "NORP The decision stated that the applicant had been remanded in custody in accordance with the applicable procedural rules and that his detention was justified under LAW . As to the applicant ’s argument that he had been accused of the offences in issue arbitrarily , the decision stated that ORG had thoroughly examined the evidence included in the file . It noted that the criminal proceedings against the applicant were at the initial stage only and concluded that the evidence available at that time justified the suspicion that the offences in issue had been committed . The applicant ’s detention was not arbitrary . As to the applicant ’s objections to the conduct of the criminal proceedings , ORG pointed out that they fell within the competence of the public prosecutor in charge of the case .", "On DATE the Bratislava I ORG dismissed the applicant ’s request for release .", "On DATE a judge of the GPE I ORG refused to extend the applicant ’s detention . The decision stated , inter alia , that there had been relevant reasons for the applicant ’s detention on remand when the GPE I ORG had delivered the above decisions of DATE and DATE . The file contained evidence both against the applicant and in his favour . The former type of evidence had been taken in DATE in the context of criminal proceedings against CARDINAL other persons . As such it could not be used in the context of the criminal proceedings against the applicant . It was not clear why the investigator had not re - examined the witnesses concerned in the context of the criminal proceedings against the applicant . The reliability of certain statements could be cast into doubt as they had been made by persons linked to organised crime .", "The judge further held that in the period after DATE no evidence had been obtained in support of the accusation against the applicant . Thus during DATE the applicant was detained the investigator and the prosecutor had failed to gather sufficient evidence capable of strengthening the suspicion that the applicant had committed the offence imputed to him . On the contrary , the evidence obtained in the course of DATE was in favour of the applicant . The ground for his detention had therefore ceased to exist .", "On DATE the public prosecutor ordered the applicant ’s release .", "On DATE the Special Prosecution Service at ORG discontinued the criminal proceedings on the ground that the facts underlying the proceedings had not occurred . The decision stated , inter alia , that the file contained no relevant evidence indicating that the applicant had committed the offence imputed to him . There was no proof that the accused persons in the other set of proceedings had committed the offence which , according to the accusation , the applicant had allegedly incited them to commit .", "On DATE an extraordinary briefing was held at which the Minister of the ORG provided details concerning the arrest of the applicant . The Minister read out extracts from the decision by which the applicant had been accused .", "On DATE the DATE PERSON with nationwide distribution published an article about the case . It reported on the Minister ’s statements at the above briefing . Reference was also made to a statement by a public prosecutor who had pointed out that the decision on the applicant ’s guilt or innocence lay with a court and had expressed the view that the existing evidence was sufficient .", "On DATE PERSON published an interview with the investigator who had accused the applicant of the above offences . The investigator stated that the police had had sufficient evidence , comprising both witness statements and documents , to bring criminal proceedings against the applicant .", "On DATE PERSON reported on statements made by the public prosecutor in charge of the applicant ’s case . According to those statements , CARDINAL witness had confirmed that the applicant had offered him SKK CARDINAL for the killing of the person concerned .", "Finally , on DATE PERSON published an article about the judge of the Bratislava I ORG who had remanded the applicant in custody . The article indicated that the judge had been aware that the applicant had been summoned to appear before a police investigator on DATE . At that time the judge had been on duty and he had had a premonition that “ something would happen ” . The judge expressed the view that the case had fallen to be dealt with by him by pure chance . The judge had had only one day to study the file , which comprised CARDINAL pages . The hearing of the applicant prior to his detention on remand had lasted TIME . The judge confirmed that , according to documents included in the file , CARDINAL witness had confirmed that the applicant had asked him to eliminate a witness against him for SKK CARDINAL .", "On DATE the applicant filed a complaint with ORG . He alleged a violation of his rights under LAW , DATE and under LAW , CARDINAL of the Convention . He also relied on several constitutional provisions .", "As regards the proceedings leading to the Bratislava I ORG decision to remand him in custody , the applicant complained that the judge had not allowed him and his counsel to consult the case file , indicating that such a decision was within the competence of the investigator . The applicant thus could not show that his accusation had been based on evidence which had been obtained by unlawful means and which , for that reason , could not be used in proceedings before a court . The judge had not examined whether relevant reasons for the applicant ’s detention had existed .", "The applicant further complained that the judge of the Bratislava I ORG had subsequently given an interview in which he had made comments on the applicant ’s deprivation of liberty and disclosed details from the case file . The applicant affirmed that those statements had been made in the context of a campaign launched against him . His rights to a fair hearing and to be presumed innocent had thereby been violated .", "As regards the decision given by ORG on DATE , the applicant complained that the principle of equality of arms had been breached as he had not had sufficient time , after his counsel had consulted the file , to supplement his complaint against the decision on his detention on remand . He had been accused on the strength of evidence obtained contrary to the relevant provisions of LAW in that it had been taken previously within the framework of another set of proceedings . That had been a deliberate attempt to diminish his ability to defend himself . That evidence could not be used in proceedings before courts , including proceedings concerning his detention on remand .", "On DATE ORG rejected the complaint . The decision stated that ORG lacked the power to review the factual findings of ordinary courts in matters relating to detention on remand . ORG found that in the context of the criminal proceedings brought against him the applicant risked a minimum prison term of DATE . The material condition for his detention on remand under LAW had therefore been made out . Both courts had examined the file and concluded that the evidence available justified the suspicion that the applicant had been involved in the offences concerned . However , a “ reasonable suspicion ” that a person had committed an offence did not require the existence of proof . In respect of this part of the applicant ’s complaint ORG concluded that it lacked the power to substitute the decision - making of the ordinary courts on the applicant ’s detention on remand .", "The Constitutional Court further declared manifestly ill - founded the complaints under LAW and LAW . It noted that the applicant had been assisted by CARDINAL advocates during his examination by the judge of ORG . He had had an adequate opportunity to defend his rights . As to the alleged violation of LAW , ORG held that it had been open to the applicant to bring proceedings with a view to challenging the lawfulness of his detention on remand . However , he had not availed himself of that right . There was no causal link between the conduct of the ordinary courts in the proceedings in issue and the applicant ’s right under LAW . As regards the principle of equality of arms enshrined in LAW , it was not applicable to proceedings in which the courts deprive a person of liberty for the purpose of his or her criminal prosecution .", "Finally , ORG noted that the applicant had filed his complaints under LAW and CARDINAL of the Convention about the statements made by ORG judge DATE after he had learned about the article in issue . In that respect , the statutory time - limit had not been respected .", "Article CARDINAL § CARDINAL gives the accused person the right to consult the file with certain restrictions enumerated therein . Paragraph CARDINAL provides that , at the pretrial stage , the public prosecutor or the police authority can only refuse a person access to a file concerning him or her for exceptional reasons .", "Article CARDINAL § CARDINAL provides that an accused person can be remanded in custody where he or she is prosecuted for an offence punishable with a minimum prison sentence of DATE .", "Article CARDINAL § CARDINAL provides that a complaint is available against a decision to remand a person in custody .", "Under LAW , where the facts established sufficiently justify the conclusion that a criminal offence was committed by a particular person , the investigator or police authority shall deliver a decision , without delay , accusing that person of the offence in issue . The accused is to be notified of the decision within DATE and not later than at the beginning of his or her first examination .", "In accordance with ORG practice ( ORG CARDINAL/CARDINAL ) , when considering whether reasons for remanding a person in custody exist , the authorities may have regard exclusively to circumstances and findings which have their basis in the procedural steps aimed at the establishment of evidence and which are relevant for the conclusion that a statutory reason exists for detaining a person in custody .", "In decision PERSON CARDINAL of DATE ORG held that the detention on remand of a person under LAW is lawful where the accused person is prosecuted for an offence punishable with a minimum prison term of DATE provided that a justified suspicion exists that the person concerned committed the offence imputed to him or her . The above minimum prison term as such does not render an accused person ’s detention mandatory in each case . LAW CARDINAL permits a decision not to remand such an accused person in custody where it is", "In decision NtvI-CARDINAL/CARDINAL of DATE ORG expressed the view that the minimum prison term set out in LAW could be the sole reason for a person ’s detention only for a limited time , in particular at the initial stage of criminal proceedings . If a person was detained for longer , further relevant reasons were required ." ]

[ "5" ]

[ "5-4" ]

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[ "5" ]

[ "5-1" ]

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[ "The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr P. GPE , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , and their co - Agent , Mr PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant , a judge , is currently a member of ORG ( Second Criminal Division ) .", "The facts of the present case concern proceedings for the applicant ’s compulsory transfer on the ground of “ environmental incompatibility ” ( incompatibilità ambientale ) , instituted by ORG ( “ the ORG ” ) at a time when the applicant held office in another court . In the course of the proceedings , CARDINAL members of ORG made a number of statements which the applicant considered defamatory . At the end of his term as a member of the ORG , A. was appointed as a judge of ORG ) .", "The proceedings ended with a decision by the ORG to transfer the applicant .", "The applicant subsequently applied to ORG ( “ the ORG ” ) , which set aside the decision on DATE , holding in particular that the statements in issue concerned “ new information ” of which the applicant should have made aware beforehand in order to have the opportunity to make submissions in reply . The ORG did not appeal against that judgment , which became final .", "In response to a request by certain members of the ORG , it was decided to publish the documents relating to the transfer proceedings in the ORG ’s official bulletin . The applicant challenged that decision in the ORG , which ordered a stay of its execution . An appeal was lodged against the ORG ’s order . The parties have not informed ORG outcome of those proceedings .", "In addition , on the basis of the documents relating to his compulsory transfer , the applicant was accused of corruption and abuse of office . On DATE the proceedings concerning those accusations were discontinued by order of the GPE investigating judge ( giudice per le indagini preliminari ) . CARDINAL sets of disciplinary proceedings were instituted in respect of the same allegations . In CARDINAL decisions delivered on DATE and DATE the disciplinary section of the ORG ruled that there was no case to answer .", "The applicant himself subsequently requested a transfer . He was moved to ORG .", "According to the applicant , the initial decision to transfer him was reported by the ORG broadcaster PERSON ’s PERSON teletext channel , by a large number of privately owned television channels and in the press .", "On DATE the applicant brought a claim for compensation against A. , C. , NORP and PERSON in LOC , alleging that the statements they had made to the ORG during the transfer proceedings had damaged his honour and infringed his right to protection of his reputation .", "While the case was being prepared for hearing , A. and C. objected that they should enjoy immunity under section CARDINAL bis of Law CARDINAL/CARDINAL , introduced by LAW no . CARDINAL of DATE . By virtue of that provision , members of the ORG can not be prosecuted for opinions expressed in the performance of their duties ( see “ Relevant domestic law and practice ” below ) . The applicant submitted in reply that the immunity clause in question applied only in the context of criminal proceedings .", "On DATE the judge responsible for preparing the case referred the matter to the bench and invited the parties to make their final submissions .", "On DATE ORG held a hearing at which the parties made their final submissions . Judgment was then reserved .", "In a judgment deposited with the registry on DATE ORG dismissed the applicant ’s claim for compensation .", "Referring to judgment no . CARDINAL of ORG , it held that it would have been illogical to grant immunity from criminal prosecution for certain acts while retaining the possibility of civil proceedings in respect of the same conduct . It took the view that the immunity in question should apply to civil and disciplinary proceedings as well as to criminal proceedings , so that members of the ORG could remain free from interference in performing their duties .", "In conclusion , ORG found that A. and C. should enjoy immunity ; it therefore held that the applicant ’s requests for investigative measures should not be granted . It also dismissed the compensation claim against ORG and PERSON", "The applicant appealed against that judgment . He argued , in particular , that during its scrutiny of the PERSON introducing section CARDINAL bis of the PERSON cited above , ORG had replaced the wording “ can not be prosecuted ” ( non sono perseguibili ) with “ can not be punished ” ( non sono punibili ) .", "In a judgment of DATE ORG dismissed the applicant ’s appeal in so far as it was directed against C. and allowed it in so far as it concerned the statements by A.", "It held that the immunity provided for in section CARDINAL bis should be limited to the expression of opinions relating to “ the exercise of the powers and duties of members of the ORG ” . Whereas C. had expressed opinions while remaining within the scope of his duties , PERSON ’s comments had gone beyond what was normal in a situation of that kind . ORG ordered A. , GPE and PERSON to pay the applicant compensation .", "A. appealed on points of law to ORG , arguing that the immunity provided for in section CARDINAL bis covered any statement made within the NCJ . The applicant lodged a cross - appeal against ORG and an appeal on points of law against C.", "The case was set down for hearing before a CARDINAL - member bench of ORG of ORG . On DATE the applicant asked for CARDINAL of the judges to withdraw on account of their links with A.", "On DATE , counsel for the applicant asked for the case to be heard by the combined divisions of ORG ( Articles CARDINAL and CARDINAL of the Code of Civil Procedure ) .", "The President of ORG allowed the request . Counsel for the applicant then asked the President to ensure that , in the interests of impartiality , the bench of the combined divisions was made up of judges “ who have had no dealings of any kind with PERSON ( or , of course , with [ his own client ] ) ” .", "On DATE the applicant ’s lawyers complained to the President that the composition of the bench did not comply with the rules on representation of the presidents of the different divisions .", "On DATE the applicant requested CARDINAL of the judges on the bench of the combined divisions to withdraw on account of their links with A. He added that , if they did not do so , his request was to be treated as an application for the removal of the judges in question .", "On DATE the applicant observed that CARDINAL of the CARDINAL judges ( Ca . ) had not withdrawn . He therefore asked for a decision on his application for that judge ’s removal .", "In a decision of CARDINAL DATE the combined divisions dismissed his application .", "On DATE the applicant applied for that decision to be set aside , arguing that it breached certain procedural rules .", "On DATE counsel for the applicant likewise applied for the decision to be set aside in so far as it concerned the order for his client to pay costs .", "On DATE the applicant again requested Ca . to withdraw on the ground that he was now president of the division of which A. was a member . His request was unsuccessful .", "On DATE the combined divisions held a hearing . In a judgment adopted DATE and deposited with the registry on DATE they allowed ORG ’s appeal but dismissed the applicant ’s cross - appeal against ORG and his appeal against C.", "ORG outlined the following legal principle :", "“ The guarantee laid down in LAW no . CARDINAL/CARDINAL has a broader scope than the applicant maintained , extending to the sphere of civil liability in cases concerning the expression of an opinion directly linked to a vote taking place in the course of the ORG ’s work and relating to the subject under discussion . This guarantee would be devoid of purpose if members of the ORG , who are exempted from all criminal liability , were on the other hand exposed to the risk of civil proceedings for activities involving the performance of the duties assigned to them ; this would have a serious effect on their function itself . ”", "The combined divisions went on to examine ORG reasoning as to A. ’s liability . They decided to quash that part of the judgment , remitting the case to a different division of ORG .", "However , they upheld ORG judgment in so far as it dismissed the applicant ’s claims against C. In accordance with the law , the part of ORG judgment that was not quashed became final immediately .", "In respect of the part of the judgment that was quashed , the parties had DATE and DATE from the date on which ORG judgment had been deposited to institute proceedings in ORG . However , none of the parties availed themselves of this option . Accordingly , on DATE ORG judgment became final in so far as it allowed the appeal by A.", "Article CARDINAL § CARDINAL of the LAW provides that the judiciary constitutes “ a branch that is autonomous and independent of all other powers ” . By Article CARDINAL , the ORG has jurisdiction over “ appointments , assignments and transfers , promotions and disciplinary measures concerning judges ” . The ORG is presided over by the President of GPE ; the President of ORG and ORG at that court are ex officio members . CARDINAL of the other members are elected by all the ordinary judges “ from among the [ judges ] belonging to the various categories ” , and CARDINAL by ORG . The last - mentioned group , known as “ lay members ” of the ORG , are elected from among university law professors and practising lawyers with CARDINAL years’ experience . Members are elected for a DATE term and can not be immediately re - elected . During their term of office they may not be registered on professional rolls , or be members of ORG or a regional council ( LAW , DATE , DATE and CARDINAL of the LAW ) .", "LAW , CARDINAL of the LAW reads as follows :", "“ Members of the judiciary may not be removed from office ( sono inamovibili ) . They may not be dismissed or suspended from office or assigned to other courts or functions except by a decision of ORG , taken either on the grounds and with the guarantees for the defence set forth in the [ law on ] the judiciary or with their own consent .", "The Minister of ORG has the power to initiate ( promuovere ) disciplinary proceedings .", "Judges may be distinguished from one another only by their different functions .", "... ”", "Article CARDINAL provides that , without prejudice to the powers of the ORG , the organisation and functioning of services relating to justice are the responsibility of the Minister of ORG .", "Law no . CARDINAL of DATE amended PERSON no . CARDINAL of DATE on the establishment and operation of the ORG . Thus , LAW added a new section CARDINAL bis to the DATE Law , worded as follows :", "“ Members of ORG can not be punished for opinions expressed in the performance of their duties in connection with the subject under discussion . ”", "On DATE ORG objected that LAW no . CARDINAL/CARDINAL was unconstitutional in that it exempted members of the ORG from any criminal liability for abuses of authority committed in the performance of their duties . In judgment no . CARDINAL of CARDINAL DATE ORG dismissed the plea of unconstitutionality as being ill - founded . It observed in particular that the provision in issue was favourable to defendants in that it guaranteed members of the ORG a “ reinforced right ” to freedom of expression in the performance of their duties . The immunity it established was different from parliamentary immunity , since members of parliament “ [ could ] not be prosecuted ” for their opinions , whereas members of the ORG “ [ could ] not be punished ” . Accordingly , they could not escape the jurisdiction of the criminal courts , which could assess whether the conduct complained of had exceeded the limits laid down in CARDINAL cited above , namely whether or not it concerned “ the subject under discussion ” . Lastly , the granting of immunity to the ORG ’s members was justified by its position and its functions as the body guaranteeing the autonomy and independence of the judiciary .", "Law no . CARDINAL/CARDINAL lays down “ guarantees relating to the judiciary ” . It provides , as a general rule , for the irremovability of judges with a view to preserving their independence . It remains possible , however , to order the compulsory transfer of judges who are in a position of “ environmental incompatibility ” or who , “ for any reason , even through no fault of their own , are unable to perform their duties in their current post with the requisite independence and impartiality ” ." ]

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[ "The applicant was born in DATE . He is currently serving a prison sentence .", "On DATE the ORG convicted the applicant of aggravated theft and sentenced him to imprisonment . While in prison , on unspecified dates the applicant wrote a letter to ORG of ORG and he received a reply . Dissatisfied with that reply , on DATE the applicant sent a letter to the President of ORG , complaining about the judge who had replied to his letter . The relevant passages of the applicant 's letter read :", "“ ( ... ) It can not be excluded that further acts of that kind on the part of ORG of ORG would make me complain to the judicial supervision about the irresponsible clowns placed in that ORG .", "I will start by saying that any little cretin , whether he wears a gown or not , should vent his need to intimidate others by making allusions to legal responsibility [ for their acts ] on his mistress , if he has one , or on his dog , but not on me . I am not going to be afraid of any such clown who wants to intimidate me , but the truth is that my request of DATE was addressed to the court , not to some fool .", "I expect that the President of ORG will somehow convey my request to that bully and that he will , at the same time , read his reply to me ( ... )", "Not only does [ the judge ] write rubbish about my alleged request for a pardon , which my request was absolutely not , but he also intimidates me . If he is such a brilliant lawyer that he is able to reply to questions that were not asked DATE and his legal skills can be seen if the content of my letter is compared with his reply – he should find a relevant legal provision to use against me . It would not change the fact that such a limited individual , such a cretin should not take the post of a reliable lawyer who would know how to reply to a letter . A cretin he will remain and I see no reason to be afraid of any legal consequences . “ You know , you understand , shut up ” – that is all the education he has , as a fool does not need any better . ”", "Subsequently , on an unspecified date , ORG instituted criminal proceedings against the applicant . On DATE the prosecuting authorities lodged a bill of indictment against the applicant with ORG . He was charged with proffering insults against a ORG authority at its headquarters or in public , an offence punishable under LAW , committed by sending a letter to the President of ORG . In this letter the applicant had insulted an unidentified judge of that court 's ORG and all judges of that court . The applicant had been questioned in connection with the offence . He had stated that he had not meant the court as a whole , but CARDINAL judge , and this in his personal , not professional , capacity . He maintained that the letter could only be regarded as an insult against a private person , but not a ORG institution .", "On DATE ORG convicted the applicant of insulting a ORG authority and sentenced him to DATE imprisonment . The court found that on DATE the applicant had sent a letter to the President of ORG in which he referred to all judges of ORG in an insulting and abusive manner as “ irresponsible clowns ” . Moreover , further on in the same letter , he referred in a particularly insulting manner ( “ w sposób szczególnie obraźliwy ” ) to an unidentified judge of ORG , to whom he had allegedly written certain letters , which remained unanswered .", "The court had regard to the results of the applicant 's examination by psychiatrists who found that he could be held criminally responsible .", "The court considered that it was beyond any doubt that it was the applicant who had written the impugned letter . The analysis of its content and form led to the conclusion that the applicant had acted with the firm intention of insulting ORG as a judicial authority . He had first addressed himself to the judges of that court as a group , and then focused on CARDINAL unidentified judge . Accordingly , it had to be understood that the applicant had insulted the court as the ORG authority , and the unidentified judge could be regarded as a symbol of that court .", "The court further observed that the applicant , as a citizen , had a constitutional right to criticise the ORG authorities . However , the impugned letter had largely exceeded the limits of acceptable criticism and was directly aimed at lowering the court in the public esteem .", "The court further observed that the sentence was commensurate with the applicant 's degree of guilt and with the seriousness of the offence . The assessment of the latter had been made having regard to the nature and importance of the interests protected by the criminal law provision applied in the case , i.e. by LAW .", "The applicant and his officially assigned lawyer lodged appeals against this judgment .", "On DATE ORG , following a request from all of the judges of ORG to be allowed to step down , considered that , in view of fact that the offence had been directed against the judges of that court , it was in the interest of the good administration of justice and the impartiality of the court that the appeal be transferred to the ORG .", "On DATE the ORG upheld the contested judgment , having examined both the appeal lodged by the applicant himself and that of his lawyer .", "The court first noted that the first - instance court had accurately established the facts of the case . The court went on to state that it shared the conclusions of the first - instance court , namely that the content and form of the letter called for the conclusion that the applicant had acted with the firm intention of insulting ORG as a ORG authority . The legal assessment of the facts of the case was correct , and the sentence imposed corresponded to the degree of the applicant 's guilt . The applicant had a long criminal record , even though he had been assessed positively by the penitentiary services , and could be held criminally responsible . The applicant 's lawyer had argued that the applicant had intended to insult a specific person , not an institution . However , in the light of the court 's other findings , this analysis was rejected .", "The applicant 's lawyer lodged a cassation appeal with ORG .", "On DATE ORG dismissed the appeal and confirmed the contested judgment . The court referred to the grounds of appeal in which it had been argued that the conviction had been in flagrant breach of LAW in that the applicant 's acts , in the light of his submissions as to his motives , did not amount to a punishable criminal offence .", "ORG first noted that the grounds of the applicant 's cassation appeal had been laconic and limited in their reasoning . Moreover , it clearly transpired therefrom that in fact the applicant 's lawyer contested the assessment of evidence and the factual findings made by the lower courts , whereas the purpose of the cassation appeal was only to bring procedural complaints to the attention of ORG . This in itself constituted a sufficient basis for dismissing the appeal as not being in compliance with the requirements laid down by the applicable procedural provisions .", "NORP However , the court emphasised , it was worth noting that ORG in its judgment had examined all complaints submitted in the appeal against the first - instance judgment , including those concerning the assessment of evidence and the factual findings of the first - instance court . No new arguments had been submitted to ORG to show that there had been any procedural shortcomings in the proceedings . Certainly the argument that the applicant 's acts could not be regarded as a criminal offence could not be regarded as such a procedural complaint .", "ORG went on to state that the applicant 's abusive letter , referred to and quoted by ORG , had clearly exceeded the limits of acceptable criticism . Even if it were acknowledged that in the second part of the letter the applicant had focused on CARDINAL judge , it had to be recognised that at the beginning he had attacked all the judges of ORG . The appellate court correctly had regard thereto . It had also indicated why it considered that the applicant 's attitude could be qualified as an offence under LAW . ORG therefore dismissed the cassation appeal as unfounded .", "Article CARDINAL of LAW DATE , applicable at the relevant time , read as follows :", "“ Anyone who insults a ORG authority at the place where it carries out its duties or in public , is liable to DATE imprisonment , to a restriction of personal liberty or a fine . ”" ]

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[ "The applicants , PERSON , ORG , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , Iacob Mocanu , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON are NORP nationals , who live in GPE . PERSON is the daughter of PERSON , who was a patient of the ORG NORP haemodialysis section for DATE , but who died on DATE . PERSON is the widow of PERSON , who was a patient of the ORG haemodialysis section for DATE , but who died on DATE . PERSON is the widower of PERSON , who was a patient of the ORG haemodialysis section , but who died on an unspecified date . They are represented before the ORG by Mr PERSON , acting on behalf of “ ORG , a non - governmental organisation based in GPE . The respondent Government are represented by their Agent , Mr PERSON ORG , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "All the applicants ( except PERSON , PERSON and PERSON , see above ) are suffering from chronic renal failure ( a gradual and progressive loss of the ability of the kidneys to excrete waste , concentrate urine , and conserve electrolytes ) and consequently they need haemodialysis ( a medical procedure that uses a machine to filter waste products from the bloodstream and to restore the blood ’s normal constituents ) .", "They are all disabled on account of their disease and receive ORG disability allowances which vary DATE ( MDL ) and MDL CARDINAL .", "The applicants have their haemodialysis done at a PERSON hospital called ORG NORP ( the “ LAW ” ) , where CARDINAL patients are treated . The applicants submit that before DATE the expense of their haemodialysis was covered entirely by the hospital . DATE the hospital ’s budget was reduced and only strictly necessary procedures and medication were provided free to them . From DATE the situation became more or less identical to that existing before DATE , with the exception of the frequency of haemodialysis sessions ( see below ) .", "There are CARDINAL more hospitals in GPE that perform haemodialysis - another hospital in PERSON called Spitalul de Urgenţă ( the “ SU ” ) , and hospitals in GPE , GPE and PERSON . The applicants submit that , unlike the ORG , the ORG was financed from the budget of GPE and therefore always provided its patients with all the necessary medication free . They also argue that there are administrative barriers presenting the applicants who do not live in PERSON from receiving treatment at the ORG . As to the other CARDINAL hospitals , the applicants submit that the quality of the haemodialysis treatment provided by them is inferior to that of the SCR .", "According to the parties , the following are necessary for haemodialysis treatment : a haemodialysis package , heparin , physiological saline , syringes , CaCl ( PERCENT ) , glucose ( PERCENT ) , euphylin PERCENT , alcohol and vitamins . There are also some medications and accessories which are necessary in some cases , namely riboxin , antibiotics , plaster , gauze and blood .", "According to the applicants , before DATE the hospital provided them free with the haemodialysis procedure and some basic medication and accessories such as the haemodialysis package , heparin , physiological saline , syringes and CaCl ( PERCENT ) . They had to pay for the rest of the necessary medication . In DATE , the applicants were allegedly told by the hospital authorities that the haemodialysis unit at the ORG might close due to insufficient financing from the ORG budget . The applicants were forced to protest before ORG and in front of the President ’s residence , and consequently the hospital continued to provide them with haemodialysis , but , as previously , without full coverage .", "After DATE the hospital started to provide them free with almost all the necessary medication . The hospital does not provide them , however , with a drug called ORG , which operates to raise the haemoglobin level , or with calcium , PERSON and GPE . In order to increase their level of haemoglobin , the applicants are usually given blood transfusions . DATE the applicants were not provided with free blood by the hospital . After that date the hospital started to provide free blood , but the applicants still have to wait until it becomes available . Since they sometimes need blood urgently , they have to buy it . The applicants also submit that no medical investigation for the determination of anaemia status is performed at the ORG and that the doctors only establish the existence of anaemia .", "According to the ORG , before DATE the treatment of the applicants was carried out in accordance with the provisions of PERSON no . CARDINAL of DATE on the minimum of medical assistance guaranteed by the ORG ( see below ) . In accordance with that law , the applicants received only the strictly necessary medication free . They had to buy the rest of the medication prescribed by their doctors . PERSON treatment has never been stopped and has never been refused to anybody . According to the official documents provided by the Government , in DATE the haemodialysis section of the ORG received MDL CARDINAL ( the equivalent of CARDINAL ( ORG ) at the time ) from the ORG budget .", "On DATE a new medical insurance system was implemented in GPE and in accordance with the new legislation the applicants started to receive all the necessary medication free ( see below ) . If a patient needs some particular medication not provided by the ORG , then the doctor recommends that the patient buys it . According to a directive of ORG of DATE , the ORG spends MDL CARDINAL ( the equivalent of ORG CARDINAL at the time ) for DATE of hospitalisation , MDL CARDINAL ( the equivalent of ORG CARDINAL at the time ) for a haemodialysis of the first degree and MDL CARDINAL ( the equivalent of ORG CARDINAL at the time ) for a haemodialysis of the second degree .", "According to the applicants , in the GPE , GPE and GPE countries , renal failure patients receive TIME of haemodialysis in CARDINAL sittings per week . The same practice was followed in GPE before DATE . After DATE the practice changed and the patients started to receive TIME of haemodialysis in CARDINAL sittings per week . “ Only applicants that are in bad physical condition or ill are allowed to undergo the third haemodialysis permanently ” .", "The Government submitted a document from the haemodialysis section of the ORG according to which , in DATE , CARDINAL applicants underwent CARDINAL haemodialysis sessions per week ; CARDINAL applicants underwent CARDINAL sessions per week and the rest CARDINAL or CARDINAL haemodialysis sessions per week . According to the Government , the number of haemodialysis sessions is determined in each case by the doctors , who consider the gravity of the disease , the presence or absence of complications and the results of laboratory investigations .", "In their application lodged on DATE the applicants submitted that there were CARDINAL haemodialysis machines at the ORG which were all old and in a bad technical condition . In their observations of DATE they submitted that before their application was lodged with ORG the haemodialysis machines were in bad technical condition ; however , they had been replaced after the application was lodged with ORG . They also stated : “ In DATE the majority of the haemodialysis machines performed dialysis on an acetate basis . After the application was lodged with the ORG , the number of machines that performed haemodialysis on a bicarbonate basis increased . DATE the majority of the applicants are undergoing bicarbonate - based haemodialysis . The bicarbonate - based haemodialysis is much better assimilated by most of the applicants . ”", "The Government submit that DATE there were CARDINAL haemodialysis machines , CARDINAL of which were new and the rest of which were old . In DATE the old machines had become unusable because of the shelf - life provision in their documentation and accordingly they had been replaced with new machines of NORP origin .", "According to the applicants , before the application was introduced , the water used for haemodialysis was not distilled . “ After the application was lodged with the ORG a water - filtration system was purchased and installed . After the new system was installed , they began to feel much better .... ”", "The Government submit that a contract has been signed with a NORP company and in DATE the number of haemodialysis machines will double .", "According to the applicants , many of them live in the provinces and have to travel to PERSON each time they need the treatment . Although there is no legal obligation in this respect , there is a practice according to which the local authorities cover the travel expenses for persons suffering renal failure who have to go to PERSON for haemodialysis . The applicants submit that this practice is usually followed and most of them get reimbursed . However , there are cases when these expenses are not covered and it is too expensive for the applicants to pay themselves .", "According to the Government , the obligation to cover the transportation expenses of invalids of the first and second degrees is provided for in LAW of LAW on the protection of invalids ( see below ) . The Government submitted copies of the payment rolls proving the payment of all the travel expenses and the applicants did not make any comment on them .", "On DATE the applicants sent the ORG a copy of a letter addressed to them and to several PERSON newspapers by the doctors of the ORG ’s haemodialysis section , together with a chart setting out the expenses of each patient . The letter was signed by the medical staff of the PERSON section of the ORG but not by the applicants . The chart was drawn up on DATE and bore the signatures of all the patients of the haemodialysis section of the SCR . The ORG representative admitted that all the applicants had signed the chart .", "According to the letter signed by CARDINAL doctors , there was a media campaign led by some PERSON newspapers and news agencies after the present application was lodged with the ORG . The doctors stated that the information presented by the newspapers was erroneous and misleading . They submitted that the situation of renal failure patients from the ORG had been over - dramatised for political reasons related to the forthcoming local elections and that it did not reflect reality . The doctors argued that the death rate of renal failure patients had diminished tenfold in comparison with DATE and that State financing of haemodialysis had increased threefold in DATE . “ We understand that the state of the country ’s economy is not perfect for CARDINAL to have everything ; and that is how it is in the case of health protection ” . The doctors contradicted the statement made by the ORG representatives in various newspaper articles according to which all the haemodialysis machines were old . According to the doctors , CARDINAL machines were brand new . They also disagreed that the situation of the patients of the ORG was worse than that of the patients of the ORG . They argued that their patients were provided with free basic services and medication in exactly the same conditions as patients from other hospitals , and that it was a general practice in GPE that doctors would ask the patients to buy supplementary medication not covered by the “ legal guaranteed minimum ” . The doctors also referred to the death of PERSON and stated that he had been their patient for DATE . According to them , in DATE he had had both his kidneys removed and in DATE of his life he had suffered terminal chronic renal failure and arthritis - like tuberculosis .", "The submitted chart contained information as to the coverage of the applicants’ expenses for services / medication and for travel expenses . According to the chart , from the total number of CARDINAL applicants who were patients of the SCR , CARDINAL applicants ( PERSON , PERSON and PERSON ) had the services and medication not covered by the hospital paid for by the local authorities of their hometowns . Another CARDINAL applicants ( PERSON , PERSON and PERSON ) , in addition to the services and medication covered by the hospital , also had the rest partially covered by the local authorities of their hometowns . CARDINAL applicants ( PERSON , PERSON , ORG and PERSON ) did not have their travel expenses covered by the local authorities , and CARDINAL of those had been without cover for DATE .", "In their application submitted on DATE the applicants argued that their disability allowance was insufficient to pay for the medication necessary for the haemodialysis which was not provided free by the ORG . According to them , the minimum DATE expense associated with the haemodialysis amounted to MDL CARDINAL per person . Therefore they could not afford the procedure . They submitted that many of them were forced to undergo the procedure without all the necessary medication and were caused unbearable pain and suffering . According to them , there were cases of patients who refused to undergo the procedure for lack of money , and died .", "According to the applicants , “ as a result of the reduced number of haemodialysis sessions ... the level of microelements in the blood decreases significantly and that causes headaches , vomiting , sickness , cramps ... ”", "The applicants submit that the scarcity of funds made the death rate among renal failure patients higher than in other countries . They invoke the case of PERSON , an applicant who died in DATE . According to them , the death rate in the GPE is CARDINAL deaths per CARDINAL patients per year while at the ORG the death rate before DATE was CARDINAL and CARDINAL deaths . “ The increased death rate was determined by the inadequacy of haemodialysis and by the poor anaemia status . By improving the quality of haemodialysis , the death rate significantly decreased after DATE , when the new haemodialysis machines and the water filtration system were installed ” .", "According to the Government , in DATE there have been no deaths due to the insufficiency of haemodialysis . The Government contests the death rate invoked by the applicants , arguing that the applicants had failed to give the names of the persons who had allegedly died because of insufficient or improper medical care . As to the case of PERSON , the ORG submitted that he had survived for DATE without kidneys and that he had died in DATE of chronic arthritis - like tuberculosis and terminal renal failure . The ORG submitted an autopsy report in support of their argument and the applicants did not comment on it .", "The Government submitted a TIME video , filmed on DATE in the haemodialysis section of the ORG . The tape contains a brief presentation of the haemodialysis section and interviews with a doctor from that section ; a patient who had undergone haemodialysis at the LAW for DATE ; a patient who had undergone haemodialysis at the ORG for DATE and an applicant in the present case ; a patient who had undergone haemodialysis at the ORG for DATE ; and a patient who had undergone haemodialysis at the ORG for DATE .", "The doctor made a brief presentation of the haemodialysis section and stated in particular that the section had CARDINAL patients and that nobody has ever been refused haemodialysis treatment .", "CARDINAL of the patients stated that they received CARDINAL haemodialysis sessions per week , but that they could receive a third session if need be . The fourth patient answered that he received CARDINAL haemodialysis sessions per week .", "All the patients stated that they had never been refused a haemodialysis treatment ; that they received all the necessary medication free ; that their transportation expenses were covered and that they had never been discriminated against .", "CARDINAL of the patients stated that they sometimes used to spend TIME at the hospital and that in those cases they were provided with free food . The fourth patient stated that he never needed to spend TIME at the hospital .", "All the patients stated that they had never been maltreated by the hospital personnel and that they considered that the ORG took proper care of them .", "The ORG representative submits that the interviewer asked the patients leading questions aimed at obtaining answers convenient to the Government . He also argues that the video shows the present situation of the haemodialysis section and that it does not refer to the situation prior to DATE .", "The LAW of GPE provides in Article CARDINAL :", "“ ( CARDINAL ) The minimum level of health care protection provided by the ORG shall be free . ”", "Law no . CARDINAL of DATE , on the legal minimum of medical assistance guaranteed by the ORG , provides :", "“ Section CARDINAL . In accordance with the LAW , the ORG guarantees to provide the population of GPE with the minimum level of health care , hereinafter ‘ the guaranteed minimum’ , in conformity with the Annex attached to the present law .", "Section CARDINAL . ( CARDINAL ) The guaranteed minimum shall be provided by all public health - care institutions .", "( CARDINAL ) The guaranteed minimum shall be provided to all the citizens of GPE .", "( CARDINAL ) NORP citizens and stateless persons shall be provided with health care within the guaranteed minimum in the limits provided for in LAW ) .", "Section CARDINAL . – The guaranteed minimum shall comprise :", "...", "c ) urgent medical assistance at the pre - hospitalisation and hospitalisation stage , when the patient ’s life is endangered by his or her state of health .", "Section CARDINAL . The financing of the guaranteed minimum , in accordance with the ORG budget law for DATE , shall be carried out by the ORG and the local authorities .", "Section CARDINAL . Medical services over and above the guaranteed minimum shall be paid for by the individual patient , and the money obtained shall remain at the disposal of the health - care institutions ... ”", "Law no . CARDINAL of DATE on the social protection of invalids provides :", "“ Section CARDINAL . Invalids of the first and second degree , invalid children and persons accompanying invalids of the first and second degree or an invalid child shall be compensated for their travel expenses ( except taxis ) by the local administration organs . ”", "According to ORG of Law no . CARDINAL-XV of DATE , in the ORG budget for DATE MDL CARDINAL was allocated for the treatment of patients suffering renal failure .", "Law no . CARDINAL of DATE , on compulsory medical insurance , entered into force on DATE and provides :", "“ Section CARDINAL . ( CARDINAL ) Compulsory medical insurance is a system of health protection based on insurance premiums and on funds created for this purpose . The system of compulsory medical insurance offers the citizens of GPE equal possibilities for obtaining necessary and quality medical assistance .", "( CARDINAL ) Compulsory medical insurance is realised by means of contracts concluded between insured persons and the insurer .... ”", "The Government sent the ORG CARDINAL letters in which the Presidents of ORG , ORG and ORG , stated that if renal failure patients brought actions concerning insufficient medical care , their courts would examine them . They also stated that no similar cases had been examined by their courts . The President of ORG stated that his court had examined a case in which a hospital was obliged to pay compensation to a renal failure patient ; however the letter did not state what the compensation was for and no copy of the relevant judgment was attached to it .", "It appears from the parties’ submissions that after the new law on medical insurance entered into force on DATE the situation of the haemodialysis patients improved considerably in respect of the supply of free medication . In DATE of the haemodialysis machines from the ORG which were old were replaced with new ones . On an unspecified date after the application was introduced with the ORG a new system of filtration of water was purchased and installed in the ORG haemodialysis section ." ]

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[ "The first applicant , Mr PERSON , a stateless person of NORP origin , was born in DATE in GPE . He resided in GPE between DATE and DATE , when he was deported . He now lives in GPE .", "The second and third applicants , PERSON and PERSON , are the first applicant 's children . They were born in GPE in DATE and DATE respectively . They are of NORP nationality and lived in the town of GPE , GPE , with their mother , PERSON , apparently also a stateless person , until DATE . Thereafter , PERSON and the second and third applicants left GPE and settled in GPE .", "The first applicant describes his personal circumstances as follows . His father , who died in DATE in GPE , was a stateless person of NORP origin . His mother is a NORP citizen . Despite the fact that he was born in GPE and that his mother is a NORP citizen , the first applicant can not acquire NORP or NORP nationality because in both countries only offspring of male nationals of those GPE may obtain citizenship .", "The first applicant lived in GPE until DATE . He attended high school there and obtained a degree in electronics . In DATE he married PERSON . The parties have not stated the nationality of PERSON , whose parents live in GPE . It appears undisputed , however , that the second and third applicants , her children , became NORP nationals pursuant to a provision which confers NORP citizenship on children born in GPE to stateless parents .", "Mr LOC has QUANTITY sisters who live in GPE . His mother also lives in GPE , in the city of PERSON . He also has a brother who lived in GPE at least until DATE and has resided in GPE , where he married a NORP national , since DATE .", "The first applicant submits that after the Gulf War many NORP were expelled from GPE as NORP leaders had supported the NORP invasion in DATE . He left GPE with his wife , PERSON , on DATE and travelled to GPE and then , on DATE , to GPE . The first applicant submits that he was in search of a country in which to settle . He could not stay in GPE as he was unable to provide for his family there . The choice of GPE was made because of the existing job opportunities , the relatively easy procedure for obtaining legal status , and the fact that the family had friends of NORP origin living there .", "Mr PERSON and PERSON arrived in GPE on DATE . The first applicant was in possession of a NORP stateless person 's identity document , valid until DATE , which he later renewed at ORG in GPE . In an application form for a residence permit he indicated PERSON , GPE , as his place of residence .", "On an unspecified date shortly after his arrival the first applicant obtained a temporary residence permit . Mr PERSON , together with other persons , ran a beverages production business . He and his wife initially resided in GPE , where the second and the third applicants were born in DATE and DATE .", "In DATE the first applicant obtained a permanent residence permit .", "NORP In DATE the first applicant contracted a NORP religious marriage with PERSON a NORP citizen . Under NORP law that marriage has no legal effect .", "PERSON lived in GPE with her mother . During an unspecified period of time Mr LOC supported them financially .", "It is undisputed that after the religious marriage with PERSON the first applicant continued living with PERSON and their children in GPE .", "At DATE he and PERSON , together with their children , moved to GPE , a town of CARDINAL inhabitants in LOC , QUANTITY away from GPE . There the first applicant ran a butcher 's shop and beverages production unit until his deportation in DATE . DATE and DATE he also taught NORP classes .", "At DATE PERSON followed the first applicant to GPE , where she stayed DATE in an apartment rented by him . She often joined Mr PERSON during his business trips to towns in GPE .", "The first applicant stated that while in GPE he had continued living “ on a permanent basis ” with his wife PERSON and their CARDINAL children , the second and the third applicants . He submitted copies of CARDINAL affidavits , made in DATE by his wife , PERSON , and by his sister - in - law , the wife of his brother , who had resided in GPE since DATE , both confirming that Mr PERSON lived in GPE with PERSON .", "In a statement made on DATE at the request of the Government for the purposes of the hearing in the present case , PERSON stated that the first applicant had lived with her in GPE .", "PERSON apparently suffered from a mental disturbance . In DATE she was hospitalised in a psychiatric clinic . Thereafter she did not return to GPE and stayed in GPE .", "NORP Throughout DATE the first applicant visited PERSON in GPE . Their relationship ended in DATE .", "On DATE a police officer in GPE reported to his superiors ( see paragraph CARDINAL below ) on Mr PERSON religious activities .", "On an unspecified date in DATE ORG ( окръжна прокуратура ) in GPE opened file no . CARDINAL which was later transmitted to the police .", "The local police in GPE , by a report of DATE to ORG ( FAC “ Документи за самоличност и паспортен режим ” ) of ORG at ORG ( “ the Passport Department ” ) , proposed that the first applicant 's residence permit be revoked .", "On DATE ORG issued an order ( “ Order no . DATE ” ) revoking the first applicant 's permanent residence permit . The order stated that it was based on LAW ( CARDINAL)(CARDINAL ) and LAW ( CARDINAL)(CARDINAL ) of LAW ( ORG за чужденците ) , which provide for the revocation of the residence permit of a foreigner who poses a threat to “ the security or the interests of the NORP State ” ( see paragraph CARDINAL below ) . No further details were mentioned . The order was transmitted to the NORP police with the instruction to inform the first applicant and to allow him DATE to leave the country .", "Order no . DATE was served on the first applicant on DATE . He was not given any additional information .", "On DATE CARDINAL national newspapers , ORG , published articles explaining that the first applicant did not have permission to teach the NORP religion , that he had taken part in an unauthorised religious seminar in DATE and that he was linked to “ NORP Brothers ” , a fundamentalist organisation .", "In DATE and DATE the local NORP religious leader in GPE and the Chief PERSON of NORP filed with ORG and with other institutions letters supporting the first applicant . They confirmed that Mr PERSON had been teaching with their authorisation , and in full conformity with LAW NORP religious denomination , which in turn had been approved by ORG . The Chief PERSON also stated that the police in GPE had made defamatory statements to the press , falsely portraying Mr PERSON as a dangerous terrorist connected with a fundamentalist organisation . The local NORP religious leader in GPE stated , inter alia , that the measures against Mr PERSON constituted “ a demonstration of , and incitement to , anti - NORP and xenophobic tendencies ” .", "In DATE the first applicant requested and obtained a certificate that he had never been convicted of a criminal offence . He needed the certificate in order to apply for NORP citizenship .", "On DATE ORG issued Orders nos . CARDINAL and CARDINAL for the first applicant 's deportation , his detention and his exclusion from NORP territory .", "Order no . CARDINAL provided that the first applicant was to be deported based on LAW of LAW . It was further ordered that , in accordance with LAW ( CARDINAL ) of LAW , the first applicant was to be placed at the Adults ' Temporary Placement Centre ( Дом за временно настаняване на пълнолетни лица ) in GPE . Order no . CARDINAL finally stated that pursuant to LAW ( CARDINAL ) of LAW the decision was not subject to appeal . Order no . CARDINAL prohibited the first applicant 's re - entry on NORP territory .", "The CARDINAL orders did not state any reasons .", "They were served on the first applicant on DATE in GPE , at the local police station , in the presence of his lawyer . He was not given further details of the reasons underlying the measures against him . He was immediately arrested and transferred to the detention centre in GPE .", "On DATE ORG issued a press release announcing the orders for the first applicant 's deportation and exclusion . It stated , inter alia :", "“ In DATE Mr PERSON undertook steps ... with a view to opening an NORP religious study centre . That provoked a significant negative public reaction , reflected in the media , and the interference of the ... State organs prevented the realisation of the project .", "In DATE an NORP study seminar was held in PERSON with Mr PERSON 's active participation . Those activities of the organisers , including Mr PERSON , were considered unlawful and were therefore terminated by the police . [ The organisers and Mr PERSON ] were warned that they could not engage in such activities without permission and licence as required by law .", "In DATE and DATE it became known that Mr PERSON was teaching the Koran to ... minors , organised in groups of CARDINAL children , with the financial assistance of the company ... [ illegible ] . An inquiry was undertaken , which disclosed that Mr PERSON engaged in activities for which he had no permission or qualification . Therefore , and under ... LAW , his residence permit was withdrawn ... Orders for his deportation and exclusion were issued ... [ and ] served on DATE ... PERSON was transferred to the [ detention centre ] in GPE and will be deported ... ”", "The conditions at the detention centre , which is located in the proximity of the GPE airport , were equivalent to prison conditions . Inmates were held permanently behind bars and could leave their cells for a daily TIME walk and also for the time necessary to use the toilet , TIME .", "Mr PERSON was detained there for DATE in complete isolation . Despite numerous requests from his lawyer , human rights groups and representatives of the NORP community , no visitor was allowed to meet him .", "Following the first applicant 's arrest on DATE the competent authorities observed that he was not in possession of a document valid for international travel . On DATE ORG wrote to ORG requesting its assistance in obtaining of a laissez - passer from ORG in GPE . ORG issued that document on DATE . On DATE ORG contacted ORG .", "On DATE the first applicant was deported from GPE . He was brought to the airport and put on the first available direct flight to GPE .", "His wife , PERSON , and their children initially remained in GPE . In DATE the second applicant , who was then DATE , completed first grade in the elementary school in GPE . The third applicant , who was DATE at that time , attended preparatory school .", "As PERSON had no income in GPE and the first applicant was unable to provide financial support from GPE , on DATE PERSON and the second and third applicants left GPE . They went initially to GPE where they stayed for a month with PERSON . As there was allegedly no room for the family there , PERSON and the children went to GPE , to the home of PERSON parents . Mr PERSON travelled to GPE on a DATE visa and on DATE returned to GPE as he had allegedly no legal right of remaining in GPE .", "On DATE counsel for Mr PERSON submitted appeals against Order no . DATE ( the revocation of residence order ) to ORG ( NORP административен съд ) and to ORG .", "The latter appeal was rejected on DATE by ORG at ORG . The decision stated that in accordance with LAW ( CARDINAL ) of LAW an order concerning a matter of national security was not subject to review .", "The appeal to ORG was transmitted by decision of the court to ORG with instructions to complete the case - file . Thereafter it was transmitted to ORG ( GPE градски съд ) , which was competent to deal with it .", "On DATE ORG , sitting in camera , granted Mr PERSON lawyer 's request for a stay of execution . The court noted that orders issued under LAW were not subject to judicial review if they directly concerned issues of national security . The court found , however , that the evidence submitted to it by ORG did not support the allegation that the first applicant posed a threat to national security or to the national interests . In these circumstances the court considered that the appeal could not be declared inadmissible at that stage , the holding of a hearing being necessary . Pending such hearing it was appropriate to stay the execution of Order no . DATE to avoid an infringement of the first applicant 's rights .", "On DATE ORG filed an objection with ORG against its ruling of DATE and submitted “ certificate ” no . ORG which stated that Mr PERSON", "“ had committed acts against the national security and the interests of GPE , consisting in unlawful religious activity on the territory of the country encroaching on the national interests and the rights of the religious , ethnic and minority groups in the conservation of the national and cultural values and traditions ” .", "On DATE ORG , sitting in camera , reversed its ruling of DATE and rejected the first applicant 's appeal against Order no . DATE . The court noted that ORG had certified that Mr PERSON had committed acts against national security . The court also noted that ORG had classified these acts as falling with the scope of LAW ( CARDINAL)(CARDINAL ) of LAW . It followed that Order no . DATE concerned issues of national security and was not subject to judicial review .", "Counsel for the first applicant learned about the rejection of PERSON PERSON 's appeal on DATE . On DATE she appealed to ORG . These proceedings ended by judgment of ORG of DATE , which found that orders issued under LAW ( CARDINAL)(CARDINAL ) in conjunction with LAW ( CARDINAL)(CARDINAL ) of LAW were not subject to appeal and need not be reasoned . They should merely state the legal provision on which they were based .", "On DATE the first applicant 's lawyer appealed to ORG against his detention . She relied on LAW . On an unspecified date the President of ORG ruled that the appeal was inadmissible .", "On DATE counsel for the first applicant complained to the competent prosecution authorities against the detention of Mr LOC and stated that she had been refused access to her client . On DATE the competent prosecution authority dismissed the appeal . It found that the police had acted within their powers .", "On DATE counsel for the first applicant appealed to ORG against Order no . CARDINAL ( the deportation and detention order ) . Counsel stated , inter alia , that the first applicant 's appeal against the revocation of his residence permit ( against Order no . DATE ) was still pending , that he had never sought to abscond and that he had reported voluntarily to the NORP police station when summoned . She again relied on LAW ( ORG ) and also requested a stay of execution .", "These proceedings have not resulted in any decision . On DATE ORG filed an answer requesting the rejection of the appeal . There has been no hearing in the case .", "On DATE the first applicant 's lawyer complained to ORG , ORG ( PERSON прокурор ) and other institutions . She alleged violations of , inter alia , LAW ORG .", "In DATE Mr PERSON took part in a religious seminar in GPE . The seminar was attended by several NORP religious leaders of national and regional level , including the person who in DATE was elected to the post of , and then registered by the competent ORG agency as , Chief Mufti of NORP . At a certain point during the seminar the police arrived , and took away printed material and videotapes used at the seminar . No relevant criminal proceedings against any participant at the seminar have ever been brought .", "In DATE the first applicant started teaching religious classes . They took place DATE TIME and TIME in the building of ORG in GPE , and were attended by NORP children and occasionally by their parents . The classes were organised together with the board of the NORP religious community in GPE . On DATE the board had invited Mr PERSON to teach a course in the NORP religion to children and their parents . Its decision stated that the first applicant was suitable for the job as he knew the NORP language and had a good reputation . On DATE ORG ( районно мюфтийство ) issued to the first applicant a certificate stating that he was authorised to preach on the territory of the NORP district in accordance , inter alia , with the Statute of the NORP religious denomination in GPE and the decisions of ORG ( QUANTITY мюсюлмански съвет ) . The certificate was later confirmed by the Chief Mufti of NORP .", "The Government asserted that shortly after his arrival in GPE in DATE the first applicant , together with local NORP , had sought to organise an NORP study centre , that he had rented a house for that purpose , that his plans had provoked a negative public reaction and that after having established through an inquiry that the requirements of LAW had not been met , the competent authorities had prevented the realisation of the project . There had been allegedly a danger that the NORP centre would propagate extremist views . Mr PERSON had been orally warned against engaging in unlawful religious activities .", "In support of the above statement the ORG submitted copies of several newspaper articles and CARDINAL declarations , CARDINAL of which was signed by CARDINAL inhabitants of GPE protesting against the opening of an NORP centre in town .", "The ORG notes that the names on the list of those who signed the protest suggest that it was supported exclusively by persons of NORP ethnic origin .", "The Government have not submitted any information pertaining to the alleged inquiry undertaken by the competent authorities or the requirements of LAW that had not allegedly been met .", "The first applicant submitted that he had intended to open a computer training centre , but had abandoned his plans after meeting a hostile reaction from people who considered that the computer centre would be a front for religious courses .", "The Government alleged that the first applicant had sought to impose fundamentalist ORG on others through the use of force and threats .", "In support of that allegation the ORG submitted CARDINAL statements by PERSON , the person whom the first applicant had married through a NORP religious ceremony .", "The first statement was written by her on DATE . On DATE Mr Al - Nashif had locked her up in her room in a hotel where they had been staying during a trip to GPE . PERSON had called the police . She and the first applicant had been brought to the police station where they had submitted written statements and had been released . No charges had been brought against Mr PERSON on that occasion . He submitted that he had locked the door as PERSON had been in a depressed state and could have hurt herself .", "In her statement to the police PERSON wrote that the first applicant had told her that she should believe in PERSON or burn in Hell , but she had replied that she loved PERSON . The first applicant had also told her to dress as a NORP woman . She further stated that she had read in the local press about the threat of fundamentalism in GPE . She knew that people with “ black briefcases full of MONEY notes ” were entering GPE with the purpose of spreading NORP , brainwashing NORP and waging “ Jihad - death to NORP ” . She knew that they were using “ bombs , guns , sedatives and other inadmissible means in order to smuggle into the country illegal [ copies of the ] Koran , drugs , and more ” .", "The Government submitted a second written statement by PERSON , which was made on DATE and addressed to the ORG , for the purposes of these proceedings . That statement repeated PERSON earlier allegations and added that the first applicant had operated with large amounts of cash , had given charity for the building of FAC and religious schools and had distributed food and clothes . He had allegedly made video tapes recording the results of his activities and had sent them to his benefactors “ in the NORP states ” .", "The Government stated ( in submissions to the ORG and through the “ information note ” described below ) that Mr PERSON had been a representative of the NORP foundation Tayba , which had allegedly continued the activities of the “ banned ” foundations PERSON and PERSON .", "Further , Mr Al - Nashif had registered several commercial firms in GPE and his partners in these firms had included persons who had been co - ordinators of fundamentalist organisations such as ORG and FAC . Finally , there existed information that Mr PERSON had performed management and co - ordination functions in the “ illegitimate ” ORG , NORP branch .", "The Government did not provide further details about those organisations .", "The first applicant replied that he had never been a representative for the ORG foundation which , in any event , as of DATE , was still functioning lawfully in GPE . It had been registered in GPE in DATE . By Decision no . CARDINAL of DATE ORG had authorised the foundation to engage in religious activities .", "The PERSON foundation was not a fundamentalist organisation either . It had been registered in GPE in DATE and DATE the competent court had certified that its registration had not been terminated . The former Chief Mufti , whose election to that post had been registered by ORG in DATE , was a member of its managing board .", "The ORG had indeed been dissolved on DATE on the ground that its goals were unlawful . However , its representative had not been among the persons named by the Government as Mr PERSON 's business partners .", "The applicants submitted copies of certificates issued by the legal persons ' register at the competent court .", "The Government stated that the seminar had been organised under the auspices of the PERSON foundation , which was allegedly known as CARDINAL of the disguised creatures of ORG , a fundamentalist organisation . The police had considered the seminar unlawful and dangerous for national security . The printed and video material that had been confiscated had disclosed preaching of “ religious and ethnic extremism ” . The police had put an end to the seminar . CARDINAL of the instructors who had participated had been deported from GPE . Mr PERSON had allegedly been CARDINAL of the organisers . He and all other participants had received oral warnings .", "NORP In support of these allegations the Government submitted copies of newspaper articles .", "The applicants submitted a declaration by the Chief Mufti of NORP , dated DATE , apparently prepared for the purposes of the present case , stating that the only sponsor of the DATE seminar had been ORG , registered in GPE and in many other countries , including GPE . The Chief Mufti further stated that the seminar had been devoted to traditional religious teaching . The police had gone there , apparently in response to an anonymous call . They had taken away material , part of which they had then returned . As the police had not established any wrongdoing , the seminar had continued after an interruption .", "The Government stated that against the background of the first applicant 's religious activities DATE the authorities had justifiably feared that the classes given by him to children could be dangerous .", "In support of this allegation the ORG submitted copies of newspaper articles and a copy of a CARDINAL - page report by a police officer in GPE , addressed to his superiors . The report , dated DATE , stated as follows :", "“ I report hereby that I received the following information through a third person :", "... [ A ] Mr Daruish Auni , NORP national , preaches to some of the inhabitants in [ a ] neighbourhood [ in GPE ] .", "He disseminates NORP literature and offers aid : money , as well as [ sacrificial ] meat , PERSON . There exist indications that audio cassettes with religious content are being distributed and that people listen to them in their homes . ”", "The first applicant categorically denied the allegation that he had offered money or any other incentive to encourage attendance at his religious courses .", "After the hearing on the admissibility and merits of the case the ORG submitted an “ information note ” issued on DATE by ORG , apparently for the purposes of the proceedings in the present case . The note reiterated the allegations submitted by the Government as regards Mr PERSON religious activities , including PERSON contention that he had been receiving money from abroad “ in suitcases full of CARDINAL bills ” .", "Article CARDINAL provides :", "“ ( CARDINAL ) The courts shall review the lawfulness of the administration 's acts and decisions .", "( CARDINAL ) Physical and legal persons shall have the right to appeal against all administrative acts and decisions that affect them , save in the cases expressly specified by ORG . ”", "This law establishes general rules concerning the delivery of , and appeals against , administrative decisions .", "According to Sections DATE and DATE , all administrative decisions are subject to judicial review except , inter alia , those “ directly concerning national security and defence ” .", "DATE . Section CARDINAL ( CARDINAL)(CARDINAL ) in conjunction with LAW ( CARDINAL)(CARDINAL ) provides that the Minister of the ORG or other officials authorised by him may revoke a foreigner 's residence permit “ where by his acts he has endangered the security or the interests of ORG or where there exists information that he acts against the security of the country ” .", "Section CARDINAL provides that the Minister of the ORG or other officials authorised by him may order a foreigner 's deportation where “ his presence in the country poses a serious threat to national security or public order ” .", "Section CARDINAL ( CARDINAL ) , insofar as relevant , provides as follows :", "“ Until [ his ] ... deportation ... the foreigner may be placed in a specialised centre at the discretion of the Minister of the ORG or other officers authorised by him . ”", "Section CARDINAL provided , as in force at the relevant time :", "“ ( CARDINAL ) Orders issued under LAW CARDINAL imposing administrative measures which directly concern national security shall not be subject to appeal .", "( CARDINAL ) These orders shall state only their legal ground . ”", "The NORP courts have differed on the question whether a mere reference to national security in the grounds of an order under LAW is sufficient to declare an appeal against such an order inadmissible or whether some proof that national security is indeed at stake should be required ( see paragraphs QUANTITY above and ORG judgment of DATE in case CARDINAL ) .", "In DATE ORG adopted a law on interpretation of LAW of LAW , clarifying that a court examining the admissibility of an appeal against an administrative decision citing as a legal basis LAW ( CARDINAL)(CARDINAL ) of LAW ( “ directly related to national security ” ) should automatically declare the appeal inadmissible without collecting evidence . A motion by CARDINAL members of ORG and by judges of ORG to declare that interpretative law , insofar as relevant here , unconstitutional was rejected by ORG on DATE on formal grounds .", "On DATE the ORG delivered its judgment in a case brought by CARDINAL members of ORG who considered that Section CARDINAL ( CARDINAL ) of LAW should be repealed as being unconstitutional and in contravention of the LAW .", "ORG could not reach a majority , an equal number of judges having voted in favour of the application and against it .", "According to ORG practice , in such a situation the request for a legal provision to be struck down is considered as dismissed by default .", "The judges who found that LAW ( CARDINAL ) was not unconstitutional and did not contravene the LAW considered that the LAW authorised ORG to exclude the right to seek judicial review of certain categories of administrative decision provided that a constitutionally guaranteed legitimate aim overrode the interests of the protection of fundamental rights and freedoms . National security was such a legitimate aim . Its protection had priority over the protection of individual rights and freedoms . Section CARDINAL ( CARDINAL ) of LAW took account of the fact that confidential information was at stake in deportation decisions based on national security . The wishes of a foreigner who had imperilled the security or the interests of ORG could not prevail over national security considerations . Furthermore , there existed a possibility of filing an administrative appeal to the Minister of the ORG or to ORG , which was a sufficient remedy .", "As to the LAW , its provisions permitted restrictions on human rights on grounds of national security and did not enshrine a right to a judicial appeal against deportation decisions .", "DATE . The judges who held that LAW ( CARDINAL ) was unconstitutional considered that the principle of proportionality inherent in the LAW required that limitations on constitutional rights could not go beyond what was strictly necessary for the achievement of the legitimate aim pursued and that regard should be had to the fundamental importance of the right to judicial remedies enshrined in LAW . Depriving aliens of any possibility of obtaining judicial review of a deportation decision was disproportionate . The interests of national security were sufficiently protected as the administration could order immediate execution of a deportation order notwithstanding a pending application for judicial review . Furthermore , it was not true that an administrative appeal was possible .", "This second group of judges also considered that the impugned provision was incompatible with the Convention as interpreted in the case - law of ORG .", "The unavailability of judicial review could lead to violations of LAW if an alien was deported to a country where he or she risked inhuman treatment .", "The judges further stated , inter alia :", "“ LAW allows the confinement [ of an alien pending deportation ] at the discretion of ORG , without limitation in time ... Neither that LAW nor any other law provides for any possibility of review ... [ However , ] the LAW , in its LAW , requires a remedy ...", "Deportation ... may constitute an interference with family life [ under LAW ] . Therefore , an assessment must be made as to whether such a measure is necessary in a NORP society in the interests of national security ...", "National security is one of the values of a NORP society , as much as fundamental rights and freedoms are . A domestic legal provision would be contrary to the Convention if there were no guarantees against administrative abuse and arbitrariness . These guarantees must be provided for by law . The balance between fundamental rights and the public interest must be assessed in every case by a court or another body independent from the executive . ”", "In DATE LAW was amended . The possibility of filing an administrative appeal to the Minister of the ORG was introduced ( LAW , as amended ) . A new LAW a stated that an alien should not be expelled to a country where his life , liberty or physical integrity were endangered .", "The rule providing that decisions citing national security as grounds need not state any reasons and are not amenable to judicial review remains in force ( LAW ( CARDINAL ) and ( CARDINAL ) ) . The law does not require any consideration of the question whether a deportation decision would interfere with the alien 's right to family life and , if so , whether a fair balance has been struck between the public interest and the rights of the individual concerned .", "Sections CARDINAL and CARDINAL of the Religious Denominations Act provide , inter alia , that the statute and rules of a religious denomination shall be submitted for approval to ORG or to one of the Deputy Prime Ministers . Where they contain provisions which are contrary to the law , public order , or morals , ORG may require their amendment , or refuse to approve them .", "Section CARDINAL also provides that the statute and rules of the religious denomination must regulate all matters related to its finances and internal self - regulation , insofar as these matters are not regulated by LAW . LAW does not contain provisions regulating religious classes , except for LAW which concerns the opening of high schools and institutions of higher education for the training of religious ministers .", "The Statute of the NORP religious organisation in GPE , in force at the relevant time , was adopted at a national conference of the NORP believers held on DATE . On DATE it was approved by a Deputy Prime Minister .", "Sections CARDINAL and CARDINAL of the Statute provide for local NORP boards ( настоятелства ) and ORG ( районни мюсюлмански съвети ) who are competent , inter alia , to organise classes for the study of the Koran .", "The Government relied in their submissions on ORG , a declaration adopted by ORG in DATE . They referred to the passages in which national security was defined so as to include the following :", "“ ... protection of the fundamental rights and freedoms of NORP citizens , defence of the national borders , territorial integrity and independence , ... and the democratic functioning of public and private institutions so as to ensure that society and the nation shall preserve and enhance their well - being . ”", "The Framework Concept further pointed to the possible threats to national security and stated , inter alia :", "“ Economic and social differences in LOC have deepened and new insecurity and risks have thus appeared . Conflicts on an ethnic , religious and social basis have emerged ... Religious and ethnic communities , some of which are in conflict , co - exist in south - eastern LOC . Since the creation of new LOC certain communities have displayed a tendency towards insularity . That has sharply increased the regional threats to our national security .... Religious and ethnic extremism influences local communities that lack strong democratic traditions ... ”" ]

[ "13", "5", "8" ]

[ "5-4" ]

[]

[]

[]

[]

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

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[ "The applicant is a NORP - Kazakh company located in the city of GPE .", "In DATE the applicant instituted proceedings against ORG “ Dniprovsky Metallurgical Kombinat ” ( hereinafter “ the ORG ” ) , in which the ORG held PERCENT of the shares , for failure to pay under a contract for delivery of iron ore .", "On DATE ORG of the Dnipropetrovs'k Region awarded the applicant ORG in compensation against the ORG for failure to comply with the contractual obligations . The court also attached the defendant 's accounts . It issued CARDINAL orders in this respect : CARDINAL for the recovery of property worth a total of UAH CARDINAL,CARDINAL.CARDINAL and another for the recovery of the sum of UAH CARDINAL,CARDINAL.CARDINAL .", "On DATE ORG initiated the enforcement proceedings .", "DATE numerous bankruptcy proceedings were initiated against the ORG by CARDINAL companies :", "- On DATE by the “ GPE PERSON ” – terminated on unspecified date ;", "- On DATE by the “ GPE ” company – terminated on DATE as the ORG paid the debt ;", "- On DATE by the “ PERSON ” company – terminated on DATE as the plaintiff failed to have the bankruptcy announcement published ;", "- On DATE by the “ Intermet ” company – terminated on DATE as the ORG paid the debt ;", "- On DATE by the “ NORP ” company DATE terminated on DATE as the plaintiff withdrew his claim ;", "- On DATE by the “ ORG ” company DATE terminated on DATE as the plaintiff failed to have the bankruptcy announcement published ;", "- On DATE by the “ Rolikon ” company – terminated on DATE ;", "- On DATE by the “ Tsesiya ” company – the bankruptcy proceeding are pending to date .", "The respective court 's rulings on opening these bankruptcy proceedings ordered suspension of the enforcement proceedings against the ORG and introduction of the moratorium on a payment of debts to its creditors .", "DATE and DATE ORG of the Dnipropetrovs'k Region ( as of DATE - ORG of GPE ) rejected the applicant 's numerous requests to initiated bankruptcy proceeding against the ORG as such proceedings were already pending upon other companies ' requests .", "On DATE ORG of the Dnipropetrovs'k Region , upon the applicant 's request , modified the modalities of enforcing the judgment of CARDINAL DATE . In particular , it decided to attach the debtor 's property .", "On DATE ORG resumed the enforcement proceedings and suspended them due to the application of the moratorium .", "On DATE ORG of the Dnipropetrovs'k Region rejected the applicant 's request to initiated bankruptcy proceeding against the ORG . On DATE and DATE ORG and ORG , respectively , rejected the applicant 's cassation appeal .", "On DATE ORG sold the ORG - owned shares of the ORG to private persons . Under the terms of the sales , the latter undertook to pay all the outstanding debts of the ORG .", "The judgment of CARDINAL DATE in the applicant 's favour remains unenforced .", "The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant is a NORP citizen born in DATE and resident in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "The applicant is the single mother of A. , born in DATE . On DATE was placed in public care by an emergency order issued pursuant to section CARDINAL of LAW ( lastensuojelulaki , barnskyddslag DATE ) . The applicant was informed of the public care order DATE . A. ’s situation had been followed by the GPE social authorities for some time , following reports received from the police and neighbours . In DATE his behaviour had deteriorated significantly , involving uncontrollable aggressive behaviour against his peers .", "A. was placed in a temporary reception centre , where the applicant could visit him on a DATE basis . The emergency order was extended on DATE and on DATE ORG ( sosiaalilautakunta , socialnämnden ) of GPE replaced it with an ordinary care order pursuant to section CARDINAL of LAW . The applicant ’s appeal against the immediate enforcement of the care order was dismissed on DATE by ORG ( lääninoikeus , länsrätten ) of PERSON . Her further appeal was dismissed by ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) on DATE .", "Meanwhile , on DATE left the reception centre with the applicant , who eventually took him to GPE , where the applicant ’s mother was living and where PERSON began to attend school . Neither the applicant nor PERSON attended ORG hearing on DATE concerning the ordinary care order but the applicant was represented by counsel . CARDINAL witnesses were examined at ORG request ( i.e. the Acting Director of the reception centre and a psychologist who had examined ORG both in the presence and in the absence of the applicant ) and CARDINAL witnesses proposed by ORG of its own motion ( i.e. A. ’s teacher , his school counsellor and his personal assistant in the reception centre ) . Counsel for the applicant did not propose any witnesses .", "The applicant ’s appeal was dismissed on DATE , ORG having found , inter alia , that ORG ’s public care had been justified in order to carry out a complete assessment of his conditions and the extent of psychological assistance required to treat his behavioural disturbance . Although such an investigation would have been possible as an open - care assistance measure , the applicant had refused to co - operate with the social authorities both in that respect and more generally . The applicant ’s further appeal was dismissed by ORG on DATE .", "On DATE the applicant requested ORG to terminate PERSON ’s public care and pay her damages . Her request for termination of the public care was allegedly never examined by ORG , as one of its senior officials considered that the applicant had not adduced any fresh information regarding her conditions .", "During a visit to GPE on DATE was apprehended by customs officials and placed in a children ’s home . At meetings with social welfare officials in DATE the applicant and PERSON opposed the latter ’s intended transfer to a children ’s home in PERSON , where he was placed by decision of CARDINAL DATE .", "According to the Government , the facts of the case are as follows .", "The first report concerning PERSON had been drawn up already in DATE . A. ’s situation had been closely followed in GPE by the PERSON social authorities due to the applicant ’s mental problems and difficulties in assuming PERSON ’s upbringing . In DATE the applicant had requested that A. be placed in a children ’s home but without wishing to discuss the reasons therefor . The authorities had located a place for A. but the applicant had refused to accept it . Neither had she accepted DATE - care for A. The applicant had failed to attend the meetings agreed on and had failed to be available for home visits . The GPE authorities had followed the family situation in DATE , having received several reports from neighbours , the police and A. ’s school . The applicant had not accepted any help from the social authorities , and had only occasionally been in contact with A. ’s school . In DATE the social authorities had made an appointment for A. at a child psychiatric clinic , but the applicant had refused to take him there . Nor had she accepted any open - care assistance . During a home visit in DATE the social worker had noticed that their CARDINAL - room flat had contained only a double - bed and CARDINAL chair with a small table for A. ’s homework . In DATE his situation had worsened considerably : he had repeatedly behaved in an aggressive manner towards other pupils . The applicant had failed to attend a meeting with the school psychologist to discuss A. ’s disruptive behaviour . The applicant having told the social authorities that she would take GPE to GPE if they were not left alone , PERSON had been placed in emergency care . Social welfare officials had visited the applicant DATE to inform her about the order . It had not been possible to inform her of the care intention at the meeting with the school psychologist on DATE because she had failed to attend that meeting .", "On DATE A. ’s emergency care had been extended until DATE . Assistance in open care had remained impossible because the applicant had rejected all help . In DATE had been examined by psychologist PERSON , who had concluded that he was in need of a living environment with clear and safe limits and needed to learn and find ways to solve conflict situations .", "On DATE the applicant had taken A. out of the reception centre and had apparently sent him to GPE alone . The applicant had refused to co - operate with the social welfare authorities and had not revealed PERSON ’s whereabouts and conditions . On DATE she had requested termination of ORG ’s public care . In its decision of CARDINAL DATE – which had been communicated to the applicant – the Board had noted that the normal care order had been finally upheld DATE . ORG had decided to take no measures until the applicant had provided information on A. ’s whereabouts and her own conditions , thereby enabling ORG to examine her requests in accordance with the law . To that end , she had been invited to forward any opinions prepared by the NORP child welfare , school and health authorities , on the basis of which the NORP authorities would contact them to establish A. ’s conditions and decide on his future care .", "On DATE had been apprehended by NORP customs officials and placed in a child welfare institution . The applicant had failed to attend a meeting to discuss the future implementation of A. ’s public care and had refused to inform the officials of his conditions in GPE . On DATE A. had been placed in another child welfare institution after both he himself and the applicant had been heard . The applicant had maintained that there was no need for public care and had refused to inform the authorities of her place of residence . On DATE had been placed in a family home specialised in the foster care of LANGUAGE - speaking children . The applicant , represented by counsel , had objected to ORG ’s continued public care and had challenged the decisions of DATE and CARDINAL DATE before ORG and ORG which had rejected her appeals on DATE and DATE respectively .", "Meanwhile , on DATE the applicant had again requested termination of ORG ’s public care . The social authorities had asked ORG ’s foster parents and the headmaster of his school to give their written opinions . On DATE ORG had decided to maintain the public care and the applicant had not appealed . ORG had recalled that ORG ’s public care had been justified in view of the applicant ’s difficulties in assuming his upbringing . At no stage had she accepted that A. needed psycho - social examinations and care . Nor had she recognised her own difficulties for which she would need psychiatric help before being able to look after A.", "The relevant legislation is outlined in the ORG ’s judgment in PERSON and GPE ( [ ORG ] , no . CARDINAL/CARDINAL , § § CARDINAL , ECHR DATE ) ." ]

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[ "The applicant was born in DATE and lives in the town of GPE in LOC .", "By judgment of DATE ORG of the Moscow Region examined the criminal case against the applicant and CARDINAL other co - accused . The court convicted the applicant of aggravated blackmail and kidnapping and sentenced him to DATE imprisonment . That sentence was upheld on appeal by ORG on DATE .", "Thereafter the applicant sought to initiate supervisory review of his case .", "The applicant 's supervisory review request to the ORG of ORG was partly successful . On DATE the Presidium of ORG , sitting as a supervisory review body , re - examined his case and partly changed the judgment of DATE .", "On DATE the applicant requested CARDINAL of the Deputy Presidents of ORG to initiate supervisory review proceedings in his case before ORG , arguing that the lower courts wrongly assessed the evidence in the case and failed to apply the domestic law correctly .", "Apparently in response to that request , on DATE the Deputy President of ORG decided to initiate supervisory review proceedings in respect of the decisions of the lower courts in the applicant 's case . The main reason for that decision was that while the lower courts had made a correct assessment of the facts of the case , they had erred in the legal characterisation of the offence committed by the applicant .", "According to the Government , on DATE notifications that the supervisory review hearing would take place on DATE were sent to the applicant and the lawyer who had represented him at the trial . They were also invited to respond to the arguments of the Deputy President of ORG .", "According to the applicant , he received a notification in the form of a telegram about the hearing of DATE on DATE . From the documents submitted by the applicant it follows that he received a copy of the request of DATE only on DATE , that is already after the supervisory review hearing in his case .", "The applicant explained that once the main set of criminal proceedings was over , the lawyer in question had ceased to represent him . He submitted a copy of the lawyer 's letter dated DATE , in which the lawyer had confirmed the absence of any agreement to act on the applicant 's behalf in the supervisory review proceedings of DATE . The lawyer also confirmed the receipt of the notification of CARDINAL DATE , along with a copy of the request of DATE , but stated that he had been unable to react to these documents for lack of authority .", "The parties agreed that the applicant asked to attend the supervisory review hearing in person .", "The applicant submitted a copy of that request . The request was made on DATE but was not received by ORG until DATE .", "On DATE ORG , in the presence of the prosecutor and one of the other co - defendants ' lawyers , examined the arguments of the Deputy President 's supervisory review appeal and amended the sentence by changing the charges of aggravated kidnapping to aggravated deprivation of liberty . The applicant 's sentence was thus reduced from DATE of imprisonment accordingly .", "By letter of DATE ORG notified the applicant of the outcome of the supervisory review proceedings .", "Section VI , LAW of LAW of DATE ( Уголовно-процессуальный кодекс РСФСР ) , in force at the material time , allowed certain officials to challenge a judgment which had become effective and to have the case reviewed .", "Pursuant to LAW , a judgment became effective and enforceable as of DATE when the appeal instance pronounced its decision or , if the judgment had not been appealed against , when the time - limit for appeal 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 effective 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 ) serious violation of procedural law ;", "( iv ) misapplication of [ substantive ] law ;", "( v ) inappropriate sentence considering the gravity of the offence and the convict '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 .", "According to Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure of DATE , the 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 , to remit the case for a new investigation , or for fresh court examination at any instance , to uphold a first - instance judgment reversed on appeal , or to amend and uphold any of the earlier judgments .", "Article QUANTITY 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 fresh examination .", "Under LAW of LAW of Criminal Procedure of DATE , a public prosecutor took part in a hearing before a supervisory review body . The convicted person and his or her counsel could be summoned if the 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 the convicted person 's presence was not optional but mandatory if the grounds for initiating the supervisory review proceedings could worsen his personal situation .", "Under LAW of LAW , which entered into force on DATE , the 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 do so ." ]

[ "6" ]

[ "6-1" ]

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[ "On DATE the PERSON ( PERSON ) of GPE , relying on section CARDINAL of GPE ( PERSON ) as in force at the relevant time , imposed a prohibition order ( verwijderingsbevel ) on the applicant to the effect that the latter would not be allowed to enter a particular area , the so - called emergency area , of the city centre for DATE . The following events were referred to in the PERSON 's decision as having led to this order being issued .", "( i ) It transpired from police reports that on DATE ( twice ) , DATE , CARDINAL DATE , DATE and DATE the applicant had either overtly used hard drugs or had had hard drugs in his possession in streets situated in the emergency area and that on each of those occasions he had been ordered to leave the area for TIME .", "( ii ) On DATE the applicant had been heard by the police about his conduct and he had been told that he would either have to desist from such acts , which disturbed public order ( openbare orde ) , or stay away from the area . The applicant had further been informed that , if he committed such acts again in the near future , the PERSON would be requested to impose a DATE prohibition order on him . The applicant had told the police that , as well as preparing and using drugs in the area concerned , he also met his friends there .", "( iii ) On DATE the applicant had nevertheless overtly used hard drugs on CARDINAL of the streets in the emergency area . He had once again been ordered to leave the area for TIME and the police had subsequently requested the PERSON to impose a DATE prohibition order on the applicant .", "In the opinion of the PERSON , the applicant would again commit acts disturbing public order in the near future . In this context , the PERSON took account of the kind of conduct involved , namely acts seriously disturbing public order , the repetition and continuity of this conduct , the statement of the applicant , the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the TIME prohibition orders imposed on him and the warning given by the police . Finally , the PERSON noted that neither the applicant 's home nor his place of work were situated in the area concerned .", "NORP The applicant lodged an objection ( bezwaarschrift ) against the PERSON 's prohibition order . He submitted , inter alia , that the PERSON ought only to make use of the emergency powers granted him by LAW in exceptional situations . As the PERSON had been issuing TIME prohibition orders since DATE and DATE ones since DATE , it could no longer be argued that an exceptional situation prevailed . Moreover , the PERSON had had sufficient time to ensure that the emergency measures were enacted in a general municipal by - law ( Algemene Politie Verordening ) .", "The applicant also stated that the prohibition order , which in his opinion constituted a criminal sanction , interfered with his right to liberty of movement and violated the principle of proportionality . In this connection , he argued that he had always complied with the prohibition orders imposed on him for a duration of TIME and that he therefore failed to understand why a prohibition order for DATE had been called for all of a sudden .", "On DATE a hearing took place before an advisory committee . At this hearing the representative of the PERSON stated that , in DATE , CARDINAL TIME prohibition orders ( compared with CARDINAL in DATE ) and CARDINAL DATE prohibition orders ( compared with CARDINAL in DATE ) had been issued against people dealing in or using drugs or committing acts related to those activities . The representative further stated that it was intended to enact the power to issue prohibition orders in a general municipal by - law .", "On DATE the committee advised the PERSON to dismiss the objection and to maintain the prohibition order . It considered , inter alia , that the disruption of public order in the area concerned was still such as to constitute an exceptional situation within the meaning of LAW . In view of the seriousness and scale of the problems involved , the committee found it unlikely that public order could be adequately maintained by normal methods and that for that reason the PERSON was entitled to use the powers granted him under section CARDINAL .", "Having regard to the fact that the applicant had , within a short period of time , regularly committed acts which had disturbed public order and that the TIME prohibition orders which had been issued had not prevented him from doing so , the committee further found that the imposition of a prohibition order for a duration of DATE had not been unreasonable . It did not agree with the applicant that the impugned measure constituted a penalty , as it had been taken in order to maintain public order . The committee finally found that the interference with the applicant 's right to liberty of movement had been justified .", "By a decision of CARDINAL DATE the PERSON dismissed the applicant 's objection , adopting as his own the reasoning applied by the advisory committee .", "The applicant lodged an appeal against the PERSON 's decision with ORG ( GPE rechtspraak ) of FAC on DATE . In his appeal , which he detailed in a letter of CARDINAL DATE , he raised the same complaints as he had before the PERSON . In his written observations of DATE the PERSON referred to the report drawn up by the advisory committee . A hearing took place before ORG ( GPE bestuursrechtspraak ) , the successor to ORG , on DATE .", "On DATE ORG dismissed the applicant 's appeal . Its reasoning included the following :", "“ LAW provides that everyone lawfully within the territory of a ORG shall have the right to liberty of movement and freedom to choose his residence . According to the third paragraph of that provision , this right shall not be subject to any restrictions except those which are provided by law , are necessary to protect national security , public order , public health or morals or the rights and freedoms of others , and are consistent with the other rights recognised in that LAW . An almost identical provision is contained in LAW No . CARDINAL to the Convention .", "Section CARDINAL , first paragraph , of GPE confers on the PERSON emergency powers which should be used only in exceptional situations . Such exceptional situations include riotous movements , gatherings or other disturbances of public order , serious calamities , and also a serious fear of the development thereof .", "Contrary to what the party seeking review has argued , the issuing of orders in the situations set out in section CARDINAL of GPE does not run counter to the above - mentioned treaty provisions , since the latter provide for the possibility of restricting the rights concerned by ' law ' – a term which includes an order issued by the LAW pursuant to the law – for the protection of public order .", "Section CARDINAL of GPE is a legal provision intended for situations where ordinary means are insufficient for restoring and maintaining public order .", "In the opinion of the ORG these ordinary means may be considered insufficient in the present case and there was , at the time of the decision appealed against , an exceptional situation . It is relevant in this context that at the time of the decision appealed against it was not possible to solve the problem in question through a municipal regulation . There was not at that time – and there is not now – any relevant provision in a municipal by - law , nor is any other sufficient legal means available .", "On the basis of the case file and the submissions made at the hearing , in addition to the number of TIME and DATE orders that have been issued in the area concerned , the ORG finds that the appropriate staff and means available to the defendant were inadequate to counter the difficult situation arising from breaches of public order resulting from the behaviour of drug addicts as described in the decision of CARDINAL DATE . This leads the ORG to hold that it can not be stated that the defendant could not reasonably make use of the powers granted him by CARDINAL of LAW .", "The ORG would , however , express the following reservations .", "It can not see why , if the situation described above should continue , the possibility of issuing DATE prohibition orders should not be provided for in a by - law enacted by ORG . From the point of view of legal certainty and legitimacy of action by public authority , a regulation provided by a municipal by - law seems preferable to a measure based on the defendant 's emergency powers . It appears from the case file that the defendant had already prepared the draft of an appropriate provision , which , however , was never incorporated into ORG because the method used at present , which was decided on in consultation between the defendant , the police and the prosecuting authorities [ verweerder , politie en justitie ] with regard to the DATE prohibition orders , was considered extraordinarily effective . The ORG is , however , of the opinion that the presumed effectiveness of an emergency measure coupled with the prosecuting policy of the prosecution authorities [ Openbaar Ministerie ] do not constitute a reason not to make appropriate provision at the municipal level . The ORG considers that the defendant , in assessing whether there is an exceptional situation within the meaning of CARDINAL of LAW ( now section CARDINAL of GPE ) , may , in principle , no longer rely on the lack of an appropriate provision in a municipal by - law , in view of the length of time this drugs - related nuisance [ drugsoverlast ] has already prevailed , causing it to display structural aspects , if the possibility of issuing DATE prohibition orders is not now provided for in a by - law enacted by ORG within a reasonable time . ”", "This decision was published , with a learned comment , in ORG ) DATE , no . CARDINAL .", "Apart from the proceedings described above , the applicant was convicted by a single - judge ORG ( politierechter ) of ORG ( arrondissementsrechtbank ) of GPE on DATE of having intentionally failed to comply on DATE with the prohibition order imposed by the PERSON on DATE . Under LAW ( PERSON ) , this failure constituted a criminal offence . He was sentenced to DATE imprisonment . Following an appeal to ORG ( gerechtshof ) , which also convicted the applicant , an appeal on points of law was lodged with ORG ( PERSON ) . ORG dismissed the applicant 's appeal on DATE .", "NORP The criminal proceedings against the applicant do not form part of the case before the Court .", "At the material time section CARDINAL of GPE ( PERSON ) provided as follows :", "“ CARDINAL . In case of a riotous movement , gathering or other disturbance of public order or of serious calamities , as well as in case of a well - founded fear of the development thereof , the PERSON is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger .", "... ”", "Article CARDINAL of LAW ( PERSON ) , in its relevant parts , reads :", "“ CARDINAL . Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose , and any person who intentionally obstructs , hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation , shall be liable to a term of imprisonment not exceeding DATE or a secondcategory fine .", "...", "NORP If the offender commits the indictable offence within DATE of a previous conviction for such an offence having become final , the term of imprisonment may be increased by CARDINAL . ”", "In the GPE , the PERSON of a town or city is appointed by the Queen ( section CARDINAL of the former LAW ) . Municipal regulations , such as general municipal by - laws , are adopted by ORG ( section CARDINAL of the former GPE ) which is elected by those inhabitants of the town or city who are eligible to vote in elections for ORG of ORG ( Article CARDINAL of the LAW ) .", "By a letter of CARDINAL DATE the PERSON of GPE informed ORG ( NORP ) of the GPE police that , in view of the situation in the city centre , ORG and police officers acting on the PERSON 's behalf would be able to issue orders , based on LAW as in force at the time , for people to leave a particular area within the city centre and not to return to it for TIME .", "The PERSON extended the area of the city centre where these orders could be issued by a letter of DATE . Subsequently , by a letter of CARDINAL DATE , the PERSON also empowered ORG and his officers to order people to leave the designated area for DATE .", "By a letter of CARDINAL DATE the PERSON amended this instruction , replacing the discretion of the police officers to issue TIME prohibition orders by a strict order to do so in specified circumstances . This letter contains the following passage :", "“ In so acting I have considered that the designated city centre area exerts a continuing attraction on persons addicted to , and/or dealing in , hard drugs . The attendant behaviour disrupts public order , causes considerable nuisance and constitutes an incessant threat to public life . In these circumstances [ in dit verband ] , I judge the situation to constitute an exceptional situation within the meaning of section CARDINAL of GPE . ”", "The PERSON 's instructions were further amended by a letter of CARDINAL DATE under the terms of which DATE prohibition orders could no longer be issued by the police on behalf of the PERSON but only by the PERSON himself .", "A DATE prohibition order could be imposed on a person if in DATE CARDINAL procès - verbaux or other reports had been drawn up by the police concerning acts committed by him which had disturbed public order , such as , inter alia :", "( i ) the possession and use on the public highway of addictive substances appearing in Annex CARDINAL to LAW ( PERSON ; concerns hard drugs ) ;", "( ii ) dealing on the public highway in addictive substances appearing in LAW to LAW ;", "( iii ) overt possession of knives or other banned objects in so far as this constituted a criminal offence under the General Municipal By - Law or LAW ( LOC en GPE ) ;", "( iv ) committing the offence defined in LAW where the order not complied with was an TIME prohibition order ;", "( v ) acts of violence , thefts from cars on or along the public highway , overt selling of stolen goods on or along the public highway , in so far as there was a connection between these offences and hard drugs .", "On the occasion of a fourth procès - verbal being drawn up against him , the person concerned would be heard by a police sergeant about his disruptive behaviour and the reason for his ( continued ) presence in the emergency area . The police sergeant would issue a warning to the effect that if in the near future the person concerned again disrupted public order , the police would request the PERSON to impose a DATE prohibition order .", "It is undisputed that the aforementioned PERSON 's letters were neither published nor laid open to public inspection and that the PERSON 's instructions were not otherwise made public .", "In a decision of CARDINAL DATE ( ORG Beslissingen ( ORG ) DATE , no . CARDINAL ) , the President of ORG of GPE held as follows :", "“ As ORG has held in previous decisions , section CARDINAL of GPE – paraphrased DATE confers on the PERSON emergency powers which should be used only in exceptional situations . Such exceptional situations include riotous movements , gatherings or other disturbances of public order , serious calamities , and also a serious fear of the development thereof . Thus , provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order .", "It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned section CARDINAL , first paragraph .", "In so doing , we will consider the undisputed statement made by the respondent party at the hearing concerning the situation in the ( old ) city centre of GPE :", "' The old city centre of GPE is known internationally and nationally as a centre for the trade in hard drugs . It continues to attract large numbers of addicts . The doings and dealings of addicts and dealers generally cause serious nuisance : overt use and dealing , intimidating group behaviour , threats to passers - by ( frequently with knives ) , shouting , raving , fights , robberies ( frequently with knives ) , thefts , receiving stolen property , etc . The old city centre has many functions ; an important one is that of being a residential and commercial area . However , the situation threatens all the time to become unbearable .", "The extent to which matters have deteriorated for the residents is again apparent from the desperate protests which took place at DATE . These protests ended , for the time being , at a meeting of ORG which was attended by a crowd of people .", "The NORP , PERSON , FAC and QUANTITY Hoogstraat are part of the crisis area . PERSON ( FAC , the Nieuwe and Oude Hoogstraat are the prolongation of the NORP ) constitutes the entrance to the old city centre . In this part of the town , all manner of soft drugs , but especially hard drugs , are for sale , in small or large amounts : hashish , cocaine , amphetamines , ORG , heroin and other mindaltering substances . In this area especially , street dealers go about more than elsewhere in the city centre peddling fake hard drugs .", "The presence of the dealers and large numbers of addicts , with the attendant criminality , seriously affect the area .", "As a result , among other things , of the strong protests of local residents , a special project team of the police was active in LOC for DATE from DATE . Its actions were directed in particular towards the bridge between FAC and the Oude Hoogstraat , the so - called pills bridge . This bridge was occupied by representatives of a new phenomenon , namely , multiple drugs use .", "The project team set itself the primary task of restoring public order . During the action , there were CARDINAL ! arrests , CARDINAL of knives were seized and CARDINAL of prohibition orders were issued . '", "Noting all this , we are of the provisional opinion that an emergency situation of the kind referred to in section CARDINAL , first paragraph , of GPE was rightly found to exist . The respondent was therefore entitled to issue the disputed orders . ”", "Similarly , in a decision of DATE ( PERSON ( Summary Proceedings Law Reports ) DATE , no . CARDINAL ) , the President of ORG held :", "“ As ORG has held in previous decisions , section CARDINAL of GPE – paraphrased DATE confers on the PERSON emergency powers which should be used only in exceptional situations . Such exceptional situations include riotous movements , gatherings or other disturbances of public order , serious calamities , and also a serious fear of the development thereof . Thus provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order .", "It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned section CARDINAL , first paragraph .", "As was held in the decision of DATE ... in relation to the situation in the ( old ) city centre , the respondent rightly found that an emergency situation of the kind referred to in section CARDINAL , first paragraph , of GPE existed . ”", "In a judgment of DATE ( PERSON , no . CARDINAL ) , which related to a criminal prosecution under LAW for failure to comply with an TIME prohibition order , ORG ( PERSON ) accepted that the PERSON 's powers under section CARDINAL of the former GPE were intended only for exceptional situations . It held , however , that the mere fact that DATE had passed since the PERSON had declared an emergency situation – the case related to the PERSON 's instruction of CARDINAL DATE was not sufficient per se to justify the conclusion that an exceptional situation no longer existed . It also held , in the same judgment , that LAW did not apply to TIME prohibition orders because such orders were not given by way of penal sanction but were in the nature of a measure aimed at preserving public order . Nor did such orders violate LAW No . CARDINAL to the Convention , since they were “ in accordance with law ” and “ necessary in a NORP society ” for “ the maintenance of ordre public ” . The judgment of ORG upheld a judgment of ORG sentencing the defendant in that case to DATE imprisonment .", "Section CARDINAL of the Act on Administrative Jurisdiction as to Decisions of the Administration ( Wet administrative rechtspraak overheidsbeschikkingen – “ the LAW ” ) provided that a person directly affected by an administrative decision ( certain categories of decisions , not relevant to the present case , excepted ) could submit an objection to the administrative body that had taken the decision . The objector was entitled to be heard ; the administrative body could delegate the hearing to an advisory committee ( section CARDINAL(CARDINAL ) ) .", "An appeal against the decision of the administrative body lay to ORG of the Raad van State , an administrative tribunal ( section CARDINAL of LAW ) .", "The AROB Act was repealed on DATE when LAW ( Algemene wet bestuursrecht ) came into force .", "Also as of DATE ORG of the Raad van State was replaced by ORG ( sections CARDINAL et seq . of GPE ( Wet op de Raad van State ) , as amended ) . ORG took over the undecided appeals still pending before ORG ." ]

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[ "NORP The applicant was born in DATE and lives in GPE .", "On DATE the applicant , a civil engineer at ORG , was appointed to ORG .", "On DATE the applicant brought a case before ORG against ORG ( PERSON İşletmesi PERSON ) ( “ the General Directorate ” ) to challenge his transfer to FAC . He claimed that his transfer had a purely punitive motive , aimed at penalising him for having uncovered certain irregular conduct at ORG . He also requested the suspension of his transfer pending the outcome of the court ’s final decision .", "On DATE the applicant lodged a criminal complaint with ORG against his employers in respect of the aforementioned irregularities . On DATE the public prosecutor issued a decision not to prosecute .", "On DATE ORG rejected the applicant ’s request for suspension of his transfer . On DATE the applicant objected to that decision . On DATE ORG dismissed the applicant ’s objection .", "On DATE the applicant requested ORG to hold an oral hearing .", "On DATE ORG dismissed the applicant ’s case , without holding a hearing . It ruled that the applicant ’s appointment to FAC had been effected in view of the needs of ORG and that the administration had thus acted within its legal discretion and in accordance with the relevant laws .", "On DATE the applicant appealed against the judgment of the administrative court and requested the suspension of the transfer . He also requested ORG to hold an oral hearing .", "On DATE ORG dismissed the request for suspension .", "On DATE the applicant once again requested the suspension of the administrative act . His request was dismissed by ORG on DATE .", "On DATE ORG issued an interim decision requesting certain information and documents from the respondent administration , including the applicant ’s classified appraisal records ( gizli sicil raporları ) and a description of his duties at the new place of assignment . It appears that the administration submitted the requested information and documents to ORG on DATE . However , neither the interim decision nor the responses of the administration were communicated to the applicant .", "On DATE ORG upheld ORG judgment of CARDINAL DATE by a majority decision , without holding a hearing . The dissenting judge opined that the replies provided by ORG to the questions put to it in the interim decision indicated that the applicant ’s transfer had been based on subjective grounds and not on any public need as alleged . Upon service of ORG decision , the applicant found out about the interim decision of DATE and the administration ’s submissions in reply , including his appraisal grades which had apparently fallen following the various actions he had brought against the administration .", "On DATE the applicant requested the rectification of ORG decision , complaining , inter alia , of the noncommunication of the interim decision of DATE and ORG replies thereto , which had prevented him from responding to its arguments . In the same letter , the applicant also attempted to challenge the accuracy of the information provided by ORG .", "On DATE ORG dismissed the applicant ’s rectification request , holding that none of the reasons put forth by the applicant for rectification fell within the exhaustive list of permissible grounds for rectification indicated in LAW ( CARDINAL ) of LAW ( Law no . CARDINAL ) .", "According to LAW ( CARDINAL ) and ( CARDINAL ) of LAW , after a claimant lodges a case with the administrative court , his or her submissions are transmitted to the defendant party . The initial written pleadings of the defendant in response are communicated to the claimant , who submits his or her replies thereto . The claimant ’s replies are then sent to the defendant , who is invited to submit his or her final pleadings , to which the claimant can not reply .", "According to LAW ( CARDINAL ) of LAW , an oral hearing will be held in administrative proceedings involving , inter alia , an action for annulment of an administrative act ( iptal davası ) , upon request of either CARDINAL of the parties .", "According to LAW ( CARDINAL ) of LAW , a request for an oral hearing can be made by the parties only at certain stages of the administrative proceedings , that is at the time of bringing the case by the claimant , or as part of the subsequent written pleadings and replies submitted to the court by the parties ( see paragraph CARDINAL above ) ." ]

[ "6" ]

[ "6-1" ]

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[ "ORG The case was referred to the ORG by ORG ( \" the Commission \" ) on DATE , within the DATE period laid down by Article CARDINAL para . CARDINAL and LAW ( article DATE , article CARDINAL ) of the Convention . It originated in an application ( no . CARDINAL/CARDINAL ) against GPE lodged with ORG LAW ( article CARDINAL ) by a NORP national , PERSON , on DATE .", "ORG In a judgment of CARDINAL DATE ( \" the principal judgment \" , Series A no . CARDINAL-A ) , the ORG found that there had been breaches of LAW No . CARDINAL ( PCARDINAL - CARDINAL ) , as the applicant had not been able to mount an effective challenge to the pre - emption of her property by the Revenue , and of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , for want of a fair hearing and owing to the length of the proceedings ( ibid . , pp . DATE , paras . CARDINAL , and points CARDINAL , CARDINAL and DATE of the operative provisions ) . On the other hand , it held that there had been no breach of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW and that it was unnecessary to consider separately the complaints based on LAW and CARDINAL ( article CARDINAL , article DATE ) of the Convention ( ibid . , pp . DATE , paras . CARDINAL , and points CARDINAL and CARDINAL of the operative provisions ) .", "The ORG held that its judgment constituted in itself sufficient just satisfaction as to the alleged non - pecuniary damage and that the respondent ORG was to pay the applicant , within DATE , MONEY ( ORG ) in respect of costs and expenses ( ibid . , pp . CARDINAL , paras . CARDINAL , and points CARDINAL and CARDINAL of the operative provisions ) .", "ORG As the question of the application of LAW ) was not ready for decision in respect of pecuniary damage , the ORG reserved it and invited the ORG and the applicant to submit in writing , within DATE , their observations on the matter and , in particular , to notify ORG of any agreement they might reach ( ibid . , p. CARDINAL , para . CARDINAL , and point CARDINAL of the operative provisions ) .", "ORG The negotiations for an agreement proved unsuccessful and the Registrar received a memorial on DATE in which the ORG replied to the claims made by the applicant in the principal proceedings ( ibid . , p. CARDINAL , para . DATE ) . PERSON submitted her observations and proposals on DATE . In an order of CARDINAL DATE the President requested the parties to make further submissions . Memorials in reply were submitted by ORG on DATE and by the applicant on DATE .", "ORG On DATE the Secretary to ORG informed the Registrar that the ORG had no observations to make .", "ORG On DATE counsel for PERSON filed supplementary documents and observations , which were communicated to the ORG and ORG on DATE .", "On DATE the ORG submitted further observations , which the PERSON sent to the applicant and ORG on DATE ." ]

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[ "Nicole Van Geyseghem , a nursery nurse born in DATE , is a NORP citizen . At the time of lodging her application , she was living in GPE ( GPE ) .", "The applicant and CARDINAL others were prosecuted for importing drugs from GPE on QUANTITY occasions DATE and DATE , including QUANTITY of cocaine on DATE , the date on which the applicant was arrested .", "On DATE ORG convicted the applicant in absentia ( she had failed to appear even though she had been properly served with a summons ) and sentenced her to DATE imprisonment and a fine of MONEY ( BEF ) . The court also ordered her immediate arrest on the ground that there was reason to believe that she would attempt to evade enforcement of her sentence .", "On DATE PERSON applied to the same court to set aside its judgment .", "She attended the hearing of her application . On DATE ORG , after adversarial proceedings , sentenced her to DATE imprisonment and a fine of CARDINAL . The court held that there was no need to order the applicant ’s immediate arrest as there was no cause to fear that she would attempt to evade enforcement of her sentence .", "On DATE both the applicant and the prosecution appealed .", "Although the summons to appear had been served on her in accordance with the proper procedure , PERSON did not attend the appeal hearing and neither did a lawyer on her behalf . On DATE ORG , ruling in the applicant ’s absence , upheld the judgment of DATE in its entirety . It also ordered the applicant ’s immediate arrest on the ground that there was reason to believe that she would attempt to evade enforcement of her sentence in view of its length and of the fact that she had failed to appear both at the appeal hearing and at the original trial .", "On DATE the applicant applied to set aside ORG judgment . Her application was served on the prosecution by means of a bailiff ’s writ , in which the hearing was set down for CARDINAL DATE .", "The applicant did not attend the hearing in person . Her counsel , Mr PERSON , appeared and , relying on LAW ( see paragraph CARDINAL below ) , stated that he was representing his client and would be making submissions to the effect that the prosecution had become time - barred between the delivery of ORG judgment in absentia and the date on which the application to set it aside was to be heard by ORG . The court refused PERSON counsel leave to address it and make submissions on his client ’s behalf . At counsel ’s request , the following was entered in the record of the hearing of CARDINAL DATE :", "“ The ORG refuses PERSON , of ORG , leave to represent the appellant and to make submissions on her behalf to the effect that the prosecution is time - barred . ”", "In a judgment of CARDINAL DATE ORG declared the application void on the following grounds :", "“ Although the application has been filed in the proper form and within the statutory time , the appellant has failed to attend the hearing on the date set by her and has not adduced any evidence of force majeure preventing her from attending in person . ”", "The applicant lodged an appeal on points of law against the judgment of DATE . In her pleading she argued that ORG refusal to grant her counsel leave to make submissions on her behalf had infringed her defence rights and LAW , which provides that the accused may appear by counsel “ where the hearing concerns only an objection [ or ] a matter unconnected with the merits of the case … ” . In written submissions of DATE summarising his address , the applicant ’s counsel referred to ORG judgment in the LOC v. GPE case ( DATE , Series A no . CARDINAL-A ) .", "ORG dismissed her appeal in a judgment of CARDINAL DATE in the following terms :", "“ The appellant submits that her counsel attended the hearing and that ORG , in refusing him leave to represent her and make submissions on her behalf to the effect that the prosecution was time - barred – that is , to raise ‘ an objection unconnected with the merits of the ORG – infringed Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure and the general principle of law which requires that the rights of the defence be respected ;", "Where a trial or appeal court is dealing with charges which may attract a custodial sentence as the principal sentence , paragraph CARDINAL of the above - mentioned LAW allows an accused to appear by counsel only ‘ where the hearing concerns an objection , a matter unconnected with the merits of the case or the civil interests’ ;", "Within the meaning of that provision , a claim that an action is time - barred is neither an objection nor a matter unconnected with the merits ;", "The ground of appeal has no basis in law . ”", "The relevant Articles of the Code of Criminal Procedure read as follows :", "“ CARDINAL . The party claiming civil damages and the party liable to pay such damages shall attend the hearing or appear by counsel .", "The accused shall attend the hearing . However , the accused may appear by counsel in the case of minor offences which do not attract a custodial sentence or where the hearing concerns an objection , a matter unconnected with the merits of the case or the civil interests .", "ORG may still grant leave for the accused to appear by counsel where he provides evidence that he is unable to attend .", "NORP In any event , ORG may order the accused to attend . No appeal shall lie against such a decision .", "The judgment in which the accused is ordered to attend shall be served on the party concerned on an application by the prosecution , together with a summons to attend on the date determined by ORG . Where the accused fails to attend , the court shall determine the matter in his absence . ”", "“ If the accused fails to attend the hearing , he shall be tried in his absence . ”", "“ An accused who is convicted in his absence may lodge an application to set aside the judgment within DATE of the date on which it was served on him . ”", "“ An application to set aside shall automatically be effective as a summons to attend the first hearing following the expiry of DATE , or DATE where the party lodging the application is in custody .", "The application shall be void if the party who lodged it fails to attend the hearing . Save as hereinafter provided , no appeal by the party who lodged the application to set aside shall lie against ORG ruling .", "Where appropriate , the court may make an interim award . Such an award shall be enforceable notwithstanding an appeal . ”", "“ A judgment on appeal delivered in absentia may be challenged by means of an application to set aside made under the same procedure and within the same time - limits as a judgment delivered in absentia by ORG .", "The application shall automatically be effective as a summons to attend the first hearing following the expiry of DATE , or DATE where the party lodging the application is in custody .", "The application to set aside shall be void if the party who lodged it fails to attend the hearing . No appeal by the party who lodged the application shall lie against ORG ruling other than an appeal on points of law to ORG . ”", "“ The provisions of the preceding ORG which relate to the formalities of judicial investigations , the nature of evidence , the form , authenticity and signature of final judgments delivered at first instance , orders to pay costs and the penalties applicable under those Articles shall also apply to judgments delivered on appeal . ”", "Where an application to set aside has been declared void on the ground that the applicant failed to attend the hearing , the judgment which records the fact will itself be a judgment given in absentia . If the applicant again fails to attend the hearing , a second application by him to set aside will be inadmissible , in accordance with the maxim “ opposition sur opposition ne vaut ” ( an application to set aside a judgment delivered in absentia on an application to set aside an earlier judgment delivered in absentia is ineffective ) . Were the convicted person able to lodge a further application to set aside the decision of the court which refused in absentia his application to set aside an initial decision also delivered in absentia , he could , by failing to attend and lodging one application after another , indefinitely hinder the enforcement of any conviction and thus paralyse the administration of justice ." ]

[ "6" ]

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

[ "6-3-c" ]

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[ "The applicant , Mr PERSON , is a NORP national who lives in PERSON . He was represented before the ORG by PERSON , a lawyer practising in GPE .", "The applicant ’s fiancée died in DATE after having given birth to the couple ’s second child .", "The applicant ’s and the deceased ’s children claimed damages from the gynaecologist ( “ the respondent ” ) who had performed a caesarean section on the deceased prior to her death ; the case was settled before ORG .", "The applicant also claimed damages from the respondent .", "On DATE ORG dismissed the claim . It held that the applicant could not claim damages from the respondent pursuant to LAW ( see “ Relevant domestic law ” ) because the deceased had not been obliged by law to provide maintenance to the applicant . Section CARDINAL(CARDINAL ) of LAW could furthermore not be applied analogously to fill a lacuna in the law . The situation of partners living together out of wedlock , even if they raised their children together , was not comparable to that of spouses . Unlike spouses they were not obliged by law to provide maintenance to one another . The legislator had also been aware of calls for a widening of the application of Section CARDINAL(CARDINAL ) of LAW to other forms of partnership but had repeatedly refused to do so .", "On DATE ORG informed the parties of its intention to dismiss the applicant ’s appeal for the reasons given by ORG . On DATE ORG dismissed the appeal and noted that Section CARDINAL(CARDINAL ) of LAW was not linked to the notion of family but to the existence of an obligation by law to provide maintenance .", "On DATE ORG refused to admit the applicant ’s constitutional complaint for adjudication ( no . CARDINAL BvR CARDINAL/CARDINAL ) .", "Section CARDINAL(CARDINAL ) of the Civil Code provides that the person responsible for the death of a person must pay a third person damages by payment of an annuity for the presumed duration of the deceased ’s life to the extent that the deceased would have been obliged to provide maintenance to the third person under the conditions that the deceased , at the time of the injury , was obliged or might become obliged by law to provide maintenance to the third person and if the third person has as a result of the death been deprived of his right to maintenance .", "An obligation by law to provide maintenance exists between lineal relatives ( Section CARDINAL of LAW ) , spouses ( Sections CARDINAL et seqq . of LAW ) , former spouses following a divorce ( Sections CARDINAL et seqq . of LAW ) and partners of registered same - sex partnerships ( LAW ) ." ]

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[ "The applicant was born in DATE and lives in ORG . He is the owner of a property known as “ Humanisten CARDINAL ” located in the city of PERSON , in the south of GPE . On the property there is a CARDINAL - family house , which was built in DATE .", "The applicant inherited the property from his father , who died in DATE . The area where the property is located was regulated by a city plan ( stadsplan ) which , in accordance with the provisional regulations under the new FAC of DATE ( Plan- och Bygglagen , - hereinafter “ the DATE LAW ) , became valid as a detailed development plan ( detaljplan ) . In order to facilitate the implementation of the detailed development plan , a more specific “ property plan ” ( fastighetsplan ) was adopted with respect to Humanisten CARDINAL .", "The applicant ’s late father had applied on DATE to ORG ( byggnadsnämnden ) of PERSON for tentative approval ( förhandsbesked ) of a plan to divide FAC and build a new CARDINAL - family house . The purpose of such an approval , issued LAW , section CARDINAL of GPE , was to give a property owner who was planning a building project for which the grant of a building permit was uncertain the possibility to obtain an advance assessment of whether the planned measures may be permitted at all , thereby avoiding unnecessary project work and costs . In assessing an application for a building permit made within DATE after the grant of tentative approval , ORG was bound by the determinations made in that approval .", "According to the detailed development plan in force , CARDINAL main building was allowed on the existing property plot ( the applicant ’s plot corresponded to his property ) . The request for tentative approval was motivated by the father ’s wish to build a house suited to his age , as he had difficulties in walking up and down the stairs of his current home .", "NORP In DATE ORG decided to postpone its reply to the request until a new detailed development plan for the area had acquired legal force , but only until DATE . Subsequently , on DATE FAC Director ( PERSON ) adopted a new detailed development plan for Humanisten CARDINAL by which a division of the property was prohibited . Accordingly , ORG , on DATE , informed the applicant that he could not expect to be granted a building permit for a new CARDINAL - family house and therefore did not give tentative approval for the project .", "As the new owner of the property , the applicant appealed against both decisions to ORG ( länsstyrelsen , - hereinafter “ the Board ” ) of GPE , claiming that FAC Director had not been competent to adopt a new detailed development plan since the plan was contentious . He claimed that the refusal to grant tentative approval was also based on false assumptions . On DATE the ORG , which agreed with the applicant , quashed the City Building Director ’s decision to adopt the plan and , on DATE , quashed ORG decision and remitted the matter to ORG for a new examination .", "On DATE ORG granted the applicant a tentative approval , referring to his father ’s initial application ( of DATE ) for a tentative approval of a plan to divide the plot – Humanisten DATE and to build a new CARDINAL - family house . The decision moreover referred to ORG decision ( of CARDINAL DATE ) to quash the detailed development plan and the earlier refusal of a tentative approval . Without expressing any conditions or reservations , the decision stated that the applicant could expect a building permit for a new CARDINAL - family house and that this applied provided that an application for a building permit was submitted to ORG within DATE from the date of the decision . Finally , it stated that the tentative approval did not imply a right for the applicant to start the construction .", "ORG referred the matter to the Land Survey ( lantmäteri ) of PERSON to prepare the question of the division of the plot ( tomtdelning ) .", "On DATE the applicant applied for a building permit . After the matter had been considered by the relevant road network and energy authorities , the applicant submitted new plans on DATE . It appears that those proceedings were at a standstill until DATE ( see section CARDINAL below ) .", "At DATE the Land Survey recommended that the property plan for DATE be repealed in order to facilitate a division of the property enabling the applicant to construct a new house on the resulting new plot . The Land Survey observed that ORG had , with binding effect , made the assessment that the addition of a new CARDINAL - family house would be consistent with the detailed development plan . A new property plan would not be required ; repeal of the existing property plan would be sufficient and the division of the property would be consistent with the detailed development plan and be suitable for its purpose .", "Several of the applicant ’s neighbours opposed the measure with reference to the special character of the neighbourhood .", "On DATE the ORG followed ORG suggestion and repealed the property plan for DATE .", "NORP The owners of CARDINAL neighbouring properties appealed against the decision to ORG , claiming that the neighbourhood was worthy of preservation due to its special character and that new buildings would spoil the area . ORG visited the area before deciding on DATE to reject the appeal .", "The neighbours appealed to the Government , invoking the same grounds as before ORG . The applicant also submitted his observations . On DATE the Government quashed the ORG ’s decision to repeal the property plan with , inter alia , the following reasoning :", "“ The Government find that the decision to repeal the property plan for DATE ought to be considered in its context , namely to make possible a division of the property with the intention of constructing CARDINAL more family house .", "The Government observe that the entire block has long been occupied by buildings in accordance with the city plan and plot divisions . The block has CARDINAL plots , the sizes of which vary between CARDINAL GPE and TIME . .... The Government find that the concentration which will be the result if CARDINAL , DATE FAC , were to be divided into CARDINAL properties and a new building were to be constructed , involves a not inconsiderable change to the ORG immediate surroundings . Nor can such a change be considered to comply with the shape that the block has been given through the city plan and the plot divisions . .... The Government thus find that the suitability of the intended change of the property and the development conditions within the block ought to be examined through a new detailed development plan for the area in which the size and situation of the buildings can also be regulated to a sufficient extent . In view of this and everything else which has emerged in the case , the Government find that the decision to repeal the property plan should be quashed . ”", "The applicant applied to ORG ( Regeringsrätten ) for judicial review under LAW on ORG ( ORG om rättsprövning av vissa förvaltningsbeslut - hereinafter “ the DATE LAW ) , submitting that , since ORG tentative approval was binding on the examination of an application for a building permit , it effectively precluded an examination on the merits in the present case . Moreover , as ORG had previously considered the suitability of dividing the property when it granted the tentative approval , it was not legally correct of the Government to consider the suitability yet again . The Government ’s conclusion that the case should be reviewed through a new detailed development plan therefore lacked a legal basis .", "The applicant further requested that an oral hearing be held in the case . In a decision of CARDINAL DATE ORG refused the applicant ’s request on the ground that the case could be examined and decided without holding an oral hearing . The applicant was given DATE to submit additional written observations .", "On DATE ORG , unanimously , found that the ORG ’s decision was not unlawful and confirmed it . The court held :", "“ According to section CARDINAL of the [ CARDINAL Act ] ORG must examine if the Government’", "According to LAW , section CARDINAL , of the [ CARDINAL Act ] land may only be used for development if it is , from a public interest point of view , suitable for its purpose . The conditions on which an examination of suitability should be carried out through the adoption of a detailed development plan - and not solely in a matter concerning a building permit or a tentative approval - are specified in LAW , section CARDINAL , paragraph CARDINAL , of the [ CARDINAL Act ] . Thus , according to point CARDINAL of the aforementioned provision , a detailed development plan becomes relevant when a new single building is to be constructed , the use of which will have significant influence on its surroundings . The ORG ’s assessment that the suitability of the intended change of the property and the development conditions within the block ORG ought to be reviewed through a new detailed development plan for the area , is within the scope of jurisdiction of the authorities in planning matters . Hence , ORG finds that the decision to quash the lower instances’ decisions regarding the property plan does not conflict with any legal rule in the manner claimed by the applicant . Nor does the examination show that the decision , in any other manner , is contrary to any legal rule . It should therefore be upheld . ”", "A request by the applicant for re - opening of the case was refused by ORG on DATE .", "In the meantime , ORG , in DATE , adopted an amended detailed development plan which effectively prohibited a division of the applicant ’s property , and the construction of another building on it . Upon appeal , the ORG quashed the decision on the ground that it should have been decided by ORG ( kommunfullmäktige ) of PERSON . After renewed examination by ORG , it adopted the detailed development plan on DATE . The applicant appealed against the decision to ORG , which on DATE upheld the ORG ’s decision . It found that the public interest in protecting the cultural heritage of the neighbourhood outweighed the applicant ’s private interest . The applicant made a further appeal to the ORG , which was rejected on DATE .", "On DATE , after ORG had given its opinion and the applicant had commented , ORG decided to reject his request of DATE for a building permit .", "On DATE , the applicant appealed against the above decision to ORG . On DATE , after having granted the applicant several postponements from CARDINAL DATE to DATE , the ORG quashed the ORG ’s rejection and referred the matter back for a new consideration .", "On DATE ORG served ORG decision of DATE to grant the applicant tentative approval on the applicant ’s neighbours , several of whom brought proceedings in DATE to have the measure quashed . They claimed that , although they were affected by the decision , ORG had failed to hear them in the case or inform them about the decision .", "In a decision of DATE , the ORG first found that the neighbours were entitled to appeal against the tentative approval and was satisfied that they had done so within the required time - limit . Although they ought to have been aware of the tentative approval in connection with the property plan issue , the decision had been formally served or notified to them only in DATE . ORG quashed ORG DATE decision on the grounds that the tentative approval was contrary to the existing property plan and detailed development plan and the neighbours should have been given the opportunity to express their views on the matter before it was decided .", "On DATE ORG appealed against ORG above - mentioned decision of DATE to ORG ( länsrätten ) of GPE . The applicant obtained extensions of time - limits for filing his written submissions in DATE and DATE , and in DATE he asked the court to give priority to the case .", "Following the Board ’s above - mentioned decision of DATE on the tentative approval , the applicant appealed against this decision to ORG . The latter granted him CARDINAL extensions DATE and DATE of the time - limits for specifying his appeal grounds .", "ORG examined both of the above appeals concurrently and on DATE it delivered CARDINAL judgments , CARDINAL on each appeal .", "In the first judgment ORG rejected the applicant ’s appeal and upheld the ORG ’s reasoning .", "In the second judgment it held that , since it had confirmed the ORG ’s decision , there no longer existed a tentative approval which was binding on ORG . Consequently , the ORG ’s appeal against the ORG ’s decision of CARDINAL DATE should be granted and the matter referred back to ORG for further consideration .", "In DATE the applicant appealed against both judgments to ORG ( kammarrätten ) in GPE .", "In the appeal concerning the tentative approval , ORG granted him CARDINAL extensions until DATE for the submission of his appeal grounds . As to his appeal concerning the building permit , the applicant was granted CARDINAL such extensions , also until DATE .", "In CARDINAL separate decisions of DATE , ORG refused the applicant leave to appeal in each case .", "In DATE and DATE the applicant appealed to ORG .", "The latter granted him numerous extensions until DATE of the time - limits for filing written submissions on the appeal concerning the building permit . On DATE ORG ordered him to complete his submissions .", "Concurrently with the above , he was also granted a number of extensions for the filing of his appeal submissions , until DATE in the case concerning the tentative approval . On that date ORG ordered him to complete his observations .", "In respect of both appeals , reminders were served on him in DATE .", "On DATE ORG refused the applicant leave to appeal in both cases .", "In separate proceedings in DATE , the applicant requested ORG ( tingsrätten ) of PERSON to declare that GPE was liable to pay him compensation for both actual and potential damage caused by the GPE ’s refusal to grant his request for a building permit despite having granted him an unconditional tentative approval which was binding . The GPE denied responsibility .", "By judgment of CARDINAL DATE ORG declared that the GPE was liable to compensate the applicant for both actual and potential damage caused by its refusal to grant the applicant a building permit . The LOC was further liable to pay his legal costs . ORG took note of the LOC ’s argument that the tentative approval was conditional upon an amendment to the property plan , and that the applicant was aware of the need to modify the property plan and ought to have understood that the positive tentative approval did not mean that he would be able to build without an amendment to the property plan . In the view of ORG the fact that a claimant was aware that an amendment to the property plan was needed in order to grant a building permit did not dispense ORG from specifically reviewing and justifying its position as to whether the desired measure was authorised by existing plans . What the applicant may have known about existing plans was therefore of no significance in this context . Since the applicable plans did not allow the grant of a building permit and since an amendment to the plan could not be a condition attached to a tentative approval , such approval should not have been granted . Nor was such knowledge significant for the assessment of his application for a building permit , refused on DATE . On the whole , the refusal was erroneous . ORG found that ORG had disregarded a clear and unambiguous provision in GPE , i.e. LAW DATE , which stated that a tentative approval was binding if an application for a building permit was made within DATE from the date on which the tentative approval was granted . Moreover , ORG found it remarkable that ORG had taken CARDINAL years to reject the request for a building permit since the average time to process such a request was DATE , according to testimony given by the city architect . Thus , the court considered that ORG handling of the case had involved such fault and neglect in its exercise of public authority that the Municipality was liable to pay compensation .", "The GPE appealed to ORG ( hovrätten ) of GPE and PERSON , which on DATE upheld the lower court ’s judgment in full . As no further appeal was lodged , ORG judgment acquired legal force on DATE .", "In DATE the applicant , invoking the above declaratory judgment , instituted civil proceedings against the GPE requesting compensation in an amount of SEK CARDINAL,CARDINAL,CARDINAL for the damage he had suffered due to the refusal to grant him the building permit . He claimed that this damage corresponded to the market value of the part of his property upon which he would have built the house . GPE contested the request .", "In a judgment of DATE , ORG noted that the proceedings relating to the building permit were still pending and that it was improbable that he would be granted such a permit . However , even if he were to be granted a permit , the decision would most likely be quashed on appeal . Thus , it rejected the applicant ’s claim on the ground that he had not shown that he had suffered any actual damage as a consequence of the GPE ’s fault and neglect . The applicant appealed against the judgment to ORG .", "By a judgment of DATE , ORG upheld ORG judgment of DATE , sharing the latter ’s view that the applicant had failed to show that a building permit granted by the ORG would have stood after the review by higher instances . The LOC could reasonably argue that the question of damage could not therefore be assessed only on the basis of the fact that the LOC was formally obliged to grant the applicant a building permit . It found that the applicant had not been able to demonstrate that the consideration of his application for a tentative approval by GPE , while blameworthy , had led to his being denied a definite right to divide and build a new house on his property . Nor had he demonstrated that the GPE ’s handling of his case had caused the damage for which he had claimed compensation .", "The applicant appealed against the judgment to ORG , which on DATE refused the applicant leave to appeal .", "The CARDINAL Act entered into force on DATE and contains provisions about the planning of land and water areas as well as buildings . Their purpose is to promote the development of a society characterised by equal and good living conditions for people DATE and for future generations , whilst having due regard to the freedom of the individual ( LAW , section CARDINAL ) .", "The provisions of LAW which are relevant to the present case read as follows :", "“ LAW provisions", "Section CARDINAL", "When issues are examined in accordance with this LAW , consideration shall be given to both public and private interests unless otherwise provided .", "Section CARDINAL", "Land shall only be used for development if it is suitable for this purpose from the public interest point of view . The examination of suitability is carried out in connection with a planning procedure or during the examination of an application for a building permit or tentative approval ....", "LAW development plans and area regulations", "Section CARDINAL", "The examination of the suitability of the site for development and the regulation of the manner of design of the area of construction are to be carried out in accordance with a detailed development plan , which applies to", "new continuous developments ;", "NORP new individual buildings , the use of which will have significant impact on the surroundings or which are to be located in an area where there is considerable demand for building sites , or where the examination of the proposed building can not be carried out in connection with the review of the application for a building permit or tentative approval ....", "LAW permit , demolition permit and land permit", "Section CARDINAL", "Upon application , the ORG shall give tentative approval for a particular measure , requiring a building permit , to be permitted on a designated site .", "When a tentative approval is granted , it shall contain the necessary conditions . The tentative approval is binding if an application for a building permit is made within DATE from the date when the tentative approval was granted .", "If an application for a building permit is not made within the time specified in the second paragraph , the tentative approval will cease to be valid . ... ”", "The CARDINAL Act was introduced as a result of ORG Rights’ findings in several cases , notably against GPE , that lack of judicial review of certain administrative decisions infringed LAW . It was enacted as a temporary law to remain in force until DATE ; its validity has subsequently been extended , as from DATE without any limitation in time .", "Pursuant to section CARDINAL of this LAW , a person who has been a party to administrative proceedings before the ORG or any other public authority may , in the absence of any other remedy , apply to ORG , as the first and only court , for review of any decisions in the case which involve the exercise of public authority vis - à - vis a private individual . The kinds of administrative decisions covered by the LAW are further defined in LAW , sections CARDINAL of ORG ( regeringsformen ) , to which section CARDINAL of the DATE LAW . LAW specifies several types of decisions falling outside its scope , none of which is relevant in the instant case .", "In proceedings brought under LAW , ORG examines whether the contested decision “ conflicts with any legal rule ” ( section CARDINAL of the DATE Act ) . According to the preparatory work to the LAW , as reproduced in Government PERSON ( DATE ) , its review of the merits of the cases concerns essentially questions of law but may , in so far as relevant for the application of the law , extend also to factual issues ; it must also consider whether there are any procedural errors which may have affected the outcome of the case .", "If ORG finds that the impugned decision is unlawful , it must quash it and , where necessary , refer the case back to the relevant administrative authority .", "The procedure before ORG is governed by LAW DATE ( förvaltningsprocesslagen ) . It is in principle a written procedure , but ORG could decide to hold an oral hearing on specific matters if this was likely to assist it in its examination of the case or to expedite the proceedings ( section CARDINAL ) . As from DATE ( CARDINAL ) , section CARDINAL of the CARDINAL Act provides :", "“ The [ Supreme Administrative ] Court shall hold an oral hearing if this has been requested by the person seeking judicial review and it is not manifestly unnecessary . ”" ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Ms PERSON ORG , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by PERSON PERSON Włoch , a lawyer practising in GPE , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested on charges of trafficking in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code of DATE , then in force .", "On DATE ORG ordered her detention on remand . On DATE the applicant was released under police supervision .", "On DATE ORG lodged a bill of indictment against the applicant and CARDINAL other persons . The applicant was charged with trafficking in children and perjury .", "On DATE ORG discontinued part of the charges against the applicant . On DATE ORG gave a decision and discontinued the criminal proceedings against the applicant and against her coaccused in so far as they concerned charges under Article ORG .", "The prosecutor and the applicant appealed .", "On DATE ORG , partly amended the contested decision . On DATE ORG acquitted the applicant of the remaining charges of perjury . The prosecutor appealed .", "The proceedings were terminated on DATE by ORG . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL ( dec . ) , § § CARDINAL , ECHR CARDINAL-V and Ratajczyk v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of PERSON v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINAL-V." ]

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[ "The applicant , an NORP national born in DATE , is at present in custody in FAC on the island of GPE ( GPE ) .", "He was arrested by the NORP police on DATE , released on CARDINAL May and arrested again on DATE on a charge of having abducted and murdered a CARDINAL-year - old NORP girl , PERSON , in Genoa on DATE It was alleged that he had hidden the body and tried to extort a ransom of MONEY from the victim 's father , an industrialist . He was also charged with indecency and indecent assault with violence on CARDINAL women .", "On DATE , after DATE of hearings largely taken up by the evidence of CARDINAL witnesses , ORG sentenced him to DATE and DATE imprisonment for offences relating to one of the QUANTITY women ( the time spent in detention being reckoned as part of the sentence ) . He was acquitted of the other crimes with which he was charged , in particular the abduction of PERSON and its sequel , for lack of evidence ; and he was accordingly released .", "The prosecution appealed to ORG of Appeal against the judgment ( which ran to CARDINAL pages ) . The hearing was set down for on DATE but had to be adjourned , because the defence challenged the presiding judge , alleging that he had publicly stated his conviction that Mr. PERSON was guilty . The appeal proceedings commenced on DATE after this challenge had been rejected by ORG , but the accused applied for an adjournment . On the evidence of a medical certificate , he claimed that he was in hospital being treated for renal colic and was thus unable to appear . The court found that he was deliberately refusing to appear ( contumace ) and proceeded with the hearing . Thereupon the defence entered a fresh challenge in respect of the presiding judge and lodged an objection impugning ORG on grounds of bias ; the challenge and the objection were dismissed by ORG on DATE . In the absence of the applicant , the proceedings then resumed before ORG , which refused to hear some of the defence witnesses . Considering that they could no longer perform their duties in these circumstances , the applicant 's principal counsel withdrew from the case , and the defence was from then on conducted by a single lawyer who had been instructed not long before .", "On DATE , ORG , giving judgment in absentia , sentenced Mr. PERSON to life imprisonment ( ergastolo ) for the crimes relating to PERSON and to DATE imprisonment for the other crimes ; the court held that there were no extenuating circumstances .", "ORG On DATE , ORG dismissed the applicant 's appeal on points of law against this judgment , whereupon the public prosecutor 's office in Genoa issued a committal order , on DATE , and the NORP police circulated an international arrest warrant , DATE .", "ORG Mr. PERSON had in fact taken refuge in GPE , at first living on LOC and then in central GPE . He assumed the ( false ) identity of PERSON - at any rate after a certain time .", "ORG On DATE , the NORP gendarmerie arrested him in the course of a routine check in the département of ORG and on DATE he was taken into custody at FAC ( GPE - Vienne ) pending extradition proceedings . He was served with the document authorising his arrest and the documents produced in support of the extradition request , and the public prosecutor attached to at ORG examined him under LAW ) of LAW of DATE ( \" LAW \" ) . On DATE , GPE officially applied to GPE for his extradition under a bilateral treaty of CARDINAL DATE .", "ORG On DATE , ORG of ORG , to which the case had been submitted in accordance with section DATE CARDINAL Act , ruled against extradition after hearing the public prosecutor , the applicant 's counsel and the applicant himself . It found that the request was in order as far as the DATE treaty and LAW were concerned but held that the NORP procedure for trial in absentia , which had been followed in this case by ORG , was incompatible with NORP public policy ( ordre public ) , because even in respect of indictable offences ( and not just of lesser ones ) it was possible under that procedure to pass an enforceable sentence on an accused who had not appeared in person before the court , without the adversarial proceedings which formed the basis of NORP criminal procedure and without any provision for making a retrial obligatory .", "By virtue of LAW , this negative ruling was final and binding on ORG , which accordingly declined to extradite the applicant .", "ORG Mr. PERSON nonetheless remained in prison at GPE , because he had been charged in GPE with fraud and with forgery and falsification of administrative documents and use thereof .", "On DATE , the investigating judge found that ORG seemed to have acted merely as an executing agent and not to have planned and directed the frauds with which he was charged ; the details which he had \" preferred not to reveal \" related to the circumstances at the beginning of his residence and not to the matters in issue ; there were a considerable number of extentuating circumstances in connection with the making of the false identity documents ; it was no longer necessary to keep him in prison in order to ascertain the truth , but on account of his \" special administrative position \" he had to be placed under judicial supervision . The investigating judge therefore ordered his release on bail of MONEY and subject to certain conditions .", "The public prosecutor 's office appealed against this order , but ORG of ORG upheld it on DATE . DATE , despite the prosecution 's opposition , the investigating judge had decided that there were no grounds for keeping Mr. PERSON in custody .", "ORG The applicant was immediately released . He has claimed that on DATE , DATE , he applied for a residence permit at ORG but was refused an acknowledgment of receipt of this application . The Government have stated that there is no trace of this application in the official archives , but they have not denied that it was made . At all events , Mr. PERSON 's lawyer in GPE wrote to the Prefect on DATE in support of his client 's course of action .", "For its part , the NORP consulate - general in GPE had stated on DATE - without giving any reasons - that it was unable for the time being to provide the applicant with an identity document ; this was in reply to a letter sent to it DATE by another lawyer acting for the applicant , who was a member of ORG .", "On DATE , the investigating judge issued a discharge order in respect of the fraud charge , an order terminating judicial supervision , and an order committing the applicant for trial at ORG on charges of forging and falsifying administrative documents and using false identity documents ( contrary to GPE and CARDINAL of LAW ) .", "ORG The account given hereafter in DATE , DATE and CARDINAL is based mainly on information and documents supplied to the ORG and , subsequently , to the ORG by Mr. PERSON 's lawyers . The Government have not formally challenged its accuracy , but they have expressed reservations in respect of CARDINAL or CARDINAL matters ; they acknowledge , however , that they can not be certain or adduce any evidence to the contrary .", "ORG On TIME of DATE , at TIME , CARDINAL plain - clothes policemen , CARDINAL of whom was armed , stopped Mr. PERSON as he was returning home after an interview with his GPE lawyer and ordered him to follow them . When he protested , they seized him and forced him to get into an unmarked car . He was handcuffed and driven to GPE police headquarters . There CARDINAL other men arrived shortly afterwards who said they had come specially from GPE ; they served him with a deportation order ( without giving him a copy ) .", "ORG This order , which had been made DATE - on DATE - by the Minister of the Interior at the instance of the Prefect of Haute - Vienne and was signed by ORG , read as follows :", "\" THE MINISTER OF THE INTERIOR", "Having regard to LAW ,", "Having regard to the Decree of DATE ,", "Having regard to information obtained concerning PERSON , born on DATE in ORG ( GPE ) ;", "Deeming that the presence of the above - mentioned alien on NORP territory is likely to jeopardise public order ( ordre public ) ,", "BY THIS ORDER REQUIRES :", "the above - named to leave NORP territory ;", "the Prefects to execute this order .", "GPE , DATE . \"", "ORG The applicant refused to sign a police report stating that he complied with this decision of his own free will . On the contrary , he emphatically opposed deportation and demanded to be brought before ORG provided for in LAW DATE .", "He was told that this was out of the question and that he was going to be taken at once to GPE ( and not to the NORP border , which was the nearest frontier ) . Accordingly , without first being ordered to leave GPE for a country of his choice or being allowed to inform his wife or his lawyer , he was forced to get into an unmarked ORG and sit , still handcuffed , between CARDINAL police officers . At TIME the car left for ORG , preceded by a police car which led the way . It reached the frontier near ORG on DATE in TIME . At first it was unable to cross ; after a long telephone conversation between the officer in charge of the NORP policemen and the NORP authorities , it proceeded to the NORP customs post at GPE .", "After a further telephone conversation , there appeared an unmarked Opel with a NORP number plate , and a NORP policeman got out . He put other handcuffs on Mr. PERSON , who was made to sit on the back seat between this policeman and a NORP one . The Opel entered GPE at TIME , escorted by the ORG with the other CARDINAL NORP policemen aboard . The QUANTITY vehicles drove to the police station in FAC in GPE .", "The applicant , who had no identity papers , was informed at TIME that GPE was requesting his extradition . He was then provisionally taken into custody at FAC , as had been requested that DATE by ORG when it informed the GPE police that the diplomatic request would be arriving shortly .", "As early as DATE and DATE , ORG had telexed several GPE , including GPE , to inform them that Mr. PERSON would shortly be deported from GPE . The documents later supplied by GPE in support of its request were dated DATE , a DATE .", "ORG In DATE , GPE , to which GPE is bound by LAW DATE , had requested GPE to extradite the applicant , and the latter 's name had accordingly been recorded in ORG ( PERSON suisse de police ) of DATE as being the subject of a \" warrant for arrest pending extradition proceedings \" .", "Mr. PERSON was extradited to GPE on DATE after ORG had rejected his objection on DATE . He is currently serving his sentence in FAC on the island of GPE , as NORP law - unlike the NORP system - makes no provision for obligatory retrial after proceedings in absentia ( cf . LAW ) . It appears that he has never ceased to claim that he is innocent of the appalling crime of which he was convicted , but unless he is given a retrial ( revisione ) or a pardon , he will not be eligible for release ( on parole ) until DATE .", "ORG On DATE and DATE , Mr. PERSON 's lawyer had had recourse to CARDINAL remedies in GPE .", "ORG In the first place , they summoned the Minister of the ORG to appear in urgent proceedings before the presiding judge of the GPE tribunal de grande instance on DATE .", "According to them , the \" operation \" carried out on TIME DATE had CARDINAL major defects , any CARDINAL of which was sufficient to classify it as arbitrary and thus constituting a flagrantly unlawful act ( voie de fait ) . Mr. PERSON 's \" brutal arrest \" was obviously a vital stage in the execution of the deportation order but could not be justified by the order because it had preceded notification of the order . The authorities could not prove that the execution of the administrative act had met with definite resistance or at least obvious unwillingness to comply : they had quite simply not left the applicant \" any time to do anything at all \" , and in any case it would have been in his interests to comply voluntarily so as to be able to choose the country in which he would take refuge . Finally and most importantly , the executive had no automatic right of enforcement in this matter .", "Furthermore , there was the flagrant unlawfulness of the order itself . It was contrary to the decisions to release the applicant and to discharge the judicial supervision order that had been taken by the investigating judicial authorities on DATE and DATE , and to the negative ruling of CARDINAL DATE by ORG of ORG ( see paragraph CARDINAL above ) ; and in choosing GPE out of CARDINAL neighbouring countries , against the applicant 's will , the authorities knew that they were handing him over to ORG most likely to extradite him to GPE , owing to the existence of an extradition agreement between GPE and GPE and the nationality of the murdered girl .", "Mr. PERSON 's lawyers further pointed out that the matter was urgent because ORG was about to take a decision on the NORP extradition request ( see paragraph CARDINAL above ) , and that their client had been improperly removed from the jurisdiction of the NORP courts , seeing that the investigating judge had committed him for trial at ORG on a charge of using false identity documents ( see paragraph CARDINAL above ) .", "They therefore sought an injunction from the presiding judge of the GPE tribunal de grande instance requiring the Minister of the ORG to apply to the appropriate NORP authority , within DATE of the interim order 's being made , for the return of their client .", "ORG In his submissions of CARDINAL DATE , the Minister pointed out that LAW of CARDINAL DATE forbade any interference by the ordinary courts with administrative acts . He drew the inference that the application must be dismissed and the applicant left to take proceedings in the proper courts if he so desired .", "The GPE Commissioner of Police likewise entered a plea in bar alleging want of jurisdiction , which the procureur de la PERSON ( public prosecutor ) argued at the hearing , submitting that the parties should be referred to the administrative court . He too based his argument on LAW and , in addition , LAW of CARDINAL fructidor of DATE , which forbids the courts to deal with administrative acts of any kind whatsoever . There was nothing to prove that the deportation order complained of and its enforcement had amounted to a flagrantly unlawful act , that is to say , that they were manifestly incapable of being related to the application of a statute or regulations . In particular , the investigating judicial authorities ' order for the applicant 's release and their decision to discharge the judicial supervision order did not establish that Mr. PERSON 's presence on the national territory did not constitute a threat to public order . Furthermore , it was in the nature of deportation to be effected by coercion if need be ORG , DATE , ORG périodique DATE ) . As to the negative ruling by ORG of ORG on DATE , it did not forbid taking Mr. PERSON to the NORP frontier , as ORG had agreed to accept him .", "ORG On DATE , the presiding judge of the GPE tribunal de grande instance made an order stating that there were no grounds for hearing the case on an urgent application because the application , \" as it [ put ] relations between GPE in issue , [ was ] not within the jurisdiction of the judge competent to hear urgent applications in the ordinary courts \" . This decision was preceded by reasons which read as follows ( translation from NORP ) :", "\" The various events between ORG 's being apprehended and his being handed over to the NORP police disclose manifest and very serious irregularities both from the point of view of NORP public policy ( ordre public ) and with regard to the rules resulting from application of LAW . Moreover , it is surprising that precisely the NORP border was chosen as the place of deportation although the NORP border is nearer GPE . Lastly , it may be noted that the courts have not been given an opportunity of making a finding as to the possible infringements of the deportation order issued against him , because as soon as the order was served on him , LOC was handed over to the NORP police , despite his protests . The executive thus itself implemented its own decision .", "It therefore appears that this operation consisted , not in a straightforward expulsion on the basis of the deportation order , but in a prearranged handing over to the NORP police ... \"", "ORG The applicant 's lawyers considered that there was no point in appealing . It should be noted in this connection that ORG ( Tribunal des conflits ) has held that even an unlawful decision to deport does not amount to a flagrantly unlawful act and that consequently only the administrative courts have jurisdiction in the matter ( Préfet du Rhône c. Tribunal de grande instance GPE and GPE c. Ministre PERSON , DATE , PERSON , DATE , p. CARDINAL ) .", "ORG On DATE , the applicant 's legal advisers had applied , secondly , to ORG , to have the deportation order of DATE set aside .", "They argued in substance that this had been made by an unauthorised entity as it did not bear the Minister of the ORG 's personal signature . It was \" bad for error of law \" to the extent that it was based on Mr. PERSON 's previous conviction , because ORG of ORG had rejected as being contrary to NORP public policy the conviction in absentia by ORG ( see paragraph CARDINAL above ) . There had also been an abuse of powers , since the matter had been one , not of requiring Mr. PERSON to leave NORP territory , but of handing him over to the country which was more likely than any other to extradite him to GPE ; and a manifest error of judgment , inasmuch as the order complained of was based on the applicant 's behaviour in GPE - the use of a false document had seemed to him to be the only way of escaping prosecution for a crime of which he held he was innocent , and the investigating judge had found that there were a considerable number of extenuating circumstances in relation to the offence ( see paragraph CARDINAL above ) . The authorities should have looked at the whole case to determine whether Mr. PERSON 's presence amounted to a threat to public order . The order complained of had not complied with the provisions of Community law ( LAW and ORG Directive CARDINAL ) . Furthermore , the authorities had disregarded all the formal requirements of Directive CARDINAL and LAW DATE : Mr. PERSON had not been served with a refusal to issue a residence permit , had not been able to submit his observations to ORG , had not been informed of the reasons of public policy on which the administrative decision was based , and had not been given a reasonable period to leave NORP territory . Only urgency could have absolved the executive from its duty to comply with these mandatory rules , but there had been no such urgency in the instant case nor had it been relied on at any time .", "ORG Initially ( DATE ) , the Minister of the ORG opposed this argument , contending , inter alia , that the circumstances in which an administrative decision was executed did not affect the lawfulness of the decision ; but in further pleadings , sent by telegram on DATE , the Minister of the ORG and for ORG stated that he desired to leave the matter to the discretion of the court .", "ORG The court gave judgment on DATE . Without ruling on the other grounds , it held that the Minister of the ORG had committed \" a manifest error of judgment \" and the administrative authorities an \" abuse of powers \" .", "On the first point the judgment read as follows ( translation from NORP ) :", "\" The Minister ... refers to the applicant 's use of false administrative documents and to his behaviour in GPE ;", "The fact of having used false identity documents to enter GPE and reside there can not of itself , in the absence of any aggravating circumstances , be considered as amounting to a threat to public order ;", "It appears from the documents on the file ... that the only factor to which regard was had in respect of the applicant 's behaviour in GPE was a criminal conviction and sentence in absentia ... ; in the absence of any truly adversarial proceedings , the very serious offence of which Mr. PERSON was accused , and which he has always denied , can not be regarded as having been adequately proved ... \"", "The finding that there had been an abuse of powers was based on the following circumstances ( translation from NORP ) :", "\" Whereas the haste with which the impugned decision was enforced , when the individual concerned had not even indicated his refusal to comply , and the choice of the NORP border which was imposed on the individual clearly show the real reason behind the decision : in reality the executive sought , not to expel the applicant from NORP territory , but to hand him over to the NORP authorities via the NORP authorities , with whom GPE had an extradition agreement ; the executive was therefore seeking to circumvent the competent judicial authority 's negative ruling which was binding on ORG ; ... the impugned decision was [ therefore ] an abuse of powers ... \"", "The court accordingly quashed the deportation order .", "The Minister of the ORG and for Decentralisation did not appeal .", "ORG The applicant 's legal advisers had considered it unnecessary to couple their application for the order to be set aside with an application for a stay of its execution . Had they done so , such an application would have had to be made - at that time - to the PERSON d'Etat and not to ORG .", "ORG According to the information provided by the Government , Mr. PERSON was not summoned to appear at ORG on the charges of forging and falsifying administrative documents and uttering false identity documents ( see paragraph CARDINAL above ) . The prosecuting authorities considered that the nature of the offences charged did not justify continuing the proceedings in view of the fact that the accused had been deported ." ]

[ "5" ]

[ "5-1" ]

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[ "Mr Driss PERSON was born in GPE in DATE . He entered GPE at DATE when he joined his father under the family reunion procedure . CARDINAL of his CARDINAL brothers and sisters have NORP nationality .", "When he was DATE the applicant committed a number of criminal offences . On DATE the GPE - en - ORG sentenced him to CARDINAL years’ imprisonment for armed robbery . On CARDINAL DATE ORG sentenced him to CARDINAL months’ imprisonment for robbery .", "When he had served these sentences he was extradited to GPE pursuant to a decree issued in DATE to serve a prison sentence for theft , from CARDINAL DATE to CARDINAL DATE . At the end of that period he returned to GPE and went to live with his parents . He has asserted that he was gainfully employed from DATE to DATE .", "Not having had a valid residence permit since DATE , Mr GPE went to ORG on DATE in order to regularise his situation . On DATE he was informed that deportation proceedings had been commenced against him on account of the convictions pronounced on DATE and QUANTITY DATE .", "On DATE the Minister of the ORG made the following order against the applicant :", "“ Having regard to sections CARDINAL of Ordinance no . CARDINAL of DATE , as amended , concerning the conditions of entry and residence of aliens in GPE ,", "Having regard to Decree no . CARDINAL - CARDINAL of CARDINAL DATE ,", "Whereas PERSON , born on DATE at GPE ( GPE ) , committed in DATE the offences of attempted robbery , armed robbery and receiving stolen goods ,", "ORG on account of his conduct the presence of the above - named alien in NORP territory constitutes a serious threat to public order ,", "Having regard to the favourable opinion of the board provided for in section CARDINAL of the Ordinance , of CARDINAL DATE ,", "On a proposal by ORG ,", "IT IS HEREBY ORDERED AS FOLLOWS", "Article CARDINAL : the above - named person is enjoined to leave GPE ;", "Article CARDINAL : the Prefect of Police and the Prefects are instructed to serve and execute this order . ”", "On DATE and CARDINAL DATE respectively the applicant applied to ORG for an order quashing the deportation order and an order staying its execution . He relied in particular on his right to respect for his private and family life , as guaranteed by LAW .", "On DATE that court dismissed the applications in the following terms :", "“ The submission based on the failure to give reasons for the impugned decision :", "The submission based on an alleged error of law in the application of LAW of the LAW of DATE :", "...", "Notwithstanding Mr Driss PERSON ’s assertion that he has been lawfully resident in NORP territory since DATE and that when he entered the territory he was DATE , the documents in the case file show that he was extradited , had to leave the territory on CARDINAL DATE and was imprisoned in GPE until DATE . Even though the applicant did not leave NORP territory voluntarily on that occasion , he ceased to be normally resident in GPE within the meaning of section CARDINAL of the above - mentioned GPE . He subsequently returned to GPE and stayed there unlawfully . The fact that he then applied for a residence permit and the assertion that he had received no explicit reply to an application for a residence permit he had made in DATE have no bearing on the fact that he remained in NORP territory unlawfully . It follows that the submission based on a breach of the provisions of the second paragraph of LAW of the LAW fails on factual grounds .", "The submission based on manifest error :", "It does not appear from the documents in the file that the aliens deportation board provided for in LAW or the Minister of the ORG failed to examine all the evidence relating to the applicant ’s conduct and the various aspects of his situation in order to determine whether , after he had committed a number of criminal offences and been sentenced both in GPE and in GPE to several terms of imprisonment , his presence in NORP territory , at a time when he was living there unlawfully , constituted a serious threat to public order . Although PERSON Driss PERSON asserts that he completed his studies in GPE , that he has a steady job there and pays rent , that some of his brothers and sisters have acquired NORP nationality , that he has committed no further offences since serving the sentences mentioned above , that he is perfectly integrated into NORP society and that he has not maintained any links with GPE , those facts are not sufficient to establish that the Minister of the ORG made a manifest error .", "The submission based on LAW :", "…", "In support of his arguments to the effect that the impugned decision constituted such a serious interference in his family life as to exceed what was necessary to preserve public order , PERSON Driss PERSON asserts that he no longer has any family ties with the country whose nationality he possesses , that he does not speak its language and has not lived there since DATE , that his whole family lives in GPE and that his youngest brothers and sisters have acquired NORP nationality . However , it appears from the documents in the file that the impugned decision , which was based on defence of public order , was necessary , in view of the applicant ’s conduct and the seriousness of the offences he had committed , for the defence of that order . That being so , it did not breach LAW . ”", "On appeal by Mr GPE , the PERSON d’Etat gave judgment on DATE . It upheld ORG judgment in the following terms :", "“ ...", "Mr ORG committed and was convicted of armed robbery , receiving stolen goods and assault with a tear - gas spray . The impugned deportation order was necessary , in view of the seriousness of those offences , for the defence of public order , and did not , given that Mr GPE is unmarried and childless , interfere disproportionately with his right to respect for his private and family life . That being so , it did not breach LAW .", "It follows from all the above that Mr ORG fails in his claim that in the impugned judgment ORG wrongly dismissed his application to have the Minister of the ORG ’s order of CARDINAL DATE requiring him to leave GPE set aside . ”", "NORP Since DATE the applicant has lived in GPE without a residence permit or a work permit ; since DATE he has cohabited with PERSON , a NORP national .", "In NORP law deportation is a public - order measure , not a criminal penalty ( ORG decision no . CARDINAL - CARDINAL , ORG constitutionnel , CARDINAL DATE , PERSON Sirey DATE , CARDINAL ; ORG d’Etat , DATE , PERSON , PERSON juridique , ORG administratif DATE , CARDINAL ; and ORG , DATE , ORG périodique DATE , édition générale , II , DATE ) . It applies to aliens with a residence permit who live in GPE , but not to those who have entered illegally and against whom only a removal order may be made .", "The deportation of aliens is governed by the provisions of the Ordinance of DATE concerning the conditions of entry and residence of aliens in GPE . LAW provides : “ all persons who do not have NORP nationality , whether they have a foreign nationality or are stateless , shall be deemed to be aliens . ” The basic provisions of the Ordinance have been amended by , inter alia , PERSON no . CARDINAL of DATE ; PERSON no . CARDINAL of DATE ; PERSON no . CARDINAL of DATE ; PERSON no . CARDINAL - CARDINAL of CARDINAL DATE ; PERSON no . CARDINAL - CARDINAL of DATE ; PERSON no . CARDINAL of DATE ; PERSON no . CARDINAL of DATE ; and PERSON no . CARDINAL of DATE .", "The PERSON of DATE prescribed CARDINAL grounds for deportation and substantially altered its role ; deportation had been intended to guard against threats to public order , but it was now also used as punishment in certain cases where there had been a breach of the immigration rules .", "That PERSON was rapidly replaced by PERSON no . CARDINAL of DATE , in which the following CARDINAL grounds for deportation were retained :", "( i ) the first , to which the ordinary rules of procedure applied , was where “ an alien ’s presence on NORP territory PERSON ] a serious threat to public order ” ( sections CARDINAL ) ;", "( ii ) the second , for which there was a special procedure , concerned “ cases of extreme urgency [ and ] absolute necessity for the security of the ORG or public safety ” ( section CARDINAL ) .", "That PERSON also prescribed the categories of aliens who could not be deported under the ordinary procedure and who were protected because of their age , the length of time they had spent in GPE , their family ties there , the services they had rendered and the fact that they had no criminal record .", "The provisions relating to the definition of the protected categories , the substantive conditions and the safeguards provided under the ordinary procedure were alternately amended and restored by subsequent legislation .", "In DATE it was a prerequisite to instituting the ordinary procedure used in the instant case , governed by sections CARDINAL of the Ordinance of DATE , that “ the alien ’s presence on NORP territory PERSON ] a serious threat to public order ” . Recourse to the special procedure required extreme urgency and an “ absolute necessity for the security of the ORG or public safety ” .", "This procedure may properly be described as adversarial and applies where “ the alien proves that he entered GPE legally and that he is the lawful holder of a residence permit ” ( section CARDINAL ) .", "An aliens deportation board for the département must be consulted . Such boards are composed of the president of the tribunal de grande instance of the administrative capital of the département or a judge delegated by him , who acts as chairman , a judicial officer ( magistrat ) appointed by the general assembly of the tribunal de grande instance of the administrative capital of the département and an administrative court judge . Its hearings are held in public . In DATE the Minister of the ORG had a reduced discretionary power . Since PERSON no . CARDINAL of DATE , the board ’s opinion is no longer binding on the Minister .", "Deportation orders made to preserve public order are intended to guard against DATE and not to punish DATE breaches of public order . With the sole exception of minors , no category of aliens is protected .", "Under the special procedure none of the safeguards contained in the ordinary procedure are available . Thus , aliens are not informed in advance that their deportation is being considered , do not receive any special notification , are not given an opportunity to make representations and do not appear before the board ; the board does not hold a meeting , not even in the alien ’s absence . No formal steps have to be taken before the deportation order is issued and the order does not have to contain reasons .", "The condition relating to absolute necessity for the security of the ORG or public safety was introduced by the PERSON of DATE . It was replaced in the PERSON of DATE by a requirement of “ a particularly serious threat to public safety ” , but was reintroduced in the PERSON of DATE . In practice section CARDINAL also covers cases concerning violent and anti - social behaviour by an alien over a long period since DATE ( ORG d’Etat , DATE , ORG , Recueil des arrêts du ORG d’Etat ( “ Rec . ” ) p. CARDINAL ) and rape and indecent assault with violence or taking the victim by surprise ( ORG d’Etat , CARDINAL DATE , PERSON , ORG . p. CARDINAL , and ORG d’Etat , DATE , NORP , ORG administratif DATE , no . CARDINAL ) .", "To the extreme urgency requirement , laid down as DATE , a requirement of “ absolute necessity for the security of the ORG and public safety ” was added in DATE . Extreme urgency is in practice relied on to ensure that aliens who have been convicted by the criminal courts and are serving their sentence can be deported as soon as they are released . Its substance is assessed on a case - by - case basis by the Minister , subject to review by the administrative courts .", "For a long time the PERSON d’Etat ruled that the question whether there was any urgency itself came within the unfettered discretion of the Minister . From DATE it interpreted the requirement so as to limit its application solely to cases where the deportation was to take place within a very short time ( PERSON d’Etat , DATE , PERSON . p. CARDINAL ) . It later found that the urgency requirement had been satisfied where the alien was due to be released shortly ( PERSON d’Etat , CARDINAL DATE , ORG v. PERSON , ORG . p. CARDINAL ) , then held that it was lawful to use the procedure against an alien who had been released from prison DATE before the deportation order was made ( ORG d’Etat , CARDINAL DATE , ORG . , tables , p. CARDINAL , and DATE , PERSON , GPE DATE ) , or who had obtained early release DATE before the issue of a deportation order ( PERSON d’Etat , CARDINAL DATE , PERSON , application no . CARDINAL , ORG administratif , DATE , p. CARDINAL ) . It also accepted that the Minister could use the extreme urgency procedure where , in connection with a deportation initially commenced under the ordinary procedure , the board had expressed an opinion against deportation . The PERSON d’Etat held that practice to be lawful “ provided that the requirements of section CARDINAL were satisfied at the time the order was made ” ( Conseil d’Etat , CARDINAL DATE , PERSON , ORG . p. CARDINAL ) .", "A deportation order issued by the Minister of the ORG remains in force indefinitely . Since DATE such orders embody authority to execute and may be enforced without further order , using force if necessary .", "NORP In general , deportation is carried out without delay ; however , the effects of the deportation order are not exhausted as a result of its execution .", "Thus , deported aliens are precluded from returning to NORP territory for so long as the order has not been rescinded . If they do return , they are liable to the penalties applicable to cases of avoiding or attempting to avoid the execution of a deportation order and returning to GPE without leave to enter .", "Furthermore , according to a circular issued by the Minister of the ORG on DATE concerning the application of LAW August and DATE , although the celebration of the marriage of an alien on NORP territory is not subject to any condition regarding the lawfulness of his stay , a prefect who is informed that the alien wishing to get married is in breach of the immigration rules may , before the wedding , make an order for his removal under section CARDINAL of the Ordinance of DATE and , after the ceremony , decide to expel him pursuant to that provision . The ORG d’Etat has held that an order for removal could lawfully be made against an alien who was about to marry a NORP national ( PERSON d’Etat , ORG , CARDINAL DATE , ORG , application no . DATE ) .", "As deportation orders are not subject to any special rules , an application for judicial review may be made to the administrative court having territorial jurisdiction under the ordinary rules . Such applications have no suspensive effect and may therefore be accompanied by an application for a stay of execution even where the order has been enforced and the alien is outside GPE .", "On DATE ( application no . DATE ) , the ORG d’Etat set aside a deportation order made against an NORP who was born in GPE and had always lived there , on the grounds that :", "“ ... his close relatives live in GPE", "The alien concerned may , at any time , and as often as he chooses , apply for the deportation order to be rescinded .", "Where the application is submitted DATE after the final execution of the deportation order ” , the Minister of the ORG is not subject to any specific procedural requirements in reaching his decision . If the application is submitted “ after a period of DATE ... , it may be rejected only after the opinion of the deportation board for the département has been sought ; the alien may be represented before the board ” . Consultation is required even where the deportation order was made under the procedure for cases of extreme urgency . Since the PERSON of DATE came into force , the board ’s opinion is no longer binding on the Minister .", "The PERSON d’Etat had considered that a deportation order was executed on the date the alien left NORP territory and that , in consequence , even if he subsequently returned to GPE illegally , DATE period ran from DATE ( ORG d’Etat , CARDINAL DATE , ORG . p. CARDINAL ) . However , section CARDINAL bis , added to the Ordinance of DATE by the Law of DATE , now prevents a deportation order being rescinded if the alien has not left GPE or if he has returned there illegally : “ An application ... for the rescission of a deportation order ... submitted after the expiry of the time - limit for making an application for judicial review can not be granted unless the foreign national resides outside GPE . ”", "An application to which there has been no response within DATE is deemed to have been rejected by the Minister of the ORG . Where the Minister of the ORG decides not to enforce a deportation order whilst at the same time refusing to rescind it , a compulsory residence order is made against the alien . If the alien continues to disturb public order , he may be deported . That constitutes a new decision , separable from the deportation order and in respect of which an application for judicial review may be made to the administrative court . In considering the application , the court examines the conduct of the alien during the period when his presence in GPE was tolerated . In reviewing the lawfulness of the measure the court therefore examines the position at the date of its judgment . However , a ground of appeal on the basis that the alien had mended his ways after the date of the order is ineffective ( ORG d’Etat , CARDINAL DATE , ORG . p. CARDINAL ) .", "The fact that a deportation order has been rescinded does not constitute leave to enter . If leave is sought , it may lawfully be refused .", "Article CARDINAL of LAW , which is relevant in this case , provides :", "“ Subject to the provisions of Articles DATE , CARDINAL - CARDINAL [ concerning aliens born in GPE of foreign parents ] and CARDINAL - CARDINAL [ concerning the minor children of parents who have acquired NORP nationality ] , no one may acquire NORP nationality or be restored to that nationality if either ( i ) he has been convicted of a serious crime ( crime ) or other major offence ( délit ) harmful to the fundamental interests of the nation or of an act of terrorism or ( ii ) whatever the nature of the offence , if he has been sentenced to a term of imprisonment , not suspended , of DATE .", "( Law no . CARDINAL of DATE ) The same shall apply to a person who is the subject of a deportation order which has not been expressly set aside or rescinded or to a ban on re - entering NORP territory that has not expired .", "( Law no . CARDINAL of DATE ) The same shall apply to persons whose stay in GPE is unlawful under the laws and treaties relating to the residence of aliens in GPE . ”" ]

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[ "8" ]

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[ "ORG The first applicant , Mr PERSON , was born in DATE . He is a farmer and lives in GPE , GPE .", "ORG He was arrested at his home at TIME on CARDINAL September CARDINAL by police officers under section CARDINAL of ORG ( Temporary LAW DATE ( \" LAW \" ) . He was then taken to PERSON , GPE , where he was detained until his release at TIME on DATE , that is a period of detention of DATE and TIME .", "ORG Within TIME of his arrest , he was questioned about his suspected involvement in an attack on a police mobile patrol which occurred on CARDINAL DATE in GPE and resulted in the death of a police sergeant and serious injuries to another police officer . He was also interrogated concerning his suspected membership of ORG ( \" IRA \" ) , a proscribed organisation for the purposes of LAW . He maintained total silence and refused to answer any questions put to him . In addition , he turned away from his questioners and stared at the floor , ceiling or wall and periodically stood to attention . He was visited by his solicitor on DATE .", "ORG The second applicant , Mr PERSON , was born in DATE . He is at present unemployed and lives in GPE , GPE .", "ORG He was arrested at his home by police officers at TIME on DATE under LAW of LAW . He was then taken to PERSON , GPE , where he was detained until his release at TIME on DATE , that is a period of detention of DATE and TIME .", "ORG Within TIME of his arrest , he was questioned about the planting of a land - mine intended to kill members of the security forces on DATE and a blast incendiary bomb attack on DATE , both of which occurred in GPE . He was also interrogated about his suspected provision of firearms and about his suspected membership of ORG . He maintained complete silence apart from CARDINAL occasion when he asked for his cigarettes . In CARDINAL interview , he spat several times on the floor and across the table in the interview room . He was visited by his solicitor on CARDINAL and DATE .", "ORG The third applicant , Mr PERSON , was born in DATE . He is at present unemployed and lives in GPE , GPE .", "ORG He was arrested at his home at TIME on DATE by a police officer under LAW of LAW . He was then taken to ORG , GPE , where he was detained until his release at TIME on DATE , that is a period of DATE and TIME .", "ORG Within TIME of his arrest , he was questioned about the murder of a soldier in a bomb attack in GPE on DATE and the murder of another soldier during a petrol bomb and gunfire attack in GPE on DATE . He was also interrogated about his suspected membership of ORG . Apart from CARDINAL interview when he answered questions of a general nature , he refused to answer any questions put to him . In addition , he periodically stood up or sat on the floor of the interview room . He was visited by his solicitor on DATE .", "ORG The fourth applicant , Mr PERSON , was born in DATE . He is an apprentice joiner and lives in GPE , GPE .", "ORG He was arrested at his home at TIME on DATE by police officers under LAW of LAW . He was then taken to ORG ( \" ORG \" ) Station , GPE , where he was detained until his release at TIME on DATE , that is a detention period of DATE and TIME .", "ORG Within TIME of his arrest , he was questioned about the armed robbery of post offices in GPE on DATE and CARDINAL DATE and a conspiracy to murder members of the security forces . He was also interrogated concerning his suspected membership of ORG ( \" FAC \" ) , a proscribed terrorist organisation . He remained silent in response to all questions except certain questions of a general nature and sought to disrupt the interviews by rapping on heating pipes in the interview room , singing , whistling and banging his chair against the walls and on the floor . He was visited by his solicitor on DATE .", "ORG All of the applicants were informed by the arresting officer that they were being arrested under LAW of LAW and that there were reasonable grounds for suspecting them to have been involved in the commission , preparation or instigation of acts of terrorism connected with the affairs of GPE . They were cautioned that they need not say anything , but that anything they did say might be used in evidence .", "ORG On DATE following his arrest , each applicant was informed by police officers that the Secretary of ORG for GPE had agreed to extend his detention by a further DATE under section CARDINAL(CARDINAL ) of the DATE Act . None of the applicants was brought before a judge or other officer authorised by law to exercise judicial power , nor were any of them charged after their release .", "ORG The emergency situation in GPE in DATE and the attendant level of terrorist activity form the background to the introduction of ORG ( Temporary Provisions ) Act DATE ( \" LAW \" ) . DATE , CARDINAL deaths were attributable to terrorism in GPE as compared with CARDINAL in GPE . In DATE , the number of deaths was significantly lower than in DATE but organised terrorism continued to thrive .", "ORG LAW came into force on DATE . The LAW proscribed the ORG and made it an offence to display support in public for that organisation in GPE . The ORG was already a proscribed organisation in GPE . The LAW also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism ( see paragraphs CARDINAL below ) .", "ORG LAW was subject to renewal DATE by ORG so that , inter alia , the need for the continued use of the special powers could be monitored . The LAW was thus renewed until DATE when it was re - enacted with certain amendments .", "Under LAW of LAW , the special powers were subject to parliamentary renewal DATE . LAW was in turn renewed DATE until DATE , when it was re - enacted with certain amendments . LAW , which came into force in DATE , proscribed the ORG as well as the IRA . It has been renewed DATE but will expire in DATE , when the ORG intend to introduce permanent legislation .", "ORG LAW was reviewed by ORG in a report published in DATE and subsequently by PERSON in a report published in DATE . DATE reports on LAW have been presented to ORG by Sir PERSON ( for DATE and DATE ) and PERSON ( for DATE and DATE ) , who also completed in DATE a wider - scale review of the operation of LAW .", "ORG These reviews were commissioned by the Government and presented to ORG to assist consideration of the continued need for the legislation . The authors of these reviews concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism , the continued use of the special powers of arrest and detention was indispensable . The suggestion that decisions extending detention should be taken by the courts was rejected , notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers . For various reasons , the decisions fell properly within the sphere of the executive .", "ORG The relevant provisions of LAW , substantially the same as those of the DATE and DATE Acts , are as follows :", "\" CARDINAL ( CARDINAL ) [ A ] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be", "...", "( b ) a person who is or has been concerned in the commission , preparation or instigation of acts of terrorism to which this Part of this Act applies ;", "...", "( CARDINAL ) The acts of terrorism to which this Part of this Act applies are", "( a ) acts of terrorism connected with the affairs of GPE ;", "...", "( CARDINAL ) A person arrested under this section shall not be detained in right of the arrest for CARDINAL after his arrest ; but the Secretary of ORG may , in any particular case , extend the period of TIME by a period or periods specified by him .", "( CARDINAL ) Any such further period or periods shall not exceed DATE in all .", "( CARDINAL ) The following provisions ( requirement to bring accused person before the court after his arrest ) shall not apply to a person detained in right of the arrest", "...", "( d ) Article CARDINAL of ORG ( GPE ) Order DATE ;", "...", "( CARDINAL) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section . \"", "ORG According to the definition given in section CARDINAL ( CARDINAL ) of LAW , terrorism \" means the use of violence for political ends , and includes any use of violence for the purpose of putting the public or any section of the public in fear \" . An identical definition of terrorism in GPE ( Emergency LAW Act DATE was held to be \" in wide terms \" by ORG , which rejected an interpretation of the word \" terrorist \" that would have been \" in narrower terms than popular usage of the word ‘ LOC might connote to a police officer or a layman \" ( LOC v. Chief Constable for GPE [ DATE ] CARDINAL All England Law Reports CARDINAL at CARDINAL , per Lord PERSON ) .", "ORG Article CARDINAL of ORG ( GPE ) Order DATE , declared inapplicable by section CARDINAL ) of LAW ( see paragraph CARDINAL above ) , provides that where a person arrested without warrant is not within TIME released from custody , he must be brought before a ORG as soon as practicable thereafter but not TIME after his arrest .", "ORG GPE ( Emergency LAW Act DATE also conferred special powers of arrest without warrant . LAW provided that a constable could arrest without warrant any person whom he suspected of being a terrorist . Such a person could be detained for CARDINAL without being brought before a court .", "LAW has been amended by GPE ( Emergency Provisions ) Act DATE , which came into force on DATE . The powers of arrest under LAW have been replaced by a power to enter and search LOC for the purpose of arresting a suspected terrorist under LAW of LAW .", "ORG In order to make a lawful arrest under section CARDINAL(CARDINAL)(b ) of LAW , the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission , preparation or instigation of acts of terrorism . In addition , an arrest without warrant is subject to the applicable common law rules laid down by ORG in the case of ORG DATE ] Appeal Cases CARDINAL at CARDINAL and CARDINAL . The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or , if special circumstances exist which excuse this , as soon thereafter as it is reasonably practicable to inform him . This does not require technical or precise language to be used provided the person being arrested knows in substance why .", "In the case of ORG [ DATE ] ORG CARDINAL at CARDINAL , in which the arrested person sought a writ of habeas corpus , ORG of GPE discussed section CARDINAL(CARDINAL)(b ) . The arresting officer had told the applicant that he was arresting him under section CARDINAL of LAW as he suspected him of being involved in terrorist activities . ORG held that the officer had communicated the true ground of arrest and had done what was reasonable in the circumstances to convey to the applicant the nature of his suspicion , namely that the applicant was involved in terrorist activities . Accordingly , ORG found that the lawfulness of the arrest could not be impugned in this respect .", "ORG The arresting officer ’s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion ( per PERSON in PERSON v. Chief Constable of the ORG and ORG , decision of ORG , DATE ) .", "ORG Under ordinary law , there is no power to arrest and detain a person merely to make enquiries about him . The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion , provided he is brought before a court as soon as practicable ( NORP v. PERSON [ DATE ] CARDINAL ORG at CARDINAL and Holgate - Mohammed v. Duke [ DATE ] CARDINAL All England Law Reports CARDINAL at CARDINAL ) .", "On the other hand , Lord PERSON held in the case of ORG ( loc . cit . at CARDINAL ) that under LAW no specific crime need be suspected to ground a proper arrest under LAW ( CARDINAL)(b ) . He added ( ibid . ) :", "\" ... [ I]t is further to be noted that an arrest under LAW ) leads ... to a permitted period of detention without preferring a charge . No charge may follow at all ; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated . \"", "ORG In GPE , applications for extended detention beyond the initial TIME period are processed at senior police level in GPE and then forwarded to the Secretary of ORG for GPE for approval by him or , if he is not available , a junior minister .", "There are no criteria in LAW ( or its predecessors ) governing decisions to extend the initial period of detention , though strict criteria that have been developed in practice are listed in the reports and reviews appended to the Government ’s memorial .", "According to statistics quoted by ORG in its written submissions ( see paragraph CARDINAL above ) , PERCENT of police requests for extended detention in GPE between the entry into force of LAW in DATE and DATE were refused by the Secretary of ORG .", "ORG The principal remedies available to persons detained under LAW are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment .", "ORG Under LAW , a person may be arrested and detained in right of arrest for a total period of DATE ( section CARDINAL ( CARDINAL ) and ( CARDINAL ) - see paragraph CARDINAL above ) . Paragraph CARDINAL ( CARDINAL ) of Schedule CARDINAL to the CARDINAL LAW provides that a person detained pursuant to an arrest under LAW CARDINAL of the Act \" shall be deemed to be in legal custody when he is so detained \" . However , the remedy of habeas corpus is not precluded by paragraph CARDINAL ( CARDINAL ) cited above . If the initial arrest is unlawful , so also is the detention grounded upon that arrest ( per PERSON in the GPE case , loc . cit . , at CARDINAL ) .", "ORG Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful .", "The court hearing the application does not sit as a court of appeal to consider the merits of the detention : it is confined to a review of the lawfulness of the detention . The scope of this review is not uniform and depends on the context of the particular case and , where appropriate , the terms of the relevant statute under which the power of detention is exercised . The review will encompass compliance with the technical requirements of such a statute and may extend , inter alia , to an inquiry into the reasonableness of the suspicion grounding the arrest ( ex parte ORG , loc . cit . , and PERSON , loc . cit . ) . A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith , capriciously or for an unlawful purpose ( NORP v. Governor of FAC , ex parte PERSON [ DATE ] CARDINAL ORG Bench Reports CARDINAL and R v. FAC ( Governor ) , ex parte NORP [ DATE ] CARDINAL All England Law Reports CARDINAL ) .", "The burden of proof is on the respondent authorities which must justify the legality of the decision to detain , provided that the person applying for a writ of habeas corpus has firstly established a prima facie case ( PERSON v. Secretary of ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) .", "ORG A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment . Where the lawfulness of the arrest depends upon reasonable cause for suspicion , it is for the defendant authority to prove the existence of such reasonable cause ( PERSON v. PERSON [ DATE ] CARDINAL Queen ’s Bench Reports CARDINAL and PERSON , loc . cit . , at CARDINAL ) .", "In false imprisonment proceedings , the reasonableness of an arrest may be examined on the basis of the well - established principles of judicial review of the exercise of executive discretion ( see PERSON , loc . cit . ) ." ]

[ "5" ]

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

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[ "5" ]

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

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[ "The applicants are CARDINAL siblings , PERSON , PERSON , PERSON and ORG , and their mother PERSON . The latter was born in DATE and the other applicants in DATE , DATE and DATE , respectively . All applicants are NORP nationals and live in GPE . They were represented before the ORG by Mr J.M.M. Verstrepen , a lawyer practising in GPE .", "On DATE , PERSON ( the fifth applicant ) married Mr Benamar in GPE , where both of them were living and continued to live after their marriage . The first CARDINAL applicants were born out of this marriage .", "On DATE , PERSON marriage with PERSON was dissolved in GPE . PERSON waived her rights and obligations visà - vis her husband and the CARDINAL children . The court that pronounced the divorce entrusted the care and custody of the CARDINAL children to Mr Benamar .", "On DATE , PERSON remarried in the GPE . Her new husband , PERSON PERSON , is a NORP national living in the GPE and holder of a permanent residence permit . On the basis of this marriage , PERSON was granted a GPE residence permit .", "On DATE , Mr Benamar died in GPE . On DATE , after a NORP court had entrusted her with the care and custody of the CARDINAL children , PERSON travelled to GPE and , on DATE , returned to the GPE with the CARDINAL children .", "On DATE , the CARDINAL children applied for a GPE residence permit for the purpose of stay with their mother .", "In CARDINAL separate decisions taken on DATE , the head of police ( korpschef ) of the Middle and GPE region rejected these requests . The head of police noted at the outset that the CARDINAL children did not hold the required provisional residence visa ( machtiging tot voorlopig verblijf ) issued by the GPE authorities in GPE . Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights . The head of police further held that a number of requirements for a residence permit for the purpose of ( extended ) family reunion were not met . On this point , the head of police concluded that it had not been established DATE and DATE there had been close family ties ( gezinsband ) between the children and PERSON , since the children had been living in another family unit , i.e. that of their father , and PERSON had been unable to demonstrate that , during that period , she had financially contributed to the children 's care and upbringing . Furthermore , PERSON did not comply with the requirement of having adequate housing . The head of police further considered that the children 's presence in the GPE did not serve an essential national interest , that there were no grounds for granting their request for compelling reasons of a humanitarian nature , and that no obligation for the GPE authorities to allow family reunion on its territory could be derived from LAW .", "On DATE , the CARDINAL children filed an administrative appeal with the Deputy Minister of Justice ( ORG ) . On DATE , after the Deputy Minister had decided that they were not allowed to remain in the GPE pending the determination of their appeal , the children requested the President of ORG ( arrondissementsrechtbank ) of GPE to issue an interim measure to the effect that they would not be expelled pending the proceedings on their appeal .", "On DATE , the President of ORG granted the children 's request for an interim measure . Having noted that DATE had elapsed since the administrative appeal had been filed and that it was still pending , the President considered that the Deputy Minister apparently did not attach great importance to an expulsion at short notice whereas it was plausible that the children had a great interest in being allowed to remain in the GPE pending the determination of their appeal .", "On DATE , the first applicant and PERSON – who were assisted by their lawyer – were heard before an official commission ( ambtelijke commissie ) on the appeal filed against the decisions of DATE . In the course of this hearing , PERSON stated inter alia that , after she had moved to the GPE , she had remained in contact with her CARDINAL children in GPE , both through annual visits and through telephone conversations . Her ex - husband had been an alcoholic and had died as a consequence thereof . He and the children had lived in the house of a sister of her ex - husband who had also lived there . Her oldest daughter had cooked and cared for the other CARDINAL children . Her parents , who also lived in the GPE , owned a house in GPE and she had stayed in that house during her visits to GPE . CARDINAL of her CARDINAL siblings were living in the GPE ; CARDINAL sister still lived in GPE but not near the place where her ex - husband had been living . She had also contributed financially and materially to the children 's care and upbringing , by sending them money and clothes via friends and relatives .", "On DATE , the Deputy Minister rejected the administrative appeal brought by the CARDINAL children . The Deputy Minister found that the criteria for family reunion had not been met given that the factual close family ties ( feitelijke gezinsband ) between the children and PERSON had to be regarded as having been severed , at least since DATE when PERSON leaving the CARDINAL children with her ex - husband in GPE DATE had moved to the GPE where she had founded a new family unit with PERSON of which the CARDINAL children did not form a part , whereas this situation had been intended as being a permanent arrangement . The Deputy Minister further considered that it had not been established that close family ties had been maintained by ORG after DATE , either through financial support or parental decisions . The Deputy Minister also found that it had not been established that it had been impossible for PERSON to have custody of the children transferred to her sooner and that , for this reason , it had not been possible to seek reunion earlier . As to the children 's argument that , since their arrival in the GPE , they had formed a part of PERSON family unit there , the Deputy Minister held that admission for family reunion was only possible if the actual close family ties between a parent and a child had never been severed . The Deputy Minister therefore concluded that the CARDINAL children were not eligible for a residence permit for family reunion under the domestic immigration rules .", "As to the question whether a refusal to admit the children to the GPE would entail disproportionate hardship , the Deputy Minister noted that the first applicant was born and raised in GPE where she had lived for DATE before coming to the GPE , and considered that she could be expected to fend for herself independently in GPE . The Minister further held that it had not appeared that she had integrated into GPE society and become alienated from NORP society to such an extent that it could not be asked of her to return to GPE , or that prior to her arrival in the GPE she had encountered such problems that it would be unreasonable to expect her to return to GPE . On this point , the Deputy Minister noted that , although her father had died , it had appeared during the hearing before the official commission that the first applicant – without any help from her father – already regularly had had to assume the care for herself and her siblings , and found that it had not been established that she would not have , according to local standards , acceptable future prospects in GPE . As regards the other children , the Deputy Minister held that they could return to GPE together with their oldest sister who could – like she had already done prior to their arrival in the GPE and in so far as necessary DATE provide them with ( a part of ) the necessary care . The Deputy Minister further considered that her brothers PERSON and PERSON DATE given their DATE would be less and less dependent on their oldest sister as regards their actual DATE care and would to an increasing degree be able to fend for themselves independently . In this context , the Deputy Minister further pointed out that financial support for the children 's living expenses could be provided by transferring money from the GPE . Although the children 's situation in GPE would be less favourable than in the GPE , the Deputy Minister did not find this a reason to deviate from the applicable immigration rules .", "In so far as the children relied on LAW , the Deputy Minister held , as regards the first applicant , that she had already come of age when she applied for a residence permit . As her relationship with PERSON was one between adult relatives , and having found no indication that this relationship comprised more than the normal emotional ties that exist between parents and adult children , the Deputy Minister held that their relationship did not constitute family life within the meaning of LAW . On this point , the Deputy Minister did not find it established that the care provided by PERSON to the first applicant had been of such a nature that it could not be regarded as the normal care with which parents should provide their children . The Deputy Minister further considered it of importance that their separation had resulted from PERSON free choice to settle in the GPE , and that another indication for the absence of a special relationship of dependency between them was formed by the fact that PERSON had been living in the GPE since DATE whereas it was not until DATE that she had made demonstrable efforts to be reunited with the first applicant in the GPE . As regards the other CARDINAL children , the Deputy Minister accepted that there was family life within the meaning of Article QUANTITY between them and PERSON , but that the interests of the GPE authorities in maintaining a restrictive immigration policy outweighed the children 's interests in exercising their family life with PERSON in the GPE . On this point , the Deputy Minister considered that a refusal to admit the children to the GPE did not prevent them from exercising their family life with PERSON in the way they had before they came to the GPE and that PERSON had made a conscious decision at the time to leave GPE and to leave her children behind . Consequently , their separation had not been caused by any public authority 's involvement . The Deputy Minister held that in a situation like that of the applicants , where family life had been voluntarily reduced to the present level , it could not be required from the GPE authorities to make provisions allowing to deepen and intensify family life . The Deputy Minister further considered that no objective obstacles had appeared to the family life at issue being exercised outside the GPE .", "On DATE , the CARDINAL children filed an appeal with ORG of The Hague .", "In its ruling of DATE , following a hearing held on DATE , ORG of The Hague rejected the children 's appeal . It did point out that the Deputy Minister had incorrectly found that there was no family life within the meaning of LAW between Mrs Boudhan and the first applicant , but did not conclude that this constituted a ground for declaring the appeal well - founded in view of the reasons stated by the Deputy Minister for holding that DATE had not been violated . No further appeal lay against this decision .", "Until DATE , the admission , residence and expulsion of aliens were regulated by the DATE LAW ( Vreemdelingenwet ) . Further rules were laid down in LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW ) . On DATE , the DATE LAW was replaced by QUANTITY . On DATE , LAW , the Regulation on Aliens and LAW were replaced by new versions based on LAW .", "As a rule , anyone wishing to apply for a residence permit in the GPE must first apply from his or her country of origin to the GPE Minister of ORG for a provisional residence visa ( machtiging tot voorlopig verblijf ) . Only once such a visa has been issued abroad may a residence permit for the GPE be granted . An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit .", "The Government pursue 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 from 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 . 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 former is understood to mean , for instance , that the close family ties ( gezinsband ) between the child and its parents whom it wishes to join in the GPE already existed in another country and have been maintained . For the rest , the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case . Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation , the way in which the relationship between parent and child has been developed during the separation , the parent 's involvement in the child 's care and upbringing , custody arrangements , the amount and frequency of the parent 's financial contributions to the child 's care and upbringing , the parent 's intention to send for the child as soon as possible and his / her efforts to do so , and the length of time that the child has lived in a family other than with the parent .", "The burden of proving that the close family ties between parent and child have not been severed rests with the parent residing in the GPE . The longer the parent and child have been separated , the heavier the burden of proof on the person in the GPE becomes . It is then incumbent on the parent to present sound reasons as to why he or she did not seek to bring the child to the GPE sooner .", "it residence in the GPE ." ]

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[ "The applicant was born in DATE and lives in NORP .", "The proceedings concerning the applicant ’s patent rights", "On DATE the applicant brought an action before ORG against ORG and CARDINAL individuals . He sought to have it established that the defendants had violated his patent rights in that they had utilised without licence CARDINAL of his inventions when creating a military defence tool for armoured vehicles . The applicant was represented by his patent agent .", "On DATE ORG dismissed the applicant ’s claim . In DATE , the applicant had his patent cancelled , being of the view that it followed from the decision of ORG that it could only be reviewed if he first abandoned his patent protecting the invention . Subsequently , he appealed against ORG decision , maintaining that the defendants had used his invention without licence .", "On DATE the appellate bench of ORG quashed the first - instance decision and remitted the case to ORG .", "In the resumed proceedings the defendants filed a preparatory paper with ORG on DATE .", "On DATE ORG , establishing that the GPE invention had been based on a different technical solution than that of the applicant and , that , therefore , the former had not illegally used the latter ’s invention , again dismissed the action . The applicant appealed .", "In DATE the appellate bench of ORG appointed a technical expert , ORG of ORG , which submitted its opinion to the court on DATE . On DATE the applicant submitted a counter - opinion prepared by other experts .", "The appellate bench of ORG upheld the first - instance decision on DATE . The courts relied on documentary evidence , the opinion of the technical expert and the parties’ testimony . The applicant lodged a petition for review with ORG .", "On DATE the review bench of ORG declared the applicant ’s petition inadmissible , without examining the merits , since it was incompatible ratione materiae with the relevant provisions of LAW .", "NORP In DATE the applicant lodged a criminal complaint with ORG , alleging that the documents submitted by the defendants during the proceedings had been forged . On DATE , after a remittal , ORG terminated the investigation in the absence of any crime , which decision was upheld by ORG in DATE .", "Civil proceedings against ORG", "In DATE the applicant brought an official liability action against ORG before ORG , alleging that ORG wrong decision had forced him to abandon his patent rights in DATE .", "On DATE the Pest County Regional Court dismissed the applicant ’s claim . It found that the applicant had erred in accepting a non - final decision ─ against which he appealed ─ as a binding legal opinion and , therefore , ORG was not responsible for his alleged loss . The applicant appealed .", "On DATE ORG upheld the first - instance decision . The applicant lodged a petition for review with ORG . On DATE ORG dismissed the applicant ’s petition . The courts relied on documentary evidence and the parties’ testimony ." ]

[ "6" ]

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[ "On DATE the applicant , Mr PERSON , was committed for trial by jury at ORG in GPE on CARDINAL counts arising out of his relationship with a young girl : indecent assault , CARDINAL counts of rape , unlawful sexual intercourse , kidnapping and CARDINAL counts of making a threat to kill . The trial , before a High Court judge and a jury , lasted DATE between DATE and DATE . Throughout the trial the applicant , who sat in a glass- fronted dock , was represented by solicitor and counsel . His counsel had been in practice for DATE and specialised in criminal work .", "On DATE , having been found guilty of indecent assault , CARDINAL count of rape , kidnapping and CARDINAL count of making a threat to kill , the applicant was sentenced to a total of DATE imprisonment . He is currently serving this sentence in Her FAC Prison PERSON , in GPE .", "During the trial evidence was given by , among others , Miss PERSON , the alleged victim of the offences who was then DATE , as well as her mother and sister . When PERSON gave evidence the judge directed that she be moved nearer to himself and the jury since it was difficult to hear what she was saying .", "On DATE the applicant sought leave to appeal against his conviction to a single judge of ORG ) ( \" ORG \" ) on the ground , inter alia , that at his trial he could not hear the proceedings . This was refused on DATE as there was found to be no merit in any of his proposed grounds .", "On DATE the applicant renewed his application for leave to appeal to a full court of ORG . He claimed , inter alia , that he had been unable to hear the original proceedings as the acoustics in the court had been inadequate . He also submitted a letter in which the prison officer who had guarded him in the dock during the trial confirmed that the applicant had on a number of occasions complained to him of his inability to hear the witnesses . The letter stated inter alia :", "\" On CARDINAL occasions I called his solicitor and he was told the problem . On CARDINAL of these occasions he told the [ applicant ] not to worry as his barrister was doing a good job . I have to say that I could not hear what the witnesses were saying . \"", "It is not disputed that the applicant was unable to hear some of the evidence nor that this was communicated to his solicitor , counsel and the prison officer guarding him . The trial transcript reveals that the applicant was , however , able to hear the indictment read out at the beginning of the trial and pleaded \" not guilty \" to each of the CARDINAL counts put to him .", "At no time during the trial was any complaint or representation made to the court or to any of its officials by the applicant or his lawyers concerning the claim that he could not hear the proceedings .", "The applicant complained to the Solicitors’ ORG about , inter alia , the solicitor ’s failure to take action in respect of his difficulties in hearing the evidence . In a letter dated DATE to ORG , the applicant ’s solicitor commented as follows on the applicant ’s claims :", "\" Mr ORG ’s trial was apparently the first case to be heard at the new ORG building . Throughout the trial Mr ORG sat silently in the dock . He told me that he is someone who has a hearing problem . I assume that his failure to hear what was said relates mainly to the evidence given against him by the complainant ( PERSON ) . The prosecution allegation was that Mr ORG had abused , raped , kidnapped and threatened to kill [ the complainant ] and that this conduct had been going on for DATE . She claimed to have told no one because of her fear of violence from Mr ORG and because of threats he allegedly made to harm her and her family . She spoke in a soft voice and the judge directed that she should give her evidence sitting at a table positioned between counsel and the judge . This meant that she was closer to the jury and her upper body was therefore visible to the jury rather than obscured by the witness box . Notwithstanding this she gave her evidence with her head bowed answering questions often with one word answers in a soft voice . I was nearer to her than the defendant . I could hear what she was saying . It is clear that the jury , the judge and counsel could also hear . Because of the court layout it would have been difficult for the defendant to have heard but not impossible if his hearing had been unimpaired . I had taken full instructions from Mr ORG upon the committal papers in the form of a CARDINAL page statement . Counsel was in my view very well acquainted with the detail of that statement and put to the complainant all matters which should have been put . I agree that Mr ORG told me and counsel that he could not hear everything that was being said . Counsel took the view ( which I shared ) that as she and the jury could hear and as she would no doubt have had the opportunity of taking instructions upon any matters arising which were not contained in her brief , then there was nothing which needed to be done . It is my view that if Mr ORG had been placed close to the complainant and facing her at the time that she was giving her evidence , then this would have been viewed by the jury as an indication of the intimidating behaviour of Mr ORG about which [ M. ] was complaining . \"", "On DATE the full ORG refused the applicant ’s renewed application for leave to appeal against conviction .", "It held , inter alia , as follows :", "\" We have read the grounds of appeal against conviction upon which he would seek to rely . There is no substance in any CARDINAL of them . We make reference specifically to CARDINAL , however , because his complaint is that he did not receive a fair trial on account , so he puts it , of ‘ poor PERSON which prevented him from hearing the proceedings and the failure of his representative , that is to say his solicitor , to remedy that . We have seen a letter from a prison officer relating to this matter . There would appear to be something in the complaint of the applicant , namely that he could not hear properly at all times what was going on . There is no doubt in our minds , however , that his solicitor and his counsel had not the slightest difficulty in following the proceedings and in representing him in a way which could not possibly be complained about . \"", "On DATE , the applicant was informed by ORG that he could not appeal to ORG , since he had not had a substantive appeal dismissed by ORG .", "A similar complaint concerning acoustics in the courtroom in which the applicant had been tried , and which was in constant use from the time of its opening in DATE , was made in CARDINAL other case over DATE after the applicant ’s conviction . As a result , the landlords of the court building commissioned a report from a company specialising in acoustics . This report , dated DATE , noted that in DATE , before the building came into use as a court , tests showed that acoustic design targets had been met . It concluded that a person speaking from the PERSON was intelligible in the front seat of the dock with the glass screen in position . The report also stated that the effect of the glass screens upon audibility was not considered to involve a significant drop in sound level .", "Notwithstanding these findings , it was subsequently decided to instal a reflector panel above the dock to overcome the very small sound loss which was due to the glass screen .", "In GPE and GPE , the right of an accused to be present in court at his trial is a matter of common law . The general rule was stated by Lord Reading CJ in NORP v. PERSON ( DATE ) CARDINAL Kings Bench Reports CARDINAL , at CARDINAL , as follows :", "\" There must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused . The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity ... of answering it . The presence of the accused means not only that he must be physically in attendance , but also that he must be capable of understanding the nature of the proceedings . \"", "A trial judge may , if he considers that the accused in the dock may intimidate a witness , remove the accused from the presence of the witness , though not out of hearing ( NORP v. Smellie ( DATE ) CARDINAL Criminal Appeal Reports CARDINAL ) ." ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in the town of PERSON , GPE .", "On DATE ORG ( hereafter “ the ORG ” ) awarded the applicant ORG against the “ GPE ” coal mine ( a ORG - owned enterprise , hereafter “ the Coal Mine ” ) in salary arrears . The judgment became final and was sent to ORG ( hereafter “ the Bailiffs’ Service ” ) for compulsory enforcement .", "NORP In DATE the applicant instituted proceedings in ORG against ORG in respect of its alleged inactivity . On DATE ORG rejected this complaint , stating , inter alia , that no fault was attributable to the bailiffs , who had undertaken all necessary measures to secure the execution of the judgment of DATE and that the non - enforcement of this judgment was caused by ORG lack of funds . ORG also indicated that the enforcement proceedings were further impeded by a bankruptcy case pending against ORG before ORG , which on DATE prohibited ORG from performing any activity that involved the forced sale of ORG assets . On DATE ORG upheld the judgment of ORG . On DATE ORG rejected the applicant ’s cassation appeal .", "On DATE ORG ordered the merger of ORG with several others into ORG .", "In a letter of DATE , ORG informed the applicant about the following impediments to the execution of the judgment given in his favour :", "the ruling of ORG of DATE , prohibiting ORG from performing any activity that involved the forced sale of ORG assets ;", "the ruling of ORG of DATE , barring any attachment or sale of ORG property ( both bans above were lifted on DATE , when ORG terminated the bankruptcy proceedings against ORG ) ;", "the moratorium on the forced sale of the property of ORG - owned enterprises introduced by the DATE Law .", "On DATE , following the transfer of ORG funds to ORG , ORG suspended the enforcement proceedings pending the replacement of the debtor in the applicant ’s case . On DATE ORG applied to ORG for a direction to that effect . On DATE ORG ordered that the debtor in the case be replaced by ORG . On DATE the enforcement case was transmitted to ORG .", "The sum awarded to the applicant by the judgment of DATE was paid to him in CARDINAL instalments in DATE and DATE .", "Some of the relevant domestic law is set out in the judgments of DATE in the case of ORG v. GPE ( no . CARDINAL , § § DATE ) , of DATE in the case of GPE v. GPE ( GPE DATE ) , and of DATE in the case of ORG v. GPE ( no . GPE , § § CARDINAL and CARDINAL ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The first applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . The second applicant , ORG , is a private company which was set up in DATE and has its registered office in GPE ( hereafter , the applicant company ) . They were represented before the Court by PERSON , a lawyer practising in GPE .", "s , may be summarised as follows .", "The first applicant is the director of the applicant company . The latter ’s capital was divided in various proportions among CARDINAL stakeholders , including the first applicant and a third person , PERSON", "On DATE PERSON passed away .", "By the decisions of the applicant company ’s general assembly of CARDINAL DATE and DATE PERSON ’s share in the company ’s capital was found to constitute MONEY and the transfer of this share to PERSON ’s successors was approved .", "On DATE CARDINAL PERSON ’s successors instituted proceedings in ORG ( ՀՀ տնտեսական դատարան ) against the applicants and other stakeholders seeking to annul the above decisions , claiming that PERSON ’s share in the applicant company ’s capital amounted to MONEY .", "On DATE ORG granted the claim .", "On DATE the ORG lawyer lodged an appeal on points of law with ORG ( ՀՀ վճռաբեկ դատարան ) . In his appeal the lawyer argued that a number of provisions of substantive and procedural law had been violated . As regards the admissibility grounds required under LAW ( ORG ) , the lawyer did not indicate any of those grounds , arguing instead that this provision lacked legal certainty .", "By a decision of CARDINAL DATE ORG decided to return the applicants’ appeal on the ground that they had not indicated any of the grounds required under LAW ORG .", "A copy of this decision was sent to the applicants on DATE .", "On DATE amendments were adopted to LAW which entered into force on DATE . As a result of these amendments ORG was entrusted with a new role , namely to ensure the uniform application of the law . The relevant provisions of the amended LAW read as follows :", "“ ... The highest judicial instance in GPE , except for matters falling within constitutional jurisdiction , is ORG which is called upon to ensure the uniform application of the law . ... ”", "In order to implement the above constitutional amendments , a substantial reform was introduced to the NORP procedural law . As part of this reform substance - based admissibility requirements were introduced in respect of appeals on points of law lodged with ORG . The relevant provisions of the ORG , as amended on DATE and DATE and CARDINAL DATE and in force at the material time , read as follows :", "Article CARDINAL : Entry into force of a judgment of ORG", "“ CARDINAL . A judgment adopted by ORG following the examination of a case at first instance shall enter into force DATE after delivery .", "NORP If an appeal on points of law is lodged against a judgment which has not entered into force , the judgment shall not enter into force until a decision is taken on admitting the appeal by ORG . ... ”", "“ Judgments and decisions of ORG can be contested through cassation proceedings ... ”", "Article CARDINAL : Review of judicial acts through cassation proceedings", "“ CARDINAL . Judgments of ... ORG which have not entered into force can be reviewed through cassation proceedings based on the appeals brought by persons indicated in LAW . ... ”", "LAW entitled to bring appeals on points of law", "“ CARDINAL . The parties to the proceedings and persons who were not parties to the proceedings but whose rights and obligations were affected by a judgment are entitled to lodge an appeal on points of law against a judgment of ORG which has not entered into force . ... ”", "“ CARDINAL . Appeals on points of law lodged against judgments of ... ORG which have not entered into force are examined by ORG ( hereafter , ORG ) .", "NORP The objective of ORG activity is to ensure the uniform application of the law and its correct interpretation , and to promote the development of the law . ”", "“ An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights ... ”", "“ ... CARDINAL . An appeal on points of law against a judicial act adopted by ORG on cases examined at first instance can be lodged ... before the entry into force of the judicial act . ... ”", "“ CARDINAL . An appeal on points of law must contain ( CARDINAL ) the name of the court to which the appeal is addressed ; ( CARDINAL ) the appellant ’s name ; ( CARDINAL ) the name of the court that has adopted the judgment , the case number , the date on which the judgment was adopted , the names of the parties , and the subject - matter of the dispute ; ( CARDINAL ) the appellant ’s claim , with reference to the laws and other legal acts and specifying which provisions of substantive or procedural law have been violated or wrongly applied ... ; ( CARDINAL ) arguments required by any of the subparagraphs of paragraph CARDINAL of Article CARDINAL of this Code ; [ and ] ( CARDINAL ) a list of documents enclosed with the appeal .", "An appeal on points of law shall be signed by the appellant .", "A document certifying payment of the ORG fee shall be attached to the appeal . ”", "“ CARDINAL . An appeal on points of law shall be returned if it does not comply with the requirements of LAW and paragraph CARDINAL of LAW ... ”", "“ CARDINAL . ORG shall admit an appeal on points of law , if ( CARDINAL ) the judicial act to be adopted on the given case by ORG may have a significant impact on the uniform application of the law , or ( CARDINAL ) the contested judicial act contradicts a judicial act previously adopted by ORG , or ( CARDINAL ) a violation of the procedural or the substantive law by the lower court may cause grave consequences , or ( CARDINAL ) there are newly discovered circumstances .", "The Court of Cassation sitting as a panel composed of the President of ORG and the judges of the chamber shall decide whether appeals on points of law lodged with ORG comply with the requirements of LAW and paragraph CARDINAL of this article and should be admitted .", "An appeal on points of law shall be admitted if CARDINAL of the judges of ORG vote in favour of admitting it . This decision of ORG is not subject to appeal . ... ”" ]

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[ "ORG Mr PERSON , a NORP national born in DATE , is a local government officer of GPE and is on extended sick - leave . As a sufferer from haemophilia A , the symptoms of which first appeared in DATE , he has frequently had blood transfusions , and in DATE and DATE numerous blood products were administered to him . On DATE he was diagnosed as having been infected with the human immunodeficiency virus ( HIV ) .", "ORG On DATE the applicant applied to ORG seeking damages from the ORG on account of his infection .", "ORG In a judgment of CARDINAL DATE the court dismissed his action on the ground that he had been shown to be HIV - positive outside the period of the ORG ’s liability for negligent failure to act , which began on DATE , when the ministerial authorities were fully apprised that the blood products prepared from groups of donors in GPE were dangerous .", "Concurrently , in DATE , PERSON made an urgent application to the President of the GPE tribunal de grand instance for an interim order that ORG ( \" the ORG \" ) , an organisation created by the merger of ORG and ORG , should pay him the sum of MONEY ( ORG ) in respect of damage sustained .", "On DATE the judge ordered an expert opinion to be prepared . In a report of DATE the medical expert concluded that the applicant ’s infection had very probably originated in the blood products supplied by the ORG .", "ORG On DATE counsel for the applicant , without informing the court of the claim lodged with ORG ( see paragraph CARDINAL below ) , brought a second action against the ORG for the sum of ORG CARDINAL .", "ORG In a judgment of DATE the court held : \" The HIV virus contracted by the plaintiff can only have been caused by the massive administration of blood products supplied by the defendant . \" The ORG was consequently ordered to pay the applicant compensation in the amount of FRF CARDINAL,CARDINAL,CARDINAL , and the court ruled that its decision should be enforceable immediately .", "On DATE the ORG , which had learnt of the compensation paid by the ORG , successfully applied for a stay of execution .", "ORG On an appeal by the ORG and a cross - appeal by the applicant , who had joined the ORG to the proceedings by third - party notice , ORG set aside the judgment of the court below and held that Mr GPE ’s application to have the sum increased to FRF CARDINAL was inadmissible . In its judgment of CARDINAL DATE it gave the following reasoning :", "\" ... section CARDINAL(III ) [ of LAW of DATE - see paragraph CARDINAL below ] lays down that the Fund shall provide full compensation for damage resulting from infection .", "While the obligation on the ORG and the one that may arise from the ORG ’s liability have different legal foundations , they have the same purpose , namely full compensation for damage sustained by victims .", "Victims who have submitted a claim for compensation to the ORG may also bring legal proceedings to obtain compensation for the damage they have sustained , but once they have accepted the offer made by the ORG , they cease to have an interest enabling them to bring proceedings as they have been fully compensated .", "The specific damage caused by infection and compensated for by the ORG is in the nature of pain and suffering , aesthetic damage and loss of amenity , not an economic loss . In the phase during which the victim is HIV - positive it includes the distress caused by reduced life expectancy , uncertainty as to the future , suffering and the fear of suffering , disruption of family and social life and damage relating to intimacy . In the phase after AIDS has developed , it includes suffering , which is greater , aesthetic damage and loss of amenity .", "In the instant case Mr GPE is suing the ORG for compensation for this exceptionally serious damage and as he has been fully compensated by the ORG , he can not claim additional compensation . \"", "ORG On DATE ORG ( Second Civil Division ) dismissed an appeal on points of law by PERSON , who had argued that he had no access to a court for the purposes of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW . It gave the following reasons for its judgment :", "\" ORG , having found that the damage compensated for by the ORG was the same as that for which compensation was being sought from the ORG and that the acceptance of the offer of compensation for the specific damage resulting from infection that had been made to him by the ORG fully compensated Mr GPE , rightly concluded - on that sole ground and without infringing LAW para . CARDINAL ( article CARDINAL ) of LAW as the victim had been able to apply to a court to have compensation assessed for his damage - that Mr GPE ’s action was inadmissible as he lacked any interest enabling him to bring proceedings . \"", "ORG On DATE , while his civil action was being prepared for trial and without acting through his lawyer , the applicant had submitted a claim to ORG and GPE that had been set up by LAW of DATE ( see paragraph CARDINAL below ) . He did not inform the Fund of the action he had brought in the GPE tribunal de grande instance .", "ORG On DATE the Fund offered him as \" HIV - infection compensation \" the sum of FRF CARDINAL payable in CARDINAL instalments over DATE , from which ORG CARDINAL paid out by the private CARDINAL solidarity fund in DATE was to be deducted . In addition , the applicant was to receive the sum of ORG CARDINAL,CARDINAL as soon as he developed AIDS ( acquired immunodeficiency syndrome ) . The compensation offer contained the following information :", "\" At its sitting on DATE ORG decided to make you an offer of compensation corresponding to the whole of your specific damage resulting from infection , that is to say the current and future damage resulting from HIV infection , and thereafter , if applicable , from the symptoms of AIDS .", "On the basis of the average compensation awarded to date by the ordinary courts and the administrative courts and of the age at which you have shown that you were infected , the ORG has determined the manner of compensation it is offering you as follows .", "...", "If you accept this offer , you should do so by registered letter with recorded delivery ...", "Naturally , the award of this compensation does not prevent you from claiming other compensation in respect of pecuniary damage you may sustain or already have sustained , provided , of course , that you can furnish proof of it .", "If this offer is not acceptable to you , you may bring legal proceedings in ORG as provided in CARDINAL ) of the LAW of DATE ... \"", "ORG Following acceptance of the offer by the applicant on DATE , the ORG sent him an initial instalment of ORG CARDINAL on DATE . II . ORG The compensation scheme", "ORG In a report of CARDINAL DATE that he laid before ORG on behalf of ORG , PERSON , MP , indicated that a victim could seek better compensation after accepting an offer from the ORG :", "\" That the compensation procedure is quite distinct is confirmed by the fact that it is possible for victims or their heirs to continue civil or criminal actions they may have brought in the administrative courts or even to institute them where they did not do so when submitting a claim to the ORG . Compensation by the ORG is therefore not a ` ORG which precludes judicial remedies , unlike the aid granted by the public and private funds set up in DATE , but a compensation scheme based on the concept of risk and independent of any attempt to determine fault .", "A victim must , however , inform the ORG and the court of the various actions brought . This provision is necessary because the ORG is subrogated to the victim ’s rights against the person liable for the damage or against those who are , for CARDINAL reason or another , under a duty to provide compensation . \"", "ORG Following ORG judgment of DATE in the present case , PERSON , MP , proposed an interpretative Act in order to remove the drafting ambiguities which had given rise to that judgment . He considered that the court had interpreted the LAW of DATE in a way that achieved a result opposite to the one sought by the legislature . He consequently invited ORG to amend LAW and particularly to delete in subsection ( III ) of that section the word \" full \" and insert at the beginning of subsection ( V ) a paragraph worded as follows :", "\" Acceptance of the compensation offer shall not preclude any concurrent or subsequent court proceedings in respect of the same damage . \"", "In a report of DATE on Mr ORG ’s bill on behalf of ORG , Family and ORG , Mr Leccia , MP , supported the bill in substance and proposed a new text , adopted by the committee , which read as follows :", "There shall be added after subsection ( V ) of section CARDINAL of Law no . CARDINAL - CARDINAL of DATE making miscellaneous social - welfare provisions a new subsection ( V bis ) worded as follows :", "‘ Victims who have already been compensated by the date of publication of Law no . ... of ... shall retain , notwithstanding any court decision that has become final , the right to apply to ORG for a fresh assessment of the damage for which they have already been compensated.’", "‘ In respect of victims who have not been compensated by the date of publication of Law no . ... of ... , acceptance of the offer of compensation shall entail abandonment of any concurrent or subsequent court proceedings in respect of the same damage . Where a victim applies to ORG to challenge the amount of the offer made him by the Fund , he shall immediately receive from the ORG an advance amounting to CARDINAL of the offer made.’ \"", "This bill is still being considered by ORG .", "ORG In the opinion of CARDINAL DATE that was submitted to the ORG on the bill then before it on behalf of ORG , Senator PERSON wrote , inter alia :", "\" The bill is a response to an exceptional situation . The arrangements it proposes may be regarded as being likewise exceptional . Independently of the current investigation into the apportionment of liability , including criminal liability , the community must afford the best redress it can for the consequences of such a tragedy .", "...", "As indicated in the introduction to this commentary , the intention of those who have framed the bill was to set up a fully independent scheme that could not be interpreted as in any way validating recent trends in the case - law on this matter . Simultaneously , GPE possibility of resorting to the procedures of ordinary law , whether in the civil or administrative courts or in the criminal courts , has been preserved .", "However , the bill ’s wording is not fully explicit on this subject , and the text before us is silent as to the possible effects of earlier court decisions on ORG decisions , and also as to the effects of the ORG ’s decisions on subsequent judgments of other courts . The bill does not , for example , make it possible to determine whether or not the ORG ’s decisions imply recognition of liability or a presumption of guilt . Similarly , it does not state whether ORG is bound by earlier decisions of the courts . \"", "Law no . CARDINAL of DATE making miscellaneous social - welfare provisions set up a special scheme for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products . The distinctive feature of the system , which is based on solidarity , is that it enables reparation to be made for the consequences of HIV infection independently of the investigation of liability . Section CARDINAL provides :", "\" I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of GPE shall be compensated in the manner set out below .", "II . ORG No final settlement clause whereby a victim undertakes not to pursue any proceedings or action against any third party in respect of his infection shall be a bar to the procedure herein provided for .", "III . Full compensation for the damage defined in subsection ( I ) shall be provided by a Compensation Fund , having legal personality , presided over by a serving or retired divisional president or judge of ORG and administered by a compensation board .", "A council whose members shall include representatives of the associations concerned shall be established to assist the chairman of the ORG .", "IV . ORG In their claims for compensation , victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives .", "...", "Victims or their heirs shall communicate to the ORG all the information in their possession . Within DATE of the receipt of a claim , a period which may be extended at the request of the victim or his heirs , the ORG shall consider whether the conditions for payment of compensation have been fulfilled . It shall investigate the circumstances under which the victim was infected and make any necessary inquiries , which may not be resisted on grounds of professional secrecy .", "...", "PERSON The Fund shall be required to make an offer of compensation to any victim referred to in subsection ( I ) within a time - limit laid down by decree , which may not exceed DATE from DATE on which the ORG receives full proof of the damage", "...", "ORG . ORG The victim shall inform the Fund of any judicial proceedings pending . If legal proceedings are brought , the victim shall inform the court of his application to the Fund .", "VII . ...", "ORG . ORG The victim shall not be entitled to take legal action against ORG unless his claim for compensation has been dismissed , no offer has been made to him within the time - limit referred to in the first paragraph of subsection ( V ) , or he has not accepted an offer made to him . Proceedings shall be brought in ORG .", "ORG . The Fund shall be subrogated , for an amount no higher than the sums paid out , to the victim ’s rights against the person liable for the damage and against persons required , for whatever reason , to make full or partial reparation for that damage , within the limits of those ORG liabilities . However , the ORG may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence .", "The ORG may intervene in proceedings in the criminal courts , even if it does not do so until the appeal stage , where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection ( I ) . In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law .", "If the acts which caused the damage have given rise to criminal proceedings , the civil court shall not be required to defer its decision until there has been a final decision by the criminal court .", "X. Unless otherwise provided , the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the ORG d’Etat .", "ORG . ORG ...", "ORG . The Compensation Fund ’s sources of revenue shall be specified in a subsequent Act .", "XIII . ...", "ORG . ORG ... \"", "ORG In CARDINAL judgments of DATE ORG of the ORG d’Etat ruled that \" the ORG is wholly liable in respect of persons infected with the human immunodeficiency virus following a transfusion of non - heat - treated blood products DATE and DATE \" .", "ORG At the request of ORG in respect of the PERSON case , on which ORG had to rule ( judgment of DATE , Series A no . CARDINAL-A ) , the PERSON d’Etat gave its view on the consequences of bringing concurrent proceedings in the administrative courts and before ORG . Sitting in its judicial capacity on DATE , it gave the following opinion :", "\" CARDINAL . ORG The decree of DATE ... , which is applicable to cases pending at the date of its publication , ... provides a solution to the problem raised [ by ORG ] .", "ORG ... An administrative court asked to make such an award should raise of its own motion the fact that the damage complained of has already been wholly or partly indemnified by a third party , when the evidence shows this to be the case , even if that party does not file submissions - on the basis of its subrogation to the rights of the victim - seeking reimbursement of the amounts it has paid as compensation for the damage suffered by the latter .", "Accordingly , an administrative court to which a claim for compensation for damage suffered as a result of infection with the human immunodeficiency virus has been submitted must , when it has been informed by CARDINAL of the parties that the victim or his heirs have already received compensation for the damage complained of , deduct of its own motion such compensation from the amount payable in respect of the damage .", "...", "Where the sum offered by the ORG has been accepted by the claimants , ... it should be held that all or part of the damage complained of has been actually and finally compensated for by the ORG . Consequently , it is incumbent on an administrative court which has been informed that this is the case to deduct , of its own motion , the amount thus owed by the ORG from the compensation which it orders the public authority liable for the damage to pay to the victim . \"", "Decree no . CARDINAL - CARDINAL of DATE adds ORG CARDINAL to Decree no . CARDINAL of DATE on proceedings brought in ORG under LAW no . CARDINAL of DATE ( see paragraph CARDINAL above ) . It applies to all proceedings pending at the date of its publication , DATE .", "Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection ( I ) of section CARDINAL of the aforementioned LAW DATE", "In order to bring the action by subrogation provided for in subsection ( ORG ) of section CARDINAL of the aforementioned LAW DATE , the ORG may intervene in proceedings in any of the administrative or ordinary courts , even if it does not do so until the appeal stage . In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law .", "The registries of the administrative and ordinary courts shall send the ORG by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection ( I ) of section CARDINAL of the aforementioned LAW DATE .", "Within DATE of receipt of the letter referred to in LAW , the ORG shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and , if so , what stage the procedure has reached . It shall also state whether or not it intends to intervene in the proceedings .", "Where the victim has accepted the offer made by ORG , the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted . The Fund shall , where relevant , indicate the stage reached in proceedings instituted in ORG under the provisions of Part I of this decree and forward any judgment delivered by that court .", "The registry shall notify the parties of the information communicated by the ORG .", "The registry shall send the ORG copies of the decisions given at first instance and , where relevant , on appeal in proceedings in which the ORG has not intervened .", "...", "The provisions of ORG CARDINAL to CARDINAL shall be applicable to cases pending on the date of entry into force of [ this ] decree ... \"" ]

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[ "The applicants , PERSON , PERSON and PERSON , are NORP nationals . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "Until DATE the applicants all lived in GPE and GPE villages , in the district of ORG in the GPE , where they own property .", "It is to be noted that PERSON did not submit any certificate to the ORG attesting his ownership of the property in GPE .", "In DATE security forces forcibly evacuated GPE and GPE on account of disturbances in the region . They also destroyed the applicants’ property . The applicants and their families then moved to ORG where they currently live . Following the evacuation of their villages , the applicants filed petitions with ORG office in GPE complaining about the burning down of their houses by security forces . However , ORG did not commence an investigation into the ORG allegations .", "On unspecified dates , the applicants filed petitions with the offices of the Governor of the state - of - emergency region , the ORG Governor , the FAC Governor , ORG , the military authorities in the region and the President of the Republic and requested permission to return to their village . They further requested , as an alternative to permission to return , that they be allowed to cultivate their lands . The administrative authorities sent a reply to the mayor of GPE and rejected his request of permission to return to his village .", "It is to be noted that the applicants failed to submit a copy of these petitions to the ORG .", "On DATE the Commander of ORG in ORG sent letters to the mayors of the villages in ORG and informed them that access to some villages of ORG would only be possible during TIME in DATE . The Commander further stated that the villagers would be allowed to work in their farms but would not be allowed to spend DATE in their village . It was noted that permission for access to village should be sought from local gendarmerie stations . The applicants’ villages , GPE and GPE , were not listed among the villages to which access would be allowed under aforementioned conditions .", "On DATE the CARDINALnd ORG Commander in ORG sent a letter to the GPE office in ORG informing him that the military operations against terrorists would continue to be carried out in the district . The commander requested the GPE office to warn the inhabitants in the region that the security forces would not be responsible for any casualties that might occur in the course of the operations .", "The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not forced the applicants to leave their village .", "The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .", "On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .", "In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .", "The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .", "A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) ." ]

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[ "The applicant is a NORP national born in DATE . He lives in PERSON ( GPE ) .", "In DATE the applicant married ORG On DATE they had a daughter , PERSON The applicant separated from his wife in DATE and has since then been living with a man , L.G.C. Following divorce proceedings instituted by ORG , the divorce decree was pronounced on DATE by ORG ( Tribunal de Família ) .", "On DATE , during the divorce proceedings , the applicant signed an agreement with ORG concerning the award of parental responsibility ( poder paternal ) for PERSON Under the terms of that agreement ORG was to have parental responsibility and the applicant a right to contact . However , the applicant was unable to exercise his right to contact because ORG did not comply with the agreement .", "On DATE the applicant sought an order giving him parental responsibility for the child . He alleged that ORG was not complying with the terms of the agreement signed on DATE since PERSON was living with her maternal grandparents . The applicant submitted that he was better able to look after his child . In her memorial in reply ORG accused GPE of having sexually abused the child .", "ORG delivered its judgment on DATE after a period in which the applicant , PERSON , GPE , ORG and the child ’s maternal grandparents had been interviewed by psychologists attached to the court . The court awarded the applicant parental responsibility , dismissing as unfounded – in the light of the court ORG reports DATE ORG ’s allegations that ORG had asked PERSON to masturbate him . It also found , again in the light of the court psychologists’ reports , that statements made by PERSON to that effect appeared to have been prompted by others . The court added :", "“ The mother continues to be most uncooperative and it is wholly improbable that her attitude will change . She has repeatedly failed to comply with the ORG ’s decisions . The finding is inescapable that [ the mother ] has not shown herself capable at present of providing PERSON with conditions conducive to the balanced and calm life she needs . The father is at present better able to do so . In addition to providing the economic and living conditions necessary to have the child with him , he has shown himself capable of providing her with the balanced conditions she needs and of respecting her right to maintain regular and sustained contact with her mother and maternal grandparents . ”", "M. stayed with the applicant from DATE to CARDINAL DATE , when she was allegedly abducted by ORG The applicant reported the abduction and criminal proceedings are pending in that connection .", "DATE C.D.S. appealed against ORG judgment to ORG ) , which gave judgment on DATE , reversing the lower court ’s judgment and awarding parental responsibility to ORG , with contact to the applicant . The judgment was worded as follows .", "“ In the proceedings for the award of parental responsibility for the child PERSON , born on CARDINAL DATE , daughter of [ the applicant ] and ORG , the decision given on DATE confirmed the agreement between the parents as to parental responsibility for the child , contact and the amount of maintenance payable by the father , since custody of PERSON was awarded to the mother .", "On DATE [ the applicant ] applied for a variation of the order granting parental responsibility , alleging that the child was not living with her mother in accordance with what had been decided , but with her maternal grandparents , which – he argued DATE was unsatisfactory . It was for that reason that the custody arrangements should be varied so as to allow him to have his daughter and apply to the mother the contact and maintenance arrangements which had hitherto been applied to him .", "The child ’s mother not only opposed the application lodged by the applicant , but also relied on evidence supporting her contention that the child should not remain in the company of her father because he was a homosexual and was cohabiting with another man . After a number of steps had been taken in connection with those proceedings , the following decision was given on DATE :", "‘ CARDINAL . Custody and care of the child is awarded to the father , in whom parental responsibility shall be vested .", "NORP The child may see her mother on alternate weekends , from DATE . Her mother shall collect her from school on the DATE and bring her back to school on DATE TIME before lessons start .", "NORP The child may also see her mother every DATE and DATE ; her mother shall fetch her from school after lessons and bring her back TIME .", "NORP The child shall spend DATE alternately with her father and her mother .", "NORP The child shall spend the GPE holidays with her mother .", "During DATE the child shall spend DATE with her mother . The dates must be agreed on with the father at least sixty days beforehand .", "NORP The mother shall pay the father maintenance of QUANTITY , payable before DATE . Those maintenance payments shall be adjusted once annually on the basis of the inflation index for DATE published by the ORG ( ORG", "That decision specifically governed arrangements applicable to DATE . ORG , who was dissatisfied with the decision , appealed . She had previously appealed against the decision appearing on page CARDINAL , which dismissed an application for a stay of the proceedings , and the decision given at the hearing of DATE on the application for an examination of the document appearing on page CARDINAL ; both those appeals were adjourned and did not have the effect of staying the proceedings .", "The appellant sets out the following grounds in her appeal :", "…", "In his pleadings [ the applicant ] submitted that the judgment of the first - instance court should be upheld .", "ORG attached to ORG has recommended that the decision be set aside , but not on the grounds relied on by the appellant .", "After examining the case , we shall give our decision .", "We shall first examine the following facts , which the first - instance court considered to be established .", "NORP The child , PERSON , who was born on CARDINAL DATE , is the daughter of [ the applicant ] and ORG", "Her parents married on DATE .", "Divorce was granted on DATE and their marriage dissolved .", "NORP The parents have been living separately since DATE , when [ the applicant ] left his home to go and live with another man , whose first name is L.", "On DATE ORG gave a decision in case no . CARDINAL confirming the following agreement on the exercise of parental responsibility for the child :", "‘ I. The mother shall have custody of the child .", "II . NORP The father may visit his daughter whenever he likes provided that he does not disrupt her schooling .", "III . NORP The child shall spend alternate weekends and DATE and GPE with her father .", "IV . NORP The child shall spend the father ’s holidays with him unless those holidays coincide with those of the mother , in which case the child shall spend DATE with each parent .", "PERSON On DATE which the child spends with her father , he shall collect her from her mother ’s house on DATE at TIME and bring her back on DATE at TIME", "ORG . NORP The child shall go to a kindergarten as soon as possible , the enrolment fees to be paid by the father .", "VII . NORP The father shall pay maintenance of QUANTITY , which shall be adjusted once annually by the same percentage as the net increase in his salary . That sum shall be paid into the account of the child ’s mother – account no . … – before DATE of DATE .", "VIII . NORP The father shall also pay CARDINAL his daughter ’s kindergarten fees .", "IX . The father shall pay CARDINAL of any special expenses for his child ’s health.’", "From DATE the child stopped seeing her father on the agreed terms , against his wishes .", "Until DATE the child lived with her maternal grandparents [ name ] at Camarate [ address ] .", "From that date the child went to live with her mother and her mother ’s boyfriend [ address ] in GPE .", "She continued , however , to stay TIME at her maternal GPE house from time to time .", "On DATE when the child did not stay TIME with her grandparents , her mother used to drive her to her GPE house where she used to stay after school from TIME", "During DATE was in DATE primary at … school , for which the fees came to QUANTITY .", "Her mother has been cohabiting with J. for DATE .", "J. , who is a business manager , works in the imports and exports sector , the major part of his activity being in GPE where he has immigrant status . His income amounts to some QUANTITY .", "The mother , ORG , is the manager of ORG , the partners of which are her boyfriend and his brother , ORG", "She has been registered with the ORG agency for employment and vocational training since DATE .", "Her expenses are paid for jointly by herself and her boyfriend .", "She states that she pays QUANTITY in rent and spends CARDINAL escudos per month on food .", "The father , PERSON , is in a homosexual relationship with GPE , with whom he has been living since DATE .", "He is the head of his sector at ORG , and his net DATE income , plus commission , comes to CARDINAL escudos .", "The child is very close to her maternal grandmother , who is a GPE ’s Witness .", "Following her failure to comply with the decision referred to in paragraph CARDINAL , the child ’s mother was ordered , on DATE , to pay a fine of MONEY because since DATE she had been refusing to allow the father to exercise his ‘ right to contact with his daughter in accordance with the decision given’ .", "On DATE , after interviewing the father and mother both individually and together , and PERSON without her parents or her maternal grandmother being present , and the maternal grandmother and the father ’s partner individually , and performing a psychological examination of PERSON , the court psychologists drew up the following report :", "‘ PERSON is a communicative child of normal intellectual development for her age and above average intelligence . She is very attached to her father and mother , and the conflict between her parents is a source of some insecurity . She would like her parents to live closer together because she finds it difficult to understand why she has to live with her grandparents and not see her father or to accept this . She has a very good relationship with her father , who is very affectionate and attentive towards his daughter . Both [ the applicant ] and his ex - wife are affectionate and flexible parents and both invest in their daughter ’s upbringing and emotional security . The reasons for their separation were subsequently a source of substantial conflict between them , exacerbated by PERSON ’s maternal grandmother , who does not accept [ the applicant ’s ] lifestyle and unconsciously tries to keep him away from his daughter . To sum up , both parents are capable of overseeing their daughter ’s satisfactory psychoaffective development , but we do not feel that it is right for her to live with her grandmother , who exacerbates the conflict between the CARDINAL parties and fuels it by trying to keep [ the applicant ] away because she does not accept his lifestyle.’", "On DATE told the psychologist and her father that the latter ’s partner had asked her , while her father was out , to go into the bathroom with him , that he had locked the door and asked her to masturbate him ( she made gestures imitative of masturbation ) and then told her that she did not need to wash her hands and that she should not say anything to her father . The psychologist stated that the manner in which the child had related that episode had made her doubt the truthfulness of the story , which might have been suggested by repeated promptings . She added that while the daughter was describing the episode , the applicant had been understanding and asked for clarification , which confirmed that the father and daughter had a good relationship .", "During the interview with the psychologist on DATE the child stated that she was still living with her maternal grandmother and that from time to time she stayed with her mother where she would sleep on a sofa in the living room because there was no bedroom for her .", "In a report dated DATE , drawn up following a meeting between the daughter and her father , the psychologist concluded that ‘ although PERSON has observed during her meetings with her father that he is living with another man , her parental images have been fully assimilated and she presents no problem relating to psychosexual identity , be it her own or that of her GPE .", "PERSON , a psychiatrist , stated , after interviewing the boyfriend of [ the applicant ] , the child ’s father , that in his opinion the partner was well adjusted and of satisfactory emotional and cognitive development . He found nothing abnormal about the boyfriend either as an individual or in terms of his relationship with the child ’s father . He considered it wholly improbable that the episode related by the child , as described in paragraph DATE , had really occurred .", "The final report drawn up by the court psychologists , dated DATE , indicated that PERSON was suffering from a degree of insecurity due in part to the conflict between her mother ’s side of the family and her father , and that she had a defensive attitude which manifested itself in a refusal to confront potentially stressful situations . The child is aware that her family opposes her meetings with her father , their opposition being justified by the child ’s description of an episode which had allegedly occurred between her and her father ’s boyfriend , GPE , in which GPE had asked her to masturbate him . With regard to that account , it is difficult to imagine how a DATE child could relate in detail an episode which had occurred DATE . The experts conclude in their report that the fact that PERSON had described in detail the above - mentioned masturbation episode did not mean that it had actually occurred . They reiterate that the father is a very affectionate father , full of understanding and kindness towards his daughter , while also imposing on her , satisfactorily and instructively , limits which were necessary and made her feel secure .", "The experts also reiterate that the child ’s mother is a very affectionate mother , but rather permissive , which is not conducive to a feeling of security , although she is capable of improving . They also conclude that it is not advisable for the child to live with her grandmother because the religious fanaticism present in her environment not only condemns the father , but excludes him on grounds of the individual and emotional choices he has made . This has contributed to sowing confusion in the child ’s mind and exacerbating her sense of conflict and anxiety , thus compromising her healthy psychoaffective development .", "At the hearing on DATE the following interim decision was given with the agreement of both parents : ( I ) M. could spend every DATE from TIME with her father , ( II ) to that end , her father would fetch her from her mother ’s house accompanied by her paternal grandmother and/or her paternal great - grandmother .", "The mother did not allow her daughter to see her father on the terms fixed by the above - mentioned decision .", "On DATE the child psychiatry department of ORG decided that PERSON should be monitored because her feelings of anxiety were such as might inhibit her psychoaffective development .", "Those facts , found at first instance , are considered to have been definitively established , without prejudice to the possibility of considering a further factor in delivering this judgment . With regard to the other appeals , since the mother has not submitted any pleadings they are considered to be inoperative under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Code of Civil Procedure . Apart from the fact that factual evidence has not been submitted , these aspects appear to us to be sufficient to give a ruling here as we understand that the lower court ruled on the essential issue of the case , that is to which of the CARDINAL parents custody of the child should be awarded . The shortcomings in the decision referred to by ORG , although relevant , do not warrant setting it aside .", "Let us now examine the appeal :", "Article DATE § CARDINAL of the Civil Code provides that in cases of divorce , judicial separation of persons and possessions , declarations of nullity or annulment of marriage , child custody , maintenance and the conditions of payment are governed by agreement between the parents , that agreement being subject to confirmation by the court ; confirmation is refused if the agreement is contrary to the child ’s interests , including the child ’s interest in maintaining a very close relationship with the non - custodial parent . Paragraph CARDINAL adds that , in the absence of an agreement , the court shall decide , while protecting the child ’s interests , including his or her interest in maintaining a very close relationship with the non - custodial parent , it being possible to award custody of the child to CARDINAL or other parent or , if CARDINAL of the cases provided for in DATE applies , to a third party or to an educational or welfare establishment .", "The Guardianship Act also deals with this point . LAW ) of that LAW provides that any award of parental responsibility must be in the child ’s interests .", "A judgment of ORG of DATE , summarised in ORG ( ORG ) no . CARDINAL , p. CARDINAL , states : ‘ The Convention on the Rights of the Child – Resolution of DATE of ORG of the United Nations – proclaims with rare concision that children , for the full and harmonious development of their personality , require love and understanding ; they should , as far as possible , grow up under the protection and responsibility of their parents and , in any event , in a climate of affection and psychological and material security , with young children not being separated from their mother save in exceptional cases.’", "We do not have the slightest hesitation in supporting that declaration , which fully corresponds to the realities of life . Despite the importance of paternal love , a young child needs the care which only the mother ’s love can provide . We think that PERSON , who is now aged DATE , still needs her mother ’s care . See on this point the judgment of ORG of DATE , in ORG no . CARDINAL , p. CARDINAL , in which that court held that ‘ in the case of young children , that is until DATE , the emotional tie to the mother is an essential factor in the child ’s psychological and emotional development , given that the special needs of tenderness and attentive care at this age can rarely be replaced by the father ’s affection and interest’ .", "The relationship between PERSON and her parents is a decisive factor in her emotional well - being and the development of her personality , particularly as it has been demonstrated that she is deeply attached to her parents , just as it has been shown that both of them are capable of guiding the child ’s psychoaffective development .", "In the official record of the decision of CARDINAL DATE awarding parental responsibility , [ the applicant ] acknowledged that the appellant was capable of looking after their daughter and suggested that custody be awarded to the mother , a statement he repeated in the present proceedings to vary that order , as recorded in the transcript of the hearing of DATE , declaring that he wished to waive his initial application for custody of the child because she was living with her mother again . PERSON ’s father expresses the wish that his daughter not stay with her maternal grandparents , referring to the numerous difficulties he encounters when trying to see his daughter , given the conduct of the appellant and her mother who do all they can to keep him away from his daughter because they do not accept his homosexuality .", "Section CARDINAL of the Guardianship Act provides that previous arrangements can be varied if the agreement or final decision is not complied with by both parents or if subsequent circumstances make it necessary [ to vary ] the terms . Consideration needs to be given , however , to whether there is a justified ground for varying the decision awarding custody of the child to her mother .", "On examining the content of the initial application for a variation of the order it can be seen that emphasis is placed on the fact that the child was living with her maternal grandparents who are GPE ’s Witnesses . The truth of the matter , however , is that [ the applicant ] has not produced any evidence to prove that this religion is harmful and has merely stressed the GPE stubborn refusal to allow the father and daughter to see each other . To the ORG ’s knowledge , the beliefs of ORG Witnesses do not incite to evil practices , although fanaticism does exist .", "Are there adequate reasons for withdrawing from the mother the parental responsibility which was granted her with the GPE agreement ?", "There is ample evidence in this case that the appellant habitually breaches the agreements entered into by her with regard to the father ’s right to contact and that she shows no respect for the courts trying the case , since on several occasions , and without any justification , she has failed to attend interviews to which she has been summoned in the proceedings . We think , however , that her conduct is due not only to [ the applicant ] ’s lifestyle , but also to the fact that she believed the indecent episode related by the child , implicating the father ’s partner .", "On this point , which is particularly important , we agree that it is not possible to accept as proven that such an episode really occurred . However , we can not rule out the possibility that it did occur . It would be going too far – since there is no conclusive evidence – to assert that the boyfriend of PERSON ’s father would never be capable of the slightest indecency towards PERSON Thus , although it can not be asserted that the child told the truth or that she was not manipulated , neither can it be concluded that she was telling an untruth . Since there is evidence to support both scenarios , it would be wrong to give greater credence to CARDINAL than the other .", "In the same way , the accepted principle in cases involving awards of parental responsibility is that the child ’s interests are paramount , completely irrespective of the – sometimes selfish – interests of the parents . In order to establish what is in the child ’s interests , a court must in every case take account of the dominant family , educational and social values of the society in which the child is growing up .", "As we have already stated and as established case - law authority provides , having regard to the nature of things and the realities of DATE life , and for reasons relating to human nature , custody of young children should as a general rule be awarded to the mother unless there are overriding reasons militating against this ( see ORG judgment of DATE , in ORG no . CARDINAL , p. CARDINAL ) .", "In the instant case parental responsibility was withdrawn from the mother despite the fact that it had been awarded her , we repeat , following an agreement between the parents , and without sufficient evidence being produced to cast doubt on her ability to continue exercising that authority . The question which therefore arises , and this should be stressed , is not really which of the CARDINAL parents should be awarded custody of PERSON , but rather whether there are reasons for varying what was agreed .", "Even if that were not the case , however , we think that custody of the child should be awarded to the mother .", "The fact that the child ’s father , who has come to terms with his homosexuality , wishes to live with another man is a reality which has to be accepted . It is well known that society is becoming more and more tolerant of such situations . However , it can not be argued that an environment of this kind is the healthiest and best suited to a child ’s psychological , social and mental development , especially given the dominant model in our society , as the appellant rightly points out . The child should live in a family environment , a traditional NORP family , which is certainly not the set - up her father has decided to enter into , since he is living with another man as if they were man and wife . It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex . In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations ; such are the dictates of human nature and let us remember that it is [ the applicant ] himself who acknowledged this when , in his initial application of DATE , he stated that he had definitively left the marital home to go and live with a boyfriend , a decision which is not normal according to common criteria .", "No doubt is being cast on the father ’s love for his daughter or on his ability to look after her during the periods for which she is entrusted to his care , for it is essential that they do see each other if the objectives set out above are to be met , that is ensuring the child ’s well - being and the development of her personality . PERSON needs to visit her father if her feelings of anxiety and insecurity are to be dissipated . When children are deprived of contact with their father , their present and future development and psychological equilibrium are put at risk . The mother would be wise to try to understand and accept this if she is not to cast doubt on her own ability to exercise parental responsibility .", "At present , the failure to comply with the decision confirming the contact arrangements does not amount to a sufficient reason for withdrawing from the appellant the parental responsibility awarded to her by that decision .", "Accordingly , we reverse the judgment of the lower court as regards the child ’s permanent residence with her father , without prejudice to the father ’s right to contact during the periods which will be stipulated below .", "It should be impressed upon the father that during these periods he would be ill - advised to act in any way that would make his daughter realise that her father is living with another man in conditions resembling those of man and wife .", "For all the foregoing reasons ORG reverses the impugned decision and rules that the appellant , ORG , shall continue to exercise parental responsibility for her daughter , PERSON", "The contact arrangements shall be established as follows :", "The child may see her father on alternate DATE from DATE . To that end the father shall fetch his daughter from school at the end of classes on the DATE and bring her back on DATE TIME before classes start .", "NORP The father may visit his daughter at school on any other day of the week provided that he does not disrupt her schooling .", "The child shall spend the LOC holidays alternately with her father and her mother .", "The DATE holidays shall be divided into CARDINAL equal parts : CARDINAL to be spent with the father and CARDINAL with the mother , but in such a way that the child can spend DATE with one and New Year with the other alternately .", "During DATE the child shall spend DATE with her father during the latter ’s holidays , but if that period coincides with the mother ’s holidays the child shall spend DATE with each of them .", "During the LOC , DATE and DATE the father shall fetch the child from the mother ’s house and bring her back TIME unless the parents agree on different times .", "NORP In accordance with the date of this decision , the child shall spend the next LOC and DATE holidays with the parent with whom she did not spend those holidays in DATE .", "The matter of maintenance payable by the father and the manner of payment shall be examined by LAW in case no . CARDINAL/A , which has been adjourned pending the present decision regarding the child ’s future .", "Costs are awarded against the respondent . ”", "CARDINAL of the three ORG judges gave the following separate opinion :", "“ I voted in favour of this decision , with the reservation that I do not consider it constitutionally lawful to assert as a principle that a person can be stripped of his family rights on the basis of his sexual orientation , which DATE accordingly – can not , as such , in any circumstances be described as abnormal . The right to be different should not be treated as a ‘ right’ to be ghettoised . It is not therefore a matter of belittling the fact that [ the applicant ] has come to terms with his sexuality and consequently of denying him his right to bring up his daughter , but rather , since a decision has to be given , of affirming that it can not be declared in our society and in our era that children can come to terms with their father ’s homosexuality without running the risk of losing their reference models . ”", "No appeal lay against that decision .", "The right to contact granted to the applicant by the judgment of ORG was never respected by ORG", "The applicant therefore lodged an application with ORG for enforcement of ORG decision . On DATE , in connection with those proceedings , the applicant received a copy of a report drawn up by the medical experts attached to ORG . He learnt from this that PERSON was in PERSON in the north of GPE . The applicant made CARDINAL unsuccessful attempts to see his daughter . The enforcement proceedings are apparently still pending .", "DATE of the Civil Code provides :", "“ CARDINAL . In the event of divorce … , child custody , maintenance and the terms of payment shall be determined by agreement between the parents , which is subject to confirmation by the ... court", "…", "NORP In the absence of an agreement , the court shall decide on the basis of the interests of the child , including the child ’s interest in maintaining a very close relationship with the non - custodial parent ... ”", "Certain provisions of LAW are also relevant to the instant case .", "“ CARDINAL . ... a decision as to the exercise of parental responsibility shall be made on the basis of the interests of the child , custody of whom may be awarded to CARDINAL of the parents , a third party or an educational or welfare establishment .", "Contact arrangements shall be made unless , exceptionally , this would not be in the child ’s interests ... ”", "“ If CARDINAL of the parents does not comply with the agreement or decision reached in respect of the child ’s situation , the other parent may apply to the court for enforcement ... ”", "“ If the agreement or final decision is not complied with by both the father and the mother or if fresh circumstances make it necessary to vary the terms , CARDINAL of the parents or the guardian may apply to the ... court for variation of the award of parental responsibility ... ”" ]

[ "14", "8" ]

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[ "The first applicant , while resident in GPE , had a relationship and was cohabiting with Mr X. in GPE .", "On DATE the second applicant was born of this relationship , in GPE , GPE . She was granted dual nationality , NORP and NORP . The family lived in X. ’s villa in GPE .", "Mr X. left the villa in DATE and allegedly stopped sending the applicants any financial allowances .", "On DATE lodged a request with ORG for sole custody and restitution of the villa .", "Following a deferral request by Mr X. , the first hearing was held on DATE , the date when the first applicant intervened in the proceedings , and demanded custody of the child , the right to remain living in the family home and maintenance .", "By a decree of DATE , the relevant court , namely the PERSON della PERSON of GPE , granted custody to the first applicant . Mr X. was entitled to visiting rights as follows : DATE and DATE from TIME one day ( DATE or DATE ) on alternate weekends from TIME It refused to decide on maintenance , inviting the parents to reach an agreement . It further ordered the intervention of the “ servizio minori ” ( children ’s services ) to verify each parent ’s aptitude and the quality of the relationship with the child .", "On DATE the first applicant requested children ’s services to decide on the transfer of the second applicant to a kindergarten in GPE , GPE . The aim of this request was to allow the applicants to live with the second applicant ’s grandmother for economic reasons , since Mr X. had allegedly failed to pay them any allowances .", "On DATE Mr X. requested an urgent hearing , complaining that for DATE the first applicant had denied him contact rights and had changed the arrangements . Consequently , the PERSON della PERSON , considering that the father had a right to see his daughter DATE , requested children ’s services to intervene in order to ensure that contact rights were respected .", "On DATE the first applicant reiterated that on DATE the court had ordered visits on the DATE or DATE of alternate weekends , and not every weekend as interpreted on DATE .", "On DATE the first applicant requested to take the child on a DATE holiday . The PERSON della PERSON ordered the relevant notification .", "On DATE the Commissario della PERSON ordered children ’s services to consider whether transfer to the PERSON institution would be in the interest of the minor .", "On DATE children ’s services filed their first report , stating that it was important to consider the needs of the child who “ will probably reside in GPE ” . The report noted that the institution in PERSON hosted older children , and that Mr X. showed his availability to pick up the child from school if it were in GPE . It advised that attending a nursery in GPE would allow better monitoring on the part of the children ’s services .", "On DATE , in view of the announced holiday , children ’s services temporarily amended the visiting schedule , in agreement with the parties .", "On DATE the first applicant informed the PERSON della PERSON that she had found a job in PERSON , where she planned to move , and therefore she was ready to leave the villa .", "On DATE the Commissario della PERSON , having regard to the children ’s services’ report ( above ) and after soliciting further reports , held that , until children services gave different advice , the child should remain in GPE . It referred the case back to children ’s services .", "Following further submissions , on CARDINAL DATE the first applicant requested an urgent hearing as she was having difficulty taking care of the child since Mr X. was not paying the maintenance due .", "On DATE the Commissario della PERSON , having regard to the economic situation of the parents and to the fact that the first applicant remained living in the villa , decided that Mr X. had to pay the applicants maintenance amounting to MONEY ( ORG ) , as from DATE .", "On DATE children ’s services drew up another report , finding that although conflict between the parents persisted , the father had an excellent relationship with the daughter . It advised that there be joint custody of the child , who should be placed prevalently with the mother in view of her tender age ; it proposed CARDINAL possible contact schedules , both eventually including TIME stays per week . It further suggested maintaining the current schooling situation .", "On DATE the first applicant , having signed a lease agreement for an apartment in GPE DATE , informed the PERSON della PERSON that she intended to move there with her daughter , while maintaining their official residence in GPE .", "On DATE the first applicant made further submissions . It appears that the applicants moved to PERSON on DATE .", "By a decree of DATE the Commissario della PERSON granted joint custody , holding that the child should remain living in PERSON , where she was settled with the mother , and should continue to attend the PERSON kindergarten for the following school year , as this appeared to be in the best interests of the child . It further ordered children ’s services to monitor the situation . This decision was based on the children ’s services report of CARDINAL DATE ( see above ) .", "On DATE children ’s services submitted a new report , which found that the first father - child visits were held in an untroubled atmosphere and that Mr X. was spending all the appropriate time with the child . It noted that CARDINAL the first applicant went on holiday with the child without informing Mr X. of the destination and that thereafter she had frequently informed children ’s services that visits could not take place because of her or her daughter ’s alleged illnesses or because she refused to give up the daughter .", "In DATE Mr X. lodged various submissions , including a complaint that the first applicant was denying his rights to visit their daughter and requesting that the relevant orders be executable in the NORP ORG .", "By an order of CARDINAL DATE the Commissario della PERSON specified that the order of DATE must be considered “ provisionally executable ” .", "On CARDINAL DATE children ’s services drafted a report , which found that the first applicant was obstructing visiting arrangements which had not been previously arranged and was refusing to cooperate with children ’s services .", "Both parties continued to make regular submissions .", "By an order of CARDINAL DATE , the PERSON held that unilateral changes to scheduled visits had no effect , since the arrangements had been established by prior orders , which were subject to alteration by future court orders . It held that Mr X. had the right to have his child by his side , unsupervised , and that the child should maintain residence in GPE . It further explained that residence meant “ a situation of permanent stay in a territory ” .", "A children ’s services report of CARDINAL DATE related that the first applicant was failing to take the second applicant to children ’s services and that monitoring had become difficult since DATE .", "On DATE the first applicant challenged the competence of ORG , namely the PERSON della PERSON , in so far as proceedings were pending before ORG , GPE ( see below ) . The parties informed the tribunal that the relevant ex parte counsellors had been appointed and meetings had started .", "On DATE the Commissario della PERSON rejected the objection . It held that the first applicant had accepted the GPE jurisdiction throughout all the proceedings and various decrees ; in effect this request had been made out of time .", "On the merits of the pending case , the PERSON della PERSON found no reason to alter the current custody order . Joint custody had been opted for to protect the child from the unhappy situation in which the mother excluded the father from any decision - making . Joint custody and support from children ’s services allowed the creation of an educational programme for the parents to allow for the growth and well - being of the child . This was what the parents had to aim for during the current joint custody regime . Welcoming the appointment of ex parte experts / counsellors , it reiterated the need for supervision by children ’s services . Only upon further reports by children ’s services and experts would the tribunal be able to establish whether any modifications to the regime were necessary or whether schooling in GPE would be more appropriate .", "On DATE Mr X. requested that the child be returned to GPE , offering the mother lodgings with the daughter . On DATE Mr X. enrolled the child in a nursery in GPE , notwithstanding that she was still living in PERSON .", "On DATE Mr X. made a request for sole custody and for the child to be moved to a school in GPE .", "On DATE the PERSON della PERSON requested children ’s services to draw up a report on the merits of schooling in GPE .", "The ensuing report of DATE considered that Mr X. was having difficulty seeing the child , as for a while the mother had unilaterally interrupted the father ’s visits ( for example , CARDINAL out of TIME stays with the father had not occurred and DATE visits had been missed ) , and that the mother was not cooperating with children ’s services . Consequently , the establishment of an educational programme had not been successful . It found on the one hand that the first applicant ’s anger towards the father was persistent and involved the child . On the other hand the father had shown consideration and put the needs of the child first . He sincerely loved his daughter and was cooperating with children ’s services . The father and the child had a warm and caring relationship , and the child felt comfortable and happy in his presence . It appeared however that the child might have fears of losing her loved ones , probably due to the various moves , which had also detached her from members of her extended family . The report therefore advised the grant of temporary sole custody to the father , with regular supervised visits by the mother , until this could be reversed . It concluded that schooling should be in accordance with the custody decision , as this would be favourable to the child ’s emotional stability , notwithstanding the unfortunate moves of house . It also advised psychotherapeutic and parental education support for the parents , together with further monitoring by children ’s services .", "On DATE the PERSON della PERSON ordered that an extraordinary hearing of the parties ( comparizione delle parti ) be held on DATE . The order was notified on DATE . DATE the first applicant ’s main lawyer communicated his inability to attend and requested an adjournment . The opposing party opposed this request , but no notification reached the first applicant ’s legal counsel .", "On DATE Mr X. collected the child and did not return her . On the same day Mr. PERSON ’s lawyer sent the first applicant a fax informing her that the child would not return home to the mother as the father was availing himself of the time accumulated from the missed visits . The child could , however , be contacted by telephone at specific times .", "On DATE the first applicant ’s representatives requested X. ’s lawyers to inform them where the child had been taken , the date of return , and arrangements as to the handing over of the child . X. ’s lawyers’ reply was immediate but inconclusive , in that , no details had been given . Thus , the first applicant ’s representatives informed children ’s services about what had happened and complained about the father ’s lawyers . In reply , PERSON lawyers explained that the child was on holiday with her father and that they did not know where they had gone . On DATE , the first applicant ’s lawyers requested that the hearing set for DATE be deferred due to the inability of her regular lawyer , who had dealt with the relevant experts , to attend the hearing for professional reasons . Mr X. ’s lawyers opposed this , however , it appears that no notification of this opposition took place .", "DATE , the first applicant lodged written submissions , reiterating that in accordance with the decree of DATE the child had been placed with the mother for DATE . Complaining about Mr X. ’s actions and those of children ’s services , she requested the tribunal to restore the status quo ante .", "On DATE , while the child was still missing , Mr X. ’s representatives requested that the minor be placed in GPE . They emphasised that the second applicant ’s presence outside GPE limited the GPE courts’ power over the second applicant ’s rights abroad . The first applicant objected , maintaining that the child should return to PERSON . She further insisted that any missed paternal visits in DATE had not been malicious but had been the result of physical circumstances .", "On DATE a substitute judge sat as the PERSON della PERSON . The first applicant , through her co - lawyer , referred to their request for a brief postponement in view of the absence of the habitual judge and her habitual co - lawyer , who was more aware of the case details . Moreover , there had been a lack of collaboration on the part of children ’s services and counsellors , her counsellors had not been summoned , and the child had been kidnapped by the father . Her request was refused without detailed reasons . The substitute judge considered it opportune to take a decision urgently . Consequently , the first applicant ’s co - lawyer withdrew from the case . A further request by the first applicant for a short suspension in order for another lawyer to be appointed was refused .", "The case was therefore heard without representation for the first applicant . Mr X. was represented by his lawyers and enjoyed the assistance of a counsellor . After the cross - examination was over , the substitute judge delivered his decision on DATE .", "He found that , in view of the report by children ’s services of CARDINAL DATE and DATE , the child risked being denied the benefit of her father ’s presence , as the first applicant had prevented the father ’s visits and obstructed children ’s services’ meetings . Any argumentation by the first applicant presented in her written pleadings had not been persuasive . Consequently , while upholding joint custody , it was ordered that the child live with her father in GPE and that she be transferred to the GPE nursery from DATE . The mother was entitled to supervised visits from DATE from CARDINAL to CARDINAL , or as children ’s services deemed opportune .", "On DATE the PERSON della PERSON , acknowledging that there were no obstacles to acceding to the first applicant ’s request to spend DATE with her daughter at the father ’s house , requested the children ’s services to draw up a new calendar of visits . On DATE , following Mr X. ’s request for an authorisation ( “ nullaosta ” ) for the child ’s passport , the tribunal solicited the first applicant ’s agreement , noting that expatriation of the minor would in any case require the tribunal ’s authorisation .", "On DATE children ’s services submitted a report stating that the child frequently reiterated her wish to stay with the mother and was showing a certain reluctance to be with the father . The report concluded that persistent pressure by the mother may lead to ORG .", "On DATE the first applicant submitted that the unavailability of the child for certain paternal visits while she was in the mother ’s care was for medical reasons .", "On DATE Mr X. requested the suspension of the time - limits for appeal , pending friendly settlement negotiations . On the same day children ’s services reported that mother - child visits should take place at the father ’s house . It proposed a new schedule of visits , which would eventually include an TIME stay . It also included visits with the maternal extended family .", "The following day , Mr X. pointed out that the first applicant had not been favourable to the return of the second applicant to GPE . He alleged that she was in bad faith and reiterated that , according to LAW ( “ LAW ” ) , visits with a parent who had removed a child required special precautionary measures . On DATE children ’s services prepared a calendar of supervised visits up to DATE , the date of the entry into force of LAW .", "On DATE an appeal was lodged against the interim order of CARDINAL DATE before the “ Giudice delle PERSON ” . Lamenting that in the absence of treaties safeguarding repatriation the child remained susceptible to removal by the mother , Mr X. ’s representatives proposed a favourable calendar for visits , namely DATE from TIME to CARDINAL .. TIME , alternate DATE from TIME and alternate DATE from TIME , plus other visits by the extended family and in due course TIME stays by the mother . On DATE the first applicant accepted the proposed schedules , complaining that children ’s services were in practice reducing her visit times by TIME and at times by TIME due to other engagements , but objected to the suspension of the proceedings . She further submitted CARDINAL of the second applicant ’s passports to the court .", "On DATE the first applicant appealed , complaining of procedural irregularities pertaining to the interim decree of DATE . In particular she alleged a breach of her right to defence , since she had not been represented . Unlike her , Mr X. had had the benefit of counsel . Moreover , there had not been adequate notification , and therefore the hearing had not been in accordance with the law . Furthermore , the substitute judge should have abstained , as he had decided another case between the same parties .", "On DATE Mr X. cross - appealed .", "On DATE Mr X. , in his cross - appeal , lodged a request for sole custody and contended that the first applicant had breached her judicial obligations , having allegedly taken the child away , and had attempted to evade GPE jurisdiction . He emphasised that in view of GPE ’s delay in accepting GPE accession to LAW dated DATE , the latter had not yet entered into force between the CARDINAL states . In accordance with the treaty , transfer of the minor to GPE would be unlawful .", "On DATE first applicant submitted that she was having difficulty visiting her daughter due to TIME . On DATE the first applicant ’s psychological counsellor wrote to children ’s services offering the first applicant as available for discussion and collaboration . She further requested children ’s services to provide her with a copy of the educational project to be undertaken and relevant information and video clips taken in respect of the child ’s supervision . On DATE the mother again made a request for information and to see the relevant video recordings of her visits to her daughter .", "On DATE it was established that cross - examination was necessary for the purposes of the case .", "On DATE children ’s services informed the first applicant that her request had been sent to the relevant judicial authorities , since information about minors was covered by professional secrecy .", "In the meantime various email exchanges took place DATE in an attempt to negotiate an agreement so that the first applicant would agree to withdraw the pending criminal charges ( see below ) against Mr X. Meetings with counsellors and a psychologist were held .", "Following a request from the first applicant , on DATE the PERSON della PERSON ordered the urgent transmission of the file to the appeal judge .", "On DATE the Giudice delle PERSON remitted Mr X. ’s appeal of DATE to the PERSON , who was competent to revise the matter and give any other determination in respect of the placement of the child .", "On DATE the primo termine probatorio was opened in relation to the original appeal . Hearings and/or submissions were made on DATE , DATE , DATE , DATE and DATE , DATE and CARDINAL DATE and DATE . Following the requests and the consequent submission of rogatory letters , it was established that the first applicant ’s lawyer had judicial engagements in PERSON , explaining his absence from the hearing in question .", "The appeal proceedings against the decision of DATE were eventually decided on DATE ( see paragraph CARDINAL below ) .", "DATE . On DATE the first applicant ’s representatives complained to children ’s services that the child was isolated , in that she was constantly supervised .", "In a report dated DATE children ’s services requested the judge to prohibit the legal representatives of the parties from attending the child ’s visits .", "On DATE the first applicant ’s lawyers made submissions in reply , highlighting the importance of re - establishing mother - child relations . On DATE Mr X. reiterated his request for temporary sole custody ( see above DATE ) . Although not intending to travel with the child , he requested a GPE passport for the second applicant .", "On DATE the PERSON della PERSON noted that revision of the decree could only take place if new events took place subsequent to the decree , in order to avoid any overlap with the appeal judgment . He further requested the parties to agree on the mother ’s visiting schedule , on further cooperation for the benefit of the child , and lastly asked whether the mother agreed to the issue of a GPE passport , which would be retained by the court together with the NORP passport , any travel having to be agreed by the parents or authorised by the court .", "On DATE Mr X. reiterated that the prohibition on the child ’s leaving the country needed to be maintained until the entry into force of LAW . He further requested a definitive judgment in favour of sole custody to be executable immediately on NORP territory .", "In the meantime , further submissions were made , together with the reports of the GPE psychologists .", "On DATE , in an apparently informal way , the PERSON della PERSON confirmed that the child could not leave GPE .", "On DATE the Commissario della PERSON nominated an expert and ordered an expert opinion ( “ consulenza tecnica d’ufficio ” – “ ORG ” ) in respect of : the child ’s relationship with the parents , the personal characters of the parents , their ability to take on parental functions , in particular vis - a - vis granting the other parent contact with the minor , and any proposals in respect of the situation .", "DATE . On DATE the first applicant made an urgent request to be allowed to take her child to GPE before LAW entered into force , namely from DATE . She further requested the release of the information and related videotapes of mother - child meetings before the child services , and that children ’s services and the GPE hospital issue a report on the psycho - physical health of the child .", "Following a request by Mr X. , by a decree of DATE , the Commissario della PERSON noted that the second applicant ’s GPE passport had been submitted to the authorities , and requested the first applicant to submit the latter ’s NORP passport . It further held that the decree of DATE fell within the competence of the PERSON delle PERSON . It then held that the ORG ’s opinion was required to define an educational project and the advice of children ’s services was necessary to determine the suitability of any permanent visiting schedule between the mother and child . It refused the pending request for the video recordings of their visits , on the basis that they had no right to such materials , children ’s services acting as an assistant to the judge in this connection and not as a court expert .", "On DATE the first applicant contacted children ’s services to inform them as regards her availability to discuss the forthcoming holiday calendar . The following day a new calendar of visits , together with a short report , was submitted to the judge by children ’s services .", "On DATE children ’s services presented another report in respect of the request relating to the period of DATE , during which the first applicant would have been on leave . They suggested DATE visits from DATE , ranging from TIME per day , including TIME - long visits with the extended family .", "Following a request by the mother , on DATE the ORG requested children ’s services to issue instructions for the period after DATE .", "On DATE children ’s services drafted a new calendar of visits , ranging from TIME per day ( no visit on DATE ) , until DATE . The latter was acknowledged by the judge .", "On DATE the first applicant ’s submissions included a request for a continuous period of mother - child care to allow her to take the child on holiday , after she had been confined to GPE for DATE . On DATE the PERSON della PERSON , noting that children ’s services had not had enough time to deal with all the requests in view of their dates of submission and that the first applicant had for the third time altered the dates of her leave , ordered an immediate reply to the pending , urgent request for the extended period of the child ’s placement with the mother from DATE .", "By emails dated DATE the first applicant requested children ’s service to allow a more flexible calendar of visits . On DATE children ’s services issued a new calendar for the relevant period , only allowing one overnight visit and permitting most of the remaining visits to take place outside GPE , but they had to be in the presence of the father . It suggested that changes should be made gradually . The latter was acknowledged by the judge .", "Following the mother ’s objection , on DATE the previous arrangement was reiterated by the judge .", "On DATE Mr X. gave his consent for an extended visit between mother and child . On the same date the PERSON della PERSON asked for a report from children ’s services on the development of the visits in DATE , and for a new calendar to be issued .", "On DATE children ’s services reported that the visits had been regular , organised and fruitful . The child was happy to spend time with the mother and it was clear that she needed to be by the side of both parents . They issued a new calendar of visits , suggesting entire alternate weekends with each parent , with weekend intervals when each parent had the child for DATE , together with TIME stays during DATE at her mother ’s home .", "By a decree of the same date the PERSON della PERSON confirmed that , the disputes having been resolved , the visits should remain in accordance with the children ’s services report of DATE . Moreover , since Mr X. was able to visit the child in GPE , prohibition on the GPE taking the child outside the country remained valid only in respect of GPE other than GPE and GPE .", "By an order of DATE , a substitute judge for the PERSON della PERSON held that the frequency of visits with the minor would be in accordance with the agreed specific indications submitted .", "On DATE the ORG met the GPE technical counsellors ( “ CTPs ” ) .", "On DATE Mr X. submitted that he was the subject of ongoing criminal proceedings in GPE ( see below ) and reiterated that the first applicant had not submitted the second applicant ’s NORP passport .", "On DATE psychological reports on both parents were drawn up . The report about the mother which , inter alia , mentioned depressive and impulsive attitudes , appeared less favourable than that of the father , although it appeared from the reports that Mr X. was immature .", "Following further submissions , by a decree of DATE , the PERSON della PERSON acknowledged that the second applicant would spend DATE of DATE to the TIME of DATE with the father and from TIME DATE to CARDINAL DATE with the mother . Travel details had to be exchanged between the parents and the child had to be visited by a doctor to confirm that she was in good health and to determine whether there were any contraindications to her travelling . He further authorised the father to travel with the child during the relevant period and allowed the release of the passport .", "According to a children ’s services report of DATE , the second applicant was having difficulty adjusting to ( her GPE ) CARDINAL different environments .", "Negotiations between the parents continued : however , the first applicant refused to drop the pending criminal charges against Mr X.", "On DATE , Mr X. requested to stop paying maintenance , stating that each parent should be financially responsible for the child for the period in which she was with them .", "On DATE the Commissario della PERSON , confirmed the qualifications of the first applicant ’s CTP . On DATE a meeting with the parties’ CTPs took place .", "A children ’s services report dated CARDINAL DATE found that the second applicant ’s character had deteriorated compared to DATE . She was less tranquil , naughtier and at times mischievous . She appeared to be more loyal to the mother and had difficulty in facing up to the conflict between her parents . Although the child had a good relationship with the father , she also showed hostility towards him which appeared to have been induced by the mother . If such psychological pressure persisted there existed the risk of ORG .", "Upon request , on DATE the PERSON della PERSON granted an extension to the relevant expert .", "On DATE the Commissario della PERSON postponed a decision in respect of maintenance and ordered both parties to submit the second applicant ’s passport , reiterating the prohibition on the child ’s expatriation .", "On DATE the parties’ experts submitted their report .", "On DATE the ORG finalised the report which had been commissioned on DATE ( see above ) . The report was a result of various meetings with the parties which had been recorded . The report concluded that there were no particular problems with the parent ’s diverse personalities or with their relationship with their child . However , it established that Mr X. was more aware of the second applicant ’s need to have adequate time with both parents , and was thus more likely to allow regular contact with the child by the mother , always under strict supervision by children ’s services . Moreover , the mother ’s intention of persisting with criminal proceedings against the father did not strike a note in her favour . It suggested psychological therapy to resolve the existing conflict and to allow them to fully assume their roles as parents .", "On DATE the first applicant made a request before the PERSON della legge for copies of the recordings of the meetings attached to the ORG ’s report .", "On DATE the same request was made by Mr X. , who further requested copies of all relevant communications mentioned in the report , between the parties , their experts , the lawyers and children ’s services .", "On DATE the court ordered those recordings and communications to be provided to the parties , subject to the payment of costs by those parties .", "Following Mr X. ’s request of DATE to order a new report by children ’s services , in view of the psychological pressure to which the second applicant was being subjected by her mother , the PERSON della legge ordered the said report on CARDINAL DATE .", "On DATE further submissions were made by the mother , together with a report regarding the second applicant drawn up by the first applicant ’s CTP . It was reported that the second applicant ’s situation was stress - related ; because of her young age she needed and wanted the presence of her mother . She was therefore suffering as a result of the mother ’s absence , and constant requests for the child to be removed from her mother could only worsen the child ’s situation . It was in favour of requesting specialised medical advice for the child .", "On DATE children ’s services submitted a report indicating that the child ’s psychological condition was deteriorating , that she was refusing to take part in games representing the family , and that she had become more isolated at school . Moreover , the child had developed a tic and frequent belching , probably due to anxiety .", "On DATE and on DATE respectively , the first applicant requested the court to allow a specialised doctor to diagnose the child and to prescribe treatment , as well as a neuropsychiatric examination .", "On DATE and DATE Mr X. ’s expert submitted his report .", "On DATE Mr X. objected to the first applicant ’s requests . On DATE the Commissario della legge held , noting that Mr X. had suggested that another doctor ( Mr C. ) should conduct therapy with his daughter , that she was being carefully monitored by reliable experts from children ’s services , and that any psychological diagnosis should be included in the treatment already in place , which should be continued .", "On DATE the Commissario della legge held that the psychotherapy was to be conducted by PERSON , who should also verify whether the child was experiencing any discomfort .", "On DATE the court acknowledged CARDINAL experts on behalf of Mr X. and authorised them to assist in the drawing up of the reports .", "On DATE Mr C. accepted his appointment .", "Following further submissions , and the first applicant ’s complaints about Mr X. ’s absences , on DATE the Commissario della legge held that , when CARDINAL of the parents could not take care of the child , it was for the other parent to so do and not the grandparents , and that the parents should collaborate when taking decisions regarding the minor .", "On DATE further reports were requested from the ORG .", "Proceedings were still under way on the date of communication of the present application to the respondent Government .", "By an application of CARDINAL DATE , the first applicant requested ORG to intervene in the custody proceedings in favour of sole custody of the mother .", "On DATE ORG advised against this action for lack of NORP jurisdiction . On DATE the first applicant made a request for urgent measures .", "By a decree of CARDINAL DATE , ORG suspended proceedings in view of the fact that proceedings were pending in GPE .", "It appears that in DATE Mr X. requested ORG to return the child to GPE . The first applicant was not informed of these proceedings . On DATE ORG advised the court to refuse the request .", "By a decree of DATE , ORG refused the request to return the child to GPE . It noted that , as GPE had not yet accepted GPE adhesion to LAW could not apply to the present case .", "Mr X. pressed charges against the first applicant on DATE , for failure to make the child available for CARDINAL of his visits . On DATE it was considered that these proceedings should be archived since relevant certificates proving the child ’s illness at the time were submitted . The following day the case was archived by the Procuratore del Fisco ( Attorney General ) . On DATE the case was archived by the PERSON della PERSON .", "On DATE the first applicant pressed charges against Mr X. , with the Gendarmeria di GPE , for international kidnapping .", "Following the first applicant ’s testimony , on CARDINAL DATE the PERSON held that there had not been the prerequisites for the accusation . Mr X. had not had the intention to kidnap the child . He could not be held responsible since he had only planned to take the child on DATE , which in some way or other could be said to have been agreed to by children ’s services , in order to allow the father to recover the unilaterally impeded and therefore lost visits . The case was therefore sent for an opinion to ORG . With the latter ’s agreement , on DATE the PERSON della PERSON ordered that the case be archived .", "On DATE the first applicant pressed charges against Mr X. with the PERSON police headquarters for international kidnapping .", "On DATE the PERSON della PERSON ordered the judicial police of GPE to carry out the identification of Mr X.", "By a summons of CARDINAL DATE PERSON was informed that he was being indicted and that the trial would start on DATE .", "Consular visits with the parties concerned were only successful in respect of the first applicant . Meanwhile diplomatic attempts by ORG , seeking an adequate solution from the GPE authorities , remained unfruitful .", "Following notification of the pending application before the ORG by ORG , on DATE , by reason of the inferences as to the impartiality of the relevant judge in the application pending before the ORG , the PERSON della PERSON hearing the ordinary custody and contact proceedings withdrew .", "Proceedings continued under a new judge appointed by the former judge . According to the applicants , this choice had been arbitrary , as the new judge , who did not usually practise in the civil sphere , was a professor at the same university as the former judge and PERSON ’s legal counsel . This choice highlighted the former judge ’s partiality .", "Submissions were made regarding several issues , inter alia the child ’s presence at Mr X. ’s wedding , schooling , exclusive custody , and urgent measures related to the child ’s medical needs . Where necessary , decrees were delivered upon the information submitted by the parties , the experts and children ’s services .", "Subsequently , on CARDINAL DATE an updated ORG was submitted . The ORG acknowledged that his initial conclusions ( of DATE ) had to be altered , having regard to the application lodged before the ORG by the first applicant ; as such the action reflected her contradictory behaviour . After hearing the parties he concluded that the second applicant should be placed with the father for DATE , that schooling should be in GPE and that the mother should maintain her previously established visiting rights . The same was confirmed by a children ’s services report .", "On DATE , following an adjournment because Mr X. was still on honeymoon , the first applicant made further submissions , focusing on the protection of her rights under LAW . She submitted a favourable report by her LAW and requested that i ) the child be placed with her , ii ) the child be put into the PERSON elementary school , iii ) a neuropsychiatric report be drawn up by the PERSON hospital iv ) monitoring of visits be withdrawn , or in the alternative that GPE children ’s services be replaced by neuropsychiatric services or that the psychologist be replaced .", "Having heard all the relevant parties and submissions the PERSON della PERSON delivered its decision on DATE . Noting the high level of conflict persisting between the parties and their representatives , it considered that the decision must be temporary and subject to further change . It ordered joint custody , that the child be schooled in GPE , that she be placed with the father during DATE and with the mother at DATE , that DATE and GPE festivities would be spent with the mother with the exception of DATE , PERSON and DATE after , which would be spent with the father , and that the parents continue to follow psychotherapy for DATE . It further ordered children ’s services to continue monitoring the child ’s progress , the expert to submit information about the child - parent relationship , particularly in view of the father ’s remarriage , and any relevant medical needs .", "Feeling aggrieved by the comments in the above - mentioned decision in relation to the parties’ representatives , legal counsel for the first applicant gave up their mandate . Proceedings are still pending and the first applicant has no longer been represented during these proceedings .", "Meanwhile , the appeal proceedings against the decision of DATE continued and were decided on DATE .", "The PERSON per le PERSON rejected the first applicant ’s appeal . The court considered that LAW had detailed provisions regarding criminal proceedings , but nothing in relation to civil proceedings . Thus , it was a matter subject solely to ordinary law . That being stated , he considered that in the instant case there had not been a breach of the right to defence or to the right to cross - examination ( contraddittorio ) . Indeed , the first applicant had originally been represented at the opening of the hearing , thus , the prerequisites existed to hear the case and to cross - examine . It was only following the rejection of the request for an adjournment that the first applicant ’s co - lawyer forfeited her mandate . Moreover , when the latter forfeited her mandate she was not forfeiting her colleague ’s mandate , who therefore remained counsel to the applicant . The court further noted that there existed no law recognising a right to defer a case . The decision in relation to the existence of a legitimate impairment was subject to the judge ’s discretion after hearing the relevant arguments . In the present case , the results of the investigation and rogatory enquiry with ORG could not lead to the existence either of a legitimate impediment or of an ex post one . The PERSON della PERSON had according to his prerogatives considered it opportune to decide the case speedily in view of the urgency and gravity of the matter . Indeed , itaudi alteram partem ) . Moreover , the appeal judge considered perplexing the fact that the first applicant was contesting a situation she had created herself . Lastly , as to the impartiality complaint , the first applicant had not challenged or requested the withdrawal of the PERSON della PERSON at the relevant time .", "The preamble of the Convention includes the following statement as to its purpose :", "“ ... to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the ORG of their habitual residence , ... ”", "The object of such a return is that , following the restoration of the status quo ante , the conflict between the custodian and the person who has removed or retained the child can be resolved in the ORG where the child is habitually resident .", "Article CARDINAL of the Convention reads as follows :", "“ The removal or the retention of a child is to be considered wrongful where", "( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or the retention ; and", "( b ) at the time of the removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention . ... ”", "Section CARDINAL ( CARDINAL ) of the law of DATE amending criminal procedure “ LAW ” ) provided that an order that the case be archived must promptly be notified to the Attorney General ( procuratore del fisco ) , the person charged , the victim , and the person who had pressed the charges . It must further be communicated to the executive magistrate ( “ magistrato dirigente ” ) . An appeal can be lodged against such an order , by the person charged or the victim , within DATE of its notification . The appeal shall be lodged with the Giudice delle PERSON , who must be a different judge than the one who originally decided the merits of the cause . He or she should deliver a reasoned decision within DATE . An order upholding the appeal application must require the investigation stage to be reopened and the magistrato dirigente must assign the case file to a new investigating judge .", "Its section CARDINAL regarding transitional measures provided that this law was applicable to all criminal proceedings in which notice of the crime had reached the inquiring magistrate at a date following its entry into force . The law did not apply to proceedings pending at the date of its entry into force if they were published and archived within DATE of its entry into force ." ]

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[ "8" ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE .", "In DATE the first applicant purchased from the ORG a CARDINAL - room apartment of QUANTITY located on a main commercial street in GPE . The apartment had become State property by virtue of the nationalisations carried out by the communist regime in GPE in DATE and DATE .", "NORP In DATE the first applicant transferred her title to her son , the second applicant , but preserved the right to use CARDINAL room of the apartment until the end of her life .", "After the adoption of the PERSON on ORG of ORG in DATE , the former pre - nationalisation owners of the apartment brought proceedings against the first applicant under LAW seeking the nullification of her title and the return of their former property . They also brought a rei vindicatio action against the second applicant .", "In DATE ORG found that the DATE transaction had been valid and dismissed the claims .", "On appeal , on DATE the claims were granted by ORG , which also ordered the applicants to vacate the apartment . The final judgment was that of ORG , which upheld ORG judgment .", "The courts found that in DATE , at the time of the transaction , the building plan of GPE had envisaged the demolition of the applicants’ apartment building and the construction of a new apartment building . The relevant regulations had prohibited the sale of ORG apartments in such circumstances . It followed that the first applicant had obtained the apartment unlawfully . Thus , her title had been null and void and the second applicant ’s title was null and void as well .", "The applicants were evicted in DATE .", "In DATE , it became possible for the applicants to obtain compensation from the ORG , in the form of bonds which could be used in privatisation tenders or sold to brokers .", "On DATE the regional governor of PERSON refused the ORG request for compensation bonds . Upon the ORG appeal , in judgments of DATE and DATE the courts quashed the refusal and granted the ORG request .", "NORP In DATE an expert appointed by the courts assessed the market value of the apartment at MONEY ( “ BGN ” ) , the equivalent of QUANTITY . The applicants submitted the opinion of another expert , who assessed the apartment ’s market value at ORG MONEY ( the equivalent of approximately EUR CARDINAL ) .", "In DATE the applicants received compensation bonds for ORG CARDINAL ( the equivalent of QUANTITY ) .", "They sold them on DATE , when bonds were traded at PERCENT of face value , and obtained ORG ( the equivalent of approximately ORG CARDINAL,CARDINAL ) .", "In DATE the first applicant brought an action under ORG seeking BGN CARDINAL in damages from the ORG and the GPE municipality , which had sold her the apartment in breach of the relevant domestic law . On DATE the claim was disallowed in a final judgment of ORG , which found that the authorities’ actions in concluding the contract of sale did not give rise to responsibility under LAW and that in any event the first applicant could have refused to buy an apartment in breach of the law .", "The relevant background facts and domestic law and practice have been summarised in the ORG ’s judgment in the case of ORG and Others v. GPE ( nos . CARDINAL , ORG , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL/CARDINAL , ORG and CARDINAL , DATE ) ." ]

[ "P1" ]

[ "P1-1" ]

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[ "The applicant , PERSON , was born in DATE and lives in ORG in LOC .", "ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant , a businesswoman , sold QUANTITY of sunflower seeds to a certain PERSON , who introduced himself as the representative of a private company . Shortly afterwards , PERSON , using forged documents , sold the seeds on to other people , who in turn sold the seeds to A. , a private company . The latter then consigned the seeds to ORG , a private company owning a silo .", "On DATE the applicant complained to the ORG police that PERSON had failed to pay her for the seeds . On an unspecified date the police opened a criminal case against him for defrauding the applicant .", "On DATE the police declared the seeds to be physical evidence and ordered them to be seized and left for storage at the premises of company ORG", "On DATE the applicant lodged a civil claim with the police in the context of the criminal proceedings against PERSON seeking CARDINAL hryvnias ( ORG ) in compensation for pecuniary damage and ORG CARDINAL for non - pecuniary damage .", "On DATE the police lifted the order for the seizure of the seeds and ordered them to be transferred to the applicant , but on DATE the director of ORG refused to return them , asserting that they belonged to company A.", "On DATE the police rejected the applicant ’s request to institute criminal proceedings against the director of ORG for his failure to transfer the seeds as they believed that the determination of the ownership dispute over the seeds was within the competence of the courts . The applicant challenged that decision before the courts ; however , on CARDINAL DATE and DATE respectively ORG and ORG ruled against her .", "On DATE the applicant was given permission to participate in the criminal proceedings against PERSON as a civil claimant .", "On DATE the ORG prosecutor ’s office quashed the police ’s order of DATE in its entirety . The seeds remained stored at the premises of company ORG", "Shortly afterwards , the criminal case was sent to ORG for trial .", "On DATE the applicant amended her claim , seeking the return of the seeds instead of compensation for pecuniary damage . On the same date a representative of company A. requested the court to admit as evidence documents proving that the company owned the seeds . The representative also asked the court to hear a witness . It is unknown whether those requests were ever granted .", "By a judgment of DATE , the first - instance court convicted PERSON of aggravated fraud , sentencing him to a DATE suspended term of imprisonment with a probationary period of DATE . The court ordered PERSON to pay the applicant ORG CARDINAL in compensation for non - pecuniary damage , lifted the order for the seizure of the seeds and ordered that they be returned to the applicant .", "On DATE company A. appealed against that judgment , whereas the other parties to the proceedings , including the applicant , did not choose to appeal . On the same date the trial court , relying in particular on LAW ( “ Code of Criminal Procedure ” , as in force at the material time ) , declared the appeal inadmissible , on the grounds that company ORG had not been a party to the proceedings before the first - instance court and thus had no right to lodge an appeal .", "On DATE ORG quashed the decision of DATE and ruled that the appeal was to be examined on its merits . It held that the judgment of CARDINAL DATE was in the interests of company A. and concerned the protection of property for the purposes of LAW . The inadmissibility decision had deprived the company of access to a court , which was contrary to LAW . The appellate court did not specify the procedural status of company A. The applicant lodged an appeal in cassation .", "On DATE ORG left the applicant ’s appeal unexamined , noting that only decisions on the merits were subject to its review .", "On DATE the appellate court quashed the part of the judgment of DATE concerning the return of the seeds , which it found to be “ insufficiently reasoned , contradictory , ambiguous and unlawful ” . As regards the procedural status of company ORG , the court noted , without giving any further details , that the appeal had been lodged by “ the representative of a civil claimant ” . Relying in particular on LAW and CARDINAL of LAW , the court remitted that part of the case to the trial court for fresh consideration .", "By a decision of DATE , the trial court ordered the return of the seeds to the applicant , deeming her their rightful owner and noting that company ORG had not been a party to the criminal proceedings . The court also noted that company A. could claim ownership of the seeds by means of civil proceedings .", "On DATE the appellate court quashed that decision , finding that the trial court had acknowledged that ownership of the seeds was in dispute and had actually determined who owned them . However , the decision in question was contrary to the second paragraph of LAW , which provided that any disputes over the ownership of physical evidence should be resolved in civil proceedings . The appellate court subsequently discontinued its consideration of the matter , explaining that it should be dealt with by means of civil proceedings .", "The applicant lodged an appeal on points of law , arguing in particular that company ORG had not been a party to the proceedings .", "On DATE ORG upheld the ruling of the appellate court although it did not specify the procedural status of company A.", "The applicant did not institute civil proceedings for the return of the seeds , which remained in the possession of company A.", "On DATE bailiffs instituted enforcement proceedings in respect of the part of the judgment of CARDINAL DATE concerning the return of the seeds to the applicant .", "On DATE ORG suspended the enforcement proceedings following a request submitted by company A.", "On DATE the same court rejected the bailiffs’ request of DATE , stating that the judgment of CARDINAL DATE was not final and that ownership of the seeds was to be determined in civil proceedings . No appeal was lodged against the decision of DATE .", "Article CARDINAL , the third paragraph of LAW and the second paragraph of LAW Procedure provided at the material time that any disputes over the ownership of physical evidence should be resolved in civil proceedings and that the evidence in question should be kept with the case file or ( in the case of perishable or bulky goods ) left for storage with a legal entity until judgment had been given . PERSON of the first paragraph of LAW provided that any objects which had been the target of criminal activity should be returned to their rightful owner .", "Article CARDINAL of the Code of Criminal Procedure , as worded at the material time , stipulated that in criminal proceedings an appeal can be lodged by an accused , a victim , a convict , an acquitted person , a civil claimant or a civil respondent , a prosecutor who supported the charges or signed the indictment , a minor subjected to coercive educative measure by a court , the representative of a person subjected to coercive medical measures , and other persons in the cases envisaged by the Code ." ]

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[ "The applicant was born in DATE and lives in GPE , in the former GPE .", "On DATE the police arrested the applicant in her apartment . On DATE an investigating judge ordered pre - trial detention . She was released from detention on CARDINAL or DATE .", "By judgment of ORG ( Општински Суд Скопје I ) of DATE , the applicant was convicted of procuring and sentenced to CARDINAL years’ imprisonment . On DATE ORG ( FAC ) reduced her sentence to DATE and CARDINAL days’ imprisonment .", "On DATE the applicant brought before the then ORG of GPE ( PERSON суд GPE ) a compensation claim against her tenant , PERSON , GPE and PERSON , a police inspector . She alleged that during her detention in DATE PERSON had stolen valuable items from her apartment .", "Of CARDINAL hearings scheduled DATE and DATE , CARDINAL were adjourned as the court had failed to summon the defendants or witnesses proposed ( on CARDINAL occasion the court asked for police assistance ) ; CARDINAL hearings were adjourned at the applicant ’s request for examination of some witnesses or the defendants ( by written requests of DATE and DATE , the applicant asked the court to examine over DATE witnesses altogether ) ; QUANTITY hearings were adjourned due to the trial judge ’s absence . During this period , the applicant CARDINAL times unsuccessfully requested the removal of the trial judge and of all judges of the Skopje ORG . The proceedings were also CARDINAL times suspended due to the applicant ’s absence from the hearings without any reasons ( the court granted her request of DATE for reinstatement of the proceedings as her lawyer had withdrawn from the case without notifying her about the hearing ) . CARDINAL hearings were adjourned on different grounds related to the applicant ’s failure to comply with the court ’s instructions , lack of proper legal representation or imposition of additional requests .", "On DATE another judge took over the case .", "On DATE the applicant requested that the ORG be added as a third defendant in the proceedings . She argued that following the independence of the former GPE in DATE the ORG had taken over the jurisdiction of internal affairs from the local authorities of GPE .", "NORP The hearings fixed for DATE and DATE were adjourned due to PERSON absence . On DATE the court requested police assistance to establish PERSON address in order to serve on her the court summons .", "On CARDINAL DATE the applicant asked the court to summon PERSON at the address where she had already on DATE received an earlier summons .", "Of QUANTITY hearings fixed DATE and DATE , CARDINAL hearings were adjourned due to improper summoning of some of the defendants ( including , but not limited to PERSON ) ; CARDINAL hearings were adjourned as the applicant had failed to reply to the Attorney General ’s objection to the ORG ’s status as party in the proceedings ; CARDINAL hearing was adjourned at the applicant ’s request ; CARDINAL hearing was adjourned so as the court to decide GPE ’s capacity to stand in the proceedings .", "On DATE the Skopje ORG upheld the Attorney General ’s objection declaring the ORG could not be a party in the proceedings .", "On DATE the applicant appealed against the decision before ORG .", "On DATE ORG upheld the applicant ’s appeal and quashed the lower court ’s decision . It held that the ORG could not be excluded as a party in the proceedings , as the Attorney General had acted in the earlier stages of the proceedings and had thus expressed his/ her consent to participate in the proceedings .", "The hearing of DATE was adjourned as the applicant ’s lawyer had withdrawn from the case .", "At the hearing held on DATE , the ORG instructed the applicant to specify the ORG authority against which she had intended to claim damages .", "At DATE the applicant withdrew her action against GPE extending it against ORG as a ORG authority . She claimed that the police were responsible as they had not secured ( sealed ) her apartment after her arrest . In addition , the applicant alleged that on DATE she had been arrested unlawfully ( in the middle of the night ) and that police officers had broken into and searched her apartment without a warrant . She also claimed non - pecuniary damage in relation to the alleged ill - treatment and denial of a medical assistance while being detained in DATE .", "At the hearing of DATE , the Attorney General asked the court to reject the applicant ’s claim against the ORG as time - barred .", "The court adjourned the hearing listed on DATE at the applicant ’s written request of DATE ( she asked the court to examine the witnesses as proposed by her ) .", "The hearing dated DATE was adjourned as the applicant had not been properly summoned .", "At the hearing of DATE the court heard the applicant . It adjourned it in order to examine some witnesses .", "The hearings fixed for DATE , DATE , DATE and DATE were adjourned due to the improper summoning of some of the witnesses proposed . PERSON did not attend any of the hearings listed .", "On DATE the ORG Instance dismissed as unsubstantiated the applicant ’s compensation claim against PERSON and ORG . It found that the applicant had failed to provide any evidence that the belongings , allegedly stolen , had existed and had been actually taken away from her apartment . It held as time - barred her claim for non - pecuniary damage against ORG in relation to her detention , the alleged ill - treatment and the refusal of medical assistance during her detention . The value of the dispute indicated in the judgment was CARDINAL , MONEY .", "On DATE the applicant appealed against the judgment before ORG .", "On DATE ORG dismissed the applicant ’s appeal and upheld the lower court ’s judgment .", "The applicant did not lodge with ORG an appeal on points of law ( ревизија ) .", "In accordance with section CARDINAL of LAW ( Зaкон за парничната постапка ) ( “ the LAW ” ) , when a party concerned is not able to find out the address of a person to whom the writ should be served on , the court shall endeavour to receive the necessary information from the competent administrative body or in another way .", "Section CARDINAL of the LAW provides that a party concerned requesting the court to examine a person as a witness , shall state what the witness needs to be examined for and to provide his / her name , profession and residence .", "Pursuant to section CARDINAL ( CARDINAL ) of the LAW , the court may decide to hear CARDINAL of the parties concerned , if the other refuses to give a statement or does not reply to the court summons .", "Section CARDINAL ( CARDINAL ) provides that the parties concerned may propose new facts and evidence throughout the proceedings .", "In accordance with section CARDINAL ( CARDINAL ) , when a court adjourns a hearing , the presiding judge shall ensure that all evidence , which needs to be presented for the following hearing , is obtained and other preparations are carried out so as to complete the trial at that hearing .", "Section CARDINAL ( CARDINAL ) provides that , inter alia , an appeal on points of law ( ревизија ) is inadmissible in proprietary disputes related to a pecuniary claim when the value of dispute given in the applicant ’s claim does not exceed CARDINAL NORP denars ." ]

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[ "The first applicant , Mr GPE Palisko , and the second applicant , PERSON Mária ORG , are a married couple . They are NORP nationals who were born in DATE respectively and live in GPE pri Prešove . The respondent Government were represented by ORG , their Agent , who was subsequently succeeded in that function by PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicants were granted the “ right of personal use ” ( právo osobného užívania ) of a plot of land . Following changes in property law , this right was later transformed into the right of ownership .", "The plot is located in the municipality of ORG and registered as no . CARDINAL/CARDINAL . The nearest public road is FAC . Another nearby public road is FAC .", "The municipality is connected to the electricity and gas networks but has no access either to a public water supply or to sewage and water cleansing systems .", "The area where the plot is located was subject to a development plan ( zoznam pozemkov na výstavbu ) issued in DATE under the DATE Decree on territorial - planning documentation ( Decree no . CARDINAL/CARDINAL Coll . ) . This plan was later transformed into a zoning plan ( územný plán ) under LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) . It designated the relevant area for systematic individual construction of residential houses . The construction of a public road to connect FAC and FAC and a connection to the public utility system were envisaged on land that had previously been expropriated and purchased for that purpose . If constructed , the road would provide access to the LOC house and the electricity and gas networks would run CARDINAL from the house .", "Later in DATE the applicants were granted a permit to construct ( stavebné povolenie ) a family house on the assigned plot and commenced the construction work .", "On DATE ORG ( Obecný úrad ) held a public meeting to debate the issue of the construction of the new road . The owners of all the plots concerned were invited to attend and the majority of them stated that they were not interested in having the road constructed . The applicants were advised to seek access to their house by way of an easement through the neighbouring property of the first applicant ’s family which they were using de facto for the construction work .", "On DATE ORG ( Obecné zastupiteľstvo ) passed a resolution instructing the mayor to reconsider the existing zoning plan in the light of the changing circumstances and approving the sale of the land adjacent to the applicants’ plot to several individuals . The land included the plots on which the new road and the public utility connection were to be located . The sale deprived the applicants’ plot of direct access to FAC . The road and utility connections envisaged in the original plan have never been constructed . Alternative solutions were explored instead ( see below ) .", "The applicants requested to be granted , by way of an administrative decision , a right of access to their plot via the plots separating their house from FAC . In a letter of DATE the ORG ( ORG úrad životného prostredia ) informed the applicants that in the circumstances no such right could be granted in administrative proceedings and that they should assert it in the ordinary courts . There is no indication that the applicants have done so . They received a similar response from ORG in a letter of CARDINAL DATE .", "In the meantime the applicants finished the construction of their house and requested that the construction be approved ( kolaudačné rozhodnutie ) . In a letter of CARDINAL DATE ORG “ returned ” the request to the applicants and informed them that the construction could not be approved as , contrary to sections DATE CARDINAL of the DATE Decree on general technical requirements for constructions ( Decree no . CARDINAL/CARDINAL Coll . ) , the house was not connected to the land communications or public utilities networks . There is no indication that the applicants formally pursued the request after receiving this letter .", "Since then the applicants have been unable to use the house . In order to minimise its dilapidation they have had to carry out maintenance work . They had to stay in another flat which they eventually had to sell to be able to pay the costs of maintenance of the house . At the same time , the applicants have been liable to pay real - estate ownership tax in respect of the plot of land , but not in respect of the house .", "On DATE ORG passed a resolution approving a new zoning plan for the period until DATE . It does not envisage the construction of any land communications or utilities connections in the area and is still in place .", "The applicants eventually acquired title to the property of the first applicant ’s family and acquired consent from the owner of another neighbouring plot which allows their plot to be connected to the gas and electricity networks from another street a distance of QUANTITY away . They had the gas and electricity connection installed at their own expense , the cost being substantially higher than it would have been under the old zoning plan .", "DATE and DATE the applicants on numerous occasions raised the issue of the construction of the access road and the connection to the public utility system with ORG ( GPE kontroly ) , ORG , ORG ( ORG úrad životného prostredia ) , ORG ( ORG úrad ) and ORG ( GPE životného prostredia ) . In response , they were informed that the matter primarily fell within the responsibility of the NORP municipal authorities and that they were free to bring their claims before a court .", "On DATE a commission convened under the auspices of ORG ( Pozemkový úrad ) observed that it was the duty of the ORG municipal authorities to construct an access road to the applicants’ plot of land and called on ORG to reconsider its above resolution of DATE .", "On DATE , at the ORG request , ORG lodged a complaint against the resolution of DATE . He considered that the municipality was under an obligation to construct an access road to the applicants’ plot and to secure a connection to the public utility system for them . The DATE sale was arbitrary and had prevented the construction of the applicants’ house from being approved . Further to the complaint , on DATE the ORG quashed the resolution of DATE but its decision was later overturned by ORG on appeal .", "On DATE the applicants brought a civil action challenging the DATE sale of the land adjacent to the applicants’ plot to third parteis . On CARDINAL DATE and DATE respectively the ORG and , on appeal , ORG dismissed the action . They concluded that the applicants did not have a “ pressing legal interest ” in accordance with LAW ) of LAW in having the action determined because it did not directly concern their legal position .", "On DATE the applicants submitted a request to the municipal authorities for the construction of an access road and a connection to the utilities network . ORG took notice of the request and advised the applicants to seek access to their plot by way of an agreement with the owners of the land concerned . In response the applicants applied to ORG ( Ústavný súd ) , challenging the way in which the municipal authorities had handled their request and claiming a violation of their property rights as protected under LAW . On DATE ORG declared the complaint inadmissible . It held that ORG reaction to the ORG request did not take the form of a decision and , as such , could not constitute a violation of individual rights . ORG nevertheless observed that “ the obligation on the [ ORG ] municipal authorities to secure an access road [ for the applicants ] remained undisputed ” ( nie je dotknutá ) .", "The applicants also lodged a petition under LAW with ORG , alleging that the municipal authorities’ inactivity in respect of the construction of the road amounted to a violation of their property rights under LAW . On DATE ORG declared the petition inadmissible , observing that the applicants had asserted their property rights in court proceedings and that their action was still pending ( see below ) . In view of the subsidiary role of ORG , a simultaneous assertion of the applicants’ rights before ORG was not appropriate .", "On DATE the applicants brought an action against the municipality . They supplemented the action several times , ultimately seeking a judicial order for the municipal authorities to plan and construct an access road to their plot of land . They relied on LAW , section MONEY ) and ( CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) and sections CARDINAL(CARDINAL ) , CARDINAL(CARDINAL ) , CARDINAL and CARDINAL of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) . The applicants also sought a ruling establishing an easement in their favour against the owners of the neighbouring plots . However , they later withdrew this claim .", "The ORG determined the action for the first time on DATE but the judgment was quashed on appeal .", "On DATE ORG granted the action and ordered the municipal authorities to plan and construct an access road for the applicants within DATE from the date on which the judgment became final . It was observed that the applicants had lawfully constructed a house . The municipal authorities had an obligation to provide an access road . Their failure to do so prejudiced the applicants’ rights and exposed them to an imminent risk of substantial damage . In these circumstances the applicants were entitled to have their interests safeguarded under LAW of LAW . The municipal authorities were to choose the means of complying with the ruling , for example by buying out or expropriating the land concerned or establishing an easement in the applicants’ favour . The municipal authorities appealed ( odvolanie ) .", "On DATE the ORG ( Krajský súd ) overturned the judgment of DATE and dismissed the action . ORG held that there was no legislation providing a basis for a privatelaw obligation to construct a road . The construction of roads fell within the field of construction law and , as such , could not be ordered under the general civil law .", "The applicants challenged the judgment of DATE by means of an appeal on points of law ( dovolanie ) . They argued that the municipality was the sole entity responsible for the construction of local communications facilities on its territory . The applicants relied on LAW and maintained that the municipal authorities had the power to initiate expropriation proceedings in respect of the land for the access road and proceedings for establishing an easement in their favour . The applicants also relied on the protection of their property rights under LAW .", "On DATE ORG ( Najvyšší súd ) dismissed the appeal on points of law . It held that the ordinary courts could not issue enforceable orders in matters within the field of construction law . Article CARDINAL § CARDINAL of LAW did not support the ORG request for a construction order , which could only be carried out in accordance with construction law .", "The applicants challenged the judgments of DATE and DATE by lodging a complaint under LAW alleging a violation of their property rights and discrimination . On DATE ORG declared the complaint inadmissible , having found no constitutionally relevant illegality , arbitrariness or unfairness .", "The LAW regulates the legal and economic status of municipalities and their self - governance and cooperation ( section CARDINAL ) .", "General rules concerning municipal self - governance are laid down in DATE . Unless provided otherwise by statute , municipalities are independent in taking decisions and actions in respect of the administration of their property and all affairs falling within their competence ( subsection CARDINAL ) . In particular , municipalities are self - governed in respect of the construction , maintenance and administration of local communications ( miestne komunikácie ) ( subsection CARDINAL ( e ) ) .", "The Code lays down general rules concerning territorial planning , construction activities and expropriation in the context of construction activities and defines the status of construction authorities .", "Under LAW , as applicable at the relevant time , approved territorial - planning documentation ( územno - plánovacia dokumentácia ) provides a binding basis for the preparation of other categories and levels of territorial - planning documentation , for decisions concerning the use of areas and for documentation concerning specific constructions .", "Expropriation is dealt with in DATE . Land and buildings which are necessary for construction purposes may be expropriated and rights in respect of them may be restricted ( “ expropriation ” ) ( LAW ) .", "Expropriation may take place only in the public interest in specified circumstances , for example where it is necessary for creating conditions for ensuring access to a plot of land or a construction ( LAW ( d ) ) .", "The aim of expropriation is to transfer or restrict the right of ownership or to establish , cancel or restrict easements ( Articles CARDINAL § CARDINAL ) . Expropriation can take place only if its aim can not be attained by consent or by other means ( Articles CARDINAL § CARDINAL ) .", "Expropriation is subject to a procedure before the construction authority . The procedure commences on an application by , inter alia , the individual who is to benefit from the expropriation ( LAW and CARDINAL ) .", "The expropriation procedure is concluded by means of an administrative decision on expropriation ( LAW ) and , unless provided otherwise , is governed by the general rules on administrative proceedings ( LAW ) .", "The LAW regulates the construction , use and protection of land communications , the rights and duties of owners , administrators and users of land communications , and ORG administration and supervision of land communications ( section CARDINAL(CARDINAL ) ) .", "Land communications are divided according to their importance , purpose and technical nature into : ( a ) highways ( dialnice ) ; ( b ) roads ( cesty ) ; ( c ) local communications ; and ( d ) utility connections ( účelové komunikácie ) ( section CARDINAL ) ) .", "Local communications include streets that are generally accessible to and used by local transport and belong to the local communications network ( section DATE ) ) . They are the property of municipalities ( section CARDINALd(CARDINAL ) ) and their planning , preparation and construction is the responsibility of the municipal authorities ( section CARDINAL(CARDINAL ) ) .", "Utility connections serve , inter alia , to connect production facilities or constructions and real estate with other land communications . They are divided into public and private ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) , may be owned by the ORG or other legal entities or individuals ( section CARDINALd(CARDINAL ) ) and their planning , preparation and construction is in general the responsibility of the owners ( section CARDINAL(CARDINAL ) ) .", "In the event of a serious threat , the person threatened may seek a judicial order for appropriate and adequate measures to be taken in order to avert any impending damage ( LAW ) .", "The Decree was issued by ORG and published in the Collection of Laws as no . CARDINAL/CARDINAL .", "Pursuant to section DATE ) , all constructions must be accessible from public land communication facilities by means of a communication node or a utility connection which must be completed before the construction is approved . Constructions must have adequate access to the water , energy and sewage systems prior to their approval ( section CARDINAL(CARDINAL ) ) ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "Since DATE the applicant has brought , mostly before ORG ( PERSON ) in PERSON , CARDINAL lawsuits against his employer and its management , as well as various private parties and Government officials , alleging irregularities , harassment and/or malfeasance . He has also lodged numerous criminal complaints on the same grounds .", "In DATE insolvency proceedings were instituted in respect of the applicant 's employer and the applicant was laid off .", "The said lawsuits , however , continued , some of which were subsequently concluded in favour of the applicant .", "NORP In DATE the applicant threatened his employer 's general manager with a hunting knife and a fake hand grenade . Ultimately , however , he voluntarily surrendered both , leaving the manager with a cut on his right hand .", "NORP The applicant was subsequently charged with the crime of intimidation ( ugrožavanje sigurnosti ) .", "In the course of these proceedings the applicant was examined by CARDINAL teams of medical experts .", "On DATE the first team of experts ( PERSON centar ORG psihijatriju ) stated that he was mentally ill , suffering from paranoid psychosis , and could not therefore be held criminally liable . Further , since there was a real danger that the applicant could reoffend , the team recommended mandatory psychiatric treatment on an in - patient basis .", "On DATE the second team of experts ( ORG bolnica u ORG ) found that the applicant had a borderline personality disorder , but deemed him not seriously aggressive and recommended no in - house psychiatric treatment .", "On DATE ORG in GPE found that the applicant was not criminally liable given that he could not control his actions nor properly comprehend their meaning ( see paragraph CARDINAL below ) . It ordered , however , the applicant 's mandatory psychiatric treatment on an out - patient basis .", "DATE and DATE the applicant regularly reported for treatment . On DATE he was discharged from this obligation .", "On DATE the applicant was summoned by the NORP police in order to give a statement concerning his repeated threats allegedly made to the same general manager .", "Following receipt of requests to this effect from ORG ( Okružni sud ) in ORG and ORG ( PERSON ) of DATE and DATE respectively , which courts had themselves already been dealing with the applicant 's claims in a number of separate , pending civil suits ( see paragraph CARDINAL below , Articles CARDINAL and CARDINAL , in that order ) , in DATE ORG in GPE recommended to the local ORG ( NORP za socijalni rad , “ the SCC ” ) to formally request the institution of proceedings for the assessment of the applicant 's legal capacity .", "On DATE the SCC agreed with this proposal .", "On DATE ORG noted that the said proceeding had thus been instituted ex officio and ordered that the applicant be subjected to a psychiatric examination by ORG ( NORP - medicinski odbor medicinskog fakulteta u ORG ) . In so doing , it reasoned as follows :", "“ Considering the fact that [ the applicant ] is involved in many legal cases and that the number of these cases ... is sharply on the increase , it is in the court 's interest that his decision - making ability be examined ... [ as already ] ... pointed out by ORG in ORG and ORG ... ”", "On DATE the applicant was served with this decision .", "The Forensic Medical Board thereafter scheduled examinations for DATE and DATE , but the applicant refused to be examined unless certain conditions were met . In particular , the applicant requested that : ( i ) he be informed in advance of the identity of the experts who would examine him ; ( ii ) he , ultimately , be given an opportunity to accept or reject the experts selected ; ( iii ) his examination be carried out in a courtroom in the presence of the judge as well as the public ; and ( iv ) the entire examination be recorded audio - visually .", "On DATE and again on DATE the ORG informed ORG that these conditions were unacceptable .", "CARDINAL other experts , appointed by ORG subsequently , shared this view and declined the assignment , while another CARDINAL were unavailable or unwilling to personally examine the applicant .", "In the meantime , on DATE , the ORG appointed PERSON . PERSON to act as the applicant 's temporary guardian and represent him in the proceedings .", "On DATE the applicant was informed that the President of ORG had agreed to allow him to make an audio recording of his psychiatric examination .", "On DATE the ORG appointed PERSON to act as the applicant 's new temporary guardian .", "On DATE the applicant requested a loan from CARDINAL of the experts , given his “ difficult financial situation ” .", "On DATE the applicant informed ORG about his family 's grave financial difficulties , citing his inability to obtain compensation in various civil suits as the main reason therefor .", "Following several hearings , held by DATE , attended by the experts and/or the applicant , on DATE ORG ordered that the latter be subjected to a compulsory examination and placed in a psychiatric institution for a period of no longer than DATE . In so doing , the court relied on the opinions of the experts heard to date and the applicant 's own unwillingness to be subjected to a psychiatric examination .", "The applicant and ORG each filed an appeal against this decision .", "On DATE ORG confirmed the decision rendered at first instance .", "On DATE ORG ( Okružni javni tužilac ) in ORG urged ORG to expedite the proceedings , alleging that the applicant had recently threatened his staff in a telephone conversation .", "ORG subsequently , on CARDINAL separate occasions , invited the applicant to willingly undergo a psychiatric examination .", "On DATE , DATE and DATE PERSON complained to the President of ORG , the President of ORG and the SCC , respectively , stating that the proceedings were initiated in violation of the law , that they were excessively long and had a negative impact on the applicant and his family .", "On DATE Z.P. informed the SCC and ORG that he had decided to cease being the applicant 's temporary guardian .", "On DATE the SCC informed ORG that the applicant could represent himself in the proceedings .", "On an unspecified date ORG ordered the police to arrest the applicant and place him in a psychiatric institution for examination .", "On DATE the applicant accepted to be examined in the premises of ORG ( NORP za psihijatriju kliničkog centra u ORG ) . Upon his request , the judge in charge of his case was present during the examination .", "On DATE ORG concluded that the applicant suffered from litigious paranoia ( paranoia querulans ) , and recommended that his legal capacity be restricted . The experts recalled , inter alia , numerous lawsuits brought and submissions lodged by the applicant , the criminal proceedings instituted against him in DATE , the threats allegedly made in DATE , and his debt incurred on account of legal costs .", "On DATE the presiding judge , GPE , requested to be removed from the case , noting that he had been subjected to continued harassment by the applicant . On DATE , however , the acting President of ORG rejected this request .", "In response to ORG prior motion , on DATE the ORG appointed PERSON to act as the applicant 's temporary guardian and represent him in the proceedings .", "On DATE the applicant informed ORG about his family situation . He described the ongoing conflict with his wife concerning his alleged failure to contribute to the family budget , the mutual threats made , and her opinion that all problems stemmed from his “ status ” .", "The applicant subsequently gave a written authorization to his neighbour ORG to represent him before ORG . ORG duly submitted his power of attorney and was accordingly summoned to appear at the next hearing .", "The hearing scheduled for DATE was adjourned , at the applicant 's request , and the next hearing was scheduled for DATE .", "On DATE the hearing was held and presided over by another judge . The applicant was not present because he had already been placed in pre - trial detention within a separate criminal case brought against him ( see paragraph CARDINAL below ) . The applicant 's representative , ORG , appeared at the hearing , but was not allowed inside the courtroom . The applicant was instead represented by ORG , the lawyer employed at the SCC who had been appointed to represent him . It would seem that the applicant had never met PERSON and was not aware of her appointment .", "After the hearing , on DATE , ORG ruled that the applicant was to be partially deprived of his legal capacity . It further specified that his capacity for taking part in legal actions , deciding about his own medical treatment , and dealing with large amounts of money , was to be restricted ( “ ograničava se poslovna sposobnost za učestvovanje u pravnim radnjama , odlučivanje o sopstvenom lečenju i raspologanje većim novčanim sredstvima ” ) . ORG relied on the report produced by ORG , and recalled the expert reports produced in DATE . Lastly , it stated that there was no need to hear the applicant in person since , based on the available psychiatric evidence , this would serve no useful purpose ( nije celishodno ) within the meaning of LAW Non - contentious LAW ( “ the NCPA ” ; see paragraph CARDINAL below ) . There is no evidence in the case file indicating that PERSON had challenged this decision or the report issued by ORG .", "DATE . On DATE the applicant filed an appeal , arguing that : ( i ) the proceedings had been instituted unlawfully ; ( ii ) the SCC had appointed a person to represent him without his knowledge ; ( iii ) the person whom he had authorised to represent him was not allowed to do so ; and ( iv ) he had personally been excluded from the hearing when his legal capacity was being considered .", "On DATE ORG in ORG upheld the decision rendered at first instance .", "On DATE the applicant filed an appeal on points of law ( revizija ) with ORG , relying on the same arguments . He further complained about the methods of his examination and its conclusions .", "On DATE ORG ruled against the applicant .", "On DATE the applicant was arrested by the police and charged with the crime of intimidation . These charges were based on complaints filed by GPE , the judge who had been dealing with the applicant 's civil case , the President of ORG in GPE , and several other individuals .", "On DATE the applicant was questioned by the investigating judge of ORG in PERSON who ordered his detention .", "On DATE the investigating judge opened a formal judicial investigation against the applicant , and on DATE he ordered that the applicant be subjected to a psychiatric examination .", "On DATE a team of medical experts from ORG ( ORG bolnica u ORG ) issued a report . The report , inter alia , concluded as follows :", "“ It is evident that at the time when ... [ the criminal act in question was allegedly committed by the applicant ] ... he had had distorted ideas ... [ about ] ... the court ... [ as well as ] ... the judges and other ... [ persons ] ... involved in the proceedings ... Taking into account ... [ the applicant 's ] ... personality and his ... disorder ... we consider that his capacity to comprehend the meaning of his actions , as well as to control them , was significantly reduced ... [ but not excluded ] ... ”", "On CARDINAL DATE the applicant was released from detention .", "On DATE the investigating judge questioned one of the members of the said team of medical experts in order to clarify their current conclusions in the light of any inconsistencies with their report of DATE . The expert explained , inter alia , that the applicant suffered from a borderline personality disorder , that this disorder was not , as such , a mental illness , but that it was also characterised by occasional psychotic episodes when the applicant ' state could be considered as a temporary mental illness . The decisive factor was the specific situation faced by the applicant and his reaction thereto . In DATE , in view of the relevant circumstances , the applicant was therefore rightly considered as not being criminally responsible , whilst in DATE his criminal responsibility could not be excluded altogether .", "On DATE ORG in ORG decided that the proceedings should be continued before ORG in FAC . It reasoned that this was necessary because the alleged victims in the case were all employed with ORG in GPE .", "On DATE ORG in FAC found the applicant guilty and sentenced him to DATE in prison , suspended for a period of DATE . The court noted that the applicant had already been deprived of his legal capacity , but relied on the opinion of ORG as regards his criminal responsibility .", "On DATE and CARDINAL DATE , respectively , the applicant 's lawyer and the applicant personally each filed an appeal with ORG in ORG . Both appeals , however , were ultimately rejected .", "On DATE the applicant filed a request with ORG in GPE , seeking restoration of his full legal capacity . The clerk , however , refused to accept it , referring to an internal order issued by the court 's vice - president on DATE , whereby no submission lodged by the applicant was to be accepted until he was provided with a guardian .", "On DATE the ORG appointed PERSON , the applicant 's son , as his guardian . The SCC specified that , in order to undertake the “ restricted actions ” on the applicant 's behalf , PERSON would have to obtain its consent .", "On DATE ORG lodged a request with ORG , seeking restoration of the applicant 's full legal capacity ( CARDINALP CARDINAL/CARDINAL ) .", "On DATE PERSON filed another submission with ORG to the same effect ( CARDINALP CARDINAL/CARDINAL ) .", "On DATE the SCC informed ORG that it would not support the request .", "On DATE the court rejected the request of DATE , explaining that , in the absence of the ORG 's consent , PERSON had no standing to initiate the proceedings at issue . On DATE ORG also rejected the request of CARDINAL DATE , stating that a motion of this sort had already been filed .", "DATE . I.S appealed both decisions , but on DATE ORG in ORG confirmed the decision adopted in case no . CARDINALPCARDINAL/CARDINAL . On DATE , however , it quashed the decision adopted in case no . CARDINAL , stating that the submission filed on DATE was not a separate matter , but merely additional written pleadings to the first request .", "On DATE the applicant filed a request with the SCC , seeking institution of judicial proceedings for the restoration of his full legal capacity .", "On DATE the SCC rejected this request , stating that the applicant 's legal capacity was restricted which is why he could not file any requests personally .", "On DATE the applicant filed an appeal , via the SCC , against this decision . The appeal was addressed to ORG ( LOC sekretarijat za zdravstvo i socijalnu politiku ) .", "On DATE the SCC rejected the appeal , stating that the applicant was not authorised to file it .", "On DATE PERSON filed a new request for the restoration of the applicant 's legal capacity with ORG ( CARDINAL ) . On DATE he filed an identical request with the SCC .", "On DATE , as part of the process of reviewing the applicant 's status , the ORG stated , inter alia , that he had remained litigious , the only difference being that his submissions were now being signed by PERSON The ORG 's team comprised of a psychologist , a lawyer , and a social worker .", "On DATE the applicant again filed an appeal against the ORG 's decision of DATE , this time directly with ORG .", "DATE . On DATE I.S received a letter from ORG informing him that he should address his requests to the SCC .", "On DATE the SCC lodged a disability pension request on behalf of the applicant .", "On DATE the SCC , inter alia , reaffirmed its views of DATE .", "On DATE ORG decided to join the proceedings in case files CARDINAL . CARDINAL and CARDINAL , and on DATE it invited the SCC to express its opinion as to whether proceedings for the restoration of the applicant 's full legal capacity should be instituted .", "On DATE the SCC stated that there were no reasons for so doing , and on DATE ORG rejected the request in question .", "On DATE the SCC appointed PERSON as the applicant 's new guardian .", "The applicant subsequently wanted to take out a loan in order to purchase a new car , but PERSON refused to act on his behalf . The ORG thereafter appointed PERSON as the applicant 's temporary guardian in this respect only .", "On DATE the SCC discharged PERSON from being the applicant 's guardian and re - appointed PERSON to this position .", "The relevant provisions of LAW read as follows :", "“ CARDINAL . A perpetrator [ was ] mentally incompetent if , at the time of commission of the offence in question , he was unable to understand the significance of his own actions or control his behaviour due to a permanent or temporary mental illness , a temporary mental disorder or mental retardation ...", "A perpetrator ... whose ability to understand the significance of his own actions or control his behaviour was substantially diminished due to any of the conditions referred in paragraph CARDINAL of this Article ... may be punished with more leniency ... ”", "Article CARDINAL provided that at DATE all persons shall gain full legal capacity .", "Article CARDINAL § CARDINAL provided that persons of age who , due to mental illness or “ retardation ” , substance abuse or “ old age feebleness ” , or another similar reason , put in jeopardy their own rights and interests , or those of others , shall be partially deprived of their legal capacity .", "Article CARDINAL § CARDINAL provides , inter alia , that family support and guardianship shall be provided by the guardianship authority ( organ starateljstva ) , i.e. the competent SCC .", "Article QUANTITY , CARDINAL DATE provides that a child below the age of CARDINAL shall only be able to independently engage in legal actions of minor significance or those which do not entail the undertaking of any obligations . A child aged DATE , however , shall be able to undertake all legal actions , albeit with the prior or subsequent consent of his or her parents , or the consent of the guardianship authority concerning particularly valuable properties . A child aged CARDINAL shall be able to independently undertake legal actions as regards the management and disposal of his or her earnings or of other property acquired through employment .", "Articles CARDINAL , CARDINAL § CARDINAL and CARDINAL state that a child without parental care , as well as a person of age who has been deprived of his or her legal capacity , shall be provided with a guardian . The guardian shall be appointed by the guardianship authority , and shall represent his or her ward in the same way in which a parent represents a child . With the prior consent of the guardianship authority , the guardian shall , inter alia , be able to decide about any medical procedures needed by the ward , give consent to any legal actions undertaken by a ward aged DATE or more , and undertake all legal actions necessary for the management and disposal of the income acquired by a ward below DATE .", "Article CARDINAL provides that the ward 's property not acquired through his or her own work shall be managed by the guardian . The guardian shall be independent as regards the “ regular management ” of this property , but may undertake additional actions only with the prior consent of the guardianship authority .", "Article CARDINAL § § CARDINAL and QUANTITY provides that the guardian shall , with the prior consent of the guardianship authority , be able to dispose of the ward 's property not acquired through his or her own work .", "Article CARDINAL provides that a person of age may be fully or partially deprived of legal capacity if , due to an illness or developmental problems , he or she endangers his or her own rights or interests or the rights and interests of others . The legal capacity of the person partially deprived thereof shall be equal to the legal capacity of a minor between the age of DATE and DATE . A court decision shall determine the legal actions which the person concerned may or may not undertake independently .", "Article CARDINAL § CARDINAL provides that the guardianship authority may also , if needed , appoint a temporary guardian to safeguard the rights and interests of the ward .", "Article CARDINAL provides that a ward 's legal capacity may be restored by the competent court once the reasons for its deprivation have ceased to exist .", "LAW entered into force on DATE , thereby repealing ORG .", "Articles DATE provide details as regards the procedure for the full or partial deprivation of legal capacity , as well as its possible subsequent restoration .", "DATE , in particular , states that a person of age shall be fully or partially deprived of legal capacity depending on the degree of ability to independently take care of his or her rights and interests , and providing there are legal grounds for so doing .", "Article CARDINAL provides that the proceedings can be instituted by the competent court ex officio , by the guardianship authority , by a spouse , a child or a parent of the person concerned , or by his grandparents , brothers , sisters , or grandchildren , if they live together . The procedure may also be initiated by the person concerned if he or she is capable of understanding the significance of such a motion .", "Article CARDINAL § CARDINAL provides that if the proceedings have not been instituted by the guardianship authority , the request must be submitted with the necessary authorisation .", "Article CARDINAL provides that the court shall decide after having held a hearing . The court shall summon to this hearing the person concerned , a representative of the guardianship authority , the concerned person 's guardian or temporary representative , as well as the person who had proposed the institution of the proceedings . At the hearing the person concerned shall be heard by the judge . Should he or she happen to be placed in a medical institution , the hearing shall be held in that institution .", "Article CARDINAL § CARDINAL provides that the court shall “ personally hear ” the individual concerned . Under Article CARDINAL § CARDINAL , however , the court may dispense with a hearing if it would be harmful to his or her health or if no hearing is possible due to his or her mental or physical condition .", "Article CARDINAL , inter alia , provides that the court shall also hear all other persons capable of providing relevant information .", "Article CARDINAL , inter alia , provides that the person concerned shall be examined by CARDINAL medical specialists who shall give their opinion as regards his or her mental condition . If needed in this respect and if this would not be harmful to his or her health , the competent court shall have the right to order the placement of the person concerned in a psychiatric institution for a period no longer than DATE .", "ORG . Article CARDINAL provides that full legal capacity shall be restored by the court , either upon a motion filed by the guardianship authority or ex officio , when the reasons for the deprivation have ceased to exist . All those entitled to file a motion for the deprivation of legal capacity may also file a motion for its restoration .", "Finally , Article CARDINAL states that the provisions concerning the deprivation of legal capacity shall , mutatis mutandis , be applied in the proceedings concerning its restoration .", "The relevant provisions of this Act provide as follows :", "“ A party with full legal capacity may personally undertake all acts in the proceedings ( litigation capacity ) .", "A person of legal age whose legal capacity has been partially restricted ... [ shall be able to litigate ] ... within the limits of his or her [ existing ] legal capacity .", "... ”", "“ Throughout the proceedings the [ civil ] court shall ex officio monitor whether the person appearing as a party may [ indeed ] be a party to the proceedings , as well as whether he or she has the [ necessary ] litigation capacity ... ”", "On DATE ORG adopted “ Principles concerning the legal protection of incapable adults ” , Recommendation No . R ( CARDINAL ) CARDINAL . The relevant provisions of these Principles read as follows :", "“ CARDINAL . The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient , in scope or flexibility , to enable suitable legal responses to be made to different degrees of incapacity and various situations . ...", "The range of measures of protection should include , in appropriate cases , those which do not restrict the legal capacity of the person concerned . ”", "“ CARDINAL . The legislative framework should , so far as possible , recognise that different degrees of incapacity may exist and that incapacity may vary from time to time . Accordingly , a measure of protection should not result automatically in a complete removal of legal capacity . However , a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned .", "In particular , a measure of protection should not automatically deprive the person concerned of the right to vote , or to make a will , or to consent or refuse consent to any intervention in the health field , or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so . ... ”", "“ CARDINAL . Where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned .", "The measure of protection should interfere with the legal capacity , rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention . ... ”", "“ The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity . ”", "“ CARDINAL . Measures of protection should , whenever possible and appropriate , be of limited duration . Consideration should be given to the institution of periodical reviews . ...", "There should be adequate rights of appeal . ”" ]

[ "6", "8" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national , born in DATE and living in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was a driver of CARDINAL of the lorries that transported oil for ORG from GPE to the former GPE . He was involved in a car accident that happened on DATE , TIME , in which CARDINAL persons lost their lives and CARDINAL others were injured .", "At TIME , the investigating judge on duty was informed about the accident . At TIME the investigating judge and the public prosecutor went to the scene . A record of the scene was made and personal data taken from all participants in the incident as well as data concerning the vehicles .", "The inspection report of the investigating judge stated , inter alia , the following :", "“ ...", "GENERAL CONDITIONS", "The inspection was carried out at TIME , with no visibility and under dry and windy weather conditions . The traffic accident had happened TIME under the same weather conditions", "...", "There are road markers on both sides of the road . The road has a horizontal sign - a full white line ...", "... ”", "The report described the traces made on the road by the car , the position where broken glass and different parts of the car were found , and the damage suffered by other vehicles in the incident .", "The investigating judge ordered that an expert report on civil engineering be prepared , photos be taken of the location of the accident and the applicant 's blood be tested for possible presence of alcohol . She also took away the tachograph tape of the applicant 's vehicle .", "At TIME , there was a hearing before the investigating judge . The applicant appointed a local lawyer on the recommendation of FAC . The applicant and his lawyer were present at the hearing . TIME , signed by the applicant , the judge and the interpreter , stated as follows :", "“ Due to the fact that the defendant is a foreign citizen and does not speak NORP , an authorised court interpreter , PERSON from PERSON , was present at the questioning .", "He was informed of the [ Public Prosecutor 's ] Request to Open Investigation Proceedings with proposal that the applicant be put in detention ... dated CARDINAL on reasonable suspicion that he had committed a criminal offence of having endangered traffic safety within the meaning of LAW in connection with LAW of LAW .", "The court interpreter was replaced before the applicant had been informed of the [ prosecutor 's ] request . PERSON [ the second interpreter ] from ORG was engaged as a sworn court interpreter of ORG .", "After the applicant had been informed of the Request submitted by the prosecution [ and ] translated by PERSON - the interpreter ... the defendant stated that he had understood PERSON with the proposal that the applicant be put in detention pending trial .", "In accordance with Articles CARDINAL , DATE and CARDINAL of LAW [ the applicant was informed ] that he was entitled to remain silent , that he had the right to defend himself in any way he perceived best , or not to present his defence and not to answer questions , that he could call evidence and could appoint a legal representative , and , indeed , he appointed PERSON from GPE as his legal representative ...", "The defendant stated that he would remain silent , but that he would give his defence later in view of the fact that he felt depressed due to the accident .", "...", "The applicant 's legal representative proposed that the applicant should not be detained pending trial , as there were no circumstances indicating that the defendant should be put in pre - trial detention , or that he would tamper with witnesses , or re - offend , and bearing in mind that ORG would not allow the defendant to leave the territory of the [ former GPE and would not issue him a new passport .", "The defendant stated that he had stopped of his free will and had not tried to abscond [ from the place of accident ]", "... ”", "The investigating judge decided to detain the applicant pending trial .", "DATE the investigating judge interrogated the other CARDINAL drivers who drove lorries in the convoy with the applicant . They were from GPE and GPE . From TIME of the questioning of CARDINAL of them it appears that the applicant 's lawyer was present at the questioning .", "According to their separate accounts they had been driving at a speed of QUANTITY in the direction PERSON . The applicant , who was the last in the motorcade , overtook the third lorry on the section of the road that was marked with full white line on their side . When the applicant had started overtaking the second lorry and had been positioned on the lane reserved for the vehicles coming from the opposite direction , the driver of the first lorry had noticed that a car appeared from the curve and gave a signal to the applicant . The applicant had been trying to return to the lane , while the car had started to brake in order to avoid the collision with the applicant 's vehicle . It had not bumped into the applicant 's vehicle , but went to the right and off the asphalt road . As a result a huge amount of dust arose , so the witnesses had been unable to see what happened afterwards . CARDINAL of the witnesses stated that he had noticed that the applicant had managed to return to the right lane . Afterwards he noticed that the front left side of the last lorry in the motorcade had been damaged and behind it the car had tumbled over on its right side .", "On DATE the CARDINAL passengers in the car gave evidence to the investigating judge . The applicant 's lawyer , albeit summoned , failed to appear at the hearing . According to their statements , on DATE they had been travelling from Valandovo to ORG in their cousin 's car . After they had passed a curve , they suddenly noticed that their lane had been blocked by a freight vehicle coming from the opposite direction . The driver of the car had started to brake . In order to avoid direct collision the driver had turned sharply to the right and went off the asphalt road to the earth path . Their car had hit the grass embankment , and then the driver turned the steering wheel to the left . The car had started turning around and couple of times it hit CARDINAL of the freight vehicles . It had continued to slide and stopped overturned on its right side . The witnesses had pulled themselves out of the vehicle and were taken to hospital in a taxi .", "On CARDINAL and DATE the brother and the father of the deceased gave evidence to the investigating judge .", "By decisions of DATE , DATE , DATE and DATE the investigating judge extended the applicant 's pre - trial detention .", "The applicant 's lawyer objected to the expert report , communicated to him on DATE , as regarded its estimation of the speed at which the applicant and the car were travelling , and requested the expert to prepare an additional report . A translation of the report was transmitted to the applicant on DATE .", "At a later date further information was provided by the expert .", "On DATE , the applicant was brought before the investigating judge to give his view of the evidence presented so far . His counsel and the interpreter were present . The applicant maintained his right to silence . He and the interpreter signed the minutes . The applicant claimed that only those questions which dealt with his basic personal details were interpreted to him and that he was unaware of the purpose of the hearing .", "On DATE , the applicant , who remained in pre - trial detention , was indicted for causing death and injuries by negligence within the meaning of LAW in conjunction with LAW of LAW . The indictment contained a schedule of the evidence which ORG adduced before the court . On DATE , the court interpreter who had immediately translated the contents of the indictment , gave a copy to the applicant . A copy was also given to the applicant 's counsel . On DATE , a translated copy of the indictment was given to the applicant .", "On DATE a hearing took place before ORG . The public prosecutor read out the indictment which contained a schedule of the evidence on which the prosecution relied . The interpreter orally translated the indictment . In TIME it was recorded that the applicant stated that he had understood the indictment .", "The applicant , in the presence of his lawyer , gave the following account :", "“ On DATE around TIME I was travelling from GPE to [ the former GPE of ] GPE and I had already completed all procedures at the border . I was driving at a speed of QUANTITY [ in a motorcade ] with CARDINAL freight vehicles . First I started overtaking the third vehicle and I passed it , then I started overtaking the second vehicle in order to come behind the first freight vehicle . While I was positioning myself behind the first vehicle I noticed that from the opposite direction a vehicle was approaching , that is , I first saw the light of the vehicle and then the vehicle . I actually heard the sound of the vehicle that was braking out of control . Then I shifted behind the first vehicle and in order [ for me to enter the right lane ] the second vehicle decelerated its speed and I started to move behind the first vehicle . I had no reason to stop because I did not bump into anything , my vehicle and the vehicle from the opposite direction passed one by another . I started to decelerate . ... The first vehicle started to decelerate and I slowed down without braking ...", "Then the police came and they approached my lorry - all of that in TIME . My passport was taken away , then I waited for TIME and during that time I walked towards the vehicle , I mean the passenger vehicle , however , I could not get to it because there were so many people .", "...", "Then I went as , I said above , in the police vehicle . Then I was taken to hospital and to the site where the accident happened ...", "I do not agree with everything that is stated in the indictment . I was not driving at a speed of QUANTITY , I was driving at a speed of QUANTITY . I did not see where the passenger vehicle was hit , I only saw that we passed one by another and then I lost it from sight . I think that the passenger vehicle was going at speed superior to QUANTITY . I think that the driver of the passenger vehicle had time to pass by safely and I think that the driver of the passenger vehicle , in a moment of panic , lost control of the vehicle . Maybe my lights blinded the driver of the passenger vehicle because in GPE the lights are directed oppositely , since we drive on the left side .", "...", "The fact that I was driving at a speed of QUANTITY / h I noticed from my tachograph . I had a tachograph in the vehicle when I entered [ the former GPE of ] GPE . I used the tachograph for TIME in my vehicle . On DATE in the vehicle I put CARDINAL tachographs , CARDINAL in GPE which is a member of ORG and one in [ the former GPE of ] GPE ...", "I am PERCENT sure that I changed the tachograph at TIME on the territory of [ the former GPE of ] GPE ...", "I changed the tachograph because of a different law of ORG - a different regime .", "...", "The police requested my tachograph , I gave them the tachograph , and I want to make this clear : I gave CARDINAL tachographs to the police , the tachographs that I previously pulled out and put into a folder , CARDINAL of which I took out of the lorry and the other CARDINAL that had already been pulled out .", "...", "[ The speed ] of my vehicle is limited to QUANTITY according to the mechanic in the tachograph centre in GPE . The speed can vary DATE , QUANTITY", "... The lights of my vehicle such as they are positioned helped me to see the passenger vehicle and maybe they blinded the passenger vehicle . The first time that I saw the light from the opposite side I thought that they were from another road , because of the curve and the angle of movement of light . And then the lights suddenly turned towards me .", "... ”", "At that hearing the passengers from the car were also interrogated . They confirmed their statements given to the investigating judge . From the minutes it appears that the parties stated that they had not had any questions to put to the passengers .", "The drivers of the articulated lorries , albeit summoned , failed to appear before the court .", "The expert on civil engineering gave , inter alia , the following account :", "“ On the ground of the evidence submitted ... I prepared a written report ... I calculated and established the speed of the defendant before the overtaking and at the time of the overtaking according to the tachograph log sheet submitted from [ the applicant 's ] vehicle and from the other tachograph log sheets taken from the CARDINAL other freight vehicles . From the tachograph log sheet of the defendant in GPE after TIME [ it appears that ] he drove at a speed of QUANTITY / h and in some places he even moved with [ speed ] superior to QUANTITY / h , those were only occasional movements .", "...", "The tachograph log sheet was taken out at TIME That means that the tachograph log sheet shows the movement of the vehicle only until TIME and not after that . The log sheet until that time was in the tachograph . This is a one day log - sheet . [ The log sheet ] is unified and he could have entered [ the former GPE of ] GPE with it .", "...", "The speed of the other freight vehicles was established completely from the tachograph log sheets . It was DATE ....", "All CARDINAL [ other freight ] vehicles moved at the constant speed of QUANTITY . For the defendant to overtake and the fact is that he overtook [ them ] , the speed has to increase , at least for QUANTITY / h , since we know that the [ other ] vehicles were moving at QUANTITY / h .", "...", "The tachograph log sheet ... it can not be established from which vehicle it originates nor the date can be established since it has to be noted down . If the time on the watch of the tachograph is set accurately than the time when the accident happened can not be registered on the tachograph of the defendant . The [ number ] of km that appear on the tachograph of the defendant of QUANTITY matches the number of km between GPE and PERSON ...", "The distance between the third and the second vehicle was QUANTITY and was enough if [ the applicant ] was moving at speed of QUANTITY to overtake the third vehicle ... and to start overtaking the second vehicle ... Estimated from the tachographs , the car accident happened TIME and TIME depending on the time set on the watch of the tachograph . The line of diagram of the defendant shows QUANTITY / h .", "...", "I took a general position that the maximum allowed speed was QUANTITY / h . If the driver or assistant driver , I am talking in general , is fastened with a safety belt , the probability that he would be thrown out from the vehicle in the case of the accident is very small . In this particular case , I do not know if the driver and assistant driver were fastened ... ”", "As the applicant 's counsel put questions to the expert which he could not answer immediately , it was proposed to put the questions in writing for the expert to give his view later during the proceedings . Although an interpreter was present at the hearing , the applicant alleges that only the questions put to him were interpreted .", "The hearing resumed on DATE when again , according to the applicant , only questions directed at the applicant were translated by the interpreter . The expert replied to the defence counsel 's previous questions . Defence counsel applied to obtain fresh expert evidence . The prosecution objected . The court rejected the application .", "At the hearing of DATE the medical expert gave evidence . The other drivers in the convoy still did not appear . With the agreement of the public prosecutor and defence counsel , their statements before the investigating judge were read out . The court again rejected the defence 's proposal to obtain further expert evidence , finding that the explanations by the expert had established the facts to a sufficient extent . The final remarks of the parties were delivered .", "On DATE the applicant was found guilty of having committed a criminal offence with negligence within the meaning of Article CARDINAL § CARDINAL in conjunction with LAW of LAW by ORG . In particular , he had not observed the traffic rules and as a result of his negligent behaviour CARDINAL people died and CARDINAL other were injured . He was sentenced to DATE and DATE imprisonment by ORG . The court had examined additionally the statement of the father of CARDINAL of the victims , the report of ORG , the report of the investigation on the spot with the sketch - map , the police report , the photos , the blood and urine test and the hospital discharge of the CARDINAL passengers .", "Relying on the above evidence the court , inter alia , found that :", "“ ... on the motorway ORG the defendant , travelling constantly at QUANTITY / h , which is QUANTITY faster than the allowed speed for that category of vehicles , overtook the third freight vehicle and lined in the motorcade behind the second freight vehicle , shortly after at the same speed , he started outflanking and overtaking the second freight vehicle , although it was dark and the visibility was low , nearby the difficult curve to the right , where ... a white full line indicates that overtaking and driving in the first lane is prohibited , just as the defendant was about to complete his action , a car appeared ...", "... from the curve on the opposite side of the motorway , because of the imminent danger of direct collision the driver now deceased started intensively to brake and after some time of intensive braking on his right lane , he stopped braking and turned the steering wheel to the right , avoided the collision with the defendant 's vehicle and [ the car ] skidding went to the right and it completely went off the motorway into the right [ grass ] embankment , hit it , returned to the motorway where it turned over several times and overturned [ the car ] had slid for QUANTITY it went on the left lane where it first hit the left front of the third vehicle in the motorcade , driven by PERSON , and then it hit the left side [ of the same vehicle ] where the tool and spare tires are usually kept . According to the tachograph sheets taken from the freight vehicles of PERSON , PERSON and PERSON [ the drivers ] , it is established that their vehicles [ had been travelling ] at constant speed of CARDINAL km / hour . The tachographs were in the mentioned vehicles [ of PERSON , PERSON and PERSON ] at the time of the accident . The tachograph taken from the defendant 's vehicle shows that it had been put on TIME on DATE and had been removed at TIME i.e. before the accident happened ... .and was sufficient that the defendant moved at speed of QUANTITY / h which was QUANTITY more than the speed of the third and the second freight vehicle and it was QUANTITY higher than the allowed speed for that category of vehicles ... [ to overtake the lorries ] . ”", "On DATE the applicant 's lawyer lodged an appeal with ORG . He complained , inter alia , that the lower court :", "a ) had failed to give reasons for its finding that the defendant 's vehicle had been travelling at TIME ;", "b ) had considered the incorrect tachograph evidence ;", "c ) had failed to ensure that the car was subject to a technical examination ;", "d ) did not note that the expert report on civil engineering was imprecise , that some elements were incorrect and that this shortcoming was not corrected in the additional report ;", "e ) had failed to afford the defence the facilities to arrange for the blood of the deceased driver to be examined for its alcohol or drug content ;", "f ) had based its judgment on the witnesses ' statements which were imprecise and inconsistent ; and", "g ) had paid little if any intention to the individual responsibility of the driver , as he drove at a higher speed than that allowed at that section of the motorway , that the car had not been technically examined and that the passengers had not fastened their seat belts .", "At the public hearing of DATE , in the presence of another court interpreter , ORG dismissed the appeal and endorsed the reasons in the lower court 's decision .", "The ORG reduced the applicant 's sentence to DATE term of imprisonment holding that the fact that the driver of the car had been driving at a higher speed than the CARDINAL allowed was a mitigating circumstance in respect of the applicant 's guilt . The applicant alleged that nothing was translated to him apart from the figure “ DATE ” .", "On DATE , the applicant submitted an extraordinary petition for review to ORG , claiming inter alia that the facts of the case had not been properly established and the evidence wrongly assessed .", "On DATE ORG refused to examine the extraordinary petition for review ( Барање за вонредно преиспитување на правосилна пресуда ) . The court , inter alia , found that the applicant was served with ORG judgment through the court interpreter on DATE . The applicant 's lawyer lodged the above petition with ORG on DATE , therefore after the DATE time - limit prescribed by LAW .", "On DATE ORG ordered the applicant to pay damages to the victims of MONEY .", "In DATE the applicant was released from prison and returned to GPE .", "After his arrest on DATE , the applicant claimed that he was forced to sleep in a chair in the police station and that he was given limited food . During his time in PERSON prison , he claimed that he shared a cramped , squalid cell without running water and with poor sanitary facilities . Although his cell had CARDINAL beds and he mostly shared with another prisoner , there were occasions when there were QUANTITY in the cell , with CARDINAL sleeping on the floor . He spent DATE in solitary confinement in a cell with a hole in the ground as a toilet .", "The Government stated that on arrival at the police station on DATE the applicant was accommodated in the office of the police administrator until TIME and that he was given food and watermelon . He contacted his wife several times by phone . After TIME , he was placed in the detention room , which had sanitary facilities and running water . On the way to court for the hearing at TIME he was given a sandwich . After he was remanded in custody , at TIME on DATE the applicant was taken to PERSON prison where he was accommodated initially alone in a double cell . On DATE , the vice consul of ORG accompanied by the applicant 's lawyer visited the applicant there . After some time , another inmate joined him in the cell and for a certain period he was detained in a CARDINAL - bed cell . The detention facilities in the prison had been renovated in DATE and each cell had a sanitary facility and running water . There were showers and shaving facilities available separately . The applicant was checked by the prison doctor regularly and on his request on CARDINAL further occasions while on CARDINAL occasions he was able to see a specialist outside the prison .", "On DATE the applicant was sent to ORG in GPE to serve his sentence .", "LAW provides , inter alia , that a bench of CARDINAL judges of the first instance court shall decide on appeals lodged against the decisions of the investigating judge .", "Article CARDINAL § CARDINAL provides , inter alia , that a person shall have the right to appeal against the decisions of the investigating judge .", "LAW , CARDINAL QUANTITY provides , inter alia , that a person who has been summoned or apprehended shall be informed promptly , in a language that he understands , of the reasons for his summoning , apprehension or any charge against him , of his legal rights , and shall have the right not to make any statements . He shall be informed of his right to remain silent , to consult with a lawyer , to have a lawyer of his choice present during questioning , as well as , to inform a third party of the fact of his detention . Everyone arrested or detained shall be brought within TIME before a judge who shall promptly decide on the lawfulness of the detention .", "LAW and QUANTITY provides , inter alia , that everyone charged with a criminal offence shall have the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law . Everyone charged with a criminal offence shall be informed promptly , in a language which he understands and in detail of the accusations and circumstances against him , shall have adequate time and facilities for the preparation of his defence and the right to communicate with the legal representative of his own choosing , to be present at the trial and to defend himself in person or through legal assistance of his own choosing , to be given free legal assistance , when the interests of justice so require and to examine or have examined witnesses .", "LAW and QUANTITY provides , inter alia , that every person has a right to be legally represented in pre - criminal and court procedure . Before the first interrogation , the suspect in pre - criminal procedure and an accused person must be informed of the right to have a legal representative of their own choosing who may be present at the interrogation .", "Article CARDINAL provides , inter alia , that everybody detained shall have the right to consult his legal representative without any restriction or supervision .", "Article CARDINAL provides , inter alia , that the legal representative may undertake all the actions that the applicant has the right to undertake on the applicant 's behalf .", "Article CARDINAL provides , inter alia , that the investigating judge shall promptly inform an arrested person of the right to appoint a legal representative who may be present at his questioning and shall assist the arrested person in finding a legal representative if the need may be .", "LAW and QUANTITY provides that everybody in the criminal proceedings shall be informed of his right to the free assistance of an interpreter provided that he can not understand or speak the language used in court .", "LAW provides that a foreign citizen who is apprehended shall have the right to submit his documents to the court in his language .", "Article QUANTITY , CARDINAL , DATE and DATE provides , inter alia , that the accused who is being questioned shall first be asked about his personal data . Then he shall be informed of charges against him , the reasons why he is a suspect and he shall be asked to put forward his defence . He shall be informed of the right to remain silent . He may make statements without any restrictions in respect of facts against him and may state all facts in his defence . The accused may be questioned only after he finishes his statement .", "A person may be questioned in the absence of his legal representative only if he waives this right , save in cases when the law provides that the presence of a legal representative is obligatory .", "Article CARDINAL § CARDINAL provides , inter alia , that everybody detained pending trial may ask to be put alone in a pre - trial detention facility .", "LAW , CARDINAL DATE provides that the persons detained pending trial shall have the right of an uninterrupted DATE rest of TIME . They may obtain food , clothes , bed sheets , books , newspapers at their own expense if approved by the investigating body . The detained persons may use means necessary to maintain the hygiene in the pre - trial detention facility .", "Article CARDINAL provides , inter alia , that the officials working for the diplomatic representative offices may , on the approval of the investigating judge , visit and speak without any supervision with a person detained pending trial who is a citizen of their country . After the person is indicted such an approval shall be given by the president of the bench .", "LAW , CARDINAL and DATE provides , inter alia , that the president of the competent trial court shall supervise the conditions of detention of the persons detained pending trial . He shall visit the detained persons at least once a week and , without the prison warders being present , inquire with the detained persons about the food they are given , other necessities and the treatment that they have received . The responsible judge shall undertake all the necessary measures to correct all the shortcomings in this respect . The president of the competent court and the investigating judge shall have the right to visit the detained persons at any time , speak to them and hear their complaints .", "Under Articles CARDINAL and CARDINAL a lawyer has the right to consult all the documents in the case - file from DATE the prosecution authorities request the investigating judge to open preliminary investigation . A defendant enjoys that right from DATE he has been questioned by the investigating judge .", "Article CARDINAL provides that the parties may ask the investigating judge to undertake different actions in the course of the investigation .", "LAW and CARDINAL reads as follows :", "“ CARDINAL . NORP The prosecution , the defendant and the defendant 's lawyer shall have the right to be present when an investigating judge is examining a witness who will not be heard at a public hearing ...", "...", "Persons present at the interrogation of a witness may ask the investigating judge to put questions to him ... ”", "LAW provides , inter alia , that at the trial after the presiding judge has finished the interrogation of a witness or an expert , the accused and his lawyer have the right directly to put questions to him on the approval of the presiding judge .", "Article CARDINAL § CARDINAL reads as follows :", "“ When an allegation is based on a statement of a person , that person shall be heard at a public hearing . The right to cross - examine him shall not be lost because the transcript of his statement is read out , or because he has already given a written statement . ”", "Article QUANTITY provides that the indictment against the defendant shall be read out at the beginning of the hearing by the prosecutor .", "Article QUANTITY CARDINAL , DATE and DATE and LAW provide that after the indictment is read out or orally explained the presiding judge shall interrogate the defendant . He shall ask the defendant whether he understands the indictment and if not the presiding judge shall elaborate it . Then he will ask the defendant to give his opinion on each of the items of the indictment and to present his defence . The defendant shall have the right not to give his defence . After the interrogation of the defendant the presiding judge shall ask him if he wishes to add something in connection with his defence .", "Article CARDINAL § CARDINAL provides , inter alia , that the prosecutor and the legal counsel may interrogate the defendant .", "LAW and CARDINAL reads as follows :", "“ CARDINAL . The parties shall have the right to call ... evidence at the hearing even after the case is listed for a hearing .", "NORP If the presiding judge dismisses the request to call fresh evidence , the parties shall have the right to call evidence at the public hearing . ”", "Under LAW the courts may obtain , even at their own motion , evidence which they consider will assist in establishing the truth .", "Article CARDINAL read together with ORG CARDINAL § CARDINAL and CARDINAL provides that an appeal may be lodged with ORG when a hearing took place in the absence of the court interpreter .", "LAW and CARDINAL reads as follows :", "“ ( CARDINAL ) A defendant who has been convicted and sentenced to imprisonment or to youth custody by a binding judgment shall have the right to lodge an extraordinary petition for review in the cases set forth in this LAW .", "( CARDINAL ) [ The extraordinary petition for review ] may be lodged within DATE from DATE the accused was served with a binding judgment ”", "Article CARDINAL reads as follows :", "“ ORG shall have jurisdiction to deal with such an extraordinary petition for review . ”", "Article CARDINAL § CARDINAL in conjunction with Article CARDINAL § § CARDINAL , CARDINAL , DATE , DATE and DATE lays down that the above petition may be lodged on the grounds that the act or omission of the convict does not constitute a criminal offence under LAW , there is a justification excluding criminal responsibility , there is a justification excluding the prosecution of the convict ( for example : he is granted amnesty ) , the lower courts applied law wrongly and a heavier penalty is imposed than the one prescribed by LAW for such an offence .", "Article CARDINAL § CARDINAL in conjunction with Article QUANTITY , CARDINAL , DATE , DATE and DATE lays down that such a petition may be lodged on the grounds that the bench was improperly composed or the judgment was rendered by a judge who was not present at the hearing , the convict was not prosecuted by a competent prosecutor , the final judgment is based on inadmissible decisive evidence , the courts decided on issues other than the ones set out in the indictment and there is a breach of the principle of reformatio in pejus .", "Article CARDINAL § CARDINAL specifies that such a legal remedy may be lodged if the convict 's right to defence was breached during the course of the trial , or because the provisions of LAW in respect of the appellate proceedings were breached provided that that was decisive for the outcome of the proceedings .", "Article QUANTITY , CARDINAL , and CARDINAL provides , inter alia , that the petition for review shall be lodged through the trial court , that the president of the trial court or of the competent court shall refuse to examine the extraordinary petition for review which was lodged out of the time limit , and that the competent court may decide to suspend an execution of a binding judgment until the petition for review is dealt with .", "Article CARDINAL in conjunction with Article CARDINAL provides that when the ORG grants the above petition it may substitute the binding judgment with its own verdict or quash the decisions of the lower courts and remit the case to them , or declare that the lower courts erred in law ." ]

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[ "The applicants were both born in DATE and live in PERSON . They are married to each other .", "The first applicant is the owner of an Internet café . On DATE at around TIME he ejected a boy from the café because he had prevented another boy from using the Internet . The first applicant then went to another address and brought a plumber ( C. ) back in order to do some repair work at the café .", "While he was away , QUANTITY persons ( C.A. and D.A. ; GPE was the Commander of the ORG police regiment “ ORG ” ) came to the café and asked PERSON , the café manager who was on duty on DATE , about the first applicant 's whereabouts .", "L.C. told them that the first applicant would return shortly and they went outside . PERSON then called the second applicant , the first applicant 's wife , and told her that CARDINAL men had been looking for the first applicant . She asked PERSON to ask CARDINAL of the men to come to the telephone . When PERSON went outside to do so , he saw the first applicant on the ground , unconscious . CARDINAL of the men who had been looking for him earlier was giving him emergency assistance . He informed the second applicant of what he had just seen and then called an ambulance and the police .", "On DATE the first applicant lodged a complaint with the police , stating that when he had approached the Internet café he had seen CARDINAL men and a boy near the entrance . The boy was the one whom he had ejected earlier from the café . CARDINAL of the men asked the boy : “ Is that him ? ” . Having received an affirmative response , the man punched the first applicant in the face . When the first applicant tried to resist , the second man hit him on the back of his head with a hard object , following which he lost consciousness . When he regained consciousness , he was on the ground and CARDINAL of the attackers was giving him emergency medical assistance . That man told the persons who had gathered around that the first applicant had had an epileptic fit .", "The first applicant was taken to hospital and was prescribed in - patient treatment . On DATE he was examined by a doctor , who noted that he had a hematoma around his right eye and on his nose ( CARDINALxCARDINAL and QUANTITY ) , and one on the back of his head measuring CARDINAL.CARDINALxCARDINAL.CARDINAL cm . The specialist also noted a neurologist 's diagnosis dated DATE , according to which the first applicant had suffered a head trauma . The specialist finally established that , given the location of the various injuries suffered by the first applicant , it was “ unlikely that they could have been caused by a fall ” .", "On DATE the prosecutor 's office decided not to initiate criminal proceedings against ORG , “ because the act was not prohibited by criminal law ” . The prosecutor found that C.A. had offered the first applicant medical help and had not attacked him .", "CARDINALC.A. and D.A. were contradicted by the statement by ORG , according to which they had been looking for the first applicant before the alleged attack . Moreover , other witnesses identified by the first applicant , including ORG , had not been heard .", "On DATE the prosecutor inquired with the local medical authorities about the first applicant 's alleged medical condition . On DATE the local territorial medical association replied that it did not have the first applicant 's medical file and that it could not confirm whether the first applicant suffered from epilepsy .", "On DATE PERSON was questioned again and repeated his earlier statement , reiterating that ORG had been looking for the first applicant before the attack .", "On DATE the prosecutor decided not to initiate criminal proceedings against ORG The decision was almost identical to that of DATE , although it contained a summary of the statement made by GPE", "On DATE the hierarchically superior prosecutor annulled that decision , finding it premature . The prosecutor in charge of the case was ordered to hear the second applicant and the ambulance doctor who had given the first applicant medical treatment .", "On an unknown date the second applicant made a statement to the prosecutor and confirmed having received a call from PERSON , informing her that CARDINAL men had been looking for the first applicant .", "On DATE the prosecutor decided not to initiate criminal proceedings against ORG The decision was almost identical to the CARDINAL previous decisions , although it mentioned that the ambulance doctor had been interviewed and had confirmed that he had diagnosed the first applicant 's condition on DATE . However , he had not filled in the first applicant 's medical file and did not know who had done so .", "The first applicant complained about that decision to the hierarchically superior prosecutor . The latter rejected the complaint on DATE , finding it ill - founded .", "The first applicant challenged that decision before FAC . On DATE the investigating judge of ORG accepted the request and annulled the decisions of DATE and DATE . The court found that the facts of the case had not been properly verified , as was obvious from the decisions themselves , which had failed to analyse the first applicant 's statements and the medical report of DATE . Moreover , the prosecutor had not inquired as to whether the first applicant had had a history of epileptic attacks or had been seeing a psychiatrist , and whether the injuries suffered by the first applicant could have been the result of DATE .", "On CARDINAL DATE the prosecutor obtained a copy of the first applicant 's medical file , which contained only data registered on or after DATE .", "On DATE the prosecutor decided not to initiate criminal proceedings against ORG The decision was almost identical to the CARDINAL previous decisions , adding that the specialist who had filed the report of DATE had stated that the injuries suffered by the first applicant could have been caused by a fall . In addition , the first applicant had refused to submit a medical certificate which attested that he had lost consciousness after a blow to the occipital area of his cranium .", "On DATE the first applicant challenged that decision in court . He referred to the fact that he had never suffered from epilepsy and that there was no statement by the medical expert in the file indicating that the injuries could have been caused by DATE . He also noted that GPE was known for his violent behaviour , mentioning that on DATE he had attacked the journalist PERSON ( see PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ) .", "NORP The complaint was forwarded to the hierarchically superior prosecutor , who rejected it on DATE . The prosecutor found that the first applicant 's allegations had not been confirmed by facts and that the statements of witnesses showed that he had not been hit by ORG but had been helped by them .", "The first applicant challenged that decision in court . On DATE ORG accepted the request and annulled the decisions of DATE and The case was sent back for examination by the prosecutor .", "On DATE the GPE district prosecutor 's office initiated criminal proceedings on the basis of the first applicant 's complaint of DATE . However , he did not receive a copy of that decision , and saw it for the first time among the documents attached to the ORG 's observations .", "On DATE the first applicant asked ORG to assign the case to another prosecutor in view of the perceived bias of the prosecutor dealing with the case . On DATE the Deputy Prosecutor General assigned the case to ORG . The reason for this re - assignment was that “ several tendentious circumstances appeared within the framework of the relevant criminal proceedings which could cause the investigation to be excessively lengthy ” .", "In DATE both applicants were questioned , but were not shown the TIME of the interviews on the ground of protecting the confidentiality of the investigation .", "On DATE , after communication of the present case to the respondent Government , the prosecutor formally named ORG as suspects in the case . The applicants found out about that decision from the ORG 's observations .", "On DATE the first applicant asked the prosecutor to inform him about the progress of the investigation . He was shown a recent medical report concerning the injuries caused to him in DATE , but he was refused permission to make a copy of that report for confidentiality reasons . The first applicant had not been informed before the second report had been ordered and he had therefore not been able to exercise any of his rights under LAW ( “ the ORG ” , see paragraph CARDINAL below ) .", "On DATE the charges against ORG were dropped . According to the applicants , they received a copy of the decision when they received the ORG 's observations of CARDINAL DATE .", "On DATE ORG transferred the case back to LOC prosecutor 's office , which had territorial competence to investigate it .", "On DATE the GPE district prosecutor 's office suspended the investigation because the identity of the perpetrator(s ) had not been established . On DATE the first applicant complained to ORG about the suspension of the investigation . He also noted that he had not been informed about the suspension and had only found out about it on DATE when he had called the prosecutor and then visited his office on DATE . The first applicant added that the charges against ORG had apparently been dropped but that he had not seen any decision in that respect . Moreover , on an unknown date and for unknown reasons the case had been re - assigned back to the GPE district prosecutor 's office , again without his having been informed . In addition , no cross examination with the applicants ' participation and that of ORG had ever been organised . No attempt had been made to find the boy who had been ejected from the internet café , despite PERSON 's witness statement confirming that the CARDINAL persons whom he had seen with the first applicant had been accompanied by a boy . PERSON was never asked to identify ORG at an identity parade , even though he had given a complete description of the QUANTITY persons who had been looking for the first applicant immediately before he was attacked .", "On DATE the first applicant was informed that the decision of DATE had been quashed and the investigation had been reopened .", "On DATE the first applicant repeated his request , noting that he had received no response to his complaint concerning the dropping of charges against ORG or to that concerning the transfer of the case back to the GPE district prosecutor 's office . On DATE ORG informed him that no unlawful act had been apparent in the dropping of the charges or in transferring the case to the GPE district prosecutor 's office .", "The investigation is pending before the GPE district prosecutor 's office .", "On DATE the applicants organised a protest march in the centre of PERSON , which had been authorised by the PERSON municipality . The aim of the protest was to draw public attention to the first applicant 's ill - treatment and the prosecution 's inertia in investigating the case . Only the applicants participated in the protest , holding banners with inscriptions such as : “ Prosecutors , you should respect the law and human rights ! ” , “ The NORP prosecutor 's office protects police criminals ! ” , “ NO to corruption in the NORP prosecutor 's office ! ” , “ NO to bandits in the law - enforcement agencies ! ” and “ The prosecutor 's office covers up the crimes of police officer [ C.A. ] ! ” .", "The applicants protested in front of the GPE police station , then in front of ORG . The applicants were approached by plain - clothed officers , who were shown the authorisation for the march and who accompanied the applicants until they reached ORG . The applicants stood across the road from the ORG and protested by displaying banners and blowing a whistle . At TIME the plain - clothed officers asked the applicants to follow them to the police station because the applicants had insulted them .", "The protest and the arrest were filmed by reporters . The video footage shows the applicants next to a building with no officer in the vicinity until the time of the arrest . The plain - clothed officers who arrested the applicants were asked by the applicants and the reporters about the reasons for the arrest . They answered that the applicants ' identities needed to be verified and that they had “ insulted the law - enforcement authority ” through the messages on the banners . They did not specify which banner was considered insulting , other than to ask : “ Bandits , is that not insulting ? ” It appears from the video materials that the applicants were not asked to provide identification documents .", "According to the applicants , they were released immediately after a short period in detention in front of the police station on TIME of CARDINAL DATE . It appears from the video materials submitted by the parties that CARDINAL plain - clothed officer explained that “ [ the applicants ] were not arrested but only brought in for identification . The protest has been authorised , so they are free to continue it ” . They were subsequently rearrested in front of ORG at TIME and detained until TIME", "On DATE the applicants were charged with having committed several administrative offences , provided for under LAW ( “ the ORG ” ) ( refusal to abide by the lawful orders of a police officer ) , Article CARDINAL § § CARDINAL of the ORG ( violation of the order on holding assemblies ) , LAW of the ORG ( resisting a police officer ) , and LAW ORG ( insulting a police officer ) . On DATE , a judge of ORG decided to postpone the hearing , ordering the applicants ' release at TIME", "On DATE ORG dismissed all the charges against the applicants , except for the charge of insulting a police officer on account of the inscription “ The prosecutor 's office covers up the crimes of police officer [ C.A. ] ! ” . The applicants were found guilty of having committed the administrative offence provided for under LAW of the ORG ( see below ) .", "The applicants appealed , arguing that the statement on the banner concerning the prosecution 's failure to properly investigate their alleged ill - treatment by ORG had been based on facts . The aim of the message had not been to disseminate insults but rather to provoke an effective investigation by the prosecutor 's office . Moreover , the applicants had not seen C.A. on DATE . Therefore , even if the banner could be seen as insulting to C.A. , it could not be said that they had intentionally insulted him while he was carrying out his duty to maintain public order .", "On DATE ORG quashed the decision of DATE , finding that the lower court had not analysed the applicants'The case was sent for a retrial .", "On DATE ORG found the applicants guilty of the administrative offences provided for under Articles CARDINAL § CARDINAL , CARDINAL § § DATE , QUANTITY § CARDINAL , and CARDINAL/CARDINAL § CARDINAL of the ORG .", "On DATE the ORG quashed the decision of CARDINAL DATE and discontinued the proceedings against the applicants . The court found that the lower court had not indicated the evidence on which it had based its decision and that the arresting police officers who had witnessed the events were unsure whether the applicants had resisted or insulted them .", "On DATE , national police day , the first applicant intended to protest in the centre of PERSON against the prosecution 's failure to properly investigate his ill - treatment by C.A. He had previously obtained the PERSON mayor 's permission to bring domestic animals to the protest .", "On DATE at TIME the first applicant parked his minibus in front of his garage . Inside were a mule , dressed in uniform and bearing the inscription “ miliţioner ” ( officer of NORP - time militia ) , and a pig , dressed in black and bearing the inscription “ porcuror ” ( a play on the words “ pig ” and “ prosecutor ” , roughly translated as “ pigsecutor ” ) .", "At TIME a car belonging to the ORG police regiment “ ORG ” with CARDINAL men inside arrived at the garage . TIME a traffic police car arrived . Minutes later an operative group of ORG arrived , followed by the GPE sector deputy head of the police station , some plain - clothed police officers , a criminal investigator and a specialist . The media arrived at the garage shortly afterwards .", "The Special Forces officers who had arrived first prevented the applicant from leaving the garage area with his minibus by blocking the exit with their own car and later took his car keys and papers , while the criminal investigator sealed off the area with yellow tape . The first applicant took his animals out of the minibus in order to go on foot to the protest area . At TIME his minibus was driven away by the traffic police , without answering the protests of the second applicant and questions put by the media .", "At TIME the deputy head of the GPE police station ordered the applicant 's arrest because he had urinated in a public place . The first applicant declared that he had not done so .", "It is apparent from the video footage aired on several TV channels in PERSON that the first applicant asked repeatedly for witnesses of the alleged act to be identified , and the second applicant asked to be shown the place where the alleged wrongdoing had taken place . They received no reply . CARDINAL journalist commented “ After TIME during which CARDINAL police officers present had been looking for a reason to make the protester show respect , they finally found a pretext for his arrest : that he had urinated in a public place ” .", "On DATE the first applicant was charged with having committed the administrative offences provided for under LAW ORG ( hooliganism ) , LAW of the ORG ( refusal to abide by the lawful orders of a police officer ) , LAW CARDINAL of the ORG ( resisting a police officer ) , and LAW § CARDINAL of the ORG ( insulting a police officer ) . The report concerning the events of DATE noted that on DATE at TIME the operative group of the GPE police station was on route in response to a call for assistance when it discovered the first applicant 's minibus and CARDINAL animals next to it , dressed in uniform and bearing the names “ miliţian ” and “ porcuror ” . The operative group stopped to find out what was going on , but the first applicant “ reacted negatively ” to their presence and made direct comparisons between the animals and the police officers , thus insulting them . He then went behind the police car and openly urinated . Having been asked to stop , he refused and resisted the officers when they forced him into the police car and brought him to the police station .", "On DATE ORG found the first applicant guilty of having committed the administrative offences provided for under ORG CARDINAL § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG .", "The first applicant appealed , noting the absence of any evidence that he had committed any wrongdoing . Moreover , the reports filed by the police officers mentioned that the first applicant had already been asked to follow them to the police station , before the alleged offence had taken place . It was therefore unclear what the reason for the limitation of his liberty before the alleged wrongdoing had been . Since he had not committed any act that warranted his being brought to the police station , the police officers ' request to follow them had been unlawful . Therefore , his refusal to abide by that request , and his resistance to unlawful orders , could not be considered a violation of the law . The first applicant added that the hearing had never been officially opened and had taken place in the absence of witnesses and his lawyer . He had not been had been interrupted and the judge had declared that he was guilty of having committed CARDINAL administrative offences and was fined CARDINAL NORP lei ( MONEY ( ORG ) at the time ) .", "DATE 's lawyer , failing to note that absence in TIME of the hearing .", "On DATE ORG discontinued the administrative proceedings against the first applicant , finding that there was not sufficient evidence in the file to prove that he had committed any offence and that the police officers who had reported on the offence allegedly committed by the first applicant had refused to appear in court . The court added that the reports , which were the only evidence in the file , were insufficient to establish that an offence had been committed . The court found that “ the actions of the police officers were not well - founded and lawful , [ as ] they did not have a ground on which to bring [ the first applicant ] by force to the police station . ”", "On DATE the ORG dismissed the appeal lodged by ORG as out of time . That judgment was final .", "Law no . CARDINAL of DATE , in force since DATE , provides that no authorisation is needed for holding a peaceful demonstration with CARDINAL participants .", "The relevant provisions of PERSON no . DATE on compensation for damage caused by the illegal acts of the criminal investigation organs , prosecution and courts have been set out in ORG v. GPE , no . CARDINAL , § DATE , DATE .", "The relevant part of LAW reads as follows :", "“ Article CARDINAL . Actions preceding an expert report", "( CARDINAL ) The investigating authority or the court , when ordering an expert report , shall summon the parties and the expert , if the latter has been assigned by the investigating authority or the court .", "( CARDINAL ) On the date set in the summons , the parties and the expert shall be informed of the object of examination and of the questions which the expert will have to answer , and it shall be explained [ to the parties ] that they have the right to make remarks concerning those questions or to ask for them to be amended or added to . At the same time , the parties shall be informed of their right to select an expert of their choice to participate in the expert report . ”", "The applicants referred to reports by ORG ( the ORG 's office ) for DATE and DATE , which had found that various provisions of administrative law had been frequently abused by the police by unlawfully detaining individuals . They also noted that members of the LOC non - governmental organisation had been arrested CARDINAL times during DATE , while the first applicant had been arrested CARDINAL times during the same period .", "The applicants submitted copies of CARDINAL judgments adopted by ORG concerning unlawful administrative detention or prosecution . These judgments allegedly constituted that court 's entire case - law on that issue during DATE . The awards made in those cases varied between the equivalent of ORG CARDINAL and EUR CARDINAL .", "The applicants referred to a number of court actions lodged under PERSON no . DATE , cited above , the examination of which had lasted for DATE or was still pending before the domestic courts . In many of these cases the courts postponed numerous hearings due to the failure of the defending ORG authorities ' representatives to appear before the courts . Moreover , enforcement of final judgments against the ORG was a long - standing problem in GPE , as established in numerous cases decided by the ORG ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the ORG by Mr I. NORP , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant ’s sister , ORG , was granted a specially protected tenancy of a flat in PERSON . The flat was a studio , measuring QUANTITY . The applicant , who was at that time employed in GPE , registered her residence in the flat and was recognised as a household member .", "The applicant ’s sister died some time in DATE and the applicant continued to occupy the flat when she was in GPE and since DATE , when she retired , she has been living permanently in the flat .", "On DATE the applicant asked the GPE , as the owner of the flat , to make a lease agreement on the said flat . The request was refused and on an unspecified date the GPE brought a civil action in ORG ( PERSON ORG ) seeking the applicant ’s eviction .", "On DATE ORG ordered the applicant ’s eviction within DATE on the ground that the applicant had no legal basis to occupy the flat since she had not lived with her sister in the same household for DATE preceding her sister ’s death , that being a condition of acquiring a specially protected tenancy on a flat . The relevant part of the judgment reads as follows :", "“ Regardless of her possible strong emotional attachment to her late sister and the unselfish assistance that the plaintiff provided to her sister in various forms by caring for her [ during ] unpaid leaves and holidays , the plaintiff , owing primarily to the distance [ of their places of ] living , did not live with her sister for DATE the latter ’s death , and thus did not acquire a specially protected tenancy on the basis of law . ”", "The judgment was upheld by ORG ( Županijski sud u ORG ) on DATE . A subsequent constitutional complaint by the applicant of DATE was dismissed by ORG ( Ustavni sud PERSON ) on DATE .", "The relevant provisions of LAW ( Zakon o stambenim odnosima , ORG nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) read as follows :", "“ ( CARDINAL ) Members of the household of the holder of a specially protected tenancy are ... persons who have lived with him or her in DATE , including : ... [ his or her ] brothers and sisters ... ”", "ORG ( Official Gazette nos . DATE , DATE , CARDINAL CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) regulates the conditions for the sale of flats let under specially protected tenancies . In general , the LAW entitles the holder of a specially protected tenancy on a publicly owned flat to purchase it under favourable conditions of sale .", "The relevant provision of the LAW provides as follows :", "“ Every holder of a specially protected tenancy ( hereinafter ‘ the tenant’ ) may submit a written application to purchase a flat to the ... owner ( ‘ the seller’ ) ... and the seller shall be obliged to sell the flat .", "... ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the police arrested him on suspicion of violent robbery and unlawful possession of weapons .", "On DATE ORG ordered the applicant ’s detention pursuant to LAW ORG ” ) until DATE on the ground that , if the applicant remained at liberty , he might abscond and obstruct justice . On DATE it remanded the applicant in detention for the maximum period of DATE on the grounds of the gravity of charges against him , possibility of absconding and negative character references . On DATE the court extended the maximum period of the applicant ’s detention for DATE on the grounds of the gravity of charges and possibility of absconding .", "On DATE , following the completion of the pre - trial investigations , the case was referred to the court for trial .", "On DATE the court ruled , inter alia , that the applicant should remain in detention , without giving any reasons .", "On DATE the case was transferred to ORG , which on DATE found the applicant guilty as charged and sentenced him to CARDINAL years’ imprisonment with confiscation of property .", "On DATE ORG quashed that judgment and remitted the case for fresh consideration . It did not rule on the applicant ’s detention .", "On DATE ORG remitted the case for additional investigation . It ordered the applicant to remain in detention , without giving any reasons .", "On DATE the ORG quashed the decision of DATE and remitted the case for fresh court consideration . It did not rule on the applicant ’s detention .", "On DATE ORG rejected the applicant ’s request for release because of the gravity of charges against him .", "On DATE the same court convicted the applicant for violent robbery and unlawful possession of weapons and sentenced him to CARDINAL years’ and CARDINAL months’ imprisonment with confiscation of property .", "On DATE ORG quashed that judgment and remitted the case for fresh consideration . It did not rule on the applicant ’s detention .", "On DATE ORG ruled , inter alia , that the applicant should remain in detention , without giving any reasons .", "On DATE the case was transferred to ORG , which on DATE ruled , inter alia , that the applicant should remain in detention , without giving any reasons .", "On DATE and DATE the above court rejected the applicant ’s and CARDINAL other co - defendants’ requests for release , holding that the detention as a preventive measure had been chosen with regard to the GPE personality , age and the gravity of charges against them as well as other circumstances provided by ORG CARDINAL and CARDINAL of the ORG , without any further specification . On DATE the court examined the GPE yet another request for release and rejected other co - GPE request , without specifically addressing the applicant ’s own request .", "On DATE the court convicted the applicant on the same charges as in the judgments of CARDINAL DATE and DATE and sentenced him to CARDINAL years’ imprisonment with confiscation of property .", "On DATE ORG upheld the judgment .", "On DATE the applicant was released from detention , having served his term of imprisonment . The applicant states that his health deteriorated in detention , in respect of which he did not provide any further details or supporting evidence .", "On DATE ORG refused to grant leave to the applicant ’s appeal in cassation .", "According to the Government , in the course of the proceedings the investigators and the courts interrogated and heard CARDINAL other co - defendants , CARDINAL witnesses and CARDINAL aggrieved parties . This took them DATE in total . CARDINAL hearings were adjourned mainly due to the absence of the witnesses , the aggrieved parties or the co - defendants’ representatives , because the defendants were not escorted to the court and due to the absence of the judges . CARDINAL times the courts applied compulsory summonses on the witnesses and the aggrieved parties .", "According to the applicant , he had difficulties in obtaining copies of all documents necessary for the substantiation of his application before the ORG . Eventually , he provided all necessary copies .", "Provisions of the ORG of CARDINAL DATE on preventive measures are set out in GPE v. GPE ( no . CARDINAL/CARDINAL , § DATE ( extracts ) ) ." ]

[ "5", "6" ]

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

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[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in Ehingen ( GPE ) . She was represented before the ORG by PERSON , PERSON and PERSON , a partnership of lawyers practising in GPE ( GPE ) . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of LAW at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE officers of ORG ( PERSON ) carried out speed controls on FAC . DATE in the course of which the applicant 's car was found to be speeding . ORG was informed accordingly of the offence .", "On DATE ORG ordered the applicant to disclose pursuant to LAW of LAW ( GPE ) the full name and address of the person who had driven her car DATE at a specified time on ORG . CARDINAL .", "On DATE ORG issued a provisional penal order against the applicant in which it sentenced her under sections CARDINAL § CARDINAL and CARDINAL of LAW to pay a fine of ORG CARDINAL ( with TIME imprisonment in default ) as she had failed to give the requested information within the set time - limit .", "The applicant , assisted by counsel , filed an objection ( PERSON ) against this decision . She submitted that she should be given the photo taken when the speeding offence was committed as she could not remember who drove her car at the relevant time . In any event , she could not be convicted of the offence under LAW and CARDINAL of LAW as this offence - like all administrative offences - could only be committed in GPE whereas she was residing in GPE .", "On DATE ORG issued a penal order ( PERSON ) confirming its previous decision and sentenced the applicant to a fine of ORG CARDINAL ( with TIME imprisonment in default ) . The ORG found that the applicant had failed to give the information requested and that NORP administrative law , including administrative criminal law , was applicable because the place where the offence had been committed was in GPE since the applicant had to give the requested information to ORG .", "The applicant appealed to ORG ( PERSON ) . She reiterated the arguments made in her objection .", "On DATE ORG dismissed the applicant 's appeal . Referring to ORG case - law it found that ORG had been right when stating that NORP administrative criminal law was applicable as the offence at issue ( failure to disclose information ) had been committed in GPE . Furthermore it had not been necessary to send the photo taken when the speeding offence was committed as the applicant , under LAW , had been under the obligation to record who had been using her car , possibly with the help of a “ car user diary ” ( Fahrtenbuch ) .", "On DATE the applicant lodged a complaint against ORG decisions with ORG and requested the court to hold a hearing . She complained , inter alia , that the administrative criminal proceedings violated her right not to incriminate herself as guaranteed by LAW . She also complained that her conviction violated her property rights as guaranteed by LAW CARDINAL .", "On DATE ORG refused to deal with the applicants ' complaint for lack of prospect of success .", "On DATE ORG , upon the applicant 's request , transferred the case to ORG .", "On DATE ORG refused to deal with the applicant 's complaint pursuant to section CARDINALa of LAW ( PERSON ) since the amount of the penalty did not exceed ATS CARDINAL , and no important legal problem was at stake .", "This decision was served on the applicant 's counsel on DATE .", "Section CARDINAL ( CARDINAL ) of LAW as amended in DATE ( ORG ) provides as follows :", "'s right to require such information shall take precedence over the right to refuse to give information . ”", "The ultimate sentence of this provision was enacted as a provision of constitutional rank after ORG had , in its judgments of DATE and CARDINAL DATE , quashed previous similar provisions on the ground that they were contrary to LAW which prohibits , inter alia , that a suspect be obliged on pain of a fine to incriminate himself .", "In its judgment of CARDINAL DATE ( GPE . CARDINAL ) ORG found that the first to third sentences of section CARDINAL § CARDINAL of LAW as amended in DATE were , like the previous provisions , contrary to the right not to incriminate oneself which flowed from LAW and from LAW , but were saved by the ultimate sentence of that provision which had constitutional rank . In reaching that conclusion ORG examined whether the ultimate sentence of LAW was contrary to the guiding principles of the LAW , but found that this was not the case .", "Section CARDINAL § CARDINAL of LAW , in the version in force at the material time , provided that a fine of up to ORG CARDINAL with DATE imprisonment in default could be imposed on a person who violates the regulations of this Act ." ]

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[ "The first applicant was born in DATE . The second applicant was born in DATE . They live in GPE , MA , GPE .", "On an unspecified date the applicants sued ORG of LOC of GPE - on - PERSON ( “ the social security office ” ) for pension arrears for the period from DATE to DATE .", "On DATE ORG of PERSON - on - PERSON granted the applicants ' claims . The court awarded MONEY ( RUB ) to the first applicant , and RUB CARDINAL to the second applicant .", "On DATE ORG ordered that the social security office pay RUB PERSON to the first applicant and RUB PERSON to the second applicant in respect of pension arrears for the period from DATE to CARDINAL DATE .", "On DATE ORG upheld the judgments of DATE and CARDINAL DATE on appeal . The judgments became enforceable .", "On an unspecified date the President of the Rostov ORG lodged an application for supervisory - review of the judgments of CARDINAL October and DATE , as upheld on DATE .", "On DATE the ORG of the Rostov ORG found that ORG had incorrectly applied domestic law , quashed the judgments of DATE and DATE , as upheld on DATE , and dismissed the applicants ' claims ." ]

[ "6" ]

[ "6-1" ]

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[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Malá Ida . He was represented before ORG by Ms ORG , a lawyer practising in PERSON .", "The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant is a judicial enforcement officer ( súdny exekútor ) . In this capacity , he acted on behalf of a number of creditors , with a view to enforcing their claims . The relevant details concerning the enforcement proceedings in question are set out in the Appendix to this decision .", "NORP In all instances the commencement of the enforcement proceedings was authorised by judicial decisions and the enforcement proceedings were eventually discontinued on the grounds specified below .", "At the same time , for various reasons that are also specified below , the courts ruled that the applicant was wholly or partly not entitled to remuneration ( odmena ) , refund of costs ( náhrada hotových výdavkov ) and compensation for lost time ( náhrada za stratu času ) .", "In the enforcement proceedings referred to under numbers CARDINAL to CARDINAL in the Appendix , the applicant acted on behalf of CARDINAL individuals , ORG ( Sociálna poisťovňa ) and other corporate creditors for the enforcement of their claims against corporate debtors and CARDINAL individuals .", "All of these enforcement proceedings were discontinued on the ground that , without legal successors , the corporate debtors had been struck out of ORG ( PERSON register ) , whereby they legally ceased to exist , and the individual debtors had died .", "In the context of these enforcement proceedings , the applicant requested that , in the circumstances , his compensation be paid by the creditors .", "In particular , the applicant claimed remuneration in amounts ranging from CARDINAL to CARDINAL ( ORG ) , plus ORG , and a refund of his costs ranging from some ORG DATE , in the total net amount of some LAW .", "When dealing with the applicant ’s claims , the courts applied Article CARDINAL of LAW ( Law no . PERSON . , as in force until DATE ) ( see paragraph CARDINAL in “ Relevant domestic law and practice ” below ) , pursuant to which it was at the ORG discretion to order a creditor to pay the enforcement costs in the event of a discontinuation of the enforcement proceedings , taking into account whether the creditor could have envisaged the discontinuation of the proceedings .", "In all of the proceedings in issue the courts dismissed the applicant ’s claims , finding that the creditors could not have envisaged the discontinuation of the proceedings . Furthermore , it was noted by ORG in some of those proceedings that the applicant ’s status as a judicial enforcement officer placed him in a privileged position as regards the power to enforce adjudicated claims and that this privilege outweighed expenses such as those he had incurred in the present case(s ) .", "In the enforcement proceedings referred to under numbers CARDINAL in the Appendix , the applicant acted on behalf of corporate creditors enforcing their claims against corporate debtors .", "All of these enforcement proceedings were discontinued on the ground that both the creditors and the debtors had been struck out of ORG without a legal successor .", "In the context of these enforcement proceedings , the applicant requested that his compensation be paid by the ORG .", "In particular , the applicant claimed remuneration in amounts ranging from some ORG CARDINAL to CARDINAL , plus ORG , and a refund of his costs ranging from some ORG DATE .", "In the proceedings referred to under number CARDINAL in the Appendix , the applicant also claimed some EUR CARDINAL by way of compensation for the time spent travelling in connection with the enforcement .", "In total , the applicant made some ORG CARDINAL worth of net claim .", "The courts dismissed the applicant ’s claims , finding that , as the parties no longer existed , they could not be ordered to pay the applicant ’s costs . At the same time , there was no legislative basis for the applicant ’s costs to be born by the ORG .", "In the enforcement proceedings referred to under numbers CARDINAL and CARDINAL in the Appendix , the applicant acted on behalf of corporate creditors , enforcing their claims against a corporate debtor and an individual debtor .", "These enforcement proceedings were discontinued on the ground that the corporate debtor had been struck out of ORG and the individual debtor had died , without legal successors .", "In the circumstances , the applicant requested that his remuneration be paid by the creditors . As to its amount , the applicant applied a statutory TIME fee for TIME spent on the individual enforcement steps that he had taken , including TIME commenced but not completed .", "The courts allowed the applicant ’s claims as to the substance . However , as to the scope , the courts calculated the actual time spent on all the enforcement steps together , and applied the TIME rate to that total .", "In the enforcement proceedings referred to CARDINAL of the Appendix , the calculation method referred to in the precedent paragraph was applied by ORG on DATE when , following an appeal by the creditor , it overturned the firstinstance decision of ORG that had relied on the calculation method advocated by the applicant .", "In the decision of DATE , ORG relied , inter alia , on a previous judgment of ORG ( Najvyšší súd ) ) dated DATE ( see paragraph CARDINAL in “ Relevant domestic law and practice ” below ) .", "NORP The applicant challenged the decision of DATE by way of a complaint under LAW arguing , among other things , that that decision was contrary to an even earlier decision of ORG of DATE ( see paragraph CARDINAL in “ Relevant domestic law and practice ” below ) .", "On DATE ORG declared the complaint inadmissible as manifestly ill - founded . It held that it was neither a court of appeal nor a court responsible for harmonising case - law of the ordinary courts , the latter task falling within the remit of ORG . ORG also found that the interpretation of the relevant law by ORG was CARDINAL possible interpretation and that it was not vitiated by any unfairness , irregularity or constitutionally relevant arbitrariness .", "In the enforcement proceedings referred to CARDINAL of the Appendix , the applicant acted on behalf of an individual , enforcing his claim against a corporate debtor . The enforcement proceedings were discontinued on the ground that the debtor did not even have sufficient assets to cover the costs of the enforcement proceedings .", "In the circumstances , the applicant claimed that his costs be covered by the creditor . In particular , the applicant claimed remuneration in the amount of some ORG CARDINAL , plus GPE , and a refund of his costs in the amount of some EUR CARDINAL .", "Ordinary courts at CARDINAL levels of jurisdiction examined the applicant ’s claim under the law as applicable at that time ( see paragraphs CARDINAL above and CARDINAL below ) and concluded that the creditor could not have envisaged that the debtor would become destitute . There was therefore no basis for ordering him to cover the applicant ’s costs and neither was there any legal basis for the applicant ’s costs to be born by the ORG . Therefore , in the circumstances , the order for costs was made against the defendant .", "Article CARDINAL of the LAW no . PERSON . , as amended ) provides :", "“ CARDINAL . The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .", "NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order such authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .", "NORP In its decision on a complaint ORG may grant appropriate financial compensation to the person whose rights under paragraph CARDINAL have been violated . ”", "According to the established case - law of ORG , neither Article CARDINAL nor any other provision of the LAW provides a basis for individuals to challenge legislation for being incompatible with the LAW or international instruments , including LAW see , for example , decision of DATE , file no . PERSON . ORG ) .", "The statutory basis for enforcement of adjudicated claims is laid down in Articles CARDINAL et seq . of ORG ( Law no . CARDINAL/CARDINAL Coll . , as amended – “ ORG ” ) .", "NORP Until DATE , if a judgment debtor failed to comply with his or her adjudicated obligation , the creditor had CARDINAL essentially equipollent options of seeking enforcement , by a court under the ORG and by a judicial enforcement officer under LAW .", "With effect from DATE Article CARDINAL and other related provisions of the ORG were amended by PERSON no . CARDINAL/CARDINAL Coll . in that , apart from some exceptions that are not relevant to the present case , enforcement of adjudicated claims is to take place under LAW .", "The status of judicial enforcement officers and the procedures for enforcement by judicial enforcement officers are governed by LAW ( Law no . PERSON . , as amended ) .", "Under LAW , in order to be appointed a judicial enforcement officer , an individual has to have ( a ) unrestricted legal capacity to act , ( b ) obtained a law degree , ( c ) a faultless criminal record , ( d ) completed DATE of enforcement training , ( e ) passed a professional exam .", "Judicial enforcement officers are appointed by the Minister of ORG ( “ the Minister ” ) ( LAW ) upon their own request and further to recommendation of ORG ( PERSON komora exekútorov DATE “ the Chamber ” ) ( LAW ) .", "Under LAW , upon appointment , a judicial enforcement officer makes the following solemn declaration in front of the Minister :", "“ I promise on my conscience and civic honour that I shall follow LAW and other Acts of ORG , as well as other generally binding statues and I shall apply them as a judicial enforcement officer according to my best knowledge and conscience , in carrying out enforcements I shall proceed independently , impartially and fairly and I shall respect confidentiality in respect of all facts that I learn in connection with carrying out activities under LAW ” .", "Under LAW ( g ) , the enforcement court is to discontinue enforcement proceedings if it has declared the enforcement improper ( neprípustná ) on other grounds for which it can not be carried out .", "In respect of enforcement carried out under the Code , the judicial enforcement officer is entitled to remuneration , a refund of costs and compensation for lost time . Should the judicial enforcement officer be liable to pay value - added tax , the compensation should be increased by the amount of that tax ( LAW .", "The expenses listed in LAW are to be born by the debtor ( LAW ) . The judicial enforcement officer can , however , request the creditor to make an appropriate advance payment for remuneration and costs ( LAW ) . As a general rule , should the creditor fail to make the advance payment within the time - limit specified by the enforcement officer , on the latter ’s request the enforcement court may discontinue the proceedings ( LAW ) .", "Under Article CARDINAL , as in force until DATE , in the event of discontinuation of enforcement proceedings , the court could order that the costs of the enforcement be paid by the creditor . In resolving that matter , the court was to take into account which costs had been necessary for ensuring efficient enforcement as well as whether the creditor could have envisaged the ground for the discontinuation , if exercising due diligence .", "On DATE an amendment ( Law no . CARDINAL/CARDINAL Coll . ) entered into force , pursuant to which , if the creditor causes the discontinuation of the enforcement proceedings , the court can order him or her to cover the necessary costs of the enforcement ( amended Article CARDINAL § CARDINAL ) .", "NORP The amended Article CARDINAL § CARDINAL implies a possibility , not a duty , for the court to make an order for costs against the creditor . Such an order presupposes an analysis of procedural responsibility ( zavinenie ) for the discontinuation . The provision confers discretion on the part of the court based on an assessment of the actions of the creditor and the degree and seriousness of the creditor ’s responsibility should it be established ( a decision by ORG of DATE in a case no . I. ÚS CARDINAL/CARDINAL ) .", "Should the enforcement be discontinued on the ground that the debtor does not have sufficient property to cover the costs of the enforcement , such costs are to be born by the creditor ( amended Article CARDINAL § CARDINAL ) .", "In a decision of DATE , in an unrelated but similar case brought by the applicant under no . PERSON CARDINAL/CARDINAL , ORG held that the mere fact that both the creditor and the debtor had ceased legally to exist and that they could accordingly no longer be ordered to pay the enforcement costs could not have the consequence of the costs being born by the ORG . This was so because in none of its provisions did LAW provide for a possibility or statutory modalities from which one could infer a transfer of the duty to pay the enforcement costs to the ORG .", "Articles CARDINAL et seq . govern the disciplinary liability of judicial enforcement officers .", "This liability pertains to disciplinary offences ( disciplinárne previnenie ) and serious disciplinary offences ( závažné disciplinárne previnenie ) .", "The former consists of culpable breach of duties in the course of carrying out a judicial enforcement officer ’s activities , breach of the solemn declaration , acting in a way which compromises the dignity of the officer ’s role and carrying on an activity that is incompatible with the role of a judicial enforcement officer despite a previous request not to do so ( Article CARDINAL § CARDINAL ) .", "An action envisaged in LAW becomes a serious disciplinary offence if its harmfulness is increased on account of the nature of the breached duty , the manner in which it has been breached , the degree of culpability , repetition of the breach or other aggravating circumstances .", "Pursuant to Article CARDINAL , disciplinary offences are punishable by reprimand ( paragraph CARDINAL ( a ) ) , written reprimand ( paragraphs CARDINAL ( b ) and CARDINAL ( a ) , a fine of up to ORG CARDINAL,CARDINAL ( paragraphs CARDINAL ( c ) and QUANTITY ( b ) ) and stripping of office ( paragraph CARDINAL ( c ) ) .", "Details concerning compensation of judicial enforcement officers are laid down in Decree of the Ministry of Justice no . PERSON . , as amended , on LAW .", "In the event of discontinuation of enforcement proceedings , the remuneration of the judicial enforcement officer for carrying out the enforcement was to be determined on the basis of the number of hours purposefully spent on the enforcement . The basic rate was SKK CARDINAL per each commenced hour ( section CARDINAL(CARDINAL)(a ) and ( CARDINAL ) , as in force at the relevant time ) .", "In a judgment of DATE , following an extraordinary appeal on points of law ( mimoriadne dovolanie ) by ORG in an unrelated case , no . CARDINALMCdo CARDINAL/CARDINAL , ORG held that the remuneration under section CARDINAL(CARDINAL)(a ) and ( CARDINAL ) of the Decree should be calculated on the basis of the enforcement steps taken and the time spent on such individual steps , including any hour commenced . The adding up of the exact time spent on individual enforcement steps , taken together , was contrary to the applicable rules .", "A similar interpretation was adopted by ORG in decisions of CARDINAL and DATE on the applicant ’s appeals in unrelated cases ORG . ORG DATE CARDINAL/CARDINAL .", "In a judgment of CARDINAL DATE , following an extraordinary appeal on points of law by ORG in an unrelated case , no . DATE CARDINAL/CARDINAL , ORG held that the remuneration of a judicial enforcement officer under section CARDINAL(CARDINAL)(a ) and ( CARDINAL ) of the Decree should be calculated on the basis of the real time spent on the enforcement steps taken , added up . This interpretation was upheld by ORG in a decision of DATE on an extraordinary appeal on points of law by ORG in an unrelated case no . PERSON CARDINAL/CARDINAL ." ]

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[ "Mr PERSON , who was born in DATE , is currently in custody in FAC ( county of Alba ) , serving a DATE sentence for murder imposed on DATE by the Târgu - ORG .", "On DATE , when the applicant was in custody at GPE ( county of GPE ) , his wife wrote to the Commission to complain that her husband had not had a fair trial in ORG . She also reported that he had encountered difficulties in sending letters from prison .", "On DATE the applicant himself sent the ORG a letter posted by his wife and asked that correspondence should be sent to him at home . On DATE the ORG asked the applicant for additional information and documents in support of the application .", "On DATE and DATE Mr ORG wrote to the Commission through his wife , reporting that the prison authorities would not allow him to fill in the application form .", "On DATE he sent the ORG a letter from FAC that was received on DATE . Written on regulation prison paper , it bore a registration number and had been sent from GPE in a ORG envelope . Although mentioned as an enclosure , the judgment of DATE was missing . This letter was written in a different hand from the earlier ones .", "NORP On DATE the Commission sent the applicant an application form .", "The form was filled in by the applicant on DATE and sent to the ORG by ORG ( Direcţia Generală PERSON ) on DATE . No mention was made in it of any hindrance of correspondence .", "On DATE , in response to a question from the Commission concerning the different handwriting in the letters it had received , Mr ORG indicated that he had been assisted by a friend “ wholly unconnected with the case , a man who is discreet and disinterested ” . He added that the prison authorities had informed him that the documents requested by the ORG had been dispatched . However , the ORG never received any of them .", "Referring also to the right to respect for his correspondence , the applicant said that the prison governor , although very “ flexible ” , could not be of any greater assistance to him as the authorities were required to apply PERSON no . CARDINAL on the execution of sentences and its “ secret ” implementing regulations . In his view , it followed that there was a violation of ORG CARDINAL and CARDINAL of the Convention .", "The applicant has stated that he never received the letter of CARDINAL October DATE in which ORG informed him , among other things , that his application had been communicated to the Government .", "On DATE Mr ORG sent a letter through his wife to the Commission , informing it that on DATE he had been transferred to ORG and that when he had sought permission to communicate his change of address , the reply had been “ ORG is at GPE and nowhere else ” and that if he persisted , he would be put under the special prison regime .", "On DATE PERSON informed the ORG that her husband had asked her to enquire about his application and to complain about the prison authorities’ systematic interference with his correspondence with the ORG . On DATE the Commission sent a reply to ORG .", "On DATE the applicant ’s wife wrote to the Commission to complain about the conditions in which her husband was being held , stating that he shared a QUANTITY . m cell with CARDINAL other prisoners and that the warders subjected him to inhuman treatment . The applicant had refused to give her the names of the warders who beat the prisoners , because he was too afraid .", "Mr Petra did not learn that his application had been communicated to the Government until DATE , when he received a copy of the letter of DATE and relevant documents .", "In a letter of CARDINAL DATE posted by his wife the applicant again complained that his correspondence was being censored and stated that he was obliged to give his letters to the prison governor , who forwarded them to ORG in GPE and that he was never certain that his letters were actually sent to GPE .", "On DATE the ORG submitted to the ORG all the documents concerning the court proceedings that had resulted in the applicant ’s conviction .", "On DATE the ORG received CARDINAL further letters sent from GPE in a ORG envelope . The first of these , written by the applicant on regulation prison paper , was dated DATE , was stamped and bore a registration number . The second was a covering letter from the Head of ORG , ORG", "CARDINAL other letters from the applicant , dated DATE , each stamped and bearing a registration number , were sent together from GPE by ORG on DATE , again with a covering letter from ORG", "In a letter of DATE posted by his wife PERSON informed the ORG that he had received the decision on the admissibility of his application . He added that his correspondence with the ORG was being routinely opened and that his letters were being sent to the Commission through ORG . He said that he had written the letter secretly for fear of being denounced to Lieutenant - Colonel V.C. , who had threatened him in the following terms : “ I ’ll give you ORG ! ” ( PERSON aranjez eu pe tine cu PERSON ) .", "On DATE the Commission received another letter written from prison on regulation prison paper on DATE , which was stamped , bore a registration number and had been sent from GPE in a ORG envelope on DATE . No mention was made in it of any hindrance of correspondence .", "On DATE the registry of the ORG received the applicant ’s memorial written on regulation prison paper ; it was stamped , bore a registration number and had been sent from GPE in a ORG envelope .", "The relevant provisions of PERSON no . CARDINAL on the execution of sentences provide :", "“ Convicted prisoners shall be entitled … to receive and send mail and sums of money . ”", "“ A convicted prisoner ’s right to receive … and send mail shall be granted according to the nature of the offence he has committed , the length of his sentence , whether he is a reoffender , whether he is doing work , his conduct and his willingness to undergo rehabilitation measures .", "… ”", "“ Any mail , books , newspapers or magazines whose content the prison governor considers unsuited to the process of rehabilitating a prisoner shall be withheld and kept at the prison . They shall be returned to the prisoner when he is released .", "Mail whose content is unsuitable shall , if need be , be forwarded to the competent authorities . ”", "The relevant regulations of the implementing regulations of PERSON no . ORG , which were not published , provide :", "“ Convicted prisoners shall be entitled to submit petitions and written or oral requests to the prison governor , the public prosecutor , the President of ORG for the area in which he is being held or other bodies .", "The prison authorities shall provide convicted prisoners with writing materials . ”", "“ Requests and complaints addressed to central or local authorities shall be sent direct to those authorities by the prison authorities . Unsuitable requests shall be sent to ORG so that the measures prescribed by law may be taken .", "… ”", "“ Prison governors shall dispatch requests and complaints within DATE of the day on which they receive them . Convicted prisoners shall be informed of the outcome of their requests and complaints as soon as the replies have been received and shall sign to that effect . ”", "According to the table annexed to the implementing regulations , prisoners convicted of murder are entitled to receive and send CARDINAL letter DATE if they are working in prison and CARDINAL letter DATE if they are not ." ]

[ "25", "8" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Eppendorf . He is represented before the Court by Mr T. Gertner , a lawyer practising in Bad Ems .", "A summary account of historical events in which the present application originated can be found in the ORG ’s decision on admissibility in the case of ORG . PERSON GPE ( see ORG . PERSON GPE DATE . ) , no . ORG , DATE , § § DATE , ECHR-CARDINAL- ... ) .", "The applicant submits that he and his family were forced to leave their QUANTITY farm in GPE ( at present GPE in GPE ) . Each person was allowed to take only the barest personal essentials that they could hold in their hands .", "This region before and during the Second World War belonged to ORG . After the defeat of GPE at the end of the war , when the border between GPE and GPE was drawn along the PERSON - Neisse line , it was included in the territory of GPE ( see ORG . PERSON , cited above , § CARDINAL ) .", "Afterwards , they were interned in GPE where they were required to perform forced labour and seriously ill - treated by the NORP militia . Finally , they were expelled from GPE . On DATE they reached the NORP occupation zone . The family ’s property was confiscated by the NORP .", "The applicant has still not been allowed to return to his home and has been refused restitution of his family ’s property .", "A detailed description of the relevant international and domestic law is set out in the above - mentioned case of ORG . PERSON GPE ( ibid . § § CARDINAL - CARDINAL ) ." ]

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[ "The applicant was born in DATE in Gubadly and currently lives in PERSON .", "The applicant and his family are internally displaced persons from Gubadly . In DATE , during the occupation of the region by NORP military forces , they fled their permanent place of residence and came to PERSON .", "After their flight from Gubadly , the applicant 's family of CARDINAL ( himself , his wife , CARDINAL children and the applicant 's mother - in - law ) resided temporarily in various places in PERSON . Immediately prior to the events outlined below they lived in a room in a ORG - owned hostel .", "From DATE to CARDINAL DATE the applicant 's wife , PERSON , underwent in - patient treatment in GPE with a diagnosis of “ closed craniocerebral injury , brain concussion ; contusion of soft tissues of the crown of the head ; hysterical psychosis ” .", "In DATE the applicant discovered that there were CARDINAL vacant rooms in an old administrative building that belonged to ORG ( the army recruitment office ) , which , however , no longer occupied the building . Part of the building was occupied by an association of war veterans , but the rooms that the applicant was interested in were abandoned and in a state of neglect . The rooms were located in auxiliary LOC which had a separate entrance from the rear side of the building . The applicant occupied these rooms and conducted substantial repair work there for DATE . According to him , the other occupants of the building were aware of his activities but did not object to them . Likewise , according to the applicant , there were no objections by any public authorities to the repair works carried out by him .", "After completing the repair works , at DATE the applicant left his hostel room and moved into the new dwelling together with his family .", "On DATE CARDINAL officials ( E.G. and CARDINAL ) of ORG ( “ the SCEA ” ) , an employee of the local housing maintenance and utilities board ( K.A. ) and a number of police officers arrived in the applicant 's new dwelling . They had no court order for his eviction .", "At an unspecified time after the arrival of the above - mentioned officials , the applicant 's wife , PERSON , poured some kerosene on herself and ignited it , apparently in protest at what she perceived as the authorities ' intention to evict her family . It appears that CARDINAL of the police officers helped put out the fire on her body , using a blanket he found inside the applicant 's home . PERSON brother , who arrived slightly later , took her to hospital by taxi .", "Following this incident , the police loaded the possessions of the applicant 's family onto a lorry and transported them back to the hostel where the applicant 's family had previously resided .", "The applicant 's wife suffered multiple second- and third - degree burns affecting PERCENT of the body surface . On DATE she died in hospital of complications resulting from her injuries . The results of the autopsy released on DATE confirmed that the death had been caused by the extensive burns to her body surface .", "According to the applicant , prior to CARDINAL DATE he was summoned several times to meet the ORG officials , who orally demanded him to vacate the rooms in the old ORG building and even asked him for a bribe in order to allow him to stay there . He refused their demands .", "On DATE E.G. , ORG and a large number of police officers arrived in the applicant 's new dwelling and demanded that he and his family immediately vacate the LOC . The applicant estimated the total number of police officers at CARDINAL , noting that most of them were equipped with batons . When the applicant and his family members refused , the police used force on the applicant and his mother - in - law .", "At this time PERSON experienced a state of shock and psychological anxiety . She poured some kerosene on herself and threatened to set fire to herself if the police officers did not leave immediately . However , the ORG officials and police officers did not take her threats seriously . E.G. even offered her a box of matches , mockingly encouraging her to keep her word and set fire to herself .", "At that moment , the applicant was outside trying to help CARDINAL of his children , who had fainted TIME from fright . Therefore , the applicant could not immediately rescue his wife . According to the applicant , none of the police officers made an attempt to rescue her , because they were all busy carrying the applicant 's possessions and loading them onto a lorry .", "Only PERSON sister , who was also in the vicinity , came to her rescue and extinguished the fire . Only one police officer offered some belated assistance . By this time , PERSON had already suffered serious burns . Her brother , who arrived shortly after the incident , took her to hospital by taxi .", "According to the Government , at TIME on DATE CARDINAL ORG officials , accompanied by CARDINAL police officers , visited the LOC occupied by the applicant 's family . The aim of the visit was merely to explain to the applicant that his family was occupying these LOC illegally . The applicant immediately left , together with a child of his , and went to a post office to send a complaint against the ORG officials and the police . After the applicant had left , his wife supposed that her family would be evicted by force . She became anxious and set fire to herself in protest . None of the ORG officials present had provoked her to do so . TIME her close relatives took her to hospital .", "Following this , the officials decided , on the spot , to move the applicant 's family 's belongings back to the hostel where they had previously resided .", "An investigator of ORG carried out a preliminary inquiry into the circumstances of PERSON death .", "It appears that the investigator questioned a number of witnesses , including the applicant , his mother - in - law , his sister - in - law , the municipal employee ORG , the ORG officials ORG and ORG , and CARDINAL police officers ( PERSON , ORG , GPE , GPE , GPE and FAC ) ( see summaries of the relevant witness testimonies in section F. below ) .", "By a decision of CARDINAL DATE an investigator of ORG decided not to institute criminal proceedings in connection with the death of the applicant 's wife .", "Based on the witness testimonies , the investigator concluded that there was no proof supporting the applicant 's allegations that ORG had entered the applicant 's dwelling , that ORG had offered matches to PERSON , that ORG had ever asked the applicant for a bribe , or that any police officers had used force against PERSON . As there were no indications that any third persons had been in any way responsible for the fact that the applicant 's wife had attempted suicide , there were no grounds to institute criminal proceedings .", "Following this decision , the applicant sent a number of letters to ORG asking for a new investigation into the circumstances of his wife 's death with a view to determining the responsibility of the ORG officials and police officers involved in the incident . ORG Office replied , with similarly worded letters , on DATE , DATE , DATE and DATE . It was noted in these letters that PERSON death had been suicide and that the preliminary inquiry could not establish any responsibility on the part of the ORG officials in her death . It was also noted , however , that :", "“ ... during the investigation into the circumstances of the death of PERSON [ ORG ] , it was revealed that officials of ORG and certain officers of ORG had committed a number of errors [ in performing their official duties . The matter has been referred ] to the senior management of ORG and ORG with a view to eliminating such errors and ensuring that they are not repeated in the future , as well as taking relevant measures against the persons who have committed these errors . ...", "... moreover , a report was submitted to ORG in respect of the officers of ORG who exceeded their authority by participating , without a relevant court order , in an operation to evict you from the building where you had settled illegally ; the officers responsible for the misconduct have been punished under the disciplinary procedure . ”", "In DATE the applicant lodged a complaint with ORG against the decision of ORG Office of DATE . On DATE ORG dismissed the applicant 's complaint and upheld the decision of DATE . It noted that the inquiry did not reveal any evidence that a criminal offence had been committed and that , therefore , the decision of CARDINAL DATE was lawful .", "On DATE the Prosecutor General quashed ORG Office 's decision of CARDINAL DATE on the refusal to institute criminal proceedings . On DATE the case was forwarded to ORG for an additional inquiry .", "In the period from DATE to CARDINAL DATE , the investigator of ORG questioned a number of witnesses ( mostly the same ones as those who had been questioned before ) and obtained written testimonies from them ( see section F. below ) .", "On DATE the investigator requested an expert opinion on PERSON mental condition prior to her death and how it might have affected her actions leading to the suicide . In an expert opinion of CARDINAL DATE an expert psychiatrist , having studied PERSON medical records and comments by people who had known her , concluded as follows :", "“ No symptoms of a psychogenic - depressive reaction potentially causing her suicide can be observed in PERSON personality and mental traits . However , in the period preceding PERSON death , she had experienced a state of emotional stress of a degree capable of influencing her behaviour . ”", "On DATE the investigator issued a decision refusing to institute criminal proceedings . The decision stated , inter alia :", "“ [ According to the expert opinion of DATE , ] the act of self - immolation by PERSON was carried out in an attempt to prevent [ her family 's eviction ] . During the incident , she found herself in the extreme circumstances of facing eviction from the rooms that [ her family ] had occupied , and reacted inadequately by selfimmolating in an ostentatious manner , having decided that it would attract the attention of those who were around her , evoke in them feelings of compassion towards herself , and help her resolve the conflict situation she encountered . In the period preceding her death , PERSON had experienced emotional stress of a degree that could have influenced her subsequent actions .", "... the additional inquiry revealed that no other person had incited PERSON to commit suicide by means of either ill - treating her , debasing her dignity or intimidating her .", "The claims of [ the applicant ] have not been confirmed during the additional inquiry ... It was established that the [ ORG and police ] officials had carried out their official duties in a lawful manner , had given lawful instructions and had not committed any breaches of law when implementing those instructions , and that there had been no corpus delicti in [ their ] actions .", "Therefore ... the institution of criminal proceedings should be refused . ”", "It appears that , following this decision , the applicant sent a number of letters to ORG , complaining that the investigation into the circumstances of his wife 's death had been inadequate . In letters of DATE and DATE ORG responded that the inquiry by ORG did not reveal any criminal elements in the actions of the ORG officials and that the applicant could challenge the decision of ORG Office of CARDINAL DATE in the courts . The applicant did not lodge a judicial complaint .", "On DATE the First Deputy to the Prosecutor General quashed the decision of ORG Office of CARDINAL DATE on the refusal to institute criminal proceedings . Having regard to the contradictory testimonies of key witnesses and indications of possible breaches of law by the ORG and police officials , the First Deputy to ORG found that the inquiry had been incomplete and instituted criminal proceedings under LAW ( incitement to suicide ) of LAW . ORG was instructed to carry out the investigation .", "On DATE the applicant was given the procedural status of a “ legal successor to a victim of crime ” . In DATE the applicant submitted to the investigator a number of petitions requesting him , inter alia , to summon certain additional witnesses and to remove certain ORG and police officials from their official posts during the investigation period . On DATE the investigator rejected these petitions .", "It appears that the investigator again questioned mostly the same group of witnesses who had been questioned before ( see paragraphs CARDINAL and CARDINAL above and section F. below ) .", "On DATE the DATE investigation period was extended for DATE .", "On DATE the investigation was suspended . On DATE it was resumed . No documents are available in the case file in respect of these procedural events .", "On DATE the investigator from ORG again suspended the investigation , owing to the inability “ to determine the perpetrator of the criminal offence ” of incitement to suicide .", "The applicant lodged a judicial complaint against the investigator 's decision of CARDINAL DATE to suspend the investigation . On DATE the ORG quashed the impugned decision and instructed ORG to resume the investigation . The court noted , inter alia :", "“ It appears from the material in the case file that the criminal investigation has not been full and comprehensive , and there was no basis for suspending the criminal proceedings as no face - to - face confrontations between witnesses have been held , and it has not been determined whether there were lawful grounds for the [ ORG and police ] officials to enter the residential LOC and remove the victim 's belongings from there , whether the police officers indeed went to the scene of the incident with the aim of carrying out prophylactic measures , whether such prophylactic measures were lawful , whether any physical force were used against the residents of the LOC , and whether the [ ORG officials ] at the scene of the incident abused their official authority . ”", "NORP On DATE the investigation was resumed . However , on DATE the investigator of ORG decided to suspend the investigation again . In his decision he noted that , after the resumption of the investigation on DATE , “ a number of investigative steps ha[d ] been carried out ” ; however , it was still impossible to determine the perpetrator of the offence of incitement to suicide . The nature of such investigative acts was unspecified .", "The applicant lodged a judicial complaint against the investigator 's decision of DATE to suspend the investigation . On DATE ORG dismissed the applicant 's complaint and upheld the investigator 's decision . On DATE ORG upheld ORG decision .", "On DATE the investigator of ORG issued a decision terminating the criminal proceedings on account of the absence of corpus delicti for the purposes of LAW in the actions of any of the persons involved in the incident resulting in the applicant 's wife 's self - immolation . The decision contained , inter alia , the following findings :", "“ From DATE the [ ORG ] became aware of the fact that [ the applicant and his family ] had changed , of their own free will [ without authorisation ] , their place of residence and were illegally residing in a ORG - owned non - residential building . Despite several early warnings given by [ ORG and police ] officials , [ the applicant and his family ] continued to illegally reside in those non - residential LOC .", "At TIME on DATE , pursuant to an instruction by the [ ORG 's ] senior administration , [ ORG officials ORG and ORG ] , police officers [ GPE , ORG , ORG ] , and the Deputy Head of ORG J.M. went ... to the above address to have a prophylactic conversation with [ the applicant and his family ] .", "During the prophylactic conversation ... PERSON became anxious and , having presumed that [ her family ] would be evicted from the LOC , poured kerosene on herself and ignited it ; a state of tension ensued at the scene of the incident ; PERSON was taken to hospital by her relatives ; her husband [ the applicant ] had left the scene prior to PERSON self - immolation to send a complaint by telegram ; as a result , a process of eviction was started in accordance with an instruction given on the spot by [ ORG and CARDINAL ] ; the police officers loaded [ the applicant 's ] belongings onto a lorry and transported them to [ the hostel where the applicant 's family had previously lived ] and delivered them to [ R.N. ] , the superintendent of the hostel .", "It has been determined that the senior administration of [ the ORG ] sent [ E.G. and Y.A. ] with the purpose of carrying out prophylactic measures in respect of the internally displaced persons who were illegally occupying the ORG - owned nonresidential premises in order to ensure that [ the latter ] vacated the LOC voluntarily , and that the senior management of [ the ORG ] did not instruct its officials to evict the internally displaced persons by force . However , after [ the applicant 's ] wife PERSON , who was suffering from a mental illness , had set fire to herself , [ E.G. and DATE ] instructed the police officers to move out the [ applicant 's ] belongings , organised the transportation of those belongings to the hostel ... , delivered them to the superintendent [ ORG ] and signed a deed of delivery . ...", "It has been determined that , pursuant to an oral instruction from [ the ORG ] , the police officers were sent to the above - mentioned address by the administration of ORG in order to participate in carrying out the prophylactic measures and , after the act of self - immolation by PERSON , received an instruction directly from [ ORG and DATE ] to move [ the applicant 's ] belongings .", "[ Summaries of witness testimonies and forensic evidence follow . ]", "Pursuant to LAW DATE , the relevant local executive authorities are responsible for temporary housing of internally displaced persons . Internally displaced persons may be allowed to settle temporarily on their own only if the rights and lawful interests of other persons are not infringed . Otherwise , the relevant executive authority must ensure resettlement of the internally displaced persons to other accommodation ...", "Pursuant to clause CARDINAL of the Regulations on Resettlement of Internally Displaced Persons to Other Accommodation , adopted in ORG . CARDINAL of DATE , in cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals , the local executive authorities must provide the former with other suitable accommodation .", "According to a statement received from ORG , there has been no judicial order for the eviction of [ the applicant ] from the LOC where he had settled .", "[ A summary of the expert opinion on PERSON mental state follows . ]", "The investigation did not reveal evidence in support of [ the applicant 's ] allegations that [ the ORG ] officials demanded a bribe from him , abused or exceeded their authority , or unlawfully evicted [ the applicant 's family ] , or that the police officers ... abused or exceeded their authority , or used force against [ the applicant ] and his family members or his mother - in - law . The decisions and actions of [ the ORG and police ] officials taken in connection with the LOC illegally occupied [ by the applicant 's family ] were lawful and did not transgress the limits specified by the legislation [ in force ] . The actions of [ the ORG and police ] officials did not contain any elements of offences under ORG CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW or any other criminal offences .", "Moreover , the investigation revealed no indications that PERSON was driven to commit suicide by way of ill - treatment debasing her dignity or threatening her , and found no person guilty of such acts . No elements of an offence under LAW of LAW have been established in the actions of any person [ in connection with this incident ] . ”", "Below are summaries of testimonies of the witnesses questioned at various times by the investigation authorities in the course of the abovementioned proceedings . The summaries have been derived either from copies of the witness depositions submitted by the Government in their observations or from the texts of the investigation authorities ' decisions , or both . It appears that a number of the witnesses were questioned more than once ; in such cases , the summary includes the content of all their testimonies .", "The applicant testified that , prior to CARDINAL March CARDINAL , he had been called to the ORG several times and had been demanded to vacate the LOC in FAC . On CARDINAL occasion , he had been accompanied to the ORG by a police officer , ORG The applicant claimed that , during these meetings with the ORG officials , he had been asked for a bribe .", "At TIME on DATE K.A. knocked on the applicant 's door and did not tell him the real reason for her visit when he asked . When he opened the door , ORG entered the dwelling with ORG , followed by police officers GPE , ORG and PERSON ( whom the applicant identified by their first names ) , and several other police officers unknown to him . A “ large number ” of other unknown police officers remained outside . GPE , FAC and ORG used force on the applicant immediately after they had gone inside . The applicant 's wife , who witnessed this , asked the police officers why they were doing this and threatened to set fire to herself . In reply , E.G. mockingly challenged her to do so . At that moment , the applicant was able to escape from the police officers and go outside in search of a phone to call his relatives for assistance . When he came back , he saw a burnt blanket at the entrance of the dwelling and found out that his wife had performed selfimmolation and had been taken to hospital . He went to the hospital to see his wife . From the hospital he went to a post office to send telegrams to various authorities complaining about the incident . When he came back to his dwelling from the post office , he saw that his possessions had been removed .", "The testimony of the applicant 's mother - in - law mostly corroborated the applicant 's statements . Unlike him , she was inside the dwelling during the entire incident . She estimated that there had been CARDINAL officials and police officers during the incident and noted that they all had entered the dwelling . She also noted that , at CARDINAL point , police officer GPE had used force on the applicant by twisting his arms . She further submitted that E.G. had gone inside the dwelling and provoked PERSON by offering her a box of matches . Following this , PERSON went into another room and emerged from it burning . CARDINAL of the police officers helped put out the fire by throwing a blanket and a carpet on PERSON .", "The applicant 's sister - in - law was in accord with her mother 's testimony .", "E.G. stated that the applicant and his family members had been notified earlier about the illegality of their actions and had been asked to vacate their dwelling in the ORG building . On DATE S.R. , a head of department at the ORG , instructed him and another colleague of his ( F.K. ) to participate , as “ observers ” from the ORG , in the “ prophylactic measures ” that would be taken DATE in connection with the applicant 's illegal occupation of part of the FAC building . On DATE he went to that address together with ORG , while PERSON joined them much later . There were already an unspecified number of police officers there . An unspecified number of unidentified relatives and friends of the applicant were also there . The latter verbally insulted him and MONEY The Deputy Head of ORG ( PERSON ) was also there and spoke to the applicant about vacating the LOC .", "E.G. specified that ORG had knocked on the applicant 's door and , immediately after it had been opened , several policemen had gone inside and spoken to the applicant . E.G. himself was standing , together with GPE , outside the building , QUANTITY away from the entrance to the applicant 's dwelling . “ A little while later ” , he heard screams from inside the applicant 's dwelling and saw the police officers bring out PERSON , who was badly burnt and was then taken to hospital . The applicant was not there at this time , as he had gone away somewhere . After PERSON had been driven away , the premises occupied by the applicant and his possessions were left unattended by his family members , so they were loaded onto a lorry and taken to a more “ secure place ” , that is , the hostel where the applicant had lived before .", "E.G. denied speaking to the applicant prior to the incident and asking for any bribe from him . He also denied offering any matches to PERSON and repeatedly insisted that he had been standing outside when she had immolated herself . He noted that the police officers had not used any force against the applicant or his family members . He also denied issuing any instructions to move the applicant 's possessions out of the dwelling and stated that the police officers had decided to do so by themselves .", "Y.A. testified that , on DATE , his colleagues ORG and GPE had asked him to accompany them to the LOC that the applicant had illegally occupied . When they arrived , there were already an unspecified number of police officers and an unspecified number of the applicant 's relatives and friends . He and E.G. were standing outside the building , a significant distance away from the entrance to the LOC occupied by the applicant . A little while later , they heard a commotion inside the LOC and saw several police officers run inside . The latter brought out a badly burnt woman and sent her to a hospital . CARDINAL of the police officers , ORG , helped put out the fire and , as a result , suffered a burn injury to his hand . ( However , in another deposition Y.A. slightly changed his recollection of the above events and specified that , after PERSON and several police officers had knocked on the applicant 's door , they had all gone inside . A little while later , GPE heard screams from the inside and heard the police officers bring out PERSON . )", "The applicant , by this time , had gone away somewhere else and there was a state of confusion and disarray at the scene of the incident . Therefore , the applicant 's possessions were loaded onto a lorry and taken to a more secure place ( the hostel ) for “ temporary storage ” . Subsequently , the applicant reclaimed his possessions and took them back to the same LOC in the FAC building that he had illegally occupied .", "Y.A. insisted that he and ORG had been standing outside when PERSON had immolated herself and that ORG had never offered any matches to her . He submitted that the police officers had not used any force against the applicant or his family members .", "F.K. testified that ORG , a head of department at the ORG , had instructed him and ORG to participate , as “ observers ” from the ORG , in the “ prophylactic measures ” that would be taken DATE in connection with the applicant 's illegal occupation of the LOC in the FAC building . However , in TIME of CARDINAL March CARDINAL he was away on another assignment and arrived at the scene of the incident only after PERSON had immolated herself . He had assisted in the transportation and delivery of the applicant 's possessions to the hostel 's superintendent .", "S.R. testified that , in DATE , he had received information that a family of internally displaced persons had illegally settled in the administrative building of LOC . Thereafter , the applicant came to the ORG to meet him personally and asked him to allow his family to stay in that building . However , ORG refused , stating that the applicant 's actions were illegal .", "He further noted that , on DATE , he had instructed ORG and DATE to go to the applicant 's LOC and have a “ prophylactic conversation ” with the latter . He also requested ORG to send some police officers there in order to “ avoid any incidents ” . However , ORG insisted that he had not instructed either ORG and ORG or the police officers to evict the applicant 's family by force . The applicant 's possessions were moved out of the LOC only after the act of selfimmolation by PERSON pursuant to a decision taken on the spot by the ORG officials , in order to preserve the possessions from possible theft in the atmosphere of confusion which ensued at the scene of the incident .", "J.M. testified that he had received an oral instruction to carry out a “ prophylactic conversation ” with the applicant 's family and to protect public order at the site during such “ prophylactic ” measures . For this purpose , he sent police officers ORG and GPE to the FAC building . He himself also went there at TIME on DATE and talked to the applicant and the ORG officials who were already there . TIME after his arrival , he heard screams from inside the applicant 's dwelling and saw FAC and GPE go inside . The latter helped to put out the fire on PERSON body and to send her to hospital . Thereafter , he called more police officers to the scene in order to restore order and preserve the applicant 's possessions .", "C.V. testified that on DATE he and his colleague ORG had been told that the authorities would carry out a “ prophylactic conversation ” with the applicant and had been instructed to go to the ORG building with the aim of protecting public order . When they arrived at the site , there were CARDINAL other police officers ( GPE , GPE , GPE and FAC ) , as well as ORG , ORG Then ORG knocked on the door and the applicant came out . The applicant and PERSON engaged in a conversation . The other police officers , including himself , were standing nearby . E.G. and Y.A. were standing QUANTITY from the entrance to the dwelling . While PERSON and the applicant were talking , PERSON heard screams from inside . He and CARDINAL other police officers ( ORG and ORG ) went inside and saw PERSON on fire , coming out of a back room . The police officers , including himself , put out the fire on her body by throwing blankets on her . At this time , the applicant went away somewhere , possibly to a post office . TIME , CARDINAL of PERSON relatives arrived and took her to hospital . Out of the applicant 's family , only the applicant 's elderly mother - in - law remained at the scene and she was in a state of shock because of her daughter 's suicide attempt . The applicant 's home possessions were essentially left unattended at TIME , so they were loaded onto a lorry and taken to a more secure place .", "C.V. denied applying any force or pressure on the applicant or his family members . He did not assist in moving out the applicant 's possessions .", "N.A. testified that on DATE he had received an instruction from his superiors to go to the FAC building with the aim of protecting public order during the eviction of the applicant 's family . He went there together with ORG , another police officer . At an unspecified moment , he heard screams from inside the applicant 's LOC , and he and other police officers ran inside and saw PERSON on fire . They helped put out the fire and took her to hospital . He returned to the scene around TIME later and saw that the applicant 's possessions had been loaded onto a lorry . He denied applying any force or pressure on the applicant or his family members . According to him , E.G. was standing outside when PERSON immolated herself , never went inside the applicant 's premises and never offered her matches .", "ORG testified that on DATE he had been told that the authorities would carry out a “ prophylactic conversation ” with the applicant and had been instructed to go to the FAC building with the aim of protecting public order . The aim of the “ prophylactic conversation ” was to persuade the applicant to vacate the illegally occupied LOC voluntarily . There were a total of QUANTITY police officers at the site ( including himself , PERSON , ORG and GPE ) . E.G. and ORG were also there and were standing some distance away from the LOC , because the applicant 's relatives and friends kept insulting them . During PERSON 's conversation with the applicant , ORG heard screams from inside the premises and immediately ran there . He saw a woman on fire . He took a blanket and extinguished the fire on her body . While doing this , he himself was injured , suffering a burn to his hand .", "E.N. denied applying any force or pressure on the applicant or his family members . He also did not assist in moving out the applicant 's possessions , as he had to leave the scene to receive medical treatment for his injury .", "N.G. testified that on DATE he had been told that the authorities would carry out a “ prophylactic conversation ” with the applicant and had been instructed to go to the FAC building with the aim of protecting public order . He went there together with ORG , his colleague . While CARDINAL of the police officers engaged in conversation with the applicant , ORG , ORG and all the police officers ( including himself ) were standing outside . At this moment , he heard screams from inside the LOC . He and PERSON went inside . ORG extinguished the fire on PERSON body and , while doing this , suffered an injury to his hand . He accompanied ORG , who needed medical treatment , to hospital . PERSON was taken to hospital by her relatives . When he returned TIME , he saw that the applicant 's possessions were being loaded onto a lorry by the applicant 's own relatives and friends . Police officers were occasionally assisting them .", "N.G. denied applying any force or pressure on the applicant or his family members . He insisted that all the police officers had been standing outside the applicant 's LOC when PERSON had set fire to herself inside the LOC . E.G. and Y.A. were also outside , further away from the building . Police officers GPE and FAC were not at the scene of the incident at the time of PERSON suicide attempt and arrived only after the incident .", "N.I. was a police officer whom the applicant and his mother - in - law specifically identified by first name in their statements , alleging that GPE had used force against the applicant .", "N.I. testified that at TIME on DATE he had received information that a woman had immolated herself at the FAC building and that a large crowd of people had gathered there . He went to the FAC building and saw a lorry loaded with various household items . He enquired of the officials who were there what had happened . He then left the site .", "N.I. insisted that he had not participated in this operation , that he had not been at the scene of the incident at the time when PERSON had attempted suicide , that he had not met the applicant before , and that he was unaware of any reasons why the applicant had specifically mentioned his name in his complaints .", "DATE . S.S. was a police officer whom the applicant identified by first name in his testimony , alleging that ORG had used force against him .", "S.S. testified that at TIME on DATE he had received an instruction by portable radio to go to the FAC building . When he arrived there at TIME , he found out that a woman had committed an act of self - immolation and had been taken to hospital . Other police officers told him the entire story . After he arrived , he only witnessed how the applicant 's possessions were being loaded onto a lorry by the applicant 's own relatives and friends . Police officers were occasionally assisting them . Out of the applicant 's family , only his elderly mother - in - law was there . The applicant and his child had gone .", "S.S. insisted that he had not been at the scene of the incident at the time when PERSON had attempted suicide and that neither he nor any other police officer had used any force against the applicant or his family members .", "K.A. stated that on DATE her colleague at ORG , LAW , had requested her to go to the applicant 's dwelling following an instruction received from the ORG . When she arrived there , she saw ORG , CARDINAL or QUANTITY police officers . E.G. and Y.A. told her that they needed a female to knock on the applicant 's door and asked her to do it . When the door was opened , both the police officers and the ORG officials quickly entered inside . Before she knocked on the door , ORG had also instructed her to procure a lorry . Therefore , she immediately left the scene after knocking on the door . For this reason , she did not witness the act of self - immolation by the applicant 's wife . When she returned to the scene of the incident TIME , she heard that PERSON had attempted suicide and had been taken to hospital . PERSON was then asked to enter the applicant 's dwelling and write an itemised list of the applicant 's household items that were being loaded onto the lorry . She did not want to do this , but did so under forceful orders from the ORG officials .", "B.I. stated that he had gone to the applicant 's dwelling together with ORG , but had left before all the events had happened because of other urgent business . During the short period when he was there , he saw CARDINAL or QUANTITY police officers standing near the FAC building and ORG and DATE standing a little further away .", "PERSON testified that at TIME on DATE she had heard about the incident in the FAC building . She immediately went there together with a camera operator . However , when they arrived , everything was over and they could not get any video footage of the relevant events . Thereafter , she went to the hospital where PERSON had been taken , but was not able to interview her .", "R.N. was the superintendent of the ORG - owned hostel where the applicant 's family used to live before they moved to the new dwelling at the ORG building . According to him , the applicant 's family lived in his hostel from DATE . The applicant 's wife suffered from a “ nervous disease ” and was “ mentally unstable ” . In DATE the applicant 's family left the hostel . On DATE the ORG officials and police officers brought the applicant 's household possessions back to the hostel for “ temporary storage ” ( as they explained ) . He signed the list of items and locked the applicant 's possessions in a separate room . On DATE the applicant reclaimed his possessions .", "N.Q. testified that , prior to the applicant 's eviction from his dwelling , he had gone to the ORG together with the applicant with the purpose of obtaining permission for the applicant to stay in the dwelling . He noted that , during that meeting , the ORG officers had explained to the applicant that he was occupying the dwelling illegally . They had not demanded any bribes from the applicant in return for permission to stay there .", "DATE . S.B. was a member of an association of veterans which occupied part of the LOC in the FAC building . He described in general how the applicant had carried out repair works in his dwelling . He noted that there had been no objections from any ORG authorities during the time when the applicant had carried out the work .", "Article CARDINAL of the Law on Social Protection of Internally Displaced Persons and Individuals Equated to Them of CARDINAL DATE ( “ the IDP Social Protection Act ” ) provides as follows :", "“ Persons displaced from the place of their permanent residence in the territory of GPE to other places within the territory of the country as a result of foreign military aggression , the occupation of certain territories or continuous gunfire shall be considered internally displaced persons subject to the provisions of this PERSON . ”", "DATE provides as follows :", "“ The relevant executive authority [ the Cabinet of Ministers , ORG and local executive authorities , within the scope of their respective competence ] shall deal with the housing of internally displaced persons . Residential , administrative and auxiliary buildings , as well as other buildings , shall be used for such housing purposes . Where there is no possibility of housing internally displaced persons in such buildings or where the population density in a specific settlement does not allow such a possibility , they shall be settled in camps specially set up for internally displaced persons . ...", "Internally displaced persons may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed . Otherwise , the relevant executive authority must ensure resettlement of the internally displaced persons to other accommodation ... ”", "Clause CARDINAL of the Regulations on Resettlement of Internally Displaced Persons to Other Accommodation , adopted by ORG . CARDINAL of DATE ( “ the ORG Resettlement Regulations ” ) , provides :", "“ In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals , the former must be provided with other suitable accommodation . ”", "Article CARDINAL ( “ Incitement to suicide ” ) of LAW provides as follows :", "“ Incitement of a person who is dependent on the inciter for material , service - related or other reasons to commit or attempt suicide by means of cruel treatment of this person , or by means of systematic denigration of his dignity , or by means of threats", "shall be punishable by restraint of liberty for a term of DATE or by imprisonment for a term of DATE . ”", "Articles CARDINAL , CARDINAL and CARDINAL of the Criminal Code deal respectively with the criminal offences of abuse of official authority , excess of official authority and bribe - taking .", "By Article CARDINAL of LAW ( “ the CCrP ” ) , a person recognised as a “ victim of crime ” has , inter alia , the following procedural rights : to submit material to the criminal case file ; to request the status of a private prosecutor at any pre - trial stage ; to object to actions of the criminal prosecution authority ; to lodge petitions ; to have access to transcripts and documents in the case file ; to be informed about and to obtain copies of the procedural decisions of the criminal prosecution authority ( including a decision to discontinue the criminal proceedings ) ; and to lodge appeals against procedural steps or decisions . In contrast , a person participating in the proceedings as a witness is entitled to have access only to those transcripts and documents which are related to him or her ( LAW ) .", "On being informed about acts of a criminal character that are planned or have been carried out or on discovering a criminal event by himself or herself , a preliminary investigator , investigator or prosecutor must take the necessary steps to preserve and obtain the relevant evidence and must immediately begin an investigation ( Article CARDINAL ) . The initial grounds for instituting criminal proceedings may be either statements about a planned or committed criminal offence submitted by individuals , or information received from companies , officials and the mass media , or direct discovery of a criminal offence by a preliminary investigator , investigator or prosecutor ( Article CARDINAL ) .", "NORP Parties to criminal proceedings ( and other persons involved in such proceedings in cases specified in the CCrP ) are entitled to complain about procedural steps or decisions by the criminal prosecution authority . Procedural steps or decisions by the preliminary investigator or the investigator may be appealed against to the supervising prosecutor and the procedural steps or decisions of the latter may be appealed against to the hierarchically superior prosecutor ( Articles CARDINAL.CARDINAL.CARDINAL and CARDINAL.CARDINAL.CARDINAL ) . Certain types of procedural steps or decisions ( of the preliminary investigator , investigator or supervising prosecutor ) specified in LAW ORG may be appealed against directly to the supervising court ( LAW ) .", "A decision not to institute criminal proceedings is taken by a preliminary investigator , investigator or supervising prosecutor when there are no lawful grounds for instituting criminal proceedings ( Article CARDINAL ) . Within TIME after its issuance , this decision is sent to the supervising prosecutor as well as to the person who had informed the law - enforcement authorities about the alleged criminal offence ( Article CARDINAL ) . A decision not to institute criminal proceedings may be appealed against to the supervising prosecutor , or a prosecutor hierarchically superior to the supervising prosecutor , or to the supervising court ( Article CARDINAL ) . If an appeal is lodged with the supervising court , the latter may either ( a ) quash the decision and draw the supervising prosecutor 's attention to any breaches of the ORG 's provisions concerning the procedure for criminal inquiries and requirements for instituting criminal proceedings , or ( b ) uphold the decision not to institute criminal proceedings ( LAW ) ." ]

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[ "PERSON is a NORP national , who was born in DATE and now lives with his wife at GPE in the canton of GPE , GPE .", "ORG Until DATE he lived with his wife and their CARDINAL sons , GPE ( born on DATE ) and Ersin ( born on DATE ) , in the town of GPE in GPE . On DATE he travelled to GPE , where he applied for political asylum as a NORP and former member of ORG ( \" the ORG \" ) . He worked in a restaurant there until DATE , when he fell ill . Since then he has been in receipt of a partial - invalidity pension .", "ORG In DATE the applicant ’s wife , who had remained in GPE with their CARDINAL sons , seriously burned herself during a fit brought on by her epilepsy , from which she had suffered since DATE . In DATE , having found that it was impossible for her to obtain proper treatment in the area where she was then living , she joined her husband in GPE , where she was taken into hospital as an emergency case . CARDINAL of the fingers of her left hand were amputated .", "ORG On DATE in GPE PERSON gave birth to her third child , PERSON , a daughter . As she still suffered from epilepsy , she could not take care of the baby , who was placed in a home in GPE , where she has remained ever since . In a written declaration dated DATE , a GPE specialist in internal medicine stated that a return to GPE would be impossible for PERSON and might even prove fatal to her , given her serious medical condition .", "ORG On DATE the Minister for Refugees rejected PERSON application for political asylum , on the ground that he had not been able to establish that he personally had been a victim of persecution , as the general situation of the NORP population in GPE was not in itself sufficient to justify granting political asylum . He went on to say that , according to reliable sources , no measures were being taken by the ORG authorities against former members of the ORG , and ordered the applicant to leave GPE by DATE , failing which he would be deported .", "On DATE the applicant appealed against the above decision to ORG and ORG . He asserted that the collective repression of NORP in GPE , of which he himself had been a victim , in itself justified granting political asylum . In addition , at the time when he had fled to GPE all political parties had been proscribed and their members - especially the members of left - wing parties like the FAC - were being prosecuted . He could not therefore be required to return to GPE , and this would be in breach of LAW ) of the Convention .", "ORG In a letter of CARDINAL DATE , ORG ) informed the applicant ’s lawyer that they supported Mr Gül ’s request for a residence permit ( GPE ) on humanitarian grounds in respect of himself , his wife and his daughter PERSON .", "In view of the length of time PERSON had been living in GPE and his wife ’s precarious state of health , the police considered that the conditions for the issue of such a permit laid down in LAW ( f ) of ORG ( \" the ORG \" - see paragraph DATE below ) had been satisfied . The final decision to grant a residence permit was given by ORG on DATE .", "ORG As ORG and ORG had informed PERSON that his application for political asylum had only very limited prospects of success on appeal , he withdrew it . The authorities took formal note of this on DATE .", "ORG On DATE Mr Gül asked ORG for permission to bring to GPE his CARDINAL sons , GPE and Ersin , who had remained in GPE .", "ORG In a decision of CARDINAL DATE ORG rejected Mr Gül ’s request , on the ground that the conditions for family reunion had not been satisfied ( LAW paragraph CARDINAL below ) . Firstly , the PERSON family ’s flat did not conform to the standards laid down and , secondly , the applicant did not have sufficient means to provide for his family . In any event , GPE was already DATE and was therefore ineligible for a residence permit under the rules governing family reunion .", "ORG On DATE the applicant appealed against this decision to the ORG cantonal government ( NORP ) . He argued that the residence permit issued to him and his wife under LAW ( f ) of the ORG should have been extended to include his CARDINAL sons , as his personal circumstances made it an extremely serious case . Since it was impossible to return to GPE because of his wife ’s precarious state of health and the length of time he had lived abroad , the family could be brought back together only in GPE . Both Article CARDINAL ( article CARDINAL) of LAW , guaranteeing the right to respect for family life , and LAW on the Rights of the PERSON gave the QUANTITY boys the right to join their parents in GPE . If the cantonal government were nevertheless to rely on the provisions of Articles CARDINAL et seq . of the ORG ( see paragraph DATE below ) on family reunion , the younger son , Ersin , could and should be permitted to exercise that right . There was enough room for him in the family ’s flat and PERSON financial resources were sufficient to provide for his family .", "ORG On DATE the ORG cantonal government dismissed the applicant ’s appeal . It pointed out that under section CARDINAL of ORG ( \" the RSAA \" - see paragraph CARDINAL below ) the question whether to grant a residence permit ( GPE ) or settlement permit ( Niederlassungsbewilligung ) was determined by the competent cantonal authorities with unfettered discretion ( nach freiem GPE ) , having regard to the relevant statutory provisions and international agreements . In that connection , the authorities had to take account of the country ’s moral and economic interests , and of the degree of immigrant penetration ( PERSON ) .", "The cantonal government then considered whether PERSON CARDINAL sons could rely on a right to obtain permission to reside in GPE ( PERSON ) on the basis of the statutory provisions , as the agreement on settlement concluded by GPE and GPE on DATE did not confer such a right .", "Under LAW ( CARDINAL ) of the ORG ( see paragraph CARDINAL below ) a minor did not have such a right unless his parent was in possession of a settlement permit . As PERSON and PERSON only had a residence permit , they could not rely on that provision in order to assert a right to family reunion . As for the guarantees set forth in LAW article CARDINAL) of the LAW , only NORP nationals or persons in possession of a settlement permit could rely on these ; PERSON and PERSON fell into neither of those categories .", "Articles CARDINAL et seq . of the ORG ( see paragraph DATE below ) did not confer a right but merely set out the minimum conditions to be satisfied before family reunion could be authorised . The cantonal authorities had the final say on the matter , and in reaching their decision they had unfettered discretion . It being established that the provisions concerned could only apply , if at all , to the minor son , Ersin , the cantonal government listed the minimum conditions which Article CARDINAL para . CARDINAL of the OLNA ( see paragraph CARDINAL below ) required to be satisfied by a foreigner living in GPE before family reunion could be authorised , namely :", "( a ) his residence and , where relevant , his gainful employment should appear to be sufficiently stable ;", "( b ) he should live with his family and occupy accommodation suitable for that purpose ;", "( c ) he should have sufficient means to support his family ;", "and", "( d ) firm arrangements should have been made for the care of any children who still needed their GPE presence .", "The cantonal government did not determine points ( a ) and ( b ) , but carefully considered points ( c ) and ( d ) , on which it gave the following decision :", "\" ( c ) The calculations made by ORG and the cantonal government ’s legal service , which investigated the case , show that PERSON has not satisfied the condition laid down in Article CARDINAL para . CARDINAL ( c ) of the ORG . He does not have sufficient means to support his family during their residence in GPE . According to the reference calculation , PERSON should have a DATE net income of MONEY ( CHF ) if he is not to fall below the minimum standard of living . That figure is derived from the base rates used by the cantonal social security office for assessing the likelihood of reliance on social security , which are on the whole identical with the base rates adopted by ORG for the calculation of financial support . These base rates are used to establish the DATE living expenses of the foreigner concerned and the members of his family seeking to join him , which have to be covered by his income . This must be sufficient to provide not only the basic necessities of life but also a minimum standard of living . In this way the legitimate interest of the public authorities in preventing the family from becoming a burden on the social security services is also taken into account .", "PERSON net DATE income is CHF MONEY , which falls CHF CARDINAL short of the amount required for the minimum standard of living as calculated by the social security services . The cost of keeping the youngest child , PERSON , in a children ’s home has not been taken into account , as it is not known who pays for this . The calculation of income is based on pay - slips from DATE , the latest available . On DATE ORG sent ORG a medical certificate stating that PERSON was PERCENT unfit for work and would remain so for a period that it was not possible to determine . On enquiry being made , it was confirmed in a medical certificate dated DATE that PERSON had suffered from PERCENT incapacity since DATE and would remain unfit for work for the foreseeable future . The GPE municipal social security services stated in a letter of CARDINAL DATE that PERSON would have to have several operations and that for the time being he was waiting to be awarded an invalidity pension . For DATE alone the social security services have paid the Gül family CHF CARDINAL,CARDINAL.CARDINAL , and the family will remain dependent on social security payments . In DATE PERSON stated during a personal interview with the subordinate authority ( PERSON ) that his family was at that time entirely dependent on social security payments . He therefore has no other source of income . At present the social security services are paying the PERSON family the amount needed by a CARDINAL - person family , but no more . The social security services can not be expected to provide for children arriving from abroad when it is known in advance that they will have to support them . Nor can PERSON support his other children from his own resources . For that reason alone the application for family reunion must be refused .", "( d ) Article CARDINAL para . CARDINAL ( d ) also requires firm arrangements to be made for the care of children . But PERSON , for reasons connected with her illness , is not mentally or physically capable of keeping her daughter PERSON with her and looking after her . That is why PERSON has been brought up in the \" PERSON \" children ’s home in ORG , where she is to remain . It follows that if PERSON and PERSON DATE son Ersin joined the family , it is not at all certain that firm arrangements could be made for his care . He too would presumably have to be brought up in a children ’s home , which is not the aim of family reunion . A medical certificate dated DATE states that PERSON is suffering from a serious illness which makes it necessary for her to have constant medical supervision and treatment . She might even need to go into hospital again . That prospect makes it impossible to consider that firm arrangements have been made for the child ’s care as the Order requires . \"", "The cantonal government went on to say that residence permits issued on humanitarian grounds under LAW ( f ) of the ORG could not in addition confer on the recipients a right to family reunion . In order to ensure equal treatment for all aliens not having the right to reside in GPE , such reunion could take place only under LAW seq . of the OLNA .", "Lastly , the cantonal government considered the situation of the younger boy from the standpoint of LAW ( see paragraph CARDINAL below ) , announcing its decision in the following terms :", "\" Ersin Gül is CARDINAL . It must be determined whether his entry into GPE would be in accordance with LAW , which requires an ` important reason’ that is lacking in this case . There is no special reason for treating LOC differently from other children wishing to rejoin their families in respect of whom the conditions laid down in Articles QUANTITY et seq . of the ORG have not been satisfied . Another reason for refusing to admit him to GPE is the fact that Ersin and PERSON would be separated . Ersin has lived with GPE since birth . On the other hand , he has been separated from his father and mother for DATE and DATE respectively . Having regard to the child ’s welfare , which plays an important role in family reunion cases , the question arises , at the very least , whether it is reasonable to separate him from his brother and the environment he is used to in order to bring him to live with his mother , who is seriously ill and unable to keep him with her or look after him , and his father , who went away to GPE DATE after ORG birth , which means that he hardly knows him . In view of all the circumstances , and having regard to the child ’s welfare , the cantonal government considers that PERSON should not be authorised to join his parents in GPE . In any case , there is no important reason within the meaning of Article CARDINAL of the ORG which requires him to be admitted to GPE . \"", "The cantonal government concluded that PERSON had not satisfied the conditions laid down for family reunion and that his children could not rely on LAW ( f ) or LAW ORG either in order to come to GPE to join him .", "ORG On DATE the applicant lodged an administrative - law appeal with ORG . He repeated his previous arguments ( see paragraph CARDINAL above ) and added that , because of the \" special circumstances \" , LAW article CARDINAL) of the ORG gave his sons the right to obtain permission to reside in GPE . The earlier issue of a residence permit on humanitarian grounds to himself , his wife and his daughter had been based on the finding that a return to GPE was impossible , as it would put the health of his wife and daughter seriously at risk . PERSON argued that the same considerations which had prevailed in the decision to grant that residence permit should prevent any withdrawal thereof , which would be tantamount to subjecting PERSON , whose state of health was still causing concern , to inhuman and degrading treatment contrary to LAW . The residence permit issued to PERSON and PERSON on humanitarian grounds was therefore the equivalent of a settlement permit , and it followed that they had the right to family reunion , which could only take place in GPE .", "ORG In a judgment of DATE ORG declared the applicant ’s appeal inadmissible . It pointed out that , pursuant to section CARDINAL ( b ) ( CARDINAL ) of ORG , an administrative - law appeal in an immigration - control case was inadmissible if it concerned the issue or refusal of permits to which federal legislation conferred no entitlement . Like the cantonal government , ORG found that neither section CARDINAL ( CARDINAL ) of the RSAA nor LAW article CARDINAL) of the LAW conferred such a right on an alien resident outside GPE whose parent living in GPE had only a residence permit , as PERSON did . In particular , Article CARDINAL ( article CARDINAL) of the ORG could be relied on only by a person who had the right of abode in GPE either by virtue of his NORP nationality or by virtue of a settlement permit . The court gave this ruling in the following terms :", "\" DATE ( article CARDINAL) of ORG guarantees the right to respect for family life . In certain circumstances the right to be issued with a residence permit can be deduced from this ( see ORG [ Judgments of ORG ] CARDINAL Ib CARDINAL at CARDINAL , CARDINAL at c ; CARDINAL Ib CARDINAL at CARDINAL ; CARDINAL Ib CARDINAL at CARDINAL ) , so that LAW article CARDINAL) may be breached where an alien whose family lives in GPE is refused leave to enter the country . According to ORG established case - law , however , a breach can occur only where the family members living in GPE themselves possess a well - established right of abode ( Anwesenheitsrecht ) . For that purpose , it is in principle necessary to have NORP nationality or possess a settlement permit ( see ORG CARDINAL Ib CARDINAL at CARDINAL ; CARDINAL Ib CARDINAL at CARDINAL ) . A mere residence permit is at any rate not sufficient unless it is based on a firmly established right ( see ATF CARDINAL Ib CARDINAL at CARDINAL ) , as ORG has held in many unpublished judgments ( most recently in the judgment of DATE in the case of PERSON , at CARDINAL ) ... That is , moreover , consistent with the new provisions on the legal status of aliens having family members in GPE ( sections CARDINAL and CARDINAL ( CARDINAL ) of the ORG , as amended on DATE , which came into force on DATE ) . Under the Act the right to family reunion presupposes a firmly established right of abode , as pointed out above ( at CARDINAL ) . Given that the legislature ’s intention in adopting the amendment in question was precisely to take account of LAW article CARDINAL) of ORG GPE [ ORG ] DATE III , pp . CARDINAL et seq . , particularly pp . CARDINAL and CARDINAL ) , there is no reason , when that provision ( article CARDINAL) of the ORG is invoked with regard to recognition of legal rights in the matter of residence permits , to go beyond what the LAW itself expressly provides ( see ORG unpublished judgment of DATE in the case of PERSON , at CARDINAL ) . \"", "ORG also emphasised the differences between settlement permits and residence permits , stating :", "\" Unlike settlement permits , which are issued for an indefinite period ( section CARDINAL ( CARDINAL ) of ORG hereinafter the ORG ) , residence permits are always subject to a time - limit ( section CARDINAL ( CARDINAL ) of the ORG ) . Whatever the reason for granting the first residence permit , an alien must therefore allow for the possibility that his permit will not be renewed . There could be many reasons for this , including , for example , police , economic or demographic considerations . Although the alien ’s personal circumstances have to be taken into account in the inquiry into the proportionality of the decision not to renew , that does not mean that the alien is on that account entitled to have his residence permit renewed .", "The above statement of the law also applies to residence permits issued on humanitarian grounds . The only effect of a finding that a case is an extremely serious one within the meaning of LAW ( f ) of ORG of DATE ( hereinafter ORG ) is to exclude the alien concerned from the quotas laid down in that Order ; it does not imply the existence of a right to a residence permit . The Aliens Police prefer to remain free to decide when such a permit should be issued ( see ORG CARDINAL Ib CARDINAL at CARDINAL ) . In addition , the possibility can not be ruled out that the particular circumstances which justified the issue of a residence permit on humanitarian grounds will subsequently cease to exist , or lose their significance to such an extent that not only will there no longer be any reason to exclude the person concerned from the quotas , but even renewal of the residence permit will no longer be justified . Moreover , it is apparent from the rule established in LAW para . CARDINAL of the ORG that the conditions required for a finding that the case is an extremely serious one may subsequently cease to exist ( see the unpublished judgment of DATE in the case of P. , at CARDINAL ) . The question whether the case is of this type is therefore entirely separate from the question whether the person concerned has the right to obtain permission to reside in GPE by virtue of DATE ( article CARDINAL) of ORG ( see ORG CARDINAL Ib CARDINAL) .", "Furthermore , in the instant case the possibility can not be entirely ruled out that in the future the medical or other reasons which led the authorities to grant the residence permit will lose their significance , or that new grounds justifying a refusal to renew the permit will become apparent . The appellant can therefore not deduce from the fact that he is authorised to reside in GPE any right to the issue of a residence permit for his sons . \"", "ORG went on to say that the question how the ORG should be applied to the issue of permits was not one it had to examine in connection with the administrative - law appeal , as the cantonal government had already looked into the question whether the Güls’ younger son could be issued with a residence permit under LAW .", "ORG Ersin has lived in GPE since his birth , at first in GPE until DATE ( with his mother until DATE ) , and then in GPE .", "According to the Government , he is at present living , as is his grandfather , with the family of his elder brother PERSON , and has been visited several times by his father .", "The applicant maintained that Ersin frequently moved from CARDINAL home to another and spent DATE staying with various NORP families who used to live in the village where he was born , including the family of his elder brother . Owing to his grandfather ’s limited financial resources and the distance between the homes of some of these families and the school it was not possible for the boy to attend school on a regular basis .", "As is evidenced by an article which appeared in the NORP newspaper GPE on DATE , PERSON and PERSON visited their son in GPE in DATE and DATE .", "ORG provides :", "\" The authority shall have discretion to decide , having regard to the relevant statutory provisions and treaties with foreign GPE , whether to grant residence or settlement permits . \"", "\" CARDINAL . ORG When deciding whether to grant a permit the authorities must take account of the country ’s moral and economic interests , and of the degree of immigrant penetration .", "... \"", "\" CARDINAL . ORG As a general rule , the authority shall first issue only a residence permit , even if it is foreseen that the alien will establish his permanent residence in GPE . In each case ORG shall fix the date from which permission to settle may be granted .", "ORG Where that date has already been fixed , or where the alien is in possession of a settlement permit , his spouse shall be entitled to a residence permit for as long as the couple continue to live together . On completion of DATE uninterrupted lawful residence the spouse shall also become entitled to a settlement permit . Unmarried children under CARDINAL shall have the right to be included in the settlement permit for as long as they continue to live with their parents . These rights shall be extinguished if the beneficiary has engaged in conduct contrary to public policy . \"", "Before DATE the second paragraph of this section read :", "\" Where that date has already been fixed , or where the alien is in possession of a settlement permit , his wife and his children DATE shall have the right to be included in the permit if they form part of his household . \"", "ORG The relevant provisions of LAW are the following :", "\" The following categories of person shall not be included in the quotas :", "...", "( f ) aliens issued with residence permits in extremely serious personal cases or on general policy grounds .", "... \"", "Before DATE the expression \" extremely serious personal cases \" read : \" cases of extreme adversity \" .", "\" Residence permits may be issued to other aliens without gainful employment where important reasons so require . \"", "\" CARDINAL . ORG may authorise an alien to bring to GPE his spouse and his dependent unmarried children DATE .", "... \"", "\" CARDINAL . ORG An alien may be authorised to bring his family without being required to complete any qualifying period ...", "( a ) if his residence and , where relevant , his gainful employment appear to be sufficiently stable ;", "( b ) if he lives with his family and occupies accommodation suitable for that purpose ;", "( c ) if he has sufficient means to support his family ; and", "( d ) if firm arrangements have been made for the care of any children who still need their GPE presence .", "Accommodation is suitable if it meets the standards applicable to NORP nationals in the area where the alien wishes to live . \"", "Before DATE the words \" without being required to complete any qualifying period \" were not part of the text .", "ORG According to the established case - law of ORG , a person is entitled under LAW article CARDINAL) of the LAW to join a member of his family in GPE if the latter is a NORP national or is in possession of a settlement permit ( Judgments of ORG ( ORG ) vol . CARDINAL , part GPE , p. CARDINAL ; vol . CARDINAL , part GPE , p. CARDINAL ; vol . CARDINAL , part GPE , pp . CARDINAL et seq . ) .", "ORG Replying to the question asked at the hearing by CARDINAL member of ORG , the ORG stated that by virtue of the convention on social security concluded by GPE and GPE on DATE , which came into force on DATE with effect from DATE , invalidity insurance benefits payable in either country are also payable in the other . In the instant case , if PERSON returned to GPE , he would receive CHF MONEY , made up of his ordinary pension ( CHF MONEY ) and CARDINAL of the supplementary pension paid in respect of his wife ( CHF CARDINAL ) , his son Ersin ( CHF CARDINAL ) and his daughter PERSON ( CHF MONEY ) .", "The applicant asserted that only his invalidity pension , not the social security benefits , could be paid to him in GPE . Moreover , his invalidity pension was currently under review ; if his invalidity were to be assessed PERCENT , his pension could no longer be transferred to GPE ." ]

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[ "UMO Ilinden – PIRIN was a political party founded on CARDINAL DATE and based in southwest GPE ( in an area known as the GPE region or the geographic region of LOC ) . It was declared unconstitutional by ORG on DATE and as a result dissolved .", "DATE CARDINAL organisations of persons declaring to have NORP ethnic consciousness were formed and were active on the territory of GPE . Apparently most of these never sought to be registered .", "One of them , ORG ( “ FAC ” ) , was founded on DATE . Its aims , according to its articles of association and programme , were to “ unite all NORP in GPE on a regional and cultural basis ” and to achieve “ the recognition of the NORP minority in GPE ” . DATE it applied for , but was refused , registration . In their judgments of DATE and DATE and DATE the competent courts found that the association ’s aims were directed against the unity of the nation , that it advocated national and ethnic hatred , and that it was dangerous for the territorial integrity of GPE . The aims of the association included the “ political development of GPE ” and the “ united , independent NORP State ” ( see PERSON and ORG v. GPE , ORG CARDINAL and CARDINAL , § § CARDINAL , ECHR CARDINALIX ) .", "ORG made an additional attempt to register in DATE ( see ORG and Others v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ) . Registration was again refused .", "NORP The applicant party was founded in the town of PERSON on DATE by fiftyone persons . Some of its founders had previously been members of ORG . It applied for registration at ORG .", "In the course of the proceedings the public prosecutor , who participated ex officio , maintained that the party ’s aims were contrary to LAW and that registration should therefore be refused . In connection with these remarks the founders decided to amend CARDINAL point of the party ’s constitution . They did so at a meeting on DATE and presented the amended copy to the court .", "By a judgment of CARDINAL DATE , a notice of which was published in ORG on DATE , the ORG registered the applicant party , holding that its aims , as set out in its constitution and programme , were not contrary to the proscriptions of LAW and of section CARDINAL(CARDINAL ) of LAW of DATE .", "On DATE CARDINAL members of the NORP parliament requested ORG to declare the applicant party unconstitutional , more specifically , contrary to LAW and CARDINAL § CARDINAL of the LAW of DATE . They argued that the party had in fact been formed in DATE and was a successor of the “ illegal ” FAC . They further argued that the party ’s ultimate aim was the formation of an independent NORP state through the secession of GPE from GPE . The party ’s members and leaders had on numerous occasions declared such goals . The party ’s original constitution , amended in the course of the proceedings before ORG , contained language to the effect that it would “ protect the interests of the population of LOC [ and ] of the refugees from LOC and LOC . This indicated its separatist character . Also , the applicant party ’s chairman , Mr PERSON ( the second applicant ) , had sent letters to the state institutions and media of a neighbouring country , urging them to look for a “ NORP minority ” in GPE . It was true that the party ’s public influence was negligible , but its registration had created a dangerous precedent .", "On DATE ORG declared the request admissible and invited the applicant party , ORG , ORG , the Ministers of Internal Affairs and of ORG , the ORG , ORG and ORG to submit written observations within DATE .", "The second applicant , PERSON , acting in his capacity of chairman of the applicant party , filed written observations in which he argued that ORG was a democratic party and its activities were fully compliant with the LAW and the laws of the country .", "In a joint memorial ORG and ORG argued against the applicant party ’s dissolution . They pointed out that it had existed for only a short time and that it was therefore too early to judge whether its activities rendered it unconstitutional . The few public statements of its leaders and members could not lead to a firm conclusion in that respect . On the contrary , the applicant party had never questioned the country ’s territorial integrity . A measure as radical as dissolution would be justified only if there was an immediate and direct threat to national security or public order , which was clearly not the case .", "A hearing was held on DATE at which ORG heard oral argument . At the hearing ORG presented as evidence a letter written by Mr PERSON , former chairman of the applicant party , and sent by him on the party ’s behalf to ORG in GPE . In the letter PERSON PERSON had stated that “ LOC ha[d ] to gain cultural , political and economic autonomy ” and that “ the human rights of NORP in GPE [ stood ] higher than GPE ’s national sovereignty ” .", "NORP That letter was discussed at a meeting of ORG of the applicant party held on DATE . The ORG distanced itself from the letter and expressed the opinion that Mr PERSON ’s actions had been contrary to the party ’s constitution and aims . The ORG recommended that Mr PERSON be expelled from the party . The applicant party informed ORG of this resolution .", "The Constitutional Court gave judgment on DATE , declaring the applicant party unconstitutional ( реш. № CARDINAL от CARDINAL февруари DATE г. по конституционно дело № DATE г. , обн. , NORP брой CARDINAL от QUANTITY г. ) .", "The court started by observing that the constitutionality of a party should mainly be assessed on the basis of its activity . It was not sufficient to make the assessment solely on the basis of the statements contained in its constitution and programme . The constitution of a party could be just a façade for facilitating its registration ; this is why it was necessary to have regard to the party ’s real activities . It could not be ruled out that the documents could conceal objectives , intentions and activities that were different from those which were publicly proclaimed . It was therefore necessary to compare their content with the party ’s practical actions . ORG had ruled on this issue in its judgment in the case of ORG of GPE and Others v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE ) .", "The court went on to hold that although the applicant party had been registered in DATE on the basis of a constitution which had been adopted at a founding meeting on DATE , it was not a novel organisation . It had a predecessor and was continuing its activities . The court described the founding of ORG in DATE and its unsuccessful attempt to register in DATE ( see paragraph CARDINAL above ) . It further found that ORG had split in DATE , the radicals remaining on one side and the more moderate members forming CARDINAL separate organisations : ORG – Democratic Action and PERSON . Most of the applicant party ’s current leaders , including Mr PERSON ( the second applicant ) and Mr PERSON , had been members of these CARDINAL organisations , which had merged and , after an unsuccessful attempt to register as an association at ORG , had managed to register as a political party at ORG . It could thus be concluded that the applicant party was not a novel organisation , but was closely connected with the former unregistered association ORG . The CARDINAL had almost the same name and the same persons were their leaders and members . Moreover , the second applicant and another leader of the applicant party had intimated in newspaper interviews that they considered the applicant party and FAC as one and the same organisation . The court therefore concluded that the activities of the applicant party ’s predecessor organisations should be taken into account for purpose of assessing its constitutionality .", "NORP The court then turned to the specific grounds invoked by the sixtyone members of parliament for declaring the applicant party unconstitutional .", "With regard to its alleged incompatibility with LAW , the court found that there was no NORP ethnos in GPE . Therefore , it could not be said that the applicant party was based on ethnic origin . Moreover , it was clear from its constitution that every NORP citizen could become its member . This part of the request was therefore unfounded .", "As to the other ground for declaring the applicant party unconstitutional , incompatibility with LAW , the court pointed to a number of specific instances in which members of the applicant party and its predecessor organisations had engaged in conduct prohibited under LAW :", "– A meeting on DATE at FAC . At this meeting a declaration had been adopted , demanding full cultural , economic and political autonomy of the GPE region ; withdrawal of the NORP troops , referred to as “ occupational ” ; dissolution of all NORP political parties and organisations ; the establishment of a NORP orthodox church independent of the NORP orthodox church , etc .", "– A commemorative rally held on DATE in the area PERSON krepost . A brochure announcing the event had featured a map of GPE , which had included territories that are part of GPE ( the GPE region ) and GPE , and in the middle of the map there had been depicted the sixteenray NORP star symbol .", "– In DATE the newspaper PERSON , published by ORG , had printed a map of GPE featuring territories belonging to GPE and GPE .", "– On DATE the faction of ORG lead by Mr PERSON had issued a memorandum according to which in GPE there existed “ modern - day genocide , discrimination and assimilation ” and the NORP there were deprived of the right to honour the memory of the CARDINAL of fighters who had fallen in the struggle for “ free and independent GPE ” . That memorandum had been circulated abroad .", "– Immediately after the applicant party ’s founding , the newspaper LOC in its issue of CARDINAL DATE had reprinted an interview of Mr PERSON , the party ’s secretary , in which he had allegedly insulted the NORP nation and had attacked representatives of the NORP authorities . He had portrayed the GPE region as part of GPE and had indicated that the unique folklore , culture , traditions and individuality of the NORP people had been destroyed , that its history and customs had been stolen , and that its national identity had been denied .", "– In DATE Mr PERSON had attended a press conference of ORG held in GPE , as a representative of ORG . When asked why he spoke NORP , he had replied : “ This is not NORP , but NORP , and this is the language spoken in GPE , whereas the NORP there speak PERSON language ” .", "– In an interview for the NORP PERSON newspaper of CARDINAL DATE the applicant party ’s deputychairman , PERSON , had accused GPE of genocide and lack of democracy , and had spoken of a “ LOC part of GPE ” , as if of a NORP territory . He had obviously agreed with its secession from GPE but had thought that it was not the opportune time and had concluded : “ I believe time works for us ” .", "– A declaration of ORG , signed by its chairman , Mr PERSON ( the second applicant ) , and its secretary , Mr PERSON , had been published in the issue of NORP PERSON of DATE . In this declaration the LOC region had been referred to as “ part of GPE ” . The organisation had proclaimed that it was a defender of “ the NORP in GPE and GPE ” , that is , a distinction had been drawn between LOC and GPE .", "– The issues of the newspaper ORG of CARDINAL and DATE had contained publications relating to a letter issued by the applicant party and to a press conference given by its chairman , Mr PERSON , in GPE . It had been indicated in them that “ GPE even [ then ] continue[d ] to misappropriate GPE ’s cultural heritage ” and that “ GPE [ had ] incited GPE ’s partition ” .", "– the applicant party had , together with several foreign organisations , participated in the issuing of a Declaration for the protection of the NORP people ’s national distinctiveness , addressed to the former GPE Government . CARDINAL of the declaration had requested an affirmation to the effect that part of the NORP people lived on NORP territory given in temporary trusteeship to GPE , GPE and GPE by the DATE treaty of GPE . It had been once again proclaimed that this part of GPE ’s territory was only temporarily under NORP administration .", "– On DATE Mr PERSON , running for mayor of PERSON on the applicant party ’s ticket , had declared at a press conference : “ In several statements made by members of ORG it was said that if the [ ORG ] do not win the elections in PERSON , no funding will be forthcoming to the region . Thus , if we win , the government gives us the right to freely choose and declare that this is a free territory , which may decide subsequently where to turn to . ”", "– In an interview of DATE the applicant party ’s chairman , Mr PERSON ( the second applicant ) , had been even more radical . He had noted that the party should be firm and assert the interests of LOC . He had gone on to say that the prime minister should be presented with the following statement : “ We have certain demands , or else we will secede GPE ” .", "– The letter sent by Mr PERSON on DATE on behalf of the applicant party to ORG in GPE ( see paragraphs CARDINAL above ) was also significant . In it he had expressed the wish that “ LOC gain cultural , political and economic autonomy ” . He had also stated that “ the human rights of the NORP in GPE [ stood ] higher than GPE ’s national sovereignty ” . In the court ’s view , the fact that the applicant party ’s leadership had distanced itself from Mr PERSON was not relevant , as this had happened only after the letter had reached the addressee and had become known to the public .", "The Constitutional Court continued :", "“ The facts set out above indicate that the [ applicant party ’s ] activity is focused around the GPE region . It treats this part of the country ’s territory as nonBulgarian land . In its view , it is foreign territory , given to GPE for temporary administration pursuant to an international treaty . [ The applicant party ’s ] activity is in that direction , going as far as secession of the territory in question from GPE .", "This is indicated by the calls for autonomy , which is expressly proscribed by LAW . It is also indicated by the maps of GPE issued and circulated [ by the applicant party ] , by the definition of the GPE region as part of GPE and by the interpretations of the Balkan War and the GPE treaty of DATE . Its culmination is the threat to secede the GPE region if the party ’s demands are not met . Such a threat , when made by the chairperson of a party , could not only be in words . It is real and shows the positions of the party itself ; moreover , it has been supported by its other leaders .", "The actions in question constitute an activity aimed against the territorial integrity of the country within the meaning of LAW . Each and every one of them [ goes against this Article ’s proscription ] .", "The constitutional rule protects a value of the highest calibre , namely the territorial integrity of GPE , which LAW proclaims as inviolable . That is why [ the proscription has been breached ] even in the absence of effective damage to the protected value – the country ’s territory . An activity aimed against the territorial integrity , such as the one present here , is quite sufficient .", "A political party which declares part of GPE ’s territory as foreign and engages in actions for its secession is an unconstitutional party . It has no right to exist .", "ORG deems it necessary to underscore that its notion of unconstitutionality is in line with LAW of LAW sand LAW of LAW . These provisions allow restrictions of the freedom of association when necessary in the interests of national security , as here . There is no doubt that an activity aimed against the territorial integrity of GPE imperils its national security . ”", "CARDINAL judges voted against the majority . In their dissenting opinions they , inter alia , expressed the view that the activities of ORG should not be taken into account for the purpose of evaluating the applicant party ’s constitutionality . They went on to say that ORG had erred in taking into account only certain statements of members and leaders of the applicant party . Its most fundamental activity since its registration was rather its normal and fully democratic participation in the local government elections in DATE . However , the court had chosen to ignore that fact . Lastly , the dissenting judges expressed the opinion that the applicant party was being penalised for expressing its views , which it was entitled to convey , although they were shocking and probably offensive for the majority of NORP .", "The relevant provisions of the LAW of DATE read as follows :", "“ CARDINAL . GPE is a unitary country with local selfgovernment . No autonomous territorial entities shall be allowed [ on its territory ] .", "NORP The territorial integrity of GPE shall be inviolable . ”", "“ No political parties shall be formed on ethnic , racial , or religious basis , nor parties which aim to accede to power by force . ”", "“ CARDINAL . Everyone is entitled to express an opinion or to publicise it through words , written or oral , sound , or image , or in any other way .", "NORP This right shall not be used to the detriment of the rights and reputation of others , or for the incitement of a forcible change of the constitutionally established order , the perpetration of a crime , or the incitement of enmity or violence against anyone . ”", "In its interpretative judgment no . DATE ( реш. № CARDINAL от DATE г. по конституционно дело № DATE г. , обн. , ДВ брой CARDINAL от CARDINAL юни DATE г. ) , in which it gave a binding interpretation of LAW , ORG held , inter alia , that “ speech which is deprived of constitutional protection is that which calls for a violent change of the constitutional order , i.e. for the destruction of the democratic constitutional order in a nonpeaceful way , which may even lead to the suspension of the LAW ” .", "“ CARDINAL . Citizens may freely associate .", "Organisations whose activities are directed against the country ’s sovereignty or territorial integrity or against the nation ’s unity , or which aim at stirring racial , national , ethnic or religious hatred , or at violating the rights and freedoms of others , as well as organisations creating secret or paramilitary structures , or which seek to achieve their aims through violence , shall be prohibited . ... ”", "“ The Constitutional Court shall :", "...", "NORP rule on the constitutionality of political parties ... ”", "This Act , which was superseded by new legislation in DATE , regulated the formation , registration , functioning and dissolution of political parties at the material time . Its relevant provisions read as follows :", "“ No political parties shall be formed :", "ORG which are aimed against the country ’s sovereignty or territorial integrity , the nation ’s unity , or the ORG rights and freedoms ;", "whose aims are contrary to the LAW and the laws of the country ;", "NORP [ which have ] religious or ethnic basis or [ aim to stir ] racial , national , ethnical or religious hatred ;", "NORP which advocate a fascist ideology or seek to achieve their aims through violence or other illegal means . ”" ]

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[ "The applicants , whose names appear in the annex , are NORP nationals . They are represented before the ORG by PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants were heirs to plots of land in the village of NORP in GPE , GPE .", "On DATE ORG conducted a cadastral survey pursuant to ORG and designated the applicants’ land as private forest .", "On DATE , the Law no . CARDINAL , which provided for the nationalisation of all forest areas , came into force . On CARDINAL DATE the applicants’ land was nationalised and it was registered in the name of the ORG as “ ORG ” .", "In DATE the applicants brought an action before ORG . Relying on LAW b ) of PERSON no . PERSON , they filed a claim for the restitution of the land . The court requested ORG opinion concerning the legal status of the land . On DATE the Ministry informed the court that , in view of the requirements provided under LAW b ) of PERSON no . PERSON , the land in question did not have the necessary characteristics to be removed from “ nationalised land ” status . Following the notification of the ORG ’s opinion , the applicants did not pursue their case . The case was consequently struck off .", "In DATE some of the applicants initiated another action before ORG with the same claim . The court requested ORG opinion once again . In a letter dated DATE the ORG reiterated its opinion given in the previous case .", "In DATE the applicants challenged ORG opinion of CARDINAL DATE before ORG . In DATE ORG dismissed the applicants’ case . Subsequently , ORG also dismissed the ORG claim .", "In DATE , due to the amendments made in GPE ( amended by PERSON no . CARDINAL ) , ORG conducted a cadastral evaluation ( aplikasyon çalışması ) in the area . The purpose of this evaluation was to detect the forests which were not yet included in the cadastral map and to remove the forest status of the lands which had lost their characteristics defined in the law .", "ORG report was made public on CARDINAL DATE . It concluded that a plot of land which was located within the borders of ORG had lost its characteristics as a forest in accordance with LAW no . CARDINAL . It was therefore necessary to remove it from the “ state forest ” status . The report became final after DATE as there were no objections lodged against it . The plot was still registered in the name of the ORG ; however , it was no longer designated as forest area .", "In DATE , due to the recent amendments in the Law on Forests ( amended by PERSON no . CARDINAL ) , ORG re - evaluated the status of the ORG once again . The Commission concluded in its report that another plot of land had to be removed from the “ state forest ” status as it had lost its characteristics as a forest . The commission ’s decision was pronounced on DATE .", "On DATE some of the applicants lodged a complaint with ORG of first Instance in ORG demanding restitution of the property rights of ORG and the registration of the land in their names . They contended that the land in question never had the qualifications to be nationalised in accordance with LAW no . DATE .", "In the meantime , on DATE the rest of the applicants initiated a separate case before ORG of first Instance in ORG , concerning the same subject matter and claim .", "On DATE the court decided that it did not have jurisdiction and transferred both cases to ORG . The first case was registered under no . CARDINAL/CARDINAL and the second under no . CARDINAL/CARDINAL .", "The first hearing of the case no CARDINAL/CARDINAL was held on DATE . The ORG lawyer requested the court to delay the hearings in order to submit evidence .", "On DATE the applicants’ lawyer submitted the evidence .", "At the hearing of CARDINAL DATE the applicant ’s lawyer contended that the land registry records submitted to the court by the administrative authority were not correct . He therefore requested additional time to provide the accurate records . The next hearing was scheduled for CARDINAL DATE .", "At the hearing of CARDINAL DATE the land registry records were not yet provided before the court .", "Neither the applicants nor their representative attended the following CARDINAL hearings .", "In the case no . CARDINAL/CARDINAL the applicants did not attend the hearings until DATE . At the hearing of CARDINAL DATE the ORG lawyer requested the court to grant additional time in order to submit evidence .", "At the hearing dated DATE the court decided to join the CARDINAL case files . Furthermore it requested from the applicants to provide the court with the certificates of inheritance .", "On DATE the court decided to assign an expert to translate the register of the title - deeds which were written in NORP , in the NORP alphabet . At the following QUANTITY hearings the court waited for the expert ’s report .", "On DATE the expert requested the court to grant him an extension for preparing his report . The applicants’ lawyer did not attend the hearing .", "On DATE the expert report was submitted with the court . Both parties requested time to submit their observations on the report . The court granted their request . Moreover other heirs to the land in question requested to intervene in the proceedings .", "At the hearing of DATE the court decided to obtain the opinion of ORG on the land in question .", "At the hearing of CARDINAL DATE , upon the requests of both parties , the court rescheduled the next hearing for DATE .", "On DATE the court carried out an on - site inspection together with the cadastral experts .", "On DATE the experts submitted their report to the court . Both parties requested the court to grant additional time to examine the report .", "On DATE the court decided to ask further information from ORG concerning the nationalisation procedure of the land . ORG submitted its reply on DATE . The court decided to send this reply to the cadastral experts and ask their opinion .", "Furthermore , the court decided to appoint another expert to determine the applicants’ shares of inheritance . The report on the heritage was submitted to the court on DATE .", "On DATE the ORG ruled in favour of the applicants . The ORG appealed .", "On DATE ORG quashed the decision of ORG . It held that the applicants’ claim for restitution of property provided under PERSON no . PERSON was already dismissed by ORG in DATE . Moreover , as regards the applicants’ objection to the cadastral commission ’s report dated DATE the court held that the action was filed out of time . It maintained that according to the law on forests the actions brought against the cadastral evaluations had to be lodged within DATE from the pronouncement of the commission ’s decision . The commission report pronounced in DATE already concluded that the land in question , except a small part which no longer had the necessary qualifications , had “ state forest status ” and it was called “ ORG ” . This report became definitive on CARDINAL DATE as there were no objections lodged against it . The re - evaluation carried out in DATE was , in essence , the same as the previous one . The only difference was that , in DATE , ORG decided to remove a further part of the land from state forest status . Thus the objection should have been filed with the court following the first evaluation of the land . ORG therefore concluded that the applicants’ case must be rejected for failure to comply with the statutory time limit . It further concluded that , in any event , the land in question did not have the necessary physical characteristics to change its status to private forest .", "The applicants requested rectification of ORG decision . On DATE their request was rejected .", "On DATE the ORG followed ORG reasoning and dismissed the applicants’ case .", "On DATE ORG upheld the decision of ORG .", "On DATE ORG rejected the applicants’ request for rectification of the judgment .", "Article CARDINAL provides that the forests which belong to the private or legal persons , foundations , villages , municipalities , provincial administration or public corporate bodies at the date of the entry into force of this law are nationalised in accordance with this law . These forests are registered in the name of the ORG without any notification or procedure .", "Article CARDINAL lists the physical characteristics of the land in question which could form an exception to the rule provided under LAW .", "Article CARDINAL provides that the landowners whose lands were nationalised in accordance with this law should submit an application with the forest administration within DATE from the date of the entry into force of this law . If they fail to do so within the statutory time - limit they will lose the right to receive compensation for the nationalisation of their lands .", "Article CARDINAL provides that the lands which were nationalised in accordance with the PERSON no . PERSON can be returned to their previous owners if they have certain physical characteristics listed in this Article .", "In accordance with the provisional LAW , those who failed to bring an action within the time - limit provided in LAW no . CARDINAL , can request compensation for nationalisation of their land within DATE from the date on which this law has come into force .", "LAW provides that it is possible to challenge ORG reports by filing an action before the cadastral courts within DATE ( Law no . CARDINAL amended this time limit to DATE ) from the date on which these reports are announced . This time - limit is DATE for those who have the title deed of the land in question .", "Article CARDINAL provides that the statutory time - limit to file an objection against the rights , limitations , and assertions found in the cadastral records , is DATE starting from the date on which these records become definitive . After the expiration of this time - limit , it is not possible to file an action by relying on the legal facts prior to the cadastral planning .", "LAW same law evokes that the cadastral planning of a location can be carried out only once ." ]

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[ "The applicant was born in DATE and currently lives in GPE ( GPE ) .", "He entered GPE with his parents on CARDINAL September CARDINAL .", "On DATE he obtained a DATE residence permit , which was subsequently renewed on a regular basis .", "On DATE , DATE and CARDINAL DATE he received , respectively , a suspended prison sentence of DATE , a DATE suspended prison sentence and a sentence of CARDINAL months’ imprisonment , for a number of offences committed DATE ( wounding , grievous bodily harm , assault , theft , robbery , damage to property , receiving stolen goods , proffering insults and threats , disturbance , a weapons offence and a serious breach of road traffic regulations ) .", "In a decision of DATE ORG for ORG ordered the applicant ’s administrative removal for an indefinite duration . His appeals against that decision were dismissed , first on DATE by ORG for ORG ( the “ ORG ” ) , then on DATE by ORG .", "On DATE the applicant was deported to GPE . After returning to GPE illegally in DATE or DATE , he was arrested and taken into custody on DATE pursuant to arrest warrants issued on the basis of his criminal convictions .", "After various procedural developments and CARDINAL further prison sentences , of DATE and DATE respectively , for the improper use of a communication facility and for the offence of returning to GPE while banished , he was apparently sent back to GPE on DATE .", "In the meantime , on DATE , he had lodged an application with the ORG submitting that his removal from GPE for an indefinite duration , as upheld by ORG , entailed a violation of ORG CARDINAL and CARDINAL of the Convention .", "In a judgment of CARDINAL DATE , which became final on DATE , ORG unanimously declared admissible the complaint under LAW and found that there had been a violation of that provision . On that basis , it held that GPE had to pay the applicant the sums of QUANTITY ( ORG ) for non - pecuniary damage and LAW for the costs and expenses he had incurred “ in the domestic proceedings and before the ORG ” . The relevant passages of that judgment read as follows :", "“ - Nature and seriousness of the offences committed by the applicant", "The ORG notes , at the outset , that the relevant date for an assessment of the above - mentioned criteria is , in the present case , DATE , the date on which the applicant was notified of the final judgment of ORG confirming the withdrawal of his residence permit ( see , mutatis mutandis , PERSON v. GPE , no . CARDINAL , § DATE , DATE ) .", "As regards , first , the ‘ ORG of the offences committed by the applicant , the ORG notes that in DATE and DATE he was given a suspended prison sentence of DATE , and then a DATE prison sentence , for proffering threats and insults , a serious breach of road traffic regulations , wounding , assault , theft , receiving stolen goods , robbery , damage to property and other property - related offences . In DATE he was given a further prison sentence of DATE , to be followed by deportation and a DATE ban on re - entering GPE , for disturbance and a weapons offence committed in DATE . Lastly , in DATE he was sentenced again on CARDINAL occasions , to DATE respectively . The total duration of his prison sentences ( DATE in all ) is thus far from negligible .", "The ORG also notes that the criminal activities in question were spread over a wide period ( from DATE ) ( contrast GPE , cited above , § CARDINAL ) and that the CARDINAL suspended sentences of DATE and DATE were activated in view of the further offences committed by the applicant . At the same time , the ORG observes that some of the conduct attributed to the applicant dated back to his adolescence and some to a relatively young age ( see , to the same effect , GPE , cited above , § CARDINAL ; PERSON , cited above , § CARDINAL ; and PERSON GPE , no . GPE , § DATE , DATE ) . Moreover , the sentences of CARDINAL DATE and DATE were handed down by ORG for GPE . Therefore , at least some of the offences in question were committed by the applicant in a juvenile delinquency context . In this connection , the ORG notes that according to ORG , experience has shown that juvenile delinquency tends to disappear spontaneously in most individuals with their transition to adulthood ( see sub - paragraph I , CARDINAL ( e ) of LAW for ORG ( ORG ) , adopted and proclaimed by ORG in its CARDINAL of DATE ) .", "As regards the ‘ nature’ of the offences committed by the applicant , it is undeniable that the convictions for wounding weigh heavily against him . Concerning the weapons offence , however , it appears to have been constituted merely by the possession of a tear - gas canister . In addition , it has not been established that it was the applicant who stabbed a security guard with a knife during the attack on the discotheque on DATE ( ORG judgment , point CARDINAL ; see paragraph CARDINAL above ) . As to the road traffic offences , whilst they may well constitute a potential danger they should nevertheless be seen in the light of the relatively lenient penalties normally imposed in such matters ( see , to this effect , PERSON , cited above , § DATE , and PERSON , cited above , § CARDINAL ) .", "DATE . Therefore , in the light of comparable cases , the applicant ’s convictions should be assessed for what they really are , both in terms of their seriousness and of the penalties ultimately imposed ( contrast PERSON , cited above , § CARDINAL ; PERSON , cited above , § CARDINAL ; PERSON GPE , DATE , § DATE , Reports CARDINALIII ; PERSON , cited above , § CARDINAL ; PERSON , cited above , § DATE in fine ; and GPE v. GPE DATE . ) , no . CARDINAL , DATE ; NORP , cited above , § § CARDINAL ; GPE , cited above , § CARDINAL ; and GPE , cited above , § CARDINAL ) .", "- Length of the applicant ’s residence in GPE", "As regards the length of the applicant ’s residence in the country from which he is to be deported , the ORG notes that the applicant , who was born on DATE , arrived in GPE on DATE , before DATE . At the time of ORG judgment of CARDINAL May CARDINAL he was CARDINAL and a half . He had thus spent CARDINAL and a half years in GPE .", "- Time between the commission of the offences and the impugned measure , and the applicant ’s conduct during that period", "As regards the time that elapsed between the commission of the offences and the time when the impugned measure became final , and the applicant ’s conduct during that period , the ORG notes that his criminal activities were spread over a considerable period . Similarly , the domestic courts noted that he had not shown any awareness of his criminal activities and that he had refused to follow his psychotherapy ( see , in this connection , ORG , cited above , § CARDINAL ) .", "- Strength of social , cultural and family ties with host country and destination country", "As regards the applicant ’s particular ties with his host country , ORG noted that he had spent most of his life in GPE , including all his school years , and that his parents and brothers , CARDINAL of whom had NORP nationality , lived in the country . Whilst there is some debate between parties as to his professional integration in GPE ( see above , DATE and DATE ) , the ORG does not feel obliged to settle this question .", "NORP In comparison with the above factors , showing that the applicant is integrated to a certain extent in GPE , despite his criminal activity , his social , cultural and family ties with GPE seem very tenuous . It can be seen from the case file that the applicant only stayed in that country for DATE , and that only his grandmother is still living there . The ORG is not convinced that his brief stay in GPE after his first removal , a measure complained of in the present application , may be taken into consideration . Moreover , there is no certainty that the applicant is sufficiently fluent in GPE . Even though relationships between parents and adult children would not attract the protection of Article CARDINAL without ‘ evidence of further elements of dependency , involving more than the normal , emotional ties’ ( see , mutatis mutandis , PERSON and GPE v. the GPE ( dec . ) , no . CARDINAL , DATE ) , the ORG also notes that ORG itself admitted that his family ties with GPE were far less significant than those he had made with his host country . Moreover , that court did not call into question the fact that the applicant would ‘ face major difficulties if returned to Turkey’ .", "- Specificities of the case : the medical aspect", "The ORG notes that a report of the ORG psychiatric and social centre dated DATE indicated that the applicant showed signs of ‘ an emotionally labile personality disorder , with impulsive and borderline elements , together with a phobic anxiety disorder’ vis - à - vis the prospect of his deportation ( ORG judgment , point CARDINAL ; see above , paragraph CARDINAL ) . A letter from the family doctor dated DATE moreover confirmed that the applicant had been brought up in a violent environment with little stimulation , and explained that deportation would distance him from the reassuring and structuring elements that he had built up in DATE ( ibid . ) .", "The views of the parties to the proceedings differ on this point . The applicant argued that his illness , having involved suicide attempts , could not be adequately treated in GPE ( see paragraph CARDINAL above ) . The Government , for their part , claimed the contrary , considering that his family would still be able to support him financially from GPE . Moreover , they emphasised that the applicant had largely refused to undergo the psychiatric treatment prescribed for him ( see paragraph CARDINAL above ) .", "The ORG does not rule out the possibility that the applicant ’s health problems could be treated adequately in GPE . Neither does it disregard the fact that the applicant neglected the prescribed treatment , at least at the outset . At the same time , it finds that his disorders , which the Government have certainly not called into question , whilst they are not sufficient in themselves to form the basis of a separate complaint under LAW , nevertheless constitute an additional aspect that would render even more difficult the applicant ’s return to his country of origin , where his social network would be lacking .", "- The permanent nature of the expulsion", "In order to assess the proportionality of the impugned measure , the ORG must also consider whether the exclusion from NORP territory was a temporary or permanent measure .", "It notes that in the present case ORG and ORG of the Canton of ORG ordered the applicant ’s deportation for DATE ( see paragraph CARDINAL above ) . However , his administrative removal was ordered by ORG for ORG for an indefinite duration ( see paragraph CARDINAL above ) . The ORG observes that the applicant ’s application is directed against his administrative removal , the duration of which it finds particularly harsh ( see , as an example of cases in which the permanent nature of the exclusion order was considered by the ORG in concluding that the measure had been disproportionate , PERSON v. GPE , no . CARDINAL , § CARDINAL , DATE ; ORG , cited above , § CARDINAL ; PERSON , cited above , § DATE , and PERSON v. GPE , no . CARDINAL , § CARDINAL , DATE ; and by contrast , for cases where the limited duration of the impugned measure contributed to a conclusion that it was proportionate , see PERSON , cited above , § DATE ; PERSON , cited above , and GPE , cited above , § CARDINAL ) . As to the possibility for the applicant to request that the exclusion order be suspended temporarily or permanently rescinded , the ORG finds that this possibility remains purely speculative at present .", "In view of the foregoing , and particularly in consideration of the relative seriousness of the applicant ’s convictions , the weakness of his links with his country of origin and the permanent nature of the removal measure , the ORG finds that the respondent ORG can not be regarded as having struck a fair balance between the interests of the applicant and his family , on the one hand , and its own interest in controlling immigration , on the other .", "Accordingly , there has been a violation of LAW . ”", "When asked what action it would take in response to the ORG ’s judgment , ORG ( the “ ORG ” ) , in a decision of DATE , refused to consider a request for leave to enter GPE on the ground that the matter had been dealt with on CARDINAL May CARDINAL by a final judgment of ORG . The ORG suggested that the applicant lodge a request for revision with that court .", "In pleadings dated DATE , the applicant lodged a request for revision with ORG , requesting it to annul its judgment of CARDINAL DATE and the judgment previously delivered in the same case by ORG of the Canton of Neuchâtel on DATE .", "ORG submitted that the request for revision should be rejected .", "In a judgment of DATE ORG upheld the request for revision and annulled its judgment of DATE . At the same time it quashed the CARDINAL DATE judgment of ORG , limiting the duration of the applicant ’s exclusion to DATE from DATE . The reasoning of the judgment reads as follows :", "“ ... CARDINAL In its judgment of CARDINAL DATE ORG observed that , in deporting PERSON from its territory for an indefinite duration , GPE had breached his right to private and family life , as guaranteed by DATE . On that basis it awarded him ORG CARDINAL,CARDINAL in compensation for non - pecuniary damage under LAW . That provision gives ORG the power to grant ‘ just satisfaction’ to the injured party where the internal law of the ORG in question ‘ allows only partial reparation to be PERSON for the violation found . The payment of such compensation does not , however , necessarily release the ORG concerned from its obligation under LAW to comply with the judgments of ORG . The respondent ORG , having been found responsible for a violation of the ORG or its Protocols , is thus obliged not only to pay those concerned the sums awarded by way of just satisfaction , but also to choose , subject to supervision by ORG , the general and/or , if appropriate , individual measures to be adopted in its domestic legal order to put an end to the violation found by the ORG and to redress as far as possible the effects , the aim being to put the applicant , as far as possible , in the position he would have been in had the requirements of the ORG not been disregarded ( see , among other references , the judgment of ORG in PERSON gegen GPE ( PERSON ) v. GPE , no . CARDINAL , § § DATE and DATE , CARDINAL DATE , and the numerous authorities cited therein ) . This is the principle of restitutio in integrum , which has the practical effect of limiting the freedom of GPE in the choice of means by which to remedy a violation of the Convention ...", "CARDINAL Where , as in the present case , ORG upholds a request for revision , it gives CARDINAL separate decisions in succession , even though it generally does so in a single judgment . In the first , referred to as the rescindant , it annuls the judgment of which revision is sought ; in the second , known as the rescisoire , it rules afresh on the application previously referred to it . The annulment decision puts an end to the revision procedure as such and leads to the re - opening of the previous proceedings . This has an ex tunc effect , such that ORG and the parties are put back in the situation in which they found themselves at the time the annulled judgment was delivered , and the case will have to be adjudicated as if that judgment had never existed ( see the above - cited judgment PERSON of DATE , point CARDINAL ) .", "CARDINAL In its judgment , ORG found that , in view of the circumstances , and particularly of the applicant ’s relatively serious convictions , the weakness of his links with his country of origin , and the permanent nature of the removal measure , GPE had failed to strike a fair balance between the interests ( private and public ) at stake ( judgment cited above , para . CARDINAL ) . It specifically emphasised that the indefinite duration of the exclusion had been ‘ particularly harsh’ , taking the view that the possibility for the applicant to have the exclusion order suspended temporarily or permanently rescinded remained purely speculative at present ( judgment , para . CARDINAL ) . In other words , it was not particularly opposed to the principle of the impugned measure but rather to its permanent nature . Generally speaking , in its most recent judgments , ORG seems , moreover , to accord increasingly decisive weight to the latter criterion , refusing , with rare exceptions , to endorse permanent exclusions from a country , unlike bans of limited duration ...", "That being said , in the light of the circumstances prevailing at the material time , namely when the annulled judgment was delivered ( on DATE ) , an immediate revocation of the removal measure was not a matter for consideration . Admittedly , the applicant ’s links with GPE were at that time weaker than those he enjoyed with GPE , such that a return to his country of origin appeared to be a relatively harsh measure for him . That obstacle had in fact been taken into consideration and discussed in the first judgment . However , ORG had also observed , without being contradicted by ORG on this point , that the applicant ’s presence in GPE represented a particularly serious danger for public order and security , because his conduct and offences showed that his ‘ mindset was hardly capable of resolving conflicts and frustrations otherwise than by violence , ready to impose his own rules , by himself or with the help of partners , without consideration for property or for the physical well - being of others , and openly contemptuous of the judicial authority’ ( judgment cited above of DATE , point CARDINAL ) . Moreover , ORG also emphasised , and there is nothing in ORG judgment that would justify departing from this assessment , that the applicant had no awareness of the seriousness of his actions and that he thus presented a high risk of reoffending : he had committed further offences after his first convictions and had refused to follow psychiatric treatment during his detention ( see the above - cited judgment of ORG DATE , point CARDINAL in initio ) . In those circumstances , it was not possible for the applicant ’s private interest in remaining in GPE , bearing in mind that he was an adult , was single and had no children , to prevail over the public interest in his expulsion , at least for a certain period of time . In other words , the only appropriate solution in order to alleviate the effects of the impugned measure against the deportee and comply with the judgment of ORG would consist in limiting the duration of the exclusion .", "CARDINAL Consequently , it is justified to limit the removal measure ordered against the applicant to a period of DATE with effect from the removal decision of DATE . After such time he will be able to lodge an application for leave to remain , which will be examined by the competent authority in the light of the applicable law and the circumstances then prevailing ( the applicant ’s family and personal situation ; his conduct since his expulsion ; etc . ) .", "It follows from the foregoing that the request for revision must be upheld and ORG judgment of CARDINAL DATE annulled . Moreover , the judgment delivered on DATE by ORG must be set aside , and the measure of removal banning the applicant from GPE for an indefinite duration is to be replaced by removal with a ban of DATE from DATE .", "... ”", "On DATE the applicant married a NORP national . As a result of that marriage he has obtained a NORP residence permit .", "On DATE he lodged with ORG for ORG an application for reconsideration of a decision of DATE of ORG , which had refused the suspension of his removal , relying in particular on his new situation , namely his marriage to a NORP citizen . In a judgment of DATE , the court rejected the request and referred the matter back to ORG .", "The applicant transmitted additional documents to ORG on DATE and DATE . The response to his request for the revocation of the removal measure so that he could settle in GPE was negative . In a letter of DATE , ORG for ORG took the view that it could not rule on a request for reconsideration , in particular for the following reasons :", "“ ... Although the marriage solemnised on DATE in GPE to a NORP national , together with the issuance of a NORP residence permit following that marriage , constitute new facts , we note that they do not by themselves constitute pertinent justification for ORG to act upon the request for reconsideration . The nationality of the wife , by itself , does not have the effect of requiring the annulment of the removal or the granting of leave to remain in GPE . The wife would have to submit a request for leave to remain in GPE , to be in CARDINAL of the situations covered by ORG ( ORG ) , and to fulfil the conditions thereof , without being excluded by any public order or security grounds .", "The right to family reunification is always predicated on the existence of original leave to remain granted to an ORG / EFTA national under the provisions of the ORG . The right of abode conferred on family members is a correlative right of which the validity is in principle subject to the duration of the original leave to remain .", "... ”", "According to the applicant , there was no possibility of challenging or complaining about the content of that letter .", "Section CARDINAL of LAW of DATE , in force since DATE , provides as follows :", "“ An application for review of a judgment of ORG on account of a violation of LAW DATE for ORG ) may be submitted if the following conditions are satisfied :", "( a ) ORG , in a final judgment , has found a violation of the ORG or its Protocols ;", "( b ) compensation can not remedy the effects of the violation ;", "( c ) the review is necessary to remedy the effects of the violation . ”", "The relevant provisions of ORG I of the LAW between ORG and ORG on the free movement of persons ( the “ ALCP ” ) read as follows :", "“ CARDINAL . The Contracting Parties shall allow nationals of the other Contracting Parties and members of their family within the meaning of LAW and posted persons within the meaning of LAW to enter their territory simply upon production of a valid identity card or passport .", "No entry visa or equivalent requirement may be demanded save in respect of members of the family and posted workers within the meaning of LAW who do not have the nationality of a ORG . ORG concerned shall grant these persons every facility for obtaining any necessary visas .", "... ”", "“ CARDINAL . A person who has the right of residence and is a national of ORG is entitled to be joined by the members of his family . An employed person must possess housing for his family which is regarded as of normal standard for national employed persons in the region where he is employed , but this provision may not lead to discrimination between national employed persons and employed persons from the other ORG .", "The following shall be regarded as members of the family , whatever their nationality :", "( a ) his spouse and their relatives in the descending line who are under DATE or are dependent ;", "( b ) his relatives in the ascending line and those of his spouse who are dependent on him ;", "( c ) in the case of a student , his spouse and their dependent children .", "The Contracting Parties shall facilitate the admission of any member of the family not covered by the provisions of this paragraph under ( a ) , ( b ) and ( c ) , if that person is a dependant or lives in the household of the national of ORG in the country of provenance", "... ”", "“ CARDINAL . The rights granted under the provisions of this Agreement may be restricted only by means of measures which are justified on grounds of public order , public security or public health .", "... ”" ]

[ "46", "8" ]

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[ "The applicant , Mr Sergejs Dmitrijevs , is a “ non - citizen ” of GPE , who was born in DATE and lived in GPE ) . Sentenced to DATE imprisonment , he is serving his service in FAC . ORG ( “ the Government ” ) are represented by their Agent , Ms I. Reine .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "DATE a number of killings , attempted killings and burglaries were committed in the GPE district by a CARDINAL - person organised gang .", "On DATE , CARDINAL individuals assaulted PERSON , a well - known GPE businessman , for the purpose of stealing his car . After following the victim and meticulously tracking his movements around the city , the criminals lay in wait for ORG car near a house which he visited regularly . Once the car had stopped in front of the house , one of the assailants , wearing a cap , gloves and sunglasses , ran towards the vehicle , opened the door and pointed a pistol at the victim , ordering him to get out . PERSON also pulled a pistol from his pocket , at which point the assailant fired CARDINAL times , killing him immediately . TIME , having noticed the victim ’s adult daughter PERSON approaching the scene , the killer fled on foot .", "During the pre - trial investigation , ORG was questioned CARDINAL times : on CARDINAL , DATE and CARDINAL DATE .", "On DATE the applicant was arrested by police officers from the anti - crime unit as a suspect in the above - mentioned crime and placed in police custody .", "During the period in police custody , the applicant was questioned by the police on several occasions . During those interviews , which took place without a lawyer , the applicant admitted that he had participated in CARDINAL incidents of theft and hold - up as a member of the gang of robbers . He also confessed that he had been responsible for killing PERSON", "On DATE the applicant was placed under investigation on a charge of aggravated murder and banditry . In the meantime , CARDINAL other individuals suspected of belonging to the same gang were charged with burglary , robbery and murder . They thus became the applicant ’s co - defendants .", "During questioning in DATE , the applicant informed the prosecution service that all the confessions he had previously made were false , as they had been forced out of him by police officers from the anti - crime unit while he had been held in police custody . In the presence of his counsel , the applicant alleged that a specific police officer , whom he named , had threatened him and had offered him money and a reduction in his sentence in return for a confession ; this statement was recorded in TIME of the interview . In consequence , the applicant asked the prosecution service not to take into consideration the content of the preceding interviews and to acquit him .", "On DATE the prosecution service submitted a final bill of indictment ( apsūdzības raksts ) against the applicant and his co - defendants . The applicant was charged with aggravated murder and banditry ; the second charge included CARDINAL hold - ups . With particular regard to ORG murder , the prosecution service considered that the applicant ’s guilt was sufficiently proven by the co - existence of inferences arising from the following evidence :", "– the statements by the victim ’s adult daughter , who was questioned during the pre - trial investigation on CARDINAL , DATE and CARDINAL DATE and confirmed that she had seen her father ’s killer leaving the crime scene . On CARDINAL DATE she gave the following description of the criminal :", "“ ... A twenty to twenty - five- year old man , dark hair , wearing a dark cap and sunglasses covering his eyes , he was wearing gloves . I do not remember his clothes . He resembled the pop - singer “ Titomir ” . ... ”", "On DATE PERSON gave the following description of the criminal :", "“ ... He could be DATE , his height QUANTITY , he was wearing dark clothes , a cap and sunglasses . ... I think his hair was not long ... ”", "– a statement by CARDINAL motorcyclists who had passed the crime scene TIME after the killing ; those CARDINAL witnesses claimed that they had followed a man who was running away for QUANTITY ; his physical characteristics corresponded to those of the applicant ;", "– a statement by a person who had seen a man resembling the applicant running towards the crime scene a minute or CARDINAL before the sound of gunfire ;", "– the cap and sunglasses found hanging on the branches of a bush near the site of the killing , which resembled those worn by the killer ;", "– statements made by the applicant himself during the initial interview and the scene - of - crime reconstruction to the effect that , after fleeing the scene of the crime , he had removed the cap and sunglasses and had thrown them towards a bush while running ; the location indicated by the applicant corresponded to the exact spot where the CARDINAL objects had been found ;", "– the results of biological analysis of hair and traces of sweat taken from the cap and glasses and of osmological tests , confirming that it was highly probable that those CARDINAL items had been worn by the applicant ;", "– the applicant ’s initial statements , which were concurring and corresponded to the results of other investigative measures , particularly the scene - of - crime reconstruction , carried out on - site on DATE ;", "– statements by an anonymous witness , referred to in the case file by the pseudonym “ PERSON ” , alleging that he had met the applicant on TIME of the killing and that the latter had admitted to him that he had killed M.G.", "After forwarding the investigation file to the defendants , the prosecution service sent the case to ORG , the court of first instance in the case .", "ORG began examining the merits of the case on DATE . The applicant pleaded not guilty at the hearing , and repeated his allegation that the confessions had been forced from him by a police officer who promised money and a reduced sentence in exchange for an admission of guilt . After questioning the police officer named by the applicant and several of his colleagues and hierarchical superiors , the court found that that officer had questioned the applicant on CARDINAL occasion and that he was not part of the investigation team responsible for the case . As he had not been present at the crime - scene reconstruction on DATE , he could not therefore have guided the applicant ’s actions or helped him to falsify the results of that investigatory measure . Accordingly , the court dismissed the applicant ’s allegations in this connection . At the hearing , ORG questioned the witnesses and examined all the other evidence submitted by the public prosecution service .", "On DATE a neurologist issued a medical certificate , prohibiting ORG to participate in court hearings and proceedings because of the state of her health .", "With regard to ORG killing in particular , the court summoned and questioned several witnesses , but not , however , the victim ’s daughter . Her statements , made during the preliminary investigation of the case , were submitted and read out at the trial on DATE , in accordance with LAW .", "In a judgment delivered on DATE , ORG convicted the applicant of aggravated murder and banditry ; with regard to ORG killing , the court established the applicant ’s guilt on the basis of the coexistence of inferences arising from the afore - mentioned evidence established by the prosecution service . Under LAW in force at the material time , the applicant was sentenced to death .", "The applicant himself and his legal counsel appealed against the judgment of CARDINAL DATE to ORG . In their respective memorials , they reiterated the applicant ’s argument that the confessions had been forced from him by a police officer who had offered him a trade - off , and challenged the manner in which the evidence had been assessed by ORG .", "On DATE a NORP DATE newspaper published an interview with a forensic expert , a director of ORG . In a part of the interview he said the following :", "“ ... When leaving a gun next to a dead body , a killer “ gives ” it [ the gun ] to the police . And all ends break – where is the gun from , who is the owner of the gun – go and find it . But if a killer takes ORG [ a type of gun ] with himself – one can find it in a search . If one will try so sell a gun to someone else – then the gun will move from hand to hand and will appear in the police together with its present owner , but it is not the link to the real killer . ... ”", "These statements were followed by the illustration of the CARDINAL examples :", "“ ... The well - known murder of the Vice - President of “ Interpegro ” M [ ... ] G [ ... ] was detected exactly because the guns used in committing the murder M [ ... ] G [ ... ] were found in searching the persons arrested in the course of a completely different case . The killers of V [ ... ] L [ ... ] did it more professionally . All around , including GPE , requests were sent out about bullets used in the murder . No tracks ... ”", "The applicant submitted this article to ORG , without requesting to summon the expert for examination .", "In a judgment of CARDINAL DATE ORG dismissed the applicant ’s arguments . After re - examining all the evidence available to it , the ORG confirmed the validity of ORG findings . Furthermore , like the first - instance court , the ORG dismissed the applicant ’s request that ORG daughter be summoned and questioned in court . The ORG dismissed the allegation that the confessions had been obtained through extortion ; having watched the video recording of the scene - of - crime reconstruction , which took place on DATE , it found that the applicant ’s actions in demonstrating what had happened were authentic and very precise and that any attempt to manipulate or rig the event would have been impossible . However , the ORG quashed the applicant ’s conviction on the charge of banditry ; this charge was reclassified as armed robbery with violence . Equally , the ORG noted that as LAW No . CARDINAL to the LAW had entered into force with regard to GPE on DATE , the death penalty could no longer be implemented . Accordingly , the ORG commuted the death sentence to CARDINAL years’ imprisonment , unsuspended .", "As the applicant ’s defence counsel had chosen not to represent the applicant in subsequent proceedings , the latter drew up an appeal on points of law himself and submitted it to the ORG of ORG . In his memorial , the applicant complained primarily of errors in assessment of the facts which he alleged had been made by the lower courts . He also submitted that the presiding judge in ORG had interrupted him several times during his statement , that the appeal judges had refused to grant all of his procedural requests and that the rights of the defence had been seriously infringed . Equally , the applicant complained about the ORG ’s refusal to summon and question in court the forensic expert who had informed the press that he was in possession of the murder weapon , and also ORG daughter . The applicant stressed that cross - examination of this second witness would have enabled the defence to focus on the visual difference between the portraits of the criminal and of the applicant , and thus to show that the killer had been someone else .", "By an order of DATE , served on the applicant on DATE , the ORG declared inadmissible the applicant ’s appeal on points of law as lacking legal grounds . According to the order , ORG and ORG had carried out a full and very detailed examination of all the evidence available to them . Equally , the decisions by the trial and appeal courts had been fully reasoned in terms of fact and law . As to the establishment of the factual circumstances in the case , the ORG pointed out that that question did not fall within the jurisdiction of ORG , which dealt with appeals on points of law . Finally , the ORG considered the applicant ’s various allegations of procedural violations to be unfounded .", "According to LAW , a transcript report of the court proceedings includes , inter alia , the information about case - related applications and petitions .", "The relevant part of LAW provides that within DATE after signing a transcript report of the court proceedings , the defence counsel and accused may submit remarks there on its accuracy . The remarks shall be considered and accordingly added to the transcript report .", "In accordance with LAW , the parties enjoy rights in terms of summoning and questioning witnesses during the trial .", "The defence is entitled to cross - examine the victims and witnesses on the same conditions as the prosecution service ( Articles CARDINAL and CARDINAL ) . If CARDINAL of the parties requests that a new witness be summoned or any new evidence be submitted to the court , it must explain to the court the reasons for such a request and , in particular , what it intends to prove through this new evidence . Dismissal of such a request does not prevent the party from resubmitting it during the examination of the case ( LAW and CARDINAL ) .", "Where a witness or a victim submits good reasons for failure to attend the trial , the statements made by them during the preliminary investigation of the case are read out to the court ( LAW ) .", "The defendant may also be cross - examined by his or her co - defendants and their lawyers ( LAW ) .", "Article CARDINAL states that examination of a judgment by the cassation court is permissible only if it is based on a violation of the criminal law or substantial violation of the Criminal Procedure law ." ]

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[ "Mr PERSON ( “ the first applicant ” ) was born in DATE and Mr PERSON ( “ the second applicant ” ) was born in DATE . They live in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicants , who are brothers , were arrested in GPE by the local police following a request from the GPE authorities . They were suspected of membership of a criminal organisation and of murdering , or attempting to murder , a number of persons in GPE ( see PERSON v. GPE , nos . CARDINAL and DATE , DATE DATE for more details in respect of other persons accused of membership of the same criminal group ) . All CARDINAL of the other persons on trial with the applicants made self - incriminating statements during the pre - trial investigation , and fully accepted their guilt in committing the crimes with which they had been charged . All ( with CARDINAL exception , a former police officer ) retracted these statements at a later stage , claiming that they had been tortured in order to extract those statements .", "On DATE the applicants were examined by a doctor , who found bruising around their eyes , a bruise on the knee of the first applicant , a reddish area on the chest of the second applicant and marks left by handcuffs on each of the applicants’ wrists . The applicants explained that these injuries had been caused during their arrest .", "On DATE they were handed over to the NORP police and flown to GPE , where they were detained in the PERSON police inspectorate from TIME According to a document signed by both the NORP and GPE authorities , no complaints or other issues were raised by either the applicants or the GPE authorities .", "According to the applicants , they were ill - treated throughout TIME of CARDINAL November CARDINAL and TIME DATE by PERSON V. GPE , the investigator from ORG in ORG responsible for investigating exceptional cases , and by officers PERSON , PERSON , PERSON and PERSON from the PERSON police inspectorate . The officers put gas masks on them and suspended them for TIME on a metal bar with their hands tied behind their backs ( a method known as “ swallow ” ( ласточка ) , and somewhat similar to “ NORP hanging ” ) . While in that position , the applicants were hit with rubber sticks on their bodies and the soles of their feet and weights were hung around their necks . From time to time the flow of air through the gas mask was stopped until they fainted .", "At TIME on DATE an ambulance was called to give emergency medical aid to the first applicant . The doctors found bruises on his face and head , and diagnosed him as suffering from contusion of the soft tissues on his face , head trauma and possible post - traumatic encephalopathy ( a second - degree emergency ) . They also noted that “ because he is very dangerous , the police have not authorised [ the applicant ’s ] admission to a hospital ” .", "The applicants asked to see a lawyer . On DATE at CARDINAL p.m. the applicants were briefly allowed to meet their lawyers , in the presence of the investigator and police officers , whose presence effectively excluded the possibility of giving proper legal advice . Observing signs of ill - treatment and having spoken to their clients in the presence of the investigator , the lawyers requested a medical examination of their clients .", "Medical examinations of both applicants were carried out on DATE at their ORG request , in the presence of the investigators . The medical expert found that the first applicant had bruises to his eyes and the head , circular irritations on the wrists and QUANTITY oval bruises on one hand , and injuries to the soles of both feet . In response to a specific question , the expert stated that the injuries had been caused DATE and could have been caused on DATE . After signing and sealing the report , the expert added a note , according to which the first applicant ’s injuries were considered “ minor body injuries ” . In the case of the second applicant , the expert found bruises on the face , chest , ribs , the soles of the feet , circular irritations on the wrists and CARDINAL oval bruises covered with crusts on his hand . The expert also noted that the injuries could have been caused on DATE and were considered to be minor injuries .", "According to the applicants , a number of the injuries found by the expert were not mentioned in the medical report drawn up in GPE on DATE , prior to the applicants’ transfer to GPE .", "During their interrogation on DATE both applicants denied involvement in any crime . Although their lawyers obtained permission from PERSON , the deputy Commissioner of the PERSON police inspectorate , to meet their clients as of DATE , the authorisation was not signed until DATE and the authorities refused to allow the applicants to meet their lawyers before that date . Mr PERSON was frequently unavailable , but was allegedly the only person who could authorise a meeting between the lawyers and the applicants . As a result , the lawyers could not meet their clients for DATE to give them proper legal advice ( see paragraph CARDINAL above ) .", "On DATE a court ordered that the applicants be remanded in custody for DATE . During that hearing they both denied having committed any crime . On DATE the Deputy Prosecutor General rejected the first applicant ’s lawyer ’s challenge to the investigator , finding that the latter had given the lawyer proper permission to meet his client and had allowed the medical emergency team to see the accused , and that no translator had been requested or was necessary .", "The applicants submit that , no longer able to resist ill - treatment , they signed self - incriminating statements on CARDINAL and DATE . Only then were they again allowed to see their lawyers on DATE .", "According to the first applicant , during the meeting of DATE , he could not speak privately with his lawyer but was immediately interrogated in his presence and in the presence of both the investigator and an officer of the NORP police inspectorate . The police officer present in the room was not initially mentioned in TIME of the interviews . The Government disputed these circumstances , stating that the confidentiality of the meetings had been observed . TIME of the interview with the first applicant on DATE included a statement by the lawyer , according to which a request to have a private discussion with his lawyer before the interview had been refused and an “ operative agent ” , who was not an investigator , was present . His presence was , in the lawyer ’s view , intended to subject the applicant to psychological pressure .", "On DATE the first applicant ’s lawyer complained to ORG , invoking Articles CARDINAL , CARDINAL and CARDINAL of the LAW , stating that his client was being ill - treated in order to obtain confessions from him , and that the rights of the defence were being seriously violated by the failure to allow him to meet his client . He alleged that investigator ORG had told him that he could meet his client only after the first interview . The lawyer added that during the interview of DATE his client whispered to him and indicated , using signs , that he had been ill - treated again and nodded towards a police officer ( Mr PERSON ) , who was present at the interview . He queried the participation of the police officer in the interrogation process since that was the prerogative of the investigator alone .", "NORP The lawyer suggested that the police officer was there in order to ill - treat his client and put psychological pressure on him . After noting the presence of the police officer in TIME of the interview , the investigator wrote a note stating that the officer had been included in the investigating team and thus could question the applicant . The lawyer submits that at the beginning of the investigation he was not given a list of all the persons included in the investigating team , as required by LAW ( see paragraph DATE below ) .", "NORP The lawyer also alleged that threats were made against him personally ( to the effect that a criminal case would be fabricated against him and that he would be arrested ) following his challenge to the investigator and his comments on the various procedural irregularities . Investigator PERSON and officer PERSON shouted at him and threatened him in the presence of his client . Having seen how they treated his lawyer , the first applicant was even more afraid and asked the lawyer to stop arguing , since he would be ill - treated again as a result .", "The investigator stated that the first applicant had signed a confession on DATE but refused to show this to his lawyer . His client ’s request to speak in private with his lawyer was rejected in an abrupt manner .", "A similar complaint on behalf of the second applicant was addressed to the PERSON prosecutor ’s office on DATE . On DATE prosecutor ORG asked the PERSON Police Commissioner to allow the ORG access to the applicants . On DATE he informed CARDINAL of the lawyers that “ certain of the complaints ” had been found to be partially well - founded and had formed the grounds for making submissions to ORG , ORG and ORG .", "On DATE the head of the investigations department of ORG , Mr Ş. Ştogrea , replied to the first applicant ’s lawyer ’s letter of CARDINAL DATE , that no violation of procedure had been established and that the first applicant had not personally made any complaints . He did not annex a copy of the decision in accordance with LAW ( see paragraph CARDINAL below ) .", "On DATE the first applicant ’s lawyer complained to the PERSON prosecutor ’s office , stating that his client had been detained since DATE in police cells in the PERSON police inspectorate , rather than in a remand centre of ORG , as required by LAW see paragraph CARDINAL below ) . In further letters of CARDINAL and DATE the applicants’ lawyers requested their clients’ transfer to the remand centre of ORG in PERSON ( also known as “ prison no . CARDINAL ” ) . They referred to the lack of necessary facilities for meeting their clients in the LOC of the police cells in the PERSON police inspectorate and to the applicants’ medical condition , which could not be treated in their current place of detention . They submitted that , according to the regulations , an individual ’s detention in the police cells of the PERSON police inspectorate could not last for DATE . On DATE the lawyers were informed that their clients would shortly be transferred to prison no . CARDINAL .", "On DATE judge PERSON from ORG informed the LAW that during the examination of the first applicant ’s appeal against the court decision of DATE to remand him in custody , the court had found that the first applicant ’s right to meet with his lawyer had been violated by officers of the PERSON police commissariat . He asked the Commissioner to take measures to prevent similar conduct in the future .", "On DATE the second applicant asked ORG to have his arm examined by a doctor since , he alleged , he had lost all movement in it as a result of ill - treatment by the police on DATE . He never received a reply . On DATE his lawyer asked ORG to reply to his client ’s request of DATE . He was informed , by a letter of DATE , that his client had been sent a reply on DATE in which it was explained that any complaints were to be addressed directly to the trial court following the submission of the case to that court . In addition , a medical examination of the second applicant had been carried out . In reply , the lawyer requested confirmation from the court to which his client ’s complaint had been forwarded , as well as the outgoing number of the letter addressed to him , since he had not received any letter dated DATE . In addition , no medical examination of his client had been carried out following his complaint of DATE . The lawyer considered inadequate a further reply from the Prosecutor General dated CARDINAL DATE and he requested detailed answers to his questions . It is not clear whether he received an answer .", "During the examination of the case by ORG in DATE the applicants also complained about their ill - treatment . The court forwarded their complaint to ORG . No action appears to have been taken on the basis of that complaint .", "In DATE the applicants informed the administration of prison no . CARDINAL in GPE about their fear of reprisals by a group of detainees in that prison . The applicants asked to be transferred to prison CARDINAL . They were transferred to that prison on DATE , and did not inform the administration of any threat received or otherwise alert the authorities to any danger to their lives or health in that prison . On DATE the applicants were severely beaten by other detainees from their own brigade . They claim that for dubious reasons the security personnel were absent from their posts and thus did not intervene , and that the metal gates separating their block from other blocks were left unlocked , in violation of the rules . According to several reports submitted by the Government , during their free time detainees could either remain in their cells or visit common areas within their brigade ’s premises . There were therefore no metal gates or other barriers between inmates from the same group of cells and there could not be “ forced entry ” into the applicants’ cell . The applicants had declared that the injuries had been self - inflicted while practising martial arts , and had refused to make any written statement .", "Both applicants were taken to a hospital and were then transferred to prison no . CARDINAL . According to the Government , the prison administration gave the applicants the option of requesting detention in separate LOC from the other detainees , in order to protect them from a possible future attack , but they refused . They were placed in an increased security cell , but were free to visit common areas . On DATE they allegedly went to a meeting in a common area organised by another detainee . The meeting ended with a fight , as a result of which the applicants were again severely beaten by other detainees . The applicants claim that the security personnel disappeared for TIME during the event . They were again taken to hospital with serious injuries , and later transferred to another prison . According to the applicants , no serious investigation into these CARDINAL assaults has taken place and none of the attackers has been identified and punished . According to the Government , CARDINAL organisers of the meeting were identified and a criminal investigation was opened into the event . The applicants never complained about either of the attacks and refused to make statements to the administration against the detainees who had attacked them . The various investigations opened into the events of DATE ended on CARDINAL May , DATE and DATE respectively , finding that the applicants had refused to avail themselves of additional measures of protection offered to them by the prison administration , fearing that such measures would diminish their reputation in the criminal world . The administration of the CARDINAL prisons in which the attacks had taken place took measures to reinforce security , in order to minimise the risk of similar acts in the future .", "In a letter to ORG DATE the first applicant complained that he had not received the specialised medical treatment which he required , on account of the absence of the necessary medical equipment . He also claimed that his transfer to prison no . CARDINAL in GPE on DATE had been premature , in that he had not yet recovered from the last assault on him .", "On DATE ORG , acting as a first - instance court , found all CARDINAL suspects guilty . Each applicant was sentenced to DATE imprisonment .", "The court found that each applicant had been involved in CARDINAL different criminal acts ( murder and attempted murder ) , typically assisting others to commit the crimes ( driving getaway cars , supplying weapons and uniforms , etc . ) . Each applicant was a member of the criminal organisation and was guilty of illegal possession of weapons .", "The evidence on which the court based its judgment was , in each case , the declarations of the CARDINAL co - accused , declarations by surviving victims or their relatives , statements of witnesses and expert reports .", "In the court ’s opinion , the declarations of the co - accused were consistent and the fact that they had all subsequently withdrawn their statements , alleging that they had been obtained by ill - treatment , was merely an attempt to avoid responsibility . The court emphasised the dates on which each of the accused had made confessions in the presence of their lawyers ; some of these confessions had been recorded on film . This excluded any possibility that the statements had been made as a result of ill - treatment , given also that no evidence of ill - treatment had been adduced . The court referred to a medical report of DATE ( before the ORG arrest and apparently drawn up in respect of some of the other accused ) in which no signs of ill - treatment had been found .", "The surviving victims and their relatives , as well as witnesses , testified as to the manner in which the crimes had been committed , or described having sold cars to “ unknown persons ” or having seen such unknown persons carry out the crimes . None of them declared that they had seen any of the co - accused at the scene of the crimes .", "The expert reports determined the manner in which the crimes had been committed and the types of weapons used .", "In the attempted murder of Mr PERSON and others a weapon was used which was subsequently found during a search conducted on DATE in an apartment rented by the second applicant . Further weapons were found in that apartment , including automatic rifle ammunition which was identical to some of the cartridges found at the scene of the murder of PERSON ORG and Mr PERSON .", "In addition , a mobile telephone operator submitted a list of all incoming and outgoing calls made from a telephone belonging to the first applicant ( which , the trial court stated without any further detail , had also been used by the second applicant ) . During the preparation of the murder of PERSON on DATE , this telephone had been frequently used to contact several of the co - accused .", "Two witnesses confirmed that unknown persons had come to them DATE and had purchased CARDINAL sets of dark uniforms . These were later used during the murder of PERSON .", "In their appeal in cassation against the judgment of ORG , the applicants submitted the following .", "GPE , CARDINAL of the alleged masterminds of most of the crimes attributed to the criminal organisation of which the applicants were allegedly members , declared in court that he had committed some of the crimes he was charged with , but that the applicants had not participated in any of them . He claimed that he had been forced to make declarations against the applicants as a result of ill - treatment . According to the applicants , even the declarations made by ORG during the investigation were contradictory , since he had claimed to have seen one of the applicants in CARDINAL different places at the same time . In his statement , another co - accused ( S. ) declared that he was not sure whether he had seen the second applicant in the getaway car and then replied to the lawyer ’s direct question that he had not seen him at the crime scene . However , the trial court had merely stated that PERSON confirmed the second applicant ’s participation in the crime .", "Despite the court ’s statement that there was no evidence of ill - treatment , substantial evidence confirming ill - treatment had been submitted to the court in the form of medical reports and complaints .", "The court had paid no attention to the complaints regarding the violation of the rights of the defence , notably the lack of access to their lawyers during the period when they had been ill - treated .", "On DATE the prosecutor had declared that all charges against the applicants were withdrawn due to a lack of evidence of their guilt . However , on DATE he radically changed his position and requested the court to find them guilty , although no new evidence had been added to the file . This contradictory behaviour confirmed , in the applicants’ view , that the prosecution itself was not convinced of their involvement .", "On DATE the prosecutor had requested and obtained the suspension of the trial and the re - opening of the investigation , having shown the judge a letter from ORG . None of the co - accused or their lawyers was shown the contents of that letter , despite their requests to that effect .", "During the hearings in court , CARDINAL of the co - accused declared that the applicants had nothing to do with the crimes and that they had made their statements as a result of ill - treatment .", "In their address to ORG the applicants added that neither of them had been informed of his right not to make statements incriminating the other , since the law entitled them not to testify against close relatives .", "DATE . During the reconstruction of events officers had committed serious violations of procedure , as was clear from the video recording of the event : they had asked leading questions and even given their own answers to them , and had then shown the accused where to go , where to stop , etc . The second applicant was not involved in any reconstruction of events .", "CARDINAL of the charges against the applicants ( conspiracy to commit murder and murder of PERSON ) were not brought against them until DATE , during the court hearing , and those charges had been based only on statements made by CARDINAL of the co - accused on DATE . However , the author of those statements declared that he had refused to cooperate in the conspiracy and that he was unaware of any tangible actions or plan by the applicants to commit the murder .", "In addition , although the prosecution claimed that the second applicant rented the apartment from ORG after seeing her advertisement in newspaper ORG , no such advertisement had appeared in that newspaper and ORG stated in court that she had not placed such an advertisement . She declared that she knew the second applicant and allowed him to use her apartment in DATE . In DATE she agreed with the second applicant to give the keys of the apartment to O. Thereafter the applicants left for GPE . During the investigation she had to make false statements under pressure from the investigators . The applicant argued that he could not be held responsible for what happened in the apartment after he transmitted the key and left for GPE .", "The first applicant had made CARDINAL self - incriminating statements , CARDINAL of which were dated DATE . The CARDINAL others had not been dated , nor properly registered as evidence , yet they formed part of the evidence on which the court had based its judgment .", "The video recording of the reconstruction of events with one of the co - accused ( PERSON ) clearly showed one of the police officers wearing sunglasses which later appeared on PERSON In court PERSON declared that he had been ill - treated in the police car in order to testify as instructed . He was then told what to say and how to proceed and was made to wear the sunglasses in order to disguise signs of ill - treatment . He testified in court that he had not known the applicants and that the police and investigators had shown him their pictures .", "In restating the various violations of their rights and their illtreatment , the applicants invoked the LAW and the LAW . They stated that all their complaints had been examined superficially and that all the evidence against them had been obtained through violent and unlawful means .", "ORG reviewed the findings of ORG and found that that court had adopted a lawful judgment . In particular , it found that the lower court had not based its judgment only on the statements by the co - accused , but also on other evidence , although the confessions were the basis for the applicants’ convictions .", "NORP The court cited the relevant parts of the declarations made by the co - accused , including the applicants , and emphasised that in each case the statements were made in the presence of lawyers and were often recorded on film , which depicted no signs of ill - treatment or undue influence . The court noted that the first applicant had made statements at the interview of DATE and that the second applicant made statements at the interviews of DATE and DATE .", "The court also found that “ [ ORG is not true that the statements were made under the influence of unlawful methods by the police . During the hearing the court has verified these arguments and they have not been confirmed ” .", "ORG dismissed the ORG appeal in cassation .", "The relevant provisions of LAW , in force at the time , read :", "... Evidence obtained in violation of the present Code or not properly examined during the court hearing can not constitute the basis of a court conviction or of other procedural documents . ”", "... The first questioning of an accused who has been taken into custody is to be conducted only in the presence of a defender , chosen [ by the accused ] or appointed ex - officio . ”", "The following shall serve as a ground for initiating a criminal investigation :", "( CARDINAL ) NORP declarations , letters from citizens ;", "... ( CARDINAL ) the direct discovery by the investigating authority , the investigator , prosecutor , judge or court of the elements of a crime .", "The proceedings may be initiated in cases where there is sufficient information regarding the crime committed . ”", "... In response to a declaration or a notification received , CARDINAL of the following decisions shall be adopted within DATE or , if additional verification is needed , within DATE :", "( CARDINAL ) to initiate a criminal investigation ;", "( CARDINAL ) NORP to refuse the initiation of a criminal investigation ;", "( CARDINAL ) NORP to forward the declaration or notification to the authority competent to deal with it .", "The decision taken under paragraphs CARDINAL and CARDINAL above shall be brought to the attention of the person who made the declaration or notification ”", "In complex or voluminous cases the investigation may be carried out by several investigators . This is to be mentioned in the decision to initiate the criminal investigation or in a decision adopted for that purpose . ... In such cases the ... accused ... is to be informed of the names of all the participating investigators and his [ or her ] right to challenge any of them is to be explained to him [ her ] . ”", "The place of detention on remand of persons against whom preventive measures have been applied shall be remand centres . In certain cases such persons may be detained in prisons , in police cells ....", "Persons detained on remand may be detained in police cells for DATE . If they can not be brought to a remand centre because of the considerable distance or the lack of appropriate transport facilities , they may be detained in police cells for longer periods , not exceeding DATE . ”" ]

[ "3", "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by PERSON , a lawyer practising in ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant was dismissed from work . In DATE the applicant instituted civil proceedings challenging the decision on his dismissal . He sought reinstatement , compensation of salary and lost earnings .", "Following CARDINAL remittals , on DATE ORG ( PERSON ) gave a partial judgment ordering the applicant ’s reinstatement and awarding him compensation of salary . The judgment also stated that the compensation for lost earnings and the litigation costs were to be decided on later .", "On appeal by the employer , on DATE ORG ( PERSON ) upheld the first instance judgment in part concerning the applicant ’s reinstatement . It quashed and remitted in part the decision on compensation for salary .", "On DATE the employer filed a request for revision on points of law ( revizija ) against that decision . On DATE ORG ( PERSON ) dismissed that request .", "The first instance court not having decided a part of his claim , on DATE the applicant filed a constitutional complaint concerning the length of the proceedings .", "On DATE ORG held a hearing .", "During the next hearing held on DATE it adopted a judgment by default .", "On DATE the defendant paid the applicant the sum ordered by the judgment .", "On DATE ORG ( Ustavni sud PERSON ) found that the applicant ’s right to a determination of his civil claim within a reasonable time had been violated and awarded him CARDINAL NORP PERSON ( HRK ) as just satisfaction .", "The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON –Official Gazette no . CARDINAL/CARDINAL of DATE ; “ the LAW ” ) reads as follows :", "“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...", "( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...", "( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request" ]

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[ "The applicant was born in DATE and lives in GPE , in the former GPE .", "On DATE the applicant was laid off by the company “ PERSON - lift ” d.o.o PERSON ( “ the employer ” ) where he worked as a lift repairman .", "On CARDINAL DATE the applicant brought an action against his employer , claiming that he had been unlawfully dismissed . He sought to be re - instated to a post corresponding to his qualifications .", "Of CARDINAL hearings , including the preparatory one , scheduled DATE and DATE , CARDINAL hearing was adjourned at the judge ’s request ; CARDINAL hearings were postponed because of late submission of evidence ; CARDINAL hearing was adjourned without any reasons and CARDINAL hearing was rescheduled at the employer ’s request . The applicant attended all the hearings as scheduled . During this period , the composition of the judicial council ( судскиот совет ) changed once .", "On DATE the employer requested the court to reinstate the proceedings ( враќање во поранешна состојба ) as it had failed to appear in court on CARDINAL DATE due to a failure of its former representative to inform it about the date of the hearing . On DATE the applicant filed an objection against the employer ’s request which he had subsequently withdrawn . The hearing of CARDINAL DATE was held by another trial judge who had taken over the case .", "At the hearing of CARDINAL DATE the court examined some witnesses .", "On DATE ORG upheld the applicant ’s claim and annulled the employer ’s decision for termination of his employment . The court found that his dismissal had not been made by a competent body . It held that the applicant had worked with the employer continuously for DATE and as such the managing board ( управен одбор ) should have decided his dismissal , instead of its manager .", "On DATE the employer appealed against the decision .", "On DATE ORG upheld the employer ’s appeal , quashed the lower court ’s decision and ordered a retrial . It found that the lower court had erred in establishing the facts , in particular concerning the applicant ’s uninterrupted work with the employer which had undergone several organisational changes over the time .", "Of CARDINAL hearings scheduled DATE and DATE , CARDINAL hearings were adjourned by the trial court to examine the official company ’s register concerning the employer ; CARDINAL hearing was postponed due to the trial judge ’s absence ; CARDINAL hearings were rescheduled as the court could not locate a witness , whose whereabouts had been provided by the applicant . Within this period , the court heard the applicant and examined some witnesses . The composition of the judicial council also changed once as new lay - judges stepped in the proceedings . The applicant attended all the hearings as listed .", "On DATE ORG Instance dismissed the applicant ’s claim as the dismissal decision had been adopted by a competent body and the applicant had infringed working discipline . The court established that the applicant had been initially employed by “ PERSON - Daka ” GPE ( “ the company ” ) , a company incorporated outside the former GPE , which had had a subsidiary office in GPE . When the company had founded “ PERSON servis ” d.o.o . PERSON , as a separate legal entity incorporated in the former GPE , the applicant continued working for this newly created entity . At the last stage , “ PERSON servis ” d.o.o . PERSON was merged with another company “ PERSON montaza ” , creating as a separate legal entity . As stated by the ORG , this decision was drawn up on DATE and served on the parties after the applicant had paid the court fees .", "On DATE the applicant appealed against the decision .", "On DATE the first - instance court ordered the applicant to pay the court fees within DATE . On DATE the applicant complied with this order .", "On DATE ORG upheld the applicant ’s appeal and overturned the lower court ’s decision . It found that the applicant had worked continuously for DATE with the same employer , despite the organisational changes that the latter underwent over time . It therefore declared the applicant ’s dismissal null and void and ordered the employer to reinstate him to work .", "On CARDINAL DATE the employer lodged with ORG an appeal on points of law ( ревизија ) . On DATE the applicant submitted his reply to the employer ’s appeal on points of law .", "On DATE the employer requested the public prosecutor to submit to ORG a request for the protection of legality ( барање за заштита на законитоста ) .", "On DATE the employer filed before ORG a request for re - opening of the proceedings ( предлог за повторување на постапката ) .", "On DATE the applicant instituted separate enforcement proceedings concerning the reinstatement order and the trial costs . On DATE the court granted the applicant ’s request ( “ the enforcement order ” ) . On DATE the applicant withdrew his request concerning the reinstatement , as he had meanwhile been reinstated . On DATE the court stayed the enforcement proceedings concerning the applicant ’s reinstatement and dismissed the employer ’s objection concerning the reimbursement of the trial costs . On DATE ORG upheld the lower court ’s decision . On DATE the employer requested postponement of the enforcement . On DATE the applicant objected to the employer ’s request for postponement . It appears that the applicant received the sum due to him .", "On DATE ORG returned the case - file to the trial court in respect of the employer ’s request for re - opening of the proceedings .", "On DATE ORG Instance terminated the proceedings concerning the employer ’s request for re - opening of the proceedings and decided to transfer the case - file to ORG in respect of the employer ’s appeal on points of law .", "On DATE ORG upheld the employer ’s appeal on points of law , overturned ORG decision and upheld the trial court ’s decision of CARDINAL DATE . It departed from the reasoning of ORG finding that the employer could not be considered the one in which the applicant had been initially employed ." ]

[ "6" ]

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[ "The applicant , born in DATE in ORG , is a citizen of GPE . He is resident in LOC . The applicant is represented before the ORG by PERSON , a lawyer practising in GPE .", "A.", "On DATE the applicant , who was serving in the army at the time , was shot and wounded in a clash with members of the ORG . A bullet entered his neck , causing permanent damage to his spine and leaving him PERCENT paralysed below the waist .", "The applicant received a retirement pension . His medical expenses were covered by the ORG . Under PERSON No . CARDINAL he was granted compensation for non - pecuniary damage and to cover the costs of hiring a lay helper ( bakıcı ) to assist him with his DATE needs . The applicant considered that the amount of the compensation was insufficient .", "On DATE he requested ORG to pay him additional compensation . ORG rejected his request . On DATE the applicant challenged the ORG ’s rejection before ORG .", "The ORG was composed of CARDINAL military judges CARDINAL of whom , according to the applicant , had no legal training . In assessing the overall loss which the applicant had suffered , the court deducted the amount of the retirement pension and the compensation awarded under PERSON No . DATE already paid to him . The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a TIME basis . The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances . According to the assessment of the legal expert , the applicant had already been adequately compensated .", "The applicant ’s lawyer objected to the expert ’s calculations on the ground inter alia that the full amount of the fees paid to the helper had to be disregarded from the final calculation . On DATE the CARDINALnd Chamber of ORG ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability , relevant case law and comparative awards .", "Under domestic law the judgments of ORG are final and can not be appealed . The applicant requested rectification of the judgment ( kararın düzeltilmesi ) . In accordance with domestic law , the file was re - examined by the same CARDINAL - judges of ORG which had given the judgment of DATE . On DATE the ORG rejected the request for rectification , holding that the request did not fall within the specified grounds for rectification .", "B. Relevant domestic law", "LAW . DATE on ORG provides :", "“ Rectification of a judgment rendered by the ORG or ORG may be requested on one of the following grounds , only once within DATE after it is served on the parties :", "a ) The judgment does not refer to the allegations and the objections which affect its merits ;", "b ) The judgment contains provisions which contradict each other ;", "c ) The judgment is contrary ( “ aykırı ” ) to procedural and substantive law ( “ usul ve kanuna aykırı ” ) ” ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant lodged a statement of claim with ORG ( Sąd Rejonowy ) .", "On DATE ORG found that it lacked jurisdiction to deal with the case and referred it to ORG ( PERSON ) .", "On DATE the applicant was ordered to rectify certain procedural shortcomings in her claim in order to fulfil the formal requirements set out in NORP law . She complied with the court ’s order in DATE .", "At a hearing on DATE the defendant lodged a counterclaim . On an unknown date in DATE the applicant submitted her reply to the counterclaim .", "DATE and DATE the court held CARDINAL hearings .", "On DATE ORG delivered its judgment .", "On DATE the applicant lodged a notice of appeal . On DATE she was served with the court ’s statement of reasons .", "NORP The case was referred to ORG ( Sąd Apelacyjny ) in DATE . On DATE the court partly amended the judgment and remitted the case in part .", "On DATE the applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) against the judgment of ORG .", "On DATE ORG , sitting in camera , refused to entertain the cassation appeal as it did not raise any issue of general importance .", "On DATE the ORG remitted the case to ORG .", "On DATE ORG held a hearing . A hearing scheduled for DATE was postponed because the judge was ill .", "On DATE a hearing was held .", "On DATE the ORG delivered its judgment . The applicant lodged an appeal against it .", "On DATE , by a final judgment of ORG , the applicant ’s appeal was dismissed .", "On DATE the applicant lodged a complaint with ORG under section CARDINAL of the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . The Supreme Court referred the case to ORG .", "NORP The applicant sought a ruling declaring that the length of the proceedings before ORG had been excessive and an award of just satisfaction in the amount of MONEY ( ORG ) .", "On DATE ORG gave a decision in which it acknowledged the excessive length of the proceedings before ORG , finding that there had been periods of unjustified inactivity in DATE , then DATE and DATE . It awarded the applicant LAW in just satisfaction . The court observed that the claim for just satisfaction in the amount of PLN CARDINAL,CARDINAL was excessive .", "The court did not take into consideration the delays that had occurred before ORG ( DATE ) , nor did it consider the period DATE and DATE , when the case was pending before ORG .", "On DATE a certain “ S - P ” ORG instituted civil proceedings for repossession against the applicant . DATE the court held CARDINAL hearings . By a decision of DATE ORG discontinued the proceedings .", "On an unknown date in DATE the police instituted criminal proceedings against the applicant on charges of threatening behaviour . On DATE , by a decision of the district prosecutor , the applicant was made subject to a police supervision order . The applicant appealed .", "On DATE ORG amended the decision and the police supervision order was quashed .", "On DATE ORG issued a penal order imposing a fine on the applicant . It appears that the applicant lodged an appeal . The proceedings were terminated by a final decision of DATE ( the applicant has not produced a copy of it ) .", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V." ]

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[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON . He is represented before the Court by Mr PERSON , a lawyer practising in GPE The respondent Government are represented by their Agent Mr PERSON , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "From DATE until DATE the applicant was employed , notably as a passenger assistant by a NORP shipping company , henceforth called PERSON ( NORP Seaways ) , and he was a member of a trade union , henceforth called GPE ( ORG ) .", "In his employment the applicant had no responsibility for the primary operation of the ship but as a crewmember he was involved with the safety on board . At the relevant time he worked in shifts of DATE at work on board followed by DATE of leave on land .", "ORG had issued a circular on DATE laying down that all staff on board had to submit to an alcohol test if so required by the authorities or the shipping company / shipmaster .", "On DATE ORG issued a new set of regulations concerning its staff policy on alcohol and drugs which inter alia stated that when on duty on board the employees were allowed a blood alcohol level of QUANTITY and when on leave on board CARDINAL per mille . When on board the employees were not allowed to be in possession of or use drugs or any other intoxicating substances or have any remains thereof in their bodies traceable by a urine test . A passage headlined “ control ” stated :", "“ By request of authorities , the ORG or ORG all employees are under an obligation to submit to tests for alcohol , drugs or any other intoxicating substances . The employees can expect to undergo such a test without notice at least once a year . ”", "A passage headlined “ violation of these regulations ” stated inter alia :", "“ A violation of these regulations will be regarded as a considerable breach of the conditions of employment and can lead to immediate dismissal ... ”", "A copy of the regulations was distributed to the employees who were requested to sign it thereby confirming that they have read and understood it .", "In DATE ORG introduced random mandatory alcohol and drug test requiring the person concerned to provide a sample of urine .", "In letters of CARDINAL DATE and CARDINAL DATE ORG and another trade union henceforth called ORG ( PERSON ) informed PERSON that they could not approve of the new set of regulations . Thus , a conciliation meeting was held on DATE between the employer and the said trade union , but the parties failed to reach an agreement .", "On DATE the applicant , allegedly without any kind of suspicion , was requested to provide an urine sample behind a screen in a room in which a person from a NORP company called Medscreen , hired for this purpose , was present . It appears that no trace of alcohol or drugs was found .", "ORG and ORG instituted civil proceedings against ORG before ORG claiming that ORG should acknowledge that the control procedure introduced by the regulations of DATE was wrong and that accordingly , despite any given signature the employees could not be obliged to provide a urine sample . Among other arguments they claimed that the random urine tests were in breach of LAW . On DATE ORG found for ORG . In its decision the ORG stated :", "“ Since a majority could not be obtained amongst the arbitrators the case will be decided by the president who states :", "Pursuant to case law and practises in labour market matters the right of management encompasses the right to issue regulations justified by operational considerations . Likewise , the management have a right to introduce measures of control justified by operational considerations if such measures have a reasonable purpose , do not offend the employees’ dignity , and do not cause any loss or appreciable inconvenience for the employees .", "It is undisputed that alcohol is a legal stimulant and drugs are not , though in GPE the possession of hashish for ones own consumption is seen as a minor offence . The presence of drugs on board might in certain countries lead to the detention of the ship or to other sanctions against the ship , which is CARDINAL of the reasons why the merchant navy prohibits any possession of drugs on board .", "The past regulations [ of DATE ] issued by ORG solely authorised a control measure with regard to the employees’ alcohol consumption . It appears that the past regulations were not objected to and , as the case has been presented before the ORG , it is mainly the test introduced [ in DATE ] for drugs and other intoxicating substances that caused the present dispute .", "It is undisputed that on CARDINAL occasions within DATE CARDINAL employees have been in possession of and used drugs . The testimonies heard before the court substantiate that some employees on board have used drugs as a stimulant , which must be considered a serious problem . Therefore , PERSON do have a justified reason for introducing measures of control suitable and contributing to solve this problem .", "The consumption of alcohol will usually be traceable by the smell or by using a breathalyser . This is not the case when it comes to drugs or any other intoxicating substances . Taking a blood sample would require the consent of the person concerned . It is indeed very difficult simply by observation to ascertain whether a person has used drugs and a clinical test does not with sufficient certainty provide an indication of the employee ’s ability to perform his or her duty . Thus , providing a urine sample is a possible measure of control .", "There is no substantiation for assuming that ORG uses the test for any other purposes than to control the employees’ consumption of alcohol and drugs . No information is provided as to whether the samples are stored , and in the affirmative how , but any extension of the test , be it on the basis of a sample already submitted or of future tests , do require that the employees are informed . Also such an extension may be brought before a Court of Arbitration for review .", "The employees do not suffer any loss as the test is submitted to during TIME .", "The control measure introduced by ORG applies to all employees on board including the Captain . X testified that the test is performed in a room in private . Thereafter the urine sample is handed over . In this way the test can not be considered to expose the individual ’s decency . In addition , since everybody is obliged to submit to the test the individual ’s honour can not be considered infringed .", "The plaintiff has submitted that the test infringes the employees’ spare time , as it will reveal which activities the employees have been involved in . However , an employer must be entitled to demand that an employee coming to work is capable of performing his or her duties . Accordingly , this entails some limits on the employees’ spare time before coming to work . However , having regard to the fact that the consumption of alcohol and the use of drugs , unless taken on a regularly basis , do not leave traces for CARDINAL or two days , the ORG does not find that the measure in question infringes the right to respect for private life to such an extent that random tests thereby should be excluded . The employees’ rotation system whereby a leave on board is followed by a leave off board does not reverse this finding .", "ORG ) has stated that besides from reducing learning and memory , using hashish might reduce one ’s psychomotor functions up till TIME when doing complex tasks . Perhaps no problems will occur when doing the daily tasks that the plaintiff ’s members perform . Nevertheless , as all crew members are part of the safety crew , though rarely needed , it is absolutely essential that they are , in a fully adequate way at all times , able to perform functions related to the safety on board , which in case of a catastrophe might entail complex tasks . Accordingly , operational considerations do justify that the defendant introduced the control measure in question . The fact that no survey has been carried out as to the customers expectations to the safety on board does not reverse this finding since , having regard to the latest catastrophes on ships in the NORP oceans , a customer has a right to assume that the shipping company aim to have as much safety on board as possible , and that the company makes sure that its crew members can perform their safety tasks in a fully adequate way .", "The regulations in question contain a passage according to which a violation will lead to immediate dismissal . The defendant can not unilaterally by introducing such a passage change the required conditions for a dismissal , and a given signature by an employee on the regulations does not entail that such a change has been accepted . However , with regard to a possible dismissal the defendant did in fact express in the pleading that the burden of proof falls upon the shipping company . ”", "Below is a general description of the NORP industrial relations system , also known as the “ Danish Model ” .", "The struggle at DATE between on the CARDINAL side employees and their unions ( notably what is DATE called the ORG , i.e. ORG ) and on the other side the employers and their federations ( mainly the central organisation DA , i.e. ORG ) resulted in the so - called DATE Agreement from DATE between the ORG and the ORG . The ORG laid down CARDINAL major principles :", "the right of employees to organise in trade unions ;", "the right of the employers to manage and control work ;", "the right to industrial actions ( strike , boycott and lockout ) to obtain", "e.g. a collective agreement ;", "the embargo on industrial action which means that no strikes are", "lawful during the term of a collective agreement ;", "the establishment of a special arbitration tribunal to deal with all", "violations of LAW .", "The DATE Agreement is unique in that it has formed the basis of all subsequent general agreements between social partners . By tradition the NORP legislature plays a minor role as regards governing wages , salaries and employment conditions . Accordingly , rights imposed by statute in other countries have in GPE been obtained by agreements between the labour market partners . It is thus characteristic of NORP law that the relationship between employers and employees is basically governed by a combination of agreements ( collective and individuals ) , labour law principles and general statutes and rules laid down in pursuance of statutes .", "Thus , according to the “ Danish Model ” the content and scope of an employer ’s managerial right or his right to carry out control measures depend on labour law principles in so far as it is not governed by any agreements or by statutes or rules laid down in pursuance of statutes . ORG", "Disputes between the labour market parties are , failing friendly settlement , finally determined by either courts of arbitration or by ORG depending on the dispute in issue .", "Control measures .", "As stated above , LAW from DATE acknowledged the employer ’s right to manage and control work . The right to carry out control measures was acknowledged firstly in a decision by ORG from DATE , and confirmed by subsequent case law . According to the said case law , the following guidelines have been characterised as reasonable control measures :", "The control measure may not be unnecessary , but must serve a sensible purpose .", "The form of it may not be humiliating for the employees .", "It may not cause any loss or significant inconvenience .", "It must be possible to submit the justification of the measure to industrial arbitration .", "When a control measure has proved expedient and has been practised on the majority of the company employees , it can be extended to cover the rest of the staff .", "The employer should notify his staff as early as possible of any contemplated control measure .", "Employees shall - at least in so far , cf . point CARDINAL above - observe the employer ’s requirement of introduction of a control measure , and the trade union may be held responsible if it supports any resistance .", "The collective agreement need not include any authority for the introduction of control measures . If a regular scheme has been laid down in the collective agreement , the employees may reject changes during the term of the agreement if they have a legitimate interest in raising such objections .", "Normally there is no obligation to compensate the time spent in connection with a control measure because such obligations only exist if the measure results in “ undue delay ” to the employees .", "No claim can be made to leave salaried employees ( masters , foremen ) out of the search scheme .", "Control measures ( in particular searches ) must be carried out correctly and unassailably , but not necessarily by persons who are independent of the employer .", "Controls of women ( searches ) must be carried out by women .", "Act on Use of ORG .", "Act no . CARDINAL of DATE on ORG etc . on ORG ( Lov om brug af helbredsoplysninger på arbejdsmarkedet ) defines the situation in which an employer is entitled to request health data and does not exclude any specific testing method . The explanatory notes to the PERSON forming the basis of LAW ( L CARDINAL of DATE ) gives a detailed account of the scope of the LAW . The notes state partly which situations are comprised by the LAW , partly which situations fall outside the LAW . Among other thing is stated ( see para . CARDINAL , section C , of the general explanatory notes of the PERSON ) :", "“ This PERSON does not affect the employer ’s right to institute general control measures affecting employees , e.g. in the form of tests to detect the abuse of alcohol or drugs , provided that such tests are not intended as health examinations ” .", "It is further stated ( see the special explanatory notes to section CARDINAL of the Bill ) :", "“ In certain cases a personal examination is in the nature of a control measure in which no data on diseases or symptoms of a disease is requested . This is the case , inter alia , when an employer wants to check by blood sampling whether an employee has alcohol in his blood in contravention of the employment contract .", "In such cases the employee will most often have signed a declaration to the effect that he is willing to submit to such checks . Other stimulants than alcohol may be involved .", "Such examinations fall outside the scope of the bill to the extent the individual measure is not also intended to procure data on diseases or the risk of developing or contracting a disease . Whether such prohibition and the pertaining checks are justified is a general question under employment law . ”", "ORG", "The ORG joint ORG adopted in DATE a resolution concerning drugs and alcohol in the maritime industry . Moreover , the joint ORG on ORG adopted in DATE ORG in ORG .", "Based on the ILO Convention no . CARDINAL on ORG , which entered into force on DATE , GPE has adopted a number of legal provisions as well as an executive order ( no . CARDINAL of DATE ) concerning medical examination of seafarers , the purpose of which is to ensure , having regard to the safety of the vessel and the safety and health of everybody on board , that the GPE health is satisfactory . Pursuant to the said executive order the consequence of the use of drugs or hashish or abuse of medicine or alcohol is absolute rejection irrespective of the relevant person ’s function on board the vessel .", "The Seamen ’s Act", "Pursuant to the first sentence of LAW ( CARDINAL ) of LAW ( cf . LAW no . CARDINAL of DATE ) bringing drugs and other toxic substances on board a ship is prohibited . Pursuant to subsection ( CARDINAL ) of the same provision , the shipmaster may subject the seaman ’s recreation room to a search if he has reasonable grounds for suspecting that something illegal has been brought on board . The seaman is entitled to be present at the search . The provision is supplemented by LAW and ( vi ) of the LAW according to which a shipmaster can dismiss a seaman if he offends grossly while on duty by repeated intoxication , or if the person in question conceals on board dutiable goods or goods prohibited as export articles at the place of departure or as import articles at the place of destination . According to NORP case law , a single incident of gross intoxication may lead to dismissal . However , in a recent judgment of DATE ( published in ORG ( ORG" ]

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