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[ "The case concerns the granting of permits to operate a gold mine in GPE , in the district of PERSON ( GPE ) The applicants live in PERSON and the surrounding villages .", "Mr Sefa Taşkın , born in DATE , was formerly the mayor of Bergama . He now lives in GPE , QUANTITY away from the GPE gold mine .", "Mr PERSON , born in DATE , lives with his family in the village of GPE , which is QUANTITY from the mine . He is a farmer and owns land in the surrounding area .", "Mr PERSON , born in DATE , lives with his family in the village of GPE . He owns land adjacent to the mine , on which he grows tobacco and olive trees .", "PERSON , born in DATE , is the wife of the muhtar ( elected local official ) of the village of GPE . She is a livestock farmer .", "Mr PERSON , born in DATE , lives in GPE . He is a livestock farmer . He and his family own an olive grove adjacent to the mine .", "PERSON , born in DATE , lives in GPE . He is a livestock farmer and owns agricultural land near the mine , on some of which olive trees have been planted .", "PERSON , born in DATE , lives with his family in GPE . He is a livestock farmer .", "Mr PERSON , born in DATE , used to live in the village of GPE , which is QUANTITY from the mine . He asserts that he left the village recently on account of damage to the environment .", "PERSON is the widow of Mr PERSON , who died on CARDINAL DATE . She lives in the Bergama area and owns land near the mine .", "Mr PERSON , born in DATE , lives in the village of GPE . He is a driver .", "The applicants alleged that , as a result of the GPE gold mine ’s development and operation , they had suffered and continued to suffer the effects of environmental damage ; specifically , these include the movement of people and noise pollution caused by the use of machinery and explosives .", "On DATE the public limited company ORG ( “ the company ” ) , subsequently renamed ORG , received authorisation to begin prospecting for gold .", "On DATE and CARDINAL DATE ORG at ORG and ORG issued the CARDINAL required permits to the company .", "On DATE ORG sent a letter to ORG requesting its opinion on the GPE gold mine .", "CARDINAL On DATE ORG issued the company with an operating permit for the GPE gold mine . This permit was valid for DATE and authorised the use of cyanide leaching in the gold extraction process .", "On DATE the company began felling trees in part of the forestry area granted to it . The rest of the forest was left untouched in order to form a protection zone .", "In accordance with section CARDINAL of LAW ( Law no . DATE see paragraph CARDINAL below ) , the procedure for an environmental impact report was launched on ORG initiative .", "On DATE a public meeting was held as part of the preparations for the impact report . During that meeting , the public criticised , inter alia , the tree felling and the use of explosives and sodium cyanide ; they also expressed their concerns about the seepage of waste into underground water supplies . The experts attending the meeting were asked a number of questions about the waste - retaining dam , the risks in the event of an earthquake and the state in which the gold mine would be left after its closure . In particular , there were calls for a referendum and for the necessary measures to be taken .", "The experts described other NORP experiences in this area . Mr PERSON explained that this type of activity always carried a certain risk , which had to be managed correctly . Mr PERSON criticised the way in which the impact study was being prepared and recommended that a new procedure be started .", "The mayor , Mr Taşkın , explained that the municipal council had given considerable thought to the disputed gold mine and its impact on the environment . He stated that he was not against its operation ; however , he did ask that the necessary measures be taken , particularly with regard to the waste - retaining dam and the introduction of a rigorous monitoring system . Finally , he pointed out that an earthquake had occurred in the region in DATE .", "After DATE of preparation , the impact report was submitted to ORG . On DATE , basing its decision largely on the conclusions of that report , ORG decided to issue an operating permit for the GPE gold mine .", "The mine was ready to start operating as of DATE , when the other administrative procedures had been completed and , according to the ORG , all necessary measures had been taken in order to comply with national and international standards .", "On DATE some of the residents of Bergama and the neighbouring villages , including the applicants , applied to ORG requesting judicial review of ORG decision to issue a permit . They based their arguments , inter alia , on the dangers inherent in the company ’s use of cyanide to extract the gold , and especially the risks of contamination of the groundwater and destruction of the local flora and fauna . They also criticised the risk posed to human health and safety by that extraction method .", "On DATE ORG dismissed the ORG request . It held that the gold mine fulfilled the criteria set out in the environmental impact report and that the decision in issue had been adopted in accordance with the authorisation procedure for environmentally sensitive projects .", "On DATE , with a view to protecting public order and preventing disturbances and in view of the numerous protests which had followed the delivery of ORG judgment , the GPE provincial governor ordered that the mine ’s operation be suspended for DATE .", "On DATE ORG , to which the applicants had appealed , overturned the lower court ’s judgment . It assessed the physical , ecological , aesthetic , social and cultural effects of the mining activity in question as described in the environmental impact survey and the various expert reports which had been submitted to it . It held that those reports demonstrated the risk posed to the local ecosystem and to human health and safety by sodium cyanide use ; it concluded that the operating permit in issue did not serve the public interest and that the safety measures which the company had undertaken to implement did not suffice to eliminate the risks involved in such an activity .", "The relevant passages of ORG judgment read as follows :", "“ The environmental impact report and expert reports examined the impact of cyanide use on the atmosphere , underground water sources , flora and fauna , the disturbance linked to noise and vibrations , and regional planning issues . [ It is noted that ] the potential for soil erosion in the region through the effects of water ( flooding ) and wind is relatively high and the level of erosion of forestry land falls into DATE and , in certain areas , CARDINAL ... The soil is permeable ; the area forms part of the [ high - risk zone ] for earthquakes . Rainfall in the area in question will result in flooding in DATE and DATE on account of its distribution and force ; flooding occurs in DATE in the [ proposed ] tailings area . The region ’s inhabitants use the groundwater ; in the event of seepage , it could become polluted by toxic waste . Cyanide has a high pH value , which is influenced by rainfall : when the pH level falls , the cyanide may transform into hydrogen cyanide ( HCN ) . ORG , a gas with a relatively low boiling point ( CARDINAL ) , is likely to enter the atmosphere ... [ In addition , ] the risk of seepage of materials into the groundwater may last DATE ... [ and , ] in the event of seepage into the atmosphere or soil , there may be adverse consequences for the environment and for the flora and fauna . [ However , the above - mentioned reports note that guarantees such as ] the operating company ’s good faith , scrupulous observance of the conditions set out in the operating contract , and trust in the monitoring and supervision to be carried out by the central and local authorities led to the conclusion that the decision in question served the public interest ...", "It appears from the above - mentioned reports that cyanide use in gold mining and the other heavy elements which are subsequently released constitute a potential risk which would endanger the environment and human health ; in particular , when cyanide , an extremely toxic substance , mixes with soil , water and air , it becomes harmful to all living beings . Consequently , it is possible that waste material containing cyanide , after pumping to the retaining dams , could seep into and pollute water sources and other sites [ where water is used ] ... The region ’s flora and fauna are also threatened . [ Accordingly ] , it must be borne in mind that cyanide use poses a considerable risk to human health and the environment ...", "In the light of the technical and legal conclusions and bearing in mind the ORG ’s obligation to protect the right to life [ and ] to a healthy environment ... , it is appropriate to overturn the judgment appealed against , given that the gold mine ’s disputed operational methods entail the risks set out in the environmental impact report and the expert reports and that , should those risks be realised , human health would be clearly affected , directly or indirectly , through environmental damage ... ”", "On DATE , in compliance with ORG judgment , ORG annulled ORG decision to issue a permit .", "On DATE ORG upheld ORG judgment .", "By virtue of section CARDINAL(CARDINAL ) of PERSON no . CARDINAL on administrative procedure ( “ PERSON no . CARDINAL ” ) , ORG judgment of CARDINAL DATE entailed ipso facto a stay of execution of ORG decision to issue a permit ( see paragraph CARDINAL below ) .", "In a letter of DATE , ORG asked the GPE provincial governor ’s office to ensure that ORG judgment was enforced and , accordingly , to order that all operations be halted at the mine .", "On DATE the GPE provincial governor ’s office replied that there had been no final judgment and that ORG had expressed its support for the continuing operation of the mine .", "On DATE ORG was served with ORG judgment . On DATE ORG invited the relevant authorities to reconsider the conditions attached to the operating permits in issue in view of ORG judgment .", "On DATE the applicants sent letters containing enforcement notices to the Minister of the Environment , the Minister of Energy and Natural Resources and the Minister for Forests , as well as to the GPE provincial governor , requesting enforcement of the administrative courts’ decisions .", "On DATE the applicants brought an action in damages before ORG against , among others , the Prime Minister , the ministries concerned and the GPE provincial governor for non - enforcement of the administrative courts’ decisions .", "On DATE the GPE provisional governor ’s office ordered that the mine be closed . According to the Government , the mine carried out no mining activities until DATE .", "On DATE the public prosecutor at ORG brought criminal proceedings against the senior managers of the mining company , alleging that the company had used cyanidation in extraction operations at the mine without prior authorisation .", "On DATE the ORG gendarmerie drew up a report following inspection of the site . It noted the use of QUANTITY of cyanide , which had facilitated the extraction of a nugget of mixed gold and silver weighing CARDINAL grams . This report also indicated that QUANTITY of cyanide were still stocked at the site .", "On DATE ORG dismissed the applicants’ action in damages .", "On DATE ORG overturned the judgment of DATE and remitted the case to the first - instance court . It found inertia on the part of the ministers concerned , who had taken no measures to prevent extraction using the cyanidation process within the time - limit provided for in section CARDINAL ) of PERSON no . CARDINAL ( see paragraph CARDINAL below ) , despite the fact that they had been notified of ORG judgment annulling the mine ’s operating permit .", "On DATE ORG , hearing the case on remittal , followed ORG judgment and allowed the applicants’ claim .", "The criminal proceedings were abandoned in DATE .", "On DATE , CARDINAL DATE and DATE , the company contacted various ministries in order to obtain a permit . Specifically , it claimed to have taken additional measures to ensure better safety in the gold mine ’s operation and referred , inter alia , to a risk assessment report on this question drawn up by the NORP company ORG", "The then Prime Minister intervened directly with regard to the company ’s request . On an application from him , ORG , in an advisory opinion of DATE , ruled that its judgment of CARDINAL DATE could not be interpreted as an absolute prohibition on the use of cyanide in gold mining operations and that there were grounds for taking specific circumstances into consideration .", "In a separate development , the Prime Minister instructed ORG ( “ ORG ” ) in DATE to prepare a report assessing the potential impact of cyanide use in the gold - mining operations .", "In DATE ORG ’s report was submitted . It had been prepared by CARDINAL scientists who were experts in environmental issues , environmental law , chemistry , hydrogeology , geology , engineering geology and seismology .", "The report concluded that the risks to human life and the environment set out in ORG judgment had been completely removed or reduced to a level within the acceptable limits , given that the mine was to use environmentally friendly advanced technology based on the “ CARDINAL discharge ” principle and that the risk of adverse impact on the ecosystem was , according to scientific criteria , much lower than the maximum acceptable level .", "On DATE the Prime Minister submitted the ORG report to ORG , requesting its opinion on the operation of the gold mine in question .", "On DATE the Ministry indicated its approval of the mine ’s activities , in the light of the report ’s conclusions .", "On DATE ORG drew up a report on the operation of the mine . The report concluded that , having regard to the additional measures taken by the company , the conclusions of the ORG report , ORG favourable opinion and the opinion of ORG , which had emphasised the economic importance of an investment of this type , the operation of the mine could be authorised .", "On DATE ORG gave judgment following an application for judicial review , brought by CARDINAL residents of PERSON , including Mr ORG , with regard to the report issued by ORG on DATE . The ORG decided to annul the report , which , in its opinion , constituted an enforceable administrative decision giving rise to the issuing of the requested permits . It held that , notwithstanding the measures taken by the company , it had been found in judicial decisions which had become final that the “ risk and threat ” in question resulted from the use of sodium cyanide in the gold mine concerned and that it was impossible to conclude that those risks could be avoided by implementing new measures . Equally , it had been established that the risk connected with the accumulation of heavy elements or cyanide could persist for DATE and was likely to infringe the right of the area ’s inhabitants to a healthy environment . Accordingly , it was appropriate to conclude that the decision in issue could circumvent a final judicial decision and was incompatible with the principle of the rule of law .", "DATE . On DATE , at the Prime Minister ’s request , ORG decided to suspend execution of the judgment of DATE . It found that the report of DATE did not constitute an enforceable decision and was not open to appeal before the administrative courts . In addition , it held that only the ministries concerned , namely those of the Environment , of the ORG , of ORG , of ORG , of ORG and for ORG were entitled to rule on this matter .", "On DATE ORG , on an application for judicial review brought by CARDINAL residents of PERSON , found that no environmental impact report had been drawn up by ORG in connection with the operation of the gold mine . Consequently , it dismissed the application without examining the merits on the ground that no enforceable administrative decision had been taken . ORG upheld this judgment on DATE .", "On DATE , on an application by a PERSON , a resident of PERSON , ORG of ORG decided to set aside the report of DATE .", "Proceedings are pending before the administrative courts .", "On DATE the Directorate General of Forests adopted a decision which extended the operating permit which had been issued to the company on the basis of the ORG report .", "Initially , in a judgment of DATE , ORG of ORG dismissed the application for a stay of execution of ORG decision .", "NORP However , on DATE , ORG of ORG , on an application from PERSON , decided to suspend execution of the decision of DATE , considering that the issuing of such a permit was incompatible with the rule of law and that irreparable damage would result from its enforcement .", "That judgment was upheld by ORG on DATE .", "In a judgment of DATE , ORG of ORG dismissed an application for judicial review lodged by CARDINAL residents of Bergama against the decision of DATE , considering that the latter had been based on the issuing of a permit dated CARDINAL DATE , which was valid for a DATE period .", "On DATE ORG upheld the judgment of DATE .", "In parallel , on CARDINAL DATE the Directorate General of Forests gave permission , inter alia , for the establishment of a security area around the gold mine and for the construction of roads , a drilling zone and a waste - retaining dam .", "On DATE ORG of ORG , ruling on an application by PERSON , dismissed the application for a stay of execution of ORG decision of CARDINAL DATE . That refusal was confirmed on DATE by ORG .", "Proceedings are pending before the administrative courts .", "On DATE ORG adopted a decision authorising continued use of the cyanidation process at the mine for an experimental DATE period . The company was notified of this authorisation by the GPE provincial governor ’s office on DATE .", "On DATE a supervisory and audit committee was set up at the GPE provincial governor ’s office . The company began mining operations on DATE .", "On DATE the application for judicial review lodged by several Bergama residents ( PERSON and others ) was dismissed by ORG of ORG on the ground that the decision being challenged did not constitute an enforceable act .", "On DATE ORG upheld the judgment of DATE .", "In a judgment of DATE , ORG , on an application by ORG , decided to suspend execution of the provisional permit issued by ORG , holding that the issuing of such a permit was incompatible with the rule of law .", "That judgment was upheld by ORG on DATE .", "On DATE ORG dismissed the application for judicial review brought by ORG against the provisional permit on the ground that it did not have standing to bring the proceedings . On DATE ORG upheld ORG judgment .", "DATE . On DATE ORG extended the permit concerning “ the chemical processing unit and waste pond ” for a period of DATE .", "In a judgment of CARDINAL DATE , ORG of ORG set aside the provisional permit issued by ORG on DATE . In particular , it considered that the risks highlighted in the judgment of DATE were , inter alia , linked to the use of sodium cyanide in the gold mine concerned and to the climatic conditions and features of the region , which was situated in an earthquake zone . It held that those risks and threats could not be eliminated by supplementary measures which continued to be based on the same leaching process . It also concluded that the issuing of the permit in issue was incompatible with the principle of the rule of law , in that that administrative decision was in reality intended to amend a judicial decision that had become final .", "Proceedings are pending before the administrative courts .", "On DATE ORG issued a DATE permit for the “ chemical processing unit and waste pond ” . On DATE it also authorised the company to import QUANTITY of sodium cyanide .", "On DATE ORG of ORG dismissed an application for judicial review brought by CARDINAL residents of PERSON against the issuing of a provisional operating permit to the company . It held that there was no enforceable administrative decision .", "On DATE ORG , acting on CARDINAL applications for annulment of the provisional permit submitted by ORG and a resident of the region , and having regard to the considerations set forth in ORG judgment of DATE , which had become final , ordered the suspension of the permit .", "Proceedings are pending before the administrative courts .", "On DATE ORG adopted a “ decision of principle ” stating that the gold mine situated in the vicinity of GPE and ORG , in the district of PERSON ( GPE ) and belonging to the company GPE Madencilik A.Ş. , could continue its activities . The decision was not made public . At the ORG ’s request , the ORG sent the ORG the text of the decision , which reads as follows :", "“ According to the reports drawn up hitherto , it has been established that the gold mine situated in the vicinity of GPE and ORG , in the district of PERSON ( GPE ) , is a mining concern which contains mineral reserves amounting to QUANTITY of gold and QUANTITY of silver , provides employment for CARDINAL persons and is worth MONEY [ ORG ] in added value to our country , including ORG CARDINAL million of direct revenue .", "It has been established that the decision to be taken in respect of this investment is of some importance , in that it will pave the way for CARDINAL other gold mines . These mines , which have been located through prospecting costing a total of MONEY , will , with an investment of MONEY , create CARDINAL jobs and be worth MONEY to the economy in direct terms and MONEY indirectly .", "Furthermore , according to experts in this field , our country has CARDINAL tonnes of potential gold deposits , which represents a market value of ORG CARDINAL , or MONEY taking added value into account .", "According to the report prepared by the CARDINAL scientists from ORG in DATE , ‘ the suspected risks to human health and the environment have been completely removed or reduced to levels considerably lower than the maximum acceptable limits’ .", "Furthermore , given that the results of checks carried out during the test period permitted by ORG were below the reference values , no negative data have been detected .", "The ‘ Chemical substances’ section of the report by ORG ( DATE ) , which presented the concept of sustainable development to international public opinion for the first time , indicates that chemical substances represent PERCENT of international trade and that there are CARDINAL types of chemical substance . Toxicity data is unavailable for PERCENT of these .", "We note that the toxicity data for cyanide are known and that the cyanide leaching process , in development for DATE , is now at the leading edge of technology and can be applied without damage to human health provided that the necessary precautions are taken .", "In examining the progress made by the Bergama / Ovacık gold mine over DATE , it is appropriate to note that the cyanide leaching process described in the DATE environmental impact report DATE that is , carried out without filtering , based solely on clay pressure and subject to natural decomposition in the waste pond – has been discontinued . Advanced technology is now in place : the base of the waste pond is lined with clay and a high - density polyethylene geomembrane , and a cyanide filtering unit , a heavy - metals purification system [ duraylama ] , an inspection shaft and various measuring tools are also used .", "For the above reasons , and bearing in mind their contribution to the country ’s economy , it is considered advisable that the gold and silver mining concerns in the vicinity of GPE and ORG , in the district of PERSON ( GPE ) , operated by the company GPE Madencilik A.Ş. under permit no . IRCARDINAL of CARDINAL DATE , should continue their activities . ”", "DATE . On DATE ORG declared inadmissible an application for judicial review brought by ORG seeking annulment of the ORG of ORG decision of DATE on the ground of procedural irregularity .", "On DATE ORG , sitting as a full court , set aside the judgment of DATE . In particular , it held that the ORG of ORG decision had not been published in ORG and had not been made public , although it was clear that the resumption of the gold mine ’s activities had been based on it . ORG held that , in view of the appellant ’s inability to obtain a copy of the disputed decision , the court ought to have obtained one of its own motion with a view to ensuring effective exercise of the judicial appeal .", "On DATE the Sixth ORG ordered a stay of execution of the ORG of ORG decision . It noted , inter alia :", "“ After the judgment which cancelled ORG authorisation , it is clear that this Ministry did not decide to commission a new environmental impact report which would have enabled the operating company to demonstrate that it had taken measures to reduce or completely remove the adverse effects of the activity in question , as highlighted in the previously cited judgments ... Consequently , the ORG of ORG decision to authorise the activities of the gold mine in question was unlawful , given that the decision to issue a permit , based on the environmental impact report , had been overturned by the courts and that no other decision had been adopted pursuant to LAW and the related regulations ... ”", "The application for judicial review of the ORG of ORG decision is still pending before ORG .", "On DATE the GPE provincial governor ’s office , referring to the judgment of DATE , ordered that production at the mine be halted .", "In a letter of CARDINAL DATE , ORG informed the ORG FAC company that it was issuing a favourable opinion on the final environmental impact report submitted by the company .", "The GPE Madencilik A.Ş. company explained that , once the required permits had been issued in DATE and DATE , the gold mine was ready to start production . From DATE production took place on an experimental basis . These activities were intended to provide an opportunity to check that the equipment was operating correctly , and were not geared towards commercial production . During this experimental period , QUANTITY of ore were processed , producing QUANTITY of gold , whereas the mine ’s DATE operational capacity was QUANTITY of ore .", "On DATE the GPE provincial governor ’s office was informed of the experimental production . On DATE it ordered the closure of the mine ( see paragraph CARDINAL above ) . In addition , it instituted criminal proceedings , abandoned in DATE , against the company and its managers .", "The rate of cyanide concentration in the tailings pond was measured until DATE . Those measurements show that the concentration rate was considerably lower than the internationally accepted norm . Furthermore , there was no seepage from the tailings pond into the surrounding environment .", "The company pointed to the fact that there had been no activity at the gold mine after the administrative courts had ruled on the applications for judicial review . Subsequently , draconian new measures , which exceeded international standards , had been taken to ensure compliance with the specifications set out in the judicial decisions .", "In addition , CARDINAL reports on the risks connected to the tailings pond and the use of sodium cyanide had been drawn up . Both concluded that those risks were negligible .", "In DATE , on the basis of the risk assessment reports , the company reapplied for an operating permit for the gold mine in question .", "Following the ORG report , drawn up at the Prime Minister ’s request , the company obtained the necessary permits and began production at the mine in DATE . It is still operating at present .", "Since the resumption of production at the mine , several studies to assess the risks or operating conditions have been carried out by ORG , by a monitoring and auditing committee set up by the GPE provincial governor ’s office and by the ministries concerned .", "In addition , the company disseminates a DATE report entitled “ The Ovacık Gold Mine ’s Monthly Environmental Report ” to the public , non - governmental organisations and universities .", "Article CARDINAL of the LAW provides :", "“ Everyone has the right to live in a healthy , balanced environment . It shall be the duty of the ORG and the citizens to improve and preserve the environment and to prevent environmental pollution . ... The ORG shall perform this task by utilising and supervising health and social - welfare institutions in both the public and private sectors . ... ”", "Section CARDINAL of LAW ( Law no . CARDINAL ) , published in ORG on DATE , provides :", "“ Establishments and concerns which propose to carry out activities which might cause environmental problems shall draw up an environmental impact report . This report shall concern , inter alia , the measures proposed to reduce the detrimental effects of waste materials and the necessary precautions to this end .", "The types of project for which such a report shall be required , its content and the principles governing its approval by the relevant authorities shall be determined by regulations . ”", "Section CARDINAL of Law no . CARDINAL states :", "“ Whether or not negligence has occurred , a person who pollutes and harms the environment shall be responsible for the damage resulting from that pollution or the deterioration of the environment .", "This liability is without prejudice to any liability which may arise under general provisions . ”", "Under LAW of LAW ( Law no . CARDINAL ) , anyone who sustains damage as a result of an act by the authorities may , within DATE of the commission of the alleged act , claim compensation from them . Should all or part of the claim be dismissed , or if no reply is received within DATE , the victim may bring administrative proceedings .", "Furthermore , under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss ( Articles CARDINAL - CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal courts as to a defendant ’s guilt ( Article CARDINAL ) .", "However , under LAW of LAW ( Law no . CARDINAL ) , anyone who has sustained loss as a result of an act carried out in the performance of duties governed by public law may , in theory , only bring an action against the public authority by which the civil servant concerned is employed and not directly against the civil servant ( Article CARDINAL § CARDINAL of the LAW and Articles CARDINAL and CARDINAL of LAW ) . That is not , however , an absolute rule . Where the act in question is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim ’s right to bring an action against the authority on the basis of its joint liability as the official ’s employer ( LAW ) .", "The regulations on environmental impact were first adopted by ORG DATE . A second set of regulations followed on DATE . New regulations were adopted and published in ORG on DATE . The regulations currently in force are those which were published in ORG on DATE .", "Under paragraph CARDINAL of and Appendix I to those regulations , impact studies must be carried out on mining projects where the area of the site concerned is greater than QUANTITY . The procedure for preparing a report is launched following a request by the prospective developer to ORG . An evaluation committee made up of experts and representatives from the relevant entities and from the prospective developer is set up ( paragraph CARDINAL) . This committee specifies how the public inquiry will be conducted ( paragraph CARDINAL ) and subsequently identifies the arrangements for and content of the impact report , which must be drawn up at the latest within DATE following the decision on the report ’s structure ( paragraph CARDINAL ) . The ensuing report is made available to the public and examined by the committee , which determines whether it complies with the specifications and may ask for additional reports ( paragraph CARDINAL ) . Finally , having regard to all the elements submitted for its consideration , ORG decides whether or not to issue authorisation . The relevant provincial governor ’s office informs the public of the ORG ’s decision through the appropriate channels . Where their requests for authorisation are refused , prospective developers may submit a new request , provided that all the circumstances which gave rise to the refusal have been removed ( paragraph CARDINAL ) . In addition , whatever the ORG ’s decision , an application for judicial review may be made to the administrative courts .", "Paragraph CARDINAL of the regulations reads as follows :", "“ Where natural persons and legal entities plan to carry out a project that comes within the scope of these regulations , they must draw up an environmental impact report [ ORG etki değerlendirme raporu – ‘ impact ORG or ‘ IR’ ] , submit it to the relevant authorities and implement the project in accordance with the decision taken ...", "Where no decision has been taken to authorise the project submitted for an impact report , or where no decision has been taken confirming that no such authorisation is necessary , no approval , authorisation or building permit may be issued in respect of those projects , and investment in connection with the project can not take effect . ”", "Article CARDINAL § CARDINAL of the LAW provides :", "“ The bodies of executive and legislative power and the authorities must comply with court decisions ; they can not in any circumstances modify court decisions or defer enforcement thereof . ”", "The relevant parts of CARDINAL of LAW ( Law no . CARDINAL ) provide as follows :", "“ ( CARDINAL ) The authorities shall be obliged to adopt a decision without delay or to take action in accordance with the decisions on the merits or a request for a stay of execution issued by ORG , the ordinary or regional administrative courts or the courts dealing with tax disputes . Under no circumstances may the time taken to act exceed DATE following service of the decision on the authorities .", "...", "( CARDINAL ) Where the authorities do not adopt a decision or do not act in accordance with a decision by ORG , the ordinary or regional administrative courts or the tax courts , a claim for compensation for pecuniary or non - pecuniary damage may be brought before ORG and the relevant courts against the authorities .", "( CARDINAL ) In the event of deliberate failure on the part of civil servants to enforce judicial decisions within DATE [ following the decision ] , compensation proceedings may be brought both against the authorities and against the civil servant who refuses to enforce the decision in question . ”", "Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL provides :", "“ The setting aside of a judgment gives rise ipso facto to a stay of execution of the decision . ”", "In DATE ORG , meeting in GPE ( GPE ) , adopted a LAW ( “ LAW ” , A / CONF.CARDINAL/CARDINAL ( PERSON . CARDINAL ) ) intended to advance the concept of States’ rights and responsibilities with regard to the environment . “ LAW ” of this LAW provides :", "“ Environmental issues are best handled with the participation of all concerned citizens , at the relevant level . At the national level , each individual shall have appropriate access to information concerning the environment that is held by public authorities , including information on hazardous materials and activities in their communities , and the opportunity to participate in decision - making processes . States shall facilitate and encourage public awareness and participation by making information widely available . Effective access to judicial and administrative proceedings , including redress and remedy , shall be provided . ”", "The Aarhus Convention ( “ Convention on Access to Information , Public Participation in Decision - making and Access to ORG in ORG ” , ORG ) was adopted on DATE by ORG for LOC in application of LAW of LAW , and came into force on DATE . To date , CARDINAL countries have ratified it . GPE has not signed ORG and has not acceded to it .", "ORG may be broken down into the following areas :", "– Developing public access to information held by the public authorities , in particular by providing for transparent and accessible dissemination of basic information .", "– Promoting public participation in decision - making concerning issues with an environmental impact . In particular , provision is made for encouraging public participation from the beginning of the procedure for a proposed development , “ when all options are open and effective public participation can take place ” . Due account is to be taken of the outcome of the public participation in reaching the final decision , which must also be made public .", "– Extending conditions for access to the courts in connection with environmental legislation and access to information .", "On DATE ORG of ORG adopted Recommendation DATE ) on environment and human rights . The relevant part of this recommendation states :", "“ CARDINAL . The ORG recommends that the ORG of member GPE :", "i. NORP ensure appropriate protection of the life , health , family and private life , physical integrity and private property of persons in accordance with ORG , CARDINAL and DATE of LAW and by LAW , by also taking particular account of the need for environmental protection ;", "ii . recognise a human right to a healthy , viable and decent environment which includes the objective obligation for states to protect the environment , in national laws , preferably at constitutional level ;", "iii . safeguard the individual procedural rights to access to information , public participation in decision making and access to justice in environmental matters set out in LAW ;", "... ”" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . From DATE he was represented before the ORG by Mr PERSON , a lawyer belonging to ORG . ORG ( “ the Government ” ) were represented first by PERSON , their general representative at ORG , and after DATE by PERSON , their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant , a civil servant employed at ORG since DATE , was told that he was to be made redundant because the department in charge of disabled persons , within which he was the deputy director of the social reinsertion section , was to be reorganised after a decision to merge ORG taken in DATE .", "The applicant brought proceedings against his employer , seeking reinstatement and the sum of MONEY ( GEL ) ( MONEY ( ORG ) ) for arrears of salary and unpaid bonuses . He submitted that on a number of occasions during the period DATE his salary ( GEL MONEY ( approximately EUR CARDINAL ) ) had not been paid . In addition , he had not been paid bonuses for DATE , DATE and DATE ( GEL MONEY ( approximately EUR CARDINAL ) ) .", "The defendant refused to reinstate the applicant but agreed that he was entitled to payment of the sum he claimed , amounting to GEL CARDINAL .", "On DATE , finding that the decision to make the applicant redundant had been taken in accordance with the law , the Vake - Saburtalo Court of First Instance in GPE dismissed the first part of the applicant ’s claim . For the rest , it decided that the ministry should pay him the sum of GEL DATE .", "The applicant appealed , again asking for his redundancy notice to be declared null and void , and complained that the sums he was owed had not been paid to him on DATE his employment was terminated , as required by LAW .", "On DATE ORG of ORG upheld the decision of DATE in its entirety , adding that the applicant was entitled to assert his rights under LAW . In the reasons it gave for dismissing the first part of the applicant ’s claim , ORG noted that the applicant , like every other civil servant made redundant at the same time , had been given sufficient notice that he was to lose his employment when the service in which he worked was closed down . It ruled that the procedure had been perfectly compliant with the requirements of section CARDINAL(CARDINAL ) of LAW , whereas the applicant had refused to take up a different post the administration had offered him in exchange , as required by section CARDINAL(CARDINAL ) of the LAW .", "The applicant appealed on points of law against the dismissal of his application to set aside his redundancy . As he had not contested before ORG that part of the appellate court ’s judgment which concerned payment of the debt of GEL DATE , it became final and enforceable on DATE ( ORG CARDINAL and CARDINAL § CARDINAL of the Code of Civil Procedure ) .", "According to the applicant , the decision of DATE , as upheld on appeal on DATE , was never executed .", "In his appeal on points of law , the applicant submitted that ORG interpretation of section CARDINAL(CARDINAL ) of LAW was incorrect and deprived him of his rights under section CARDINAL(CARDINAL ) . He further complained that his appeal had been heard by ORG instead of ORG .", "On DATE ORG held that the dispute was a labour dispute and was to be dealt with according to the rules of civil procedure . It found no breach or incorrect interpretation of the law by ORG and dismissed the applicant ’s appeal . Notification of the cassation judgment was dated DATE , but was served on the applicant on DATE .", "In a letter of DATE , the NORP ombudswoman informed the applicant that she had referred to ORG his complaint of a failure to execute the decision of DATE . On DATE the ORG of First Instance issued the applicant with the writ of execution required to enforce execution of the decision of DATE , as upheld on appeal on DATE . On DATE the applicant presented the writ , together with a written request for enforcement , to the competent bailiff ( section CARDINAL of ORG ) . The Government sent the ORG copies of the writ of execution and the written request for enforcement ( see “ The law ” below ) .", "..." ]

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[ "The applicant is a NORP national born in DATE and currently resident in GPE . He is a seaman .", "In DATE he was convicted in GPE of drug - related offences and sentenced to imprisonment . He was released in DATE and expelled from GPE .", "On DATE a Mr PERSON was arrested at FAC for transporting drugs . A telephone number was found on him which , when traced , turned out to be that of a hotel in GPE where the applicant , having returned to GPE , was staying at the time . This hotel was visited by the police .", "The applicant was found to be in possession of a forged passport . It appears , however , that no drugs and no other incriminating evidence were found in his possession .", "The applicant was arrested and taken to GPE DATE and interrogated by the police . According to an official report , the applicant claimed not to understand NORP but to speak LANGUAGE , and he was assisted by a police officer , PERSON , who was an LANGUAGE - speaker and acted as interpreter .", "It is also stated in the report that the applicant was questioned about the matters that had led to his arrest and about the forged passport found in his possession . He provided full particulars of his movements following his expulsion from GPE DATE ( see paragraph CARDINAL above ) but denied all involvement in drug trafficking .", "The police questioned him again the following day . The police officer PERSON again acted as interpreter .", "On DATE the applicant was brought before the public prosecutor , who instituted criminal proceedings against him for forgery and various drug - related offences . The applicant does not dispute that he was assisted by an interpreter on this occasion .", "The applicant was then brought before the investigating judge , who read out the charges to him .", "It appears from an official report of this event that the applicant was assisted before the investigating judge by a lawyer who spoke LANGUAGE and acted as interpreter .", "On DATE the applicant again appeared before the investigating judge , to whom he made a statement . It appears from an official report that he was assisted by PERSON , a lawyer practising in GPE , and by an LANGUAGE - speaking clerk of the court who acted as interpreter .", "The investigating judge ordered the applicant to be detained on remand .", "On DATE the applicant and CARDINAL co - accused appeared before a CARDINAL - judge Chamber of ORG ( trimeles efetio ) , the court competent to hear the case at first instance in view of the seriousness of the charges . A court - assigned interpreter was present . The applicant stated that he was defended by PERSON and , since PERSON was not present ( being at that time on strike ) , he asked for an adjournment . The co - accused made similar requests . The case was adjourned .", "NORP The applicant and his co - accused appeared before the same court again on DATE . A court - appointed interpreter was present . As the applicant ’s lawyer , PERSON , was absent , the court asked the lawyer of CARDINAL of the co - accused , a Mr N. , to act for the applicant as well . This Mr N. agreed to do , and it appears from the official record of the hearing that “ a short interval ” was ordered to enable him to study the applicant ’s case file .", "On DATE the CARDINAL - judge Chamber of ORG found the applicant guilty of importing and transporting drugs and using forged documents . It sentenced him to life imprisonment and a fine of MONEY for the drug - related offences and to CARDINAL months’ imprisonment for having used forged documents .", "The applicant appealed .", "The appeal was heard by the CARDINAL - judge ORG of ORG on DATE , which , as a matter of general principle of the NORP law of criminal procedure , was empowered to review all questions of fact and of law in the case . The applicant was again assisted by a court - assigned interpreter and was defended by PERSON , a lawyer provided by a humanitarian organisation .", "The court convicted the applicant only of collusion in the importation and transport of drugs and the use of forged documents and acquitted him on the remainder of the charges . It sentenced him to CARDINAL years’ imprisonment for the drug - related offences and CARDINAL months’ imprisonment for the use of forged documents , and imposed a fine of MONEY . The judgment was delivered on DATE of the hearing but finalised ( katharographi ) on DATE . According to the minutes of the appeal hearing , the president of the court duly informed all the accused , including the applicant , of the time - limit for filing an appeal on points of law , and this information was interpreted for the benefit of the applicant .", "The applicant lodged an appeal on points of law on DATE , by filling in a standard appeal form which he handed in to the prison authorities . In the space reserved for grounds of appeal the applicant stated that these would be submitted in due course by his counsel . On the same form he mentioned PERSON under the heading “ Lawyer to whom notifications should be made ” .", "On DATE the applicant , through the prison authorities , addressed a petition to the public prosecutor at ORG ( PERSON ) enquiring whether legal - aid counsel could be appointed to assist him in the preparation of his appeal . The prison authorities acknowledged receipt of this petition .", "On DATE ORG declared the applicant ’s appeal on points of law inadmissible on the ground that no grounds of appeal had been submitted .", "On DATE the applicant addressed a second petition to the public prosecutor at ORG , referring to his financial situation and enquiring about any developments in his case . The prison authorities acknowledged receipt .", "On DATE the applicant was informed by the prison authorities that his appeal had been dismissed .", "NORP In a letter of CARDINAL DATE to ORG , the deputy public prosecutor at ORG stated that he had not been able to trace any petition from the applicant to either the president or the public prosecutor at ORG asking for legal aid . He further submitted that the courts were under no legal obligation to appoint legal - aid counsel for accused persons who appealed on points of law . Nor was any other public authority . Consequently , even if the applicant had submitted a petition for legal aid , the authorities of ORG would have been under no obligation to reply .", "Article CARDINAL § CARDINAL of LAW provides that in cases of the most serious category of criminal offence ( kakouryimata ) the ORG president of the first - instance court must assign counsel to an accused who is not represented . Counsel is chosen from a list of lawyers drawn up by the local Bar in DATE . Counsel is to be appointed DATE before the hearing , if the accused so requests , by a letter to the public prosecutor or the president of the trial court , and is given access to the case file .", "Article CARDINAL of the Code of Criminal Procedure provides that in cases concerning the most serious category of crime the president of the appellate court must appoint counsel for an undefended accused if the latter so requests . Article CARDINAL § CARDINAL applies mutatis mutandis .", "Article CARDINAL § § CARDINAL and CARDINAL of LAW provides that persons who appeal on points of law must lodge their appeal within DATE from the finalisation of the judgment ( katharographi ) , i.e. the entering of the judgment in a special book kept at the registry of the criminal court . According to LAW , the appeal must be lodged by making a declaration to that effect before one of various public authorities , including the governor of the prison where the appellant is detained . An official report is drawn up , which must contain the grounds of the appeal . LAW CARDINAL of the LAW provides for a further DATE period within which an accused may appeal on points of law against conviction by making a declaration to that effect to the public prosecutor at ORG .", "Article CARDINAL of LAW contains an exhaustive enumeration of the grounds for appealing on points of law . These include a number of procedural irregularities in addition to errors in the interpretation or application of substantive criminal law . Pursuant to Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW , as interpreted by ORG , an appeal on points of law which does not state any grounds is inadmissible ( Court of Cassation decisions no . DATE , PERSON , vol . DATE , p. CARDINAL ; no . CARDINAL , PERSON , vol . DATE , p. CARDINAL ; and no . DATE , PERSON , vol . DATE , p. CARDINAL ) .", "Under LAW of LAW , the appellant may submit “ additional grounds ” of appeal by lodging a supplementary pleading with ORG at ORG not DATE before the hearing . However , according to the settled case - law of ORG , “ additional grounds ” may be taken into account only if CARDINAL admissible and sufficiently substantiated ground is set out in the initial notice of appeal ( ORG decisions nos . CARDINAL , CARDINAL/CARDINAL , ORG , DATE , CARDINAL , ORG , PERSON , p. CARDINAL , CARDINAL , DATE and DATE , PERSON , vol . CARDINAL , p. CARDINAL ) . Notwithstanding this case - law , an accused may use the time allowed by LAW ( see paragraph CARDINAL above ) to supplement an appeal on points of law lodged with CARDINAL of the authorities mentioned in LAW where the notice of appeal does not contain any “ sufficiently substantiated grounds of appeal ” .", "Under LAW of LAW , the parties to an appeal on points of law must be represented by counsel at the hearing before ORG . ORG has held that LAW does not provide for legal aid for appeals on points of law and that LAW ( c ) of the LAW does not apply to proceedings before ORG as these do not entail the determination of a criminal charge ( Court of Cassation decisions no . CARDINAL , PERSON , vol . DATE , p. CARDINAL ; no . GPE , PERSON , vol . CARDINAL , p. CARDINAL ; and no . CARDINAL/CARDINAL ) .", "Pursuant to Article CARDINAL § CARDINAL of LAW , a conviction becomes final when there is no appeal against the relevant decision , or when the accused has not availed himself of the possibility of appealing , or when the accused has appealed within the time provided by law and his appeal has been dismissed ." ]

[ "6" ]

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

[ "6-3-c" ]

[ "6" ]

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

[ "6-3-b" ]

[ "The applicant was born in DATE and lives in ORG of LOC .", "On DATE the applicant was stopped by the police and brought to a sobering - up centre . He was examined by a doctor who found that he was sober . The applicant was immediately released .", "On DATE the applicant sued the local police department for compensation for unlawful arrest . The applicant ’s complaint was admitted by ORG of GPE ( “ the ORG ” ) . The first hearing was scheduled for DATE , but on that date it did not take place . No action was taken on the case until DATE .", "On DATE ORG identified ORG as the respondent and involved the local police department as a third party in the proceedings .", "On DATE ORG held in a default judgment that the applicant ’s arrest had been unlawful and partly allowed his claim for compensation .", "On DATE ORG granted an extension of the time allowed for submission by the respondent of their grounds of appeal .", "On DATE ORG ( “ the ORG ” ) overturned the judgment on appeal for failure to notify the respondent about the hearing in a timely manner and remitted the case to the first instance .", "On DATE ORG again allowed the applicant ’s claim in part , but on DATE the judgment was set aside on appeal by ORG for failure to involve the finance authorities in the proceedings . The appeal court required a new hearing . It also delivered a special ruling in which it reprimanded the judge in charge of the applicant ’s case for breaches of the procedural time - limits for consideration of the case .", "On DATE ORG judge withdrew from the proceedings .", "On DATE ORG rejected the applicant ’s claims as unsubstantiated .", "On DATE ORG set aside the judgment on appeal and allowed the applicant ’s claim in part . It held that his arrest had been unlawful and ordered that the ORG town administration pay the applicant MONEY ( RUB ) .", "On an unspecified day the town administration lodged an application for supervisory review of the decision of DATE .", "On DATE the ORG of ORG granted the application , quashed the judgment of DATE for failure to notify the town administration about the hearing and remitted the case to ORG .", "On DATE ORG quashed the judgment of DATE and remitted the case to ORG .", "On DATE ORG designated ORG of LOC as a co - respondent .", "On DATE ORG granted the applicant ’s claim in part and ordered that ORG of LOC pay the applicant RUB CARDINAL .", "On DATE ORG upheld the judgment on appeal ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE , a village with an PERCENT GPE population in the commune of GPE , GPE .", "On DATE the deputy mayor , CARDINAL police officers from FAC and their chief , CARDINAL public guards from ORG and a driver , left in CARDINAL cars to enforce a by - law against owners whose cattle were grazing on public pasture . CARDINAL of the public guards were wearing black uniforms with hoods and carrying truncheons . At TIME , on their way back to FAC , they entered ORG ’s bar in GPE to check the owner ’s documents . A conflict arose between the authorities and the CARDINAL GPE gathered in front of the bar . The parties’ submissions differ as to the sequence of events .", "F.L. , a villager of GPE origin , was just leaving the bar as the police entered . Sergeant D.T. asked him whether he was a “ Gypsy ( ţigan ) or NORP ” . When PERSON answered that he was a Gypsy , the deputy mayor asked the police officers and the public guards to teach him and the other GPE “ a lesson ” . The police and public guards started beating PERSON and other GPE who happened to be in the vicinity of the bar .", "The applicant , who had just bought something from a nearby shop , ran away with other children , but was tripped up by D.T. who started beating , kicking and hitting him on the back of his head and pushed him into a ditch . The applicant told D.T. that he had just undergone head surgery and that the beating could endanger his life . D.T. continued beating him until the applicant lost consciousness . Several persons , including the applicant ’s schoolmates witnessed the incident . The deputy mayor and police officers were heard shouting racist remarks .", "The officials left the LOC , leaving the applicant unconscious on the ground . GPE , GPE and GPE , witnesses to the incident , carried him to his GPE home .", "The deputy mayor entered ORG ’s bar with a police officer and complained about the insalubrious conditions in the LOC and that ORG allowed people to drink excessively .", "C.C. asked his customers to leave the bar . During the discussions with the authorities , ORG and his wife urged their customers , who were gathered in front of the bar , to antagonise the officials . The customers became aggressive . The police officers surrounded the deputy mayor in order to protect him . The officials returned quickly to their cars and left the LOC immediately . The deputy mayor ’s car , which was the last to leave , was attacked by the locals with bats .", "On TIME the applicant was taken by his parents to ORG in GPE .", "On DATE he was examined by a doctor from ORG . The certificate issued recorded the following :", "“ - On the exterior upper side of the left elbow : a discontinuous excoriation of CARDINAL,CARDINALxCARDINAL cm with red haematic crust .", "- The space between the scapula and the vertebras : purple transversal linear ecchymoses , ranging from QUANTITY to QUANTITY , CARDINAL on the right side , CARDINAL on the left side .", "- On the exterior side of the right arm : CARDINAL red transversal linear ecchymosis of QUANTITY .", "- The subject states that he is experiencing pain in the right parietal epicranius but there are no visible exterior posttraumatic lesions ...", "Conclusion", "PERSON presents with ecchymoses , thoracic concussion and excoriation , inflicted by a linear blunt instrument , which could date from DATE .", "He needs DATE of medical care to recover . ”", "With regard to his medical history , the applicant was diagnosed with brain disease and was operated upon on DATE . On DATE , ORG established that he had a first - degree disability which required permanent supervision and a personal assistant .", "On DATE , the DATE incidents between the GPE and the authorities were discussed in the GPE ’s office with representatives of ORG , the ORG and ORG . Several persons gave evidence , including the applicant ’s mother and eyewitnesses . On DATE a report was sent to ORG ( “ the GPE Police ” ) .", "On DATE the PERSON , acting on behalf of the applicant , asked the commander of ORG to open criminal investigations into the incidents . DATE , they expressed their concern to the Prefect about the racist motivation behind the incidents .", "On DATE the ORG informed the Romani CRISS that the Mayor ’s investigation of DATE , in which his representative had also taken part , had excluded the possibility of any racist motivation being behind these incidents .", "On DATE the applicant ’s father lodged , on behalf of his son , a criminal complaint with ORG , against D.T. , the other police officers and the deputy mayor .", "On DATE the ORG , informed of the events by PERSON , requested the opening of investigations by ORG , ORG , ORG and ORG and asked for compensation and aid for the applicant ’s family .", "On DATE ORG informed the ORG that conciliation proceedings had been started and that CARDINAL old NORP lei ( ROL ) had been awarded to the applicant ’s family in aid for assistance in the psychological and medical recovery of the applicant .", "On DATE the PERSON filed a criminal complaint with ORG against D.T. and the other persons allegedly responsible for the incidents , accusing them of abusive behaviour .", "The Suceava Police , hierarchically superior to ORG , started the investigations into the case .", "On DATE evidence was heard from villagers GPE and GPE , eyewitnesses , ORG , the applicant ’s mother and GPE , the father of another alleged victim .", "They stated that either police officers or public guards had tripped up and then beaten the applicant .", "QUANTITY police officers and the deputy mayor gave evidence on CARDINAL DATE . They stated that ORG criticised the deputy mayor , alleging that he had won GPE votes by making false promises which he had reneged upon when elected . These words had roused the GPE gathered in front of the bar to protest against the officials , to insult them in PERSON and to attack their cars as they were leaving . They stated that no villager had been beaten by any of the police officers and public guards that night and that all the officials had left the LOC in a hurry by car .", "Villager PERSON testified DATE that he had seen D.T. beating the applicant on his back and chest and that the officer had stopped when he had seen the witness approaching .", "On DATE , the police heard evidence from the applicant . He reiterated that he had been tripped up and had fallen and that D.T. had punched him in the stomach , kicked him in the back and beaten him with a truncheon .", "Giving evidence on DATE D.T. denied that he had beaten the applicant , declared that he had not even been carrying his truncheon DATE and gave the same version of the facts as the other police and public guards .", "QUANTITY police officers and CARDINAL passers - by gave evidence DATE , all stating that no violence had been used by the authorities .", "On DATE ORG sent its final report to the Bacău Military Prosecutor . It proposed not to press charges against the accused persons .", "On DATE the Suceava Police informed the ORG and ORG that the proceedings concerning the accusations of abusive behaviour against sergeant D.T. were pending , and that the final decision would be taken by ORG .", "On DATE the Suceava Police informed the ORG that the case had been sent to ORG with recommendation not to press charges .", "On DATE , DATE and DATE , CARDINAL and DATE the prosecutor heard evidence from several persons : ORG , the owner of the pub , and GPE , his wife , the applicant , his father , ORG , and mother , GPE , CARDINAL villagers who had witnessed the conflict , the deputy mayor ( twice ) , the QUANTITY police officers and guards , including D.T. and CARDINAL passers - by . All of them maintained the version of events they had given to ORG . The GPE involved contended , mainly , that they had seen the police officers and public guards using violence against some of the NORP children present while the officials denied the allegations . The passers - by supported the LOC version . The school principal and the head of ORG stated that the GPE refused to send their children to school after the incidents , for fear of reprisal .", "C.C. stated the following :", "“ CARDINAL GPE armed with bats , axes etc . gathered around the CARDINAL cars . I yelled at the deputy mayor : ‘ We voted for you in the elections and now you come to kill our people!’ As the situation became tenser ... I yelled at the GPE present not to come close to the CARDINAL cars and then I sought to protect the deputy mayor and the other officials until they got into their cars and left for GPE .", "The cars were not hit , but GPE were insulting the occupants of the cars until they left . I did not see any GPE getting beaten that evening by the police or public guards , but I heard later that PERSON ’s son ( the applicant ) had been beaten by the police officers ...", "While I was present , none of the police officers or public guards hit , insulted or threatened the GPE . It is not true that the conflict that evening was of a racial nature ... ”", "His wife , GPE , confirmed his statements .", "The applicant ’s father stated in particular that :", "“ Scared of what was happening in front of the pub ... my son came out [ of the store ] and started running home , but a public guard tripped him up and then Sergeant D.T. savagely beat him ...", "My son ... ran home on TIME DATE , out of fear , although he knew that he was not allowed to run [ due to his medical condition ] . ”", "The applicant declared that :", "“ Seeing what was happening , I got scared and started running home . After CARDINAL - CARDINAL steps , the police officer D.T. tripped me up , so I fell to the ground .", "After I fell I saw that officer D.T. wanted to hit my head with a truncheon , so I told him ‘ do n’t hit my head , I have had head TIME . He did not listen and hit me several times with the truncheon and with his fists and kicked me all over my body , on my back and chest . ”", "On DATE the Suceava Police informed the military prosecutor that the GPE police officers had not filed a report in order to have criminal investigations started against the GPE for insulting behaviour , for the following reason :", "“ [ T]he way in which some of the GPE acted is pure Gypsy behaviour ( pur ţigănesc ) and does not constitute the crime of insulting behaviour . ”", "On DATE ORG decided not to prosecute , as the evidence did not confirm the alleged violence against the applicant . The relevant parts of his decision state as follows :", "“ At a certain point , bothered by the [ deputy mayor ’s ] criticism , ORG became verbally aggressive , complaining to the deputy mayor about certain aspects of his professional activity . ORG came out of his bar and , speaking in PERSON , incited the twenty - thirty Roma there present against the CARDINAL officials [ the deputy mayor and CARDINAL of the police officers who accompanied him ] .", "Considering that the situation was likely to degenerate , as the GPE were becoming extremely aggressive and violent , and as they were armed with blunt objects , the police officers surrounded the deputy mayor to protect him , then they got into their cars and left in a hurry towards the centre of GPE .", "The GPE nationals ( cetăţeni ) attacked the last vehicle , where the deputy mayor was seated , with blunt objects , but no damage was caused since the vehicle was already leaving the area .", "ORG declared that he had not seen any GPE being beaten by the police that evening .", "He also denied that the incidents amounted to racial conflict . His statement corroborates those of the police officers and public guards [ who testified in the case ] .", "Eyewitness statements in support of the applicant shall be disregarded as unreliable in so far as the evidence in the file shows that these persons arrived at the scene of the incidents after the CARDINAL cars had left .", "Moreover these ORG statements are contradictory and do not corroborate the statements made by [ the applicant and his father ] who alleged that [ the applicant ] had been punched , kicked and beaten with the truncheon all over his body , including on his head ...", "This conclusion tallies with the medical certificate in the file ...", "The [ applicant ’s ] witnesses’ statements show that when the incident started [ the applicant ] ran home , against the medical recommendations that had been made to him ... ”", "It also considered that ORG ’s statements , supported by those given by the police officers and public guards , confirmed that the conflict had not been racially motivated .", "On DATE the military prosecutor informed PERSON of its decision , stating that “ the evidence gathered showed that the applicant was not injured , insulted or threatened by the police officers ” .", "The applicant ’s mother and PERSON contested the conclusion reached in the investigations .", "On DATE the prosecutor ’s decision was confirmed by ORG attached to ORG , on the ground that the case indicated that no violence had been inflicted on persons of GPE origin .", "On DATE the applicant ’s father asked PERSON to file a complaint with the competent authorities about some incidents that had occurred during the investigations . He alleged that , on CARDINAL DATE the military prosecutor who had dealt with the case had tried to intimidate witnesses and physically assaulted the PERSON representative . Consequently , some witnesses had refused to testify . Moreover , he claimed that members of the police were trying to persuade them to give up their complaints by harassing the family . On DATE a police patrol had come to the applicant ’s house at TIME but had left when told that the applicant ’s father was not home . In DATE D.T. had allegedly threatened and punched the applicant ’s grandfather .", "On DATE PERSON forwarded the complaint to ORG , which dismissed it as unsubstantiated on DATE .", "The relevant provisions of LAW and of the police and military prosecutor Ruler are set out in PERSON v. GPE ( ( no . CARDINAL ) , no . CARDINAL , § § CARDINAL , DATE ) and PERSON v. GPE ( no . GPE , § CARDINAL , DATE ) .", "The relevant provisions of ORG concerning the means of obtaining compensation for alleged ill - treatment are set out in PERSON and Others v. GPE ( ( dec . ) , no . CARDINAL , DATE ) .", "In the same decision , as well as in paragraphs CARDINAL of the judgment in PERSON ( no . CARDINAL ) , cited above there is a description of the development of the law concerning complaints against decisions of the prosecutor ( LAW CARDINAL introduced by Law no . CARDINAL/CARDINAL DATE applicable from DATE ) ." ]

[ "14", "3" ]

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[ "13" ]

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[ "The applicant was born in DATE and lived in GPE . She committed suicide on DATE . On DATE the applicant ’s heirs , PERSON ( the sister of the applicant ) and Mr ORG ( the applicant ’s brother ) informed the ORG of their wish to pursue the application in the applicant ’s stead .", "By a decision which became final on DATE the applicant ’s and her former husband ’s joint tenancy in respect of a flat was terminated . ORG decided that the applicant ’s former husband should remain the sole tenant of the flat and ordered the applicant to move out of it within DATE after she has been provided with alternative accommodation . In the reasons for the judgment ORG explicitly held that the applicant was entitled to use the flat until her former husband found appropriate accommodation for her . However , her former husband did not allow the applicant to enter the flat . She was therefore obliged to temporarily stay at different places including her sister ’s flat .", "On DATE the applicant requested ORG to enforce the above judgment .", "On DATE the President of ORG admitted , in reply to the applicant ’s complaint , that the case had not been proceeded with effectively DATE and DATE .", "On DATE , on CARDINAL and DATE , on DATE and on DATE ORG adjourned the case as the applicant ’s former husband failed to appear . The judge had unsuccessfully attempted to have the defendant brought by the police to the hearings held DATE . According to the applicant , those attempts were unsuccessful also due to the fact that the court had incorrectly indicated the address of the defendant ’s employer to the police .", "A hearing was held on DATE . Both parties attended . The defendant challenged the ORG judge .", "On DATE ORG decided on the request for exclusion of ORG judge . The decision was served on the defendant on DATE .", "A hearing scheduled for DATE was adjourned as ORG judge was ill .", "On DATE the applicant filed an enforcement request under a different provision of the Code of Civil Procedure under which a court can , where possible , authorise the person seeking the enforcement of a judicial decision to have a service carried out by a third person at the expense of the debtor . She also withdrew the authority of her lawyer .", "On DATE the Bratislava IV ORG dismissed the applicant ’s request for enforcement of DATE . The decision stated that the judgment to be enforced did not explicitly order the defendant to put accommodation at the applicant ’s disposal within a specific time - limit . On CARDINAL September CARDINAL the applicant appealed . In DATE the applicant ’s lawyer informed the ORG that the proceedings were still pending before ORG .", "On DATE the applicant filed a complaint about delays in the proceedings pursuant to LAW . She also claimed CARDINAL NORP korunas ( SKK ) as just satisfaction .", "On DATE ORG found that the applicant ’s right to a hearing without undue delay guaranteed by LAW ) of the LAW and by LAW had been violated . ORG held that the case was not complex and that no delays could be imputed to the applicant ’s conduct . It noted that the only action taken by ORG had been a request that the applicant pay the court fee dated DATE .", "The Constitutional Court granted the applicant SKK CARDINAL,CARDINALaccording to the practice of ORG under LAW . Its purpose was to attenuate the non - pecuniary damage sustained by the applicant . The sum was to be paid by ORG within DATE after ORG decision became final . In the decision ORG also ordered ORG to proceed with the applicant ’s case without further delay . The decision became final on DATE .", "On DATE the applicant filed a new complaint with ORG . She alleged a violation of her right to a hearing within a reasonable time in that ORG had failed to proceed with the case without delay . She further alleged a violation of her right to a fair hearing within a reasonable time and of her property rights in that ORG had not paid the sum to her as ordered by ORG decision of DATE .", "On DATE ORG dismissed the applicant ’s second complaint . It found that the applicant had , in separate proceedings , requested the enforcement of the sum granted to her and that it therefore could not examine her complaints in that respect . The Constitutional Court further held that , following the final effect of its first finding on DATE , there had been a delay of DATE in the enforcement proceedings brought in DATE . However , the overall length of the period under consideration , that is after the delivery of the first finding of ORG", "As the sum granted to her by ORG finding of DATE was not paid to her , the applicant requested that that sum be enforced on DATE .", "On DATE ORG paid the sum indicated in ORG decision to the applicant .", "On DATE and on CARDINAL DATE the applicant complained to the police that her former husband had denied her access to the flat in which she was entitled to live . The police found that the conduct of the applicant ’s former husband could be qualified as a minor offence and transferred the case to ORG . The applicant unsuccessfully complained about the way in which the police had dealt with the case to public prosecutors at CARDINAL levels .", "On DATE the applicant asked ORG to order her former husband not to disturb her in her right to use the flat in question . On DATE ORG set the case aside . The decision stated that the administrative authority could not deal with it as ( i ) enforcement proceedings on the point at issue were pending before ORG and ( ii ) the Bratislava IV police department were dealing with criminal complaints which the applicant and her former husband had filed against each other and on which no final decision had yet been taken .", "On DATE the applicant claimed compensation for pecuniary damage from ORG before ORG . She relied on LAW of DATE and on ORG finding of DATE and claimed a sum corresponding to the rent for the flat in which she had the right to live and which she could not use . After the applicant ’s death her siblings expressed the wish to join the proceedings as plaintiffs in her stead . The proceedings are pending ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by Mr PERSON , a lawyer practising in ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant ’s husband , a police officer , was accidentally killed by his colleague , PERSON , during a training exercise . On DATE the Kherson Dniprovsky District Prosecutor ’s Office ( “ ORG Office ” ) instituted criminal proceedings concerning the incident .", "On DATE the Kherson Dniprovsky District Court found that Mr K. had committed an unintentional homicide as a result of careless handling of a weapon but amnestied him under LAW . This decision was final .", "The internal police inquiry conducted on DATE revealed poor organisation of the training exercise of DATE and recommended disciplinary sanctions against the organisers .", "On DATE ORG instituted criminal proceedings against other police officers involved in the organisation and conduct of the training exercise . The criminal case was closed on DATE for lack of corpus delicti .", "DATE and DATE and DATE an additional investigation into the case was conducted and the proceedings were closed for lack of a causal link between the death of the applicant ’s husband and the behaviour of police officers other than PERSON , who had been found guilty of careless handling of a weapon .", "On DATE a lump sum in the amount of CARDINAL NORP hryvnias ( ORG ) ( MONEY ( ORG ) ) was paid jointly to the applicant , her daughter and her parents - in - law . The applicant ’s daughter started receiving in addition a DATE payment of ORG ( EUR CARDINAL.CARDINAL ) until she reached the age of majority .", "On DATE ORG ( the Department ” ) purchased a CARDINAL - room apartment in GPE for the sum of UAH CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) and granted it to the applicant . According to the applicant she sold it shortly after .", "On several occasions , the ORG also paid off the applicant ’s public utility debts .", "In addition to this , the ORG provided the applicant with additional assistance , not foreseen by the relevant law . In particular , they helped organise the funeral and provided funds for the funeral itself , catering , instalment of the monument , and so on .", "In DATE the ORG arranged a vacation on LOC coast for the decedent ’s daughter ; in DATE the applicant , however , refused that offer .", "In DATE the ORG purchased school stationery , a school uniform , computer and printer for the applicant ’s daughter .", "In DATE the applicant lodged a civil claim with the ORG against ORG ( “ the Police Department ” ) claiming QUANTITY ( EUR CARDINAL,CARDINAL.CARDINAL ) in compensation for non - pecuniary damage . The applicant named PERSON as a third party .", "On DATE the court found in part for the applicant and ordered ORG to pay her MONEY ( EUR CARDINAL ) under LAW .", "Both parties appealed against the decision . The applicant considered the compensation awarded insufficient . ORG argued that the family of the deceased had already received an exceptional allowance and the insurance sum due to them under LAW of LAW and that the LAW did not provide for any other payments . It went on to refer to LAW and to ORG , and to suggest that any compensation other than the LAW provided for was payable by ORG from the national budget and not from the ORG ’s budget .", "On DATE ORG overruled the disputed decision and dismissed the applicant ’s claim on the ground that , in ruling on the defendant ’s liability for its employee ’s death , the lower court had wrongly based its decision on the general provision in LAW , whereas matters of compensation for insured police officers were governed by special provisions such as LAW and the Decrees of the Cabinet of Ministers CARDINAL and CARDINAL of CARDINAL DATE and DATE DATE on compulsory ORG personal insurance of military personnel , conscripts and ORG staff . The court of appeal observed that these special provisions said nothing about compensating insured persons for non - material damage .", "On DATE ORG rejected the applicant ’s appeal in cassation , having found no misapplication of domestic law by the appeal court .", "“ Everyone has the right to compensation , at the expense of the ORG or bodies of local self - government , for material and moral damage inflicted by unlawful decisions , actions or omissions of bodies of state power , bodies of local self - government , their officials and officers during the exercise of their authority . ”", "“ Moral ( non - pecuniary ) damage caused to a person or organization by the acts of another person shall be compensated for by the latter unless he / she denies that that moral damage was caused through his / her fault . Moral damage shall be compensated for in monetary or other form upon a court decision regardless of compensation for pecuniary damage .", "The amount of compensation shall be determined by a court , bearing in mind the substance of the claims , the nature of the acts which caused the damage , the physical and mental suffering of the victim , and other negative consequences . The amount of compensation can not be less than [ the equivalent of ] CARDINAL minimum salary payments . ”", "“ An organization is under the obligation to compensate for damage caused through the fault of its employees during their working time . ”", "“ Damage caused to a person by the unlawful acts of state and public organizations , and officials carrying out their official duties in the sphere of administrative management shall be compensated for on a general basis ( ORG CARDINAL and CARDINAL of the present Code ) unless otherwise provided for by laws . Liability for damage caused by organizations as a result of those acts shall be borne under the procedure set forth by laws . ”", "“ Every policeman is subject to state compulsory insurance equivalent to DATE of his salary in his last position to be paid from the corresponding budgets as well as funds received in accordance with contracts with ministries , institutions , enterprises , and organizations ...", "In the event of the death of a policeman while acting in his official capacity a lump sum in the amount of the equivalent of DATE of his salary as well as a DATE pension in the amount of his salary in his last position shall be paid to his family members .", "The right to obtain accommodation shall be reserved for the family of the deceased policeman . This accommodation shall be granted within DATE to that family as a matter of priority .", "Children of the deceased policeman under the age of majority or his dependants reserve the right to be granted benefit payments in connection with accommodation , public utilities , fuel ... ”", "Under section DATE ) of the order , the sum insured for death or unfitness for employment is paid independently of any other payments arising from insurance or injury compensation .", "Under section CARDINAL(CARDINAL ) of the order , the sum insured for death or unfitness for employment is paid independently of any other payments arising from insurance or injury compensation .", "“ DATE . While examining cases concerning claims for compensation for moral damage on the basis of LAW the courts shall keep in mind that if such damage is caused by the unlawful decisions , actions or omission of bodies of state power , bodies of local self - government , their officials and officers during the exercise of their authority , it should be compensated for at the expense of the ORG or of the bodies of local self - government ...", "While deciding on disputes concerning compensation for moral damage caused to citizens by the unlawful decisions , acts or omissions of state bodies , officials or officers , the courts should take into account that these state bodies , officials or officers shall be liable in such cases , unless otherwise provided for in the relevant laws ( e.g. LAW On ORG ” ) ... ”" ]

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[ "ORG Mr. PERSON , a NORP national born in DATE , resides in ORG ( GPE of GPE ) . He is a company director .", "In DATE , he married PERSON , who was born in DATE . In DATE , serious disagreements arose between them , and they separated the following year . In DATE , the applicant filed a petition for divorce , which was finally granted on DATE after an agreement between the parties .", "ORG On DATE , Mr. PERSON went to an advertising agency in ORG ( ORG ) , where , under the assumed name of PERSON , with an address in PERSON , he gave instructions for the following advertisement to be published :", "\" Wanted . Former member of ORG or similar for occasional assignments ; offer with telephone number , address and curriculum vitae to ORG restante CH Basle CARDINAL . \"", "From the replies to this advertisement the applicant selected a Mr. PERSON , whom he met on several occasions and paid to carry out a variety of assignments , including CARDINAL in GPE in DATE .", "ORG At DATE , the applicant underwent an operation in hospital .", "Mr. PERSON arrived in GPE on DATE and telephoned Mrs. PERSON on DATE . He visited her DATE and told her that he had been commissioned by her husband to kill her . After considering the possibility of killing Mr. PERSON or leading him to believe that his wife was dead so that Mr. PERSON could collect his fee , they went together to the investigating judge of GPE on DATE .", "ORG On DATE , the investigating judge interviewed Mr. PERSON and then instructed ORG Rochat and ORG PERSON of the GPE police to interrogate him more thoroughly , which they did on DATE . The judge interviewed Mrs. PERSON \" orally \" , in other words her statements were not taken down in writing .", "DATE , the GPE police took a statement from Mr. PERSON , for the second time , and also one from Mrs. PERSON .", "ORG On DATE , the investigating judge issued letters rogatory to the NORP authorities . He asked that , in order to further an investigation into an attempted murder by a person or persons unknown , a number of inquiries should be made and that ORG should be authorised to take part in them . The judge noted in particular :", "\" ... it is necessary to discover what Mr. PERSON was doing in GPE from DATE to June DATE and to obtain information regarding his character . It is also necessary to ascertain whether it is true that Mr. PERSON saw PERSON , whom he claims to have met at FAC , and with whom he allegedly went to buy an air ticket for GPE . \"", "On DATE , ORG of ORG formally proceeded to comply with the letters rogatory , and Mr. PERSON was accordingly interviewed the following day in the presence of ORG . Mr. PERSON said , inter alia :", "\" ORG , that is to say Mr. PERSON , will certainly contact me before long to ask for details of the murder of his wife , PERSON . He is supposed to send me or bring me the agreed amount of $ MONEY .", "You asked me to come here and I would now ask you to give me instructions as to how I should act when Mr. PERSON contacts me . \"", "ORG Mr. PERSON was expecting the applicant to telephone him and he therefore set up a cassette recorder at his mother ’s home at GPE near GPE and connected it by microphone to the second earphone of the telephone receiver .", "On TIME of DATE , at TIME , Mr. PERSON telephoned Mr. PERSON from a kiosk at FAC ( GPE ) . Mr. PERSON recorded the conversation .", "At TIME , Mr. PERSON telephoned ORG and was put through to Mr. PERSON , who had planned to return to GPE that DATE by the TIME train . Mr. PERSON played the recording back to the inspector and asked him whether he would like to have the cassette . Mr. PERSON said that he would and informed his NORP colleagues who were present of this . TIME , Mr. PERSON arrived at ORG offices and handed the cassette over to Mr. PERSON .", "ORG Mr. PERSON , who on DATE had telephoned the investigating judge of GPE , took the cassette back to GPE TIME . On DATE , he played the recording back to Mrs. PERSON so that she could identify her husband ’s voice . On DATE , the judge issued a warrant for the applicant ’s arrest .", "Mr. PERSON was arrested DATE , DATE . Inspector Rochat and ORG were instructed by the judge to arrange a confrontation between Mr. PERSON and Mr. PERSON , and they played back the recording in the latter ’s presence . In addition , the judge visited the police station , where he interviewed and charged the applicant ; he also met the applicant ’s lawyer , who had been authorised to see his client .", "ORG On DATE , the inspectors reported to the judge the results of the confrontation between Mr. PERSON and Mr. PERSON . They handed over to him the cassette , which was placed in an envelope and added to the file ; it subsequently remained there except when removed for examination by an expert .", "The judge ordered the applicant ’s release . He had a transcript made of the cassette and added it to the file on DATE . On DATE , the inspectors drew up a detailed report on the case for him .", "ORG On DATE , the file was sent to the applicant ’s lawyer , who returned it on DATE . On DATE , he requested a full investigation of Mr. PERSON and an expert examination of the cassette , as in his view the recording was not a faithful and complete reproduction of the telephone conversation .", "On DATE , the judge directed that the cassette should be handed over to ORG , the managing director of a tape - recorder factory , who carried out the expert examination with ORG , CARDINAL of his colleagues . At ORG ’s request , the equipment that had been used to make the recording , which had been seized at GPE on DATE by the NORP police in the presence of Mr. PERSON , was also made available to him . He returned the cassette to the judge on DATE and submitted his report on DATE .", "ORG On DATE , the investigating judge issued an order discharging the applicant . The order read as follows :", "\" ...", "... Prima facie Mr. PERSON ’s accusations are supported by a number of facts .", "It is , for instance , strange that PERSON carefully concealed his true identity from PERSON and tried to cover his tracks ( advertisement for a legionnaire in a NORP newspaper , use of an assumed name , use of a ORG box in GPE , the fact that it was always PERSON who telephoned GPE , etc . ) .", "...", "It is clear that the recording of the telephone conversation of DATE between PERSON and PERSON has been neither shortened nor tampered with .", "It appears to confirm PERSON accusations .", "Nevertheless , careful listening raises some doubt as to whether the participants completely understood each other . PERSON , in particular , gives the impression that he did not understand very well what PERSON was implying .", "In the light of PERSON character , his past and his explanations and statements to PERSON , his statements can not be relied on with absolute confidence .", "...", "In conclusion , PERSON accusations and the evidence gathered appear insufficient to commit PERSON for trial .", "... \"", "ORG On DATE , the prosecutor appealed against the investigating judge ’s decision , and in response to this appeal Mr. PERSON filed a statement of defence on DATE . In it he argued that the central figure in the case was not him but Mr. PERSON , who , according to information obtained , \" [ had ] been a member of ORG , a chief steward in the ORG , a stunt man , a bodyguard , an informer working for the NORP police , a circus employee and out of work \" . He supported the prosecutor ’s application to have the recording played , which in no way incriminated him . In his view , Mr. PERSON had been acting merely as an agent provocateur of the police on DATE he made the recording .", "On DATE , ORG of ORG committed Mr. PERSON for trial at FAC on a charge of attempted incitement to murder . On DATE , it remanded the applicant in custody , but Mr. PERSON appealed and was released on DATE .", "ORG The proceedings at first instance at FAC lasted from DATE . The court was composed of a professional judge , who presided , CARDINAL lay judges and CARDINAL jurors . The defendant was assisted by his lawyer , Mr. PERSON .", "ORG At the outset the applicant made an interlocutory application to have the recording removed from the file . The court dismissed this application on DATE on the following grounds :", "\" ...", "The file contains a recording whose removal is sought by the defendant .", "It was made by PERSON , a strong - arm man in the defendant ’s employ .", "Pauty stated that he had made the recording in the following circumstances :", "‘ I put the cassette in my recorder ... Using the original microphone , I connected it up to the second earphone of the telephone in my mother ’s flat . I used brown self - adhesive tape to attach the microphone to the earphone ... ’ .", "The recording was not authorised or ordered by the competent authority .", "Accordingly , by recording PERSON without his knowledge , Pauty may have committed an offence under PERSON . CARDINAL ter CC [ LAW ] .", "However , this is not sufficient ground for ordering the removal of the recording from the file .", "Art . CARDINAL ter ORG is applicable only where a complaint has been lodged , and PERSON has made no such complaint .", "Thus Pauty would in any event no longer be liable to punishment in this respect .", "In any case , the content of the recording could have been included in the file , either because the investigating judge had had ORG telephone tapped or simply because it would be sufficient to take evidence from GPE regarding the content of the recording .", "Acceptance of the defendant ’s argument would make it necessary to exclude a large proportion of evidence in criminal proceedings .", "For instance , a firearm used without the appropriate permit would have to be held inadmissible as evidence .", "That is why procedural law confers on the courts the power to assess evidence and its weight and probative value .", "This case does not involve unlawful evidence within the meaning of LAW .", "Moreover , it is interesting to note that the defendant appears to have shifted his ground during the police inquiry .", "On page CARDINAL of the pleadings that he submitted to ORG , counsel for the defence states as follows :", "‘ The public prosecutor seeks to have played back the telephone conversation recorded on DATE . He is right to do so and we wish to support this application . He considers that this recording constitutes decisive evidence against my client . He is completely mistaken in this respect.’", "The defendant was right to consider at the time that it should be left to the court to assess the evidence in the file . \"", "ORG Still on CARDINAL DATE , the presiding judge directed that the recording should be played back . It was played back in the courtroom in the presence of the members of the court , the parties and the public on a cassette recorder with CARDINAL loudspeakers installed by a specialist firm .", "ORG DATE , the court heard evidence from all the witnesses except HR , who failed to appear . CARDINAL of the witnesses had been subpoenaed by the court of its own motion ( Mr. PERSON , Mrs. PERSON and HR ) . CARDINAL other witnesses had been called at the request of the defence ( ORG , ORG and ORG ) . Inspector PERSON did not give evidence because he was not called either by the court or at the request of the public prosecutor or the defence .", "In addition , J - CS , who had worked with the expert ORG , gave evidence in the latter ’s stead on CARDINAL and CARDINAL DATE .", "The statements made by these witnesses were not taken down .", "ORG The presiding judge read out various documents : the order of ORG committing the applicant for trial ; the police and intelligence reports in their entirety or in part ; various documents produced by Mr. PERSON or cited by either the prosecution or the defence ( Article CARDINAL , first paragraph , of LAW ) ; and the statements made during the police inquiry by HR , who was not present , but not those of the witnesses who had given evidence at the hearing ( Article CARDINAL , second paragraph ) .", "ORG Under LAW , the file is made available to the judges and jurors as soon as the trial commences . The judges , however , may in exceptional circumstances have access to it earlier ( LAW , but not the jurors ( LAW ) .", "ORG FAC delivered its judgment on CARDINAL DATE . It found Mr. PERSON guilty of attempted incitement to murder ( Article CARDINAL para . CARDINAL of LAW ) and sentenced him to DATE imprisonment , the minimum statutory sentence . It ordered his immediate arrest .", "ORG The judgment contains the following account of the facts :", "\" On DATE , PERSON went to an advertising agency in ORG , where , under the assumed name of PERSON , with an address in PERSON , he gave instructions for the following advertisement to be placed in CARDINAL NORP newspapers , ORG , ORG , and ORG :", "‘ Wanted . Former member of ORG or similar for occasional assignments ; offer with telephone number , address and curriculum vitae to ORG restante CH Basle CARDINAL.’", "The agency employee warned him that the newspapers might not accept such an advertisement ; and , in fact , the advertisement appeared only in GPE - Soir . PERSON paid the agency CARDINAL FF . In reply to the advertisement he received several offers and selected CARDINAL of them , CARDINAL from a PERSON , living at GPE , near GPE , and another from someone whose first name was PERSON . After meeting PERSON , PERSON decided against using him . He therefore chose Pauty , with whom he arranged CARDINAL meetings in DATE and DATE , at FAC in GPE , which is not the hotel at which the defendant usually stays . On this point he explained at the hearing that he did not want Pauty to know where he lived in GPE . He introduced himself as a member of a very powerful organisation based in GPE . He told PERSON that he was the organisation ’s representative in GPE . He also said that Pauty would be under surveillance during his assignments .", "The first assignment given to PERSON concerned a certain [ HR ] . According to PERSON , the mission - for which he was promised payment of MONEY plus expenses - was to kill [ HR ] . According to PERSON , Pauty was supposed to give [ HR ] a beating ‘ that he would remember for a long time’ . He intended only that [ HR ] should receive several punches to the face and a black eye . The defendant stated that he had taken these steps ‘ in order to intimidate [ HR ] , or rather , to punish him’ .", "The ORG has not been able to establish with certainty the real assignment given to GPE . ...", "...", "As nothing concrete appeared to come of this , the defendant gave Pauty another assignment . He explains that he realised that Pauty was not the sort of strong - arm man that he had hoped for . Pauty had told him that he had been a mercenary in the CSTM ( ORG spéciale des troupes métropolitaines ) , then a ‘ ORG , and had smuggled cars to GPE . PERSON explained that he had found Pauty quick - witted and cunning and had therefore decided that he could give him a second assignment , consisting in obtaining information about PERSON . According to the defendant ’s version of events , Pauty was supposed to provide him with information on CARDINAL matters :", "( a ) the amount that Mrs. PERSON had inherited from her father ;", "( b ) whether she was having a house built in GPE ; and", "( c ) whether she had any funds in that country , perhaps as a result of a relationship he knew nothing about .", "A fourth matter also interested him , namely whether his wife had had any contact with the drugs world .", "According to Pauty , he was supposed to go to GPE , murder Mrs. PERSON , for MONEY , covering his tracks by simulating a rape , a burglary or an accident . It is known that at DATE PERSON went with Pauty to a GPE travel agency . For CARDINAL ORG , he bought him a DATE package holiday in GPE and in addition gave him QUANTITY , i.e. CARDINAL ORG , to cover his expenses . Pauty left for GPE on DATE . He went to Port - au - Prince , where Mrs. PERSON spends DATE of DATE . PERSON had given Pauty a photograph of his wife so that he could identify her . PERSON left GPE on DATE and returned to GPE . Having established that PERSON was not in GPE , Pauty completed his stay and returned to GPE on DATE , without moreover having obtained any information whatsoever , except for CARDINAL detail , which was inaccurate - namely that PERSON husband was dead . On his return to GPE , GPE was contacted by PERSON on a date which has not been established precisely , but which must have been DATE ( according to PERSON ) or CARDINAL or DATE ( according to Pauty ) . PERSON claims that he telephoned Pauty from GPE . This is possible , although it has not been proved . But neither has it been established that he rang him from GPE . During this telephone conversation , PERSON learnt that Pauty had returned empty - handed from GPE . He then instructed GPE to come to GPE to continue his assignment . According to Pauty , he was supposed to kill PERSON during DATE of DATE . According to PERSON , that was precisely the week in which GPE was not supposed to come to GPE , because it was then that Mrs. PERSON ’s daughter was expected to give birth . Thereafter , there does not appear to have been any direct contact between PERSON and GPE until DATE , when PERSON telephoned GPE . This conversation will be considered further below . On DATE , Pauty sent a telegram to ORG , worded as follows : ‘ Contact necessary’ . At this stage GPE was totally unaware of ORG ’s real identity . DATE , on DATE , when he entered ORG for an operation and after he had led Pauty to believe that he would be away for DATE in LOC , PERSON sent CARDINAL to Pauty in an envelope posted at GPE to the address ‘ RD poste restante CARDINAL GPE - Gare’ . The defendant underwent his operation at DATE . On DATE , PERSON came to GPE and began to look for Mrs. PERSON . He contacted her by telephone on TIME DATE , having , he claimed , decided to abandon what he alleges to have been his assignment , i.e. to kill Mrs. PERSON , either because he would have had to wait until ORG ostensible return in CARDINAL months’ time to obtain more money , or because he realised that there was something suspicious about ORG ’s explanations . On DATE , Pauty met Mrs. PERSON . He explained to her that he had been instructed to kill her . Mrs. PERSON , who was terrified , asked Pauty on whose instructions and has stated that after a certain amount of explanation she realised that the order came from her husband . Pauty then suggested to Mrs. PERSON that she should disappear for a while so that he could collect his fee . Failing that , he proposed killing the defendant . Finally , Pauty and Mrs. PERSON went to the police to tell their story , and on DATE the investigation commenced . On DATE , Pauty was interviewed in GPE and on DATE by the NORP police . On DATE , having received the telegram of CARDINAL May , PERSON rang Pauty from ORG . Pauty , who knew that ORG , i.e. PERSON , would call him sooner or later , had put a cassette in a recorder which he had had for DATE and which belonged to his brother . Using the recorder ’s original microphone , he connected the apparatus directly to the second earphone of the telephone in his mother ’s flat . He attached the microphone to the earphone by means of self - adhesive tape . PERSON called from a telephone kiosk , although he had a telephone in his hospital room . He claims that he used CARDINAL MONEY coins for the call , but this fact has not been established . On the tape an unidentified person is heard answering PERSON ’s telephone call and putting him on to Pauty . PERSON asks Pauty what he has been doing and the following dialogue ensues :", "RP Well , the jo ...", "ORG was wondering what you were d ... , what had become of you .", "RP Yes , no , there were CARDINAL or CARDINAL small problems and I did n’t , I ORG could n’t do the job until DATE .", "ORG ?", "RP Yes , DATE , Mon ... , Mon ... , I think it was DATE .", "PS But where did it happen ?", "RP Well , I went to fetch some friends in GPE because we could n’t manage to do the , because as you told me there were , the neighbours were always there etc .... I went twice and I was seen twice , so I waited until she left to go to the hospital and we arranged to bump into her car , so that she ’d have to stop and talk about the damage and then , well it was like that , but I do n’t know because the body , we took the car and we and I took it to near GPE . I do n’t know if it has been discovered yet because I have n’t seen it in the papers .", "PS But what are you going to do now ?", "RP Sorry ?", "ORG going to happen now ?", "RP Well , now I ’m going to do the GPE one , are n’t I ?", "PS What ?", "RP I ’ll do GPE .", "ORG , I mean about work , the job .", "RP Well , do n’t ask me . It er the job ’s done and that ’s it .", "PS It ’s odd the job ’s been done and there ’s been no news , is n’t ORG it ?", "RP I have n’t seen it in the papers yet either , but it ’s like I said , I hid it , I did n’t just leave it ...", "ORG , listen , it ’s quite straightforward , I ’ll call you in a DATE ’s time .", "RP In a DATE ’s time ?", "ORG you be there in a DATE ’s time ?", "RP Yes , I ’ll be in GPE , yes .", "PS Yes , yes , I ... I ... I follow you , right ?", "RP OK .", "PS Good , because I ... there has n’t been any news , I have n’t heard anything .", "The conversation ends with the usual greetings . Pauty received the call at TIME he called ORG , and at TIME , having travelled from GPE to GPE , he brought the cassette to the inspector in charge of the inquiry . This cassette was examined by an expert , who found that :", "The tape of the cassette had not been edited by the usual method of cutting and splicing .", "The characteristics of the recording corresponded exactly to the recorder .", "The tape did not have any usable traces of other recordings .", "The background noise on the recording was very loud , which was to be expected , given the type of equipment used and the way the recording was made . But , as a result , it was not possible to state with certainty that it was not a copy .", "The expert considered that it was possible that the conversation had first been recorded and that the tape had then been edited , i.e. passages had been removed , the order of the words altered or passages from other recordings added . The resulting tape could then have been copied on the cassette recorder examined . The expert stated further that he had ‘ found no evidence’ to suggest that it was such a copy . That did not mean that it was not one , only that the editing would have required a very skilled operator , with sophisticated equipment at his disposal and plenty of time . At the trial the expert further clarified his opinion as follows .", "He explained that he had detected CARDINAL breaks ; that he had not been able to prove that there had been a cut ; that he was almost sure that no editing could have been carried out , since such editing would have required a DATE ’s work , even if the necessary equipment had been available . The expert noted in addition that in the most favourable circumstances with regard both to the equipment available and to whether a passage was in a position from which it could technically be simply removed , the removal of a passage would have required TIME work . He had not detected any such removal of a passage .", "Giving evidence on this recording , the defendant admitted that it was his voice . He stated that he did not remember any reference to a body and that he had the impression that the recording had been shortened .", "On the basis of the expert ’s findings , the court accepts that the recording which appears in the file is an accurate reproduction of the conversation between the defendant and Pauty on DATE . It considers that , as there is no evidence that the recording has been tampered with and in view of the short time available to GPE between the telephone conversation and his handing over of the cassette to the police , the possibility that the recording was edited can be ruled out . Moreover , having regard to the fact that the recording contained the initial and final greetings , the possibility that the beginning or end of the recording was simply removed without any editing does not arise .", "On CARDINAL and DATE , Pauty sent CARDINAL telegrams to ORG . The first ran : ‘ GPE OK . GPE OK before CARDINAL . Need GPE d. for cigarettes.’ The second was worded ‘ Contract completed . Check ORG , no proof possible . Awaiting CARDINAL GPE d. contract before steps HR PERSON does not seem to have received these telegrams .", "court has found that the NORP , between whom there was an age - gap of DATE , were married in DATE . Until DATE it does not seem that the couple experienced any particular problems . It is , however , certain that Mrs. PERSON always felt very lonely . In DATE , whilst Mrs. PERSON was in hospital , an expert , [ A ] , came to discuss with her a draft marriage contract and agreement concerning inheritance rights which PERSON had had prepared . This draft , which provided for a separation of property , stipulated in substance that PERSON should waive any right to succeed to her husband ’s estate on the understanding that on his death she would receive a life interest in a portfolio of securities whose real value was to be CARDINAL and a half million CHF , yielding an DATE income of MONEY . It was also provided that if the marriage was dissolved for any reason other than death , PERSON would have a life interest in a portfolio of securities with a real indexed value of DATE half million CHF .", "PERSON refused to sign this agreement . In DATE , she sought protective measures . At DATE , she and her husband ceased to live together . PERSON instituted divorce proceedings in DATE . The spouses saw each other again only at the hearings in those proceedings , which were particularly bitter and lasted DATE . In DATE , PERSON changed lawyers . Since her new lawyer appeared to favour a final settlement as part of a divorce , the defendant ’s lawyer informed him of this and told him what he intended to do to compel the new lawyer to raise the problem with Mrs. PERSON and make it easier to persuade the latter to review her position . On DATE , counsel for the defendant wrote to him to inform him that he hoped to be able to fix a date for the final hearing before long . In the event , this hearing was held on DATE , and the divorce decree - which took effect from CARDINAL DATE - confirmed an agreement granting , inter alia , the wife the sum of CARDINAL and a half million CHF in respect of the liquidation of joint assets and an indexed annuity paid in DATE instalments of MONEY .", "The investigation showed that from the beginning of the divorce proceedings PERSON had doubts as to the faithfulness of his wife and suspected in particular that she had had a relationship prior to and during the early stages of the proceedings with a certain [ E ] .", "...", "The trial hearing did not reveal any facts other than those which are set out above . The defendant continued to assert his version of events according to which Pauty was instructed to obtain information and confirmed that , as he saw it , Pauty could get the information in any way that suited him , for example by visiting Mrs. PERSON on some pretext and obtaining the information sought ‘ either by initiating an intimate relationship or by developing a friendship with her’ . In an interview on DATE the defendant stated that he had wished to obtain the desired information from GPE within DATE if possible . In court he declared that this was not the case , that he had told GPE that he would be away for a while - so that the latter had plenty of time - and that he had instructed GPE that he should not come to GPE during DATE of DATE because Mrs. PERSON ’s daughter was due to give birth then . Finally , it had been agreed that Pauty would be paid on PERSON ’s ostensible return from abroad on the basis of the information which he provided . For his part , Pauty confirmed that his assignment in GPE was to kill Mrs. PERSON and that he had decided to change his plans when he saw that it would be a long while before he received any more money from ORG .", "PERSON personality is not particularly easy to determine . He was born in DATE and has had a number of somewhat ill - defined jobs . He has worked as a stunt man and has had various problems with the NORP civil and military authorities and with the NORP authorities . Legally he is resident in GPE , but he in fact lives at GPE . It appears that he has occasionally collaborated with the police , particularly the NORP police , on matters related to drugs .", "On the basis of the foregoing considerations , the court has , by a majority , reached the conclusion that PERSON gave to PERSON the assignment of killing PERSON . The court ’s view is founded partly on the recording of the telephone conversation of DATE . Where NORP states that he was not able to do the job until DATE , the defendant twice asks him where it happened , which is a ridiculous question if the job was merely a matter of obtaining information . At the end of a long sentence , spoken all at once without drawing breath and in which reference was made to a body taken in a car to somewhere near Montreux and not having been discovered because there had been no mention in the papers , the defendant does not reply ‘ What on earth is all this nonsense?’ or ‘ I do n’t understand what you ’re talking about’ . He says and asks twice what is going to happen now . When Pauty confirms that the job has been done , the defendant does not say to him ‘ In that case send me your PERSON , which would have been logical if the assignment had been to obtain information , but says to him , not once but twice , ‘ it ’s odd the job ’s been done and there ’s been no news , is n’t PERSON . The defendant explained that he wished by this to lead Pauty to believe that his organisation ( a non - existent organisation which was supposed to monitor ORG actions ) had not told him of it . We know that ORG actions were not monitored . We also know that the ‘ GPE did not exist and that the defendant , who was in hospital , could not have known at the time whether or not Pauty had contacted Mrs. PERSON . Moreover , at the time , this meant that it was absolutely impossible for the defendant - if the assignment in question was to obtain information - to know whether or not Pauty had carried out the assignment . The defendant ’s reply is meaningless unless he knew that the job had not been done , and he could not have known this unless the matter was public knowledge , for example because it had appeared in the press - which NORP mentions , moreover . This consideration on its own lends credence to ORG version . But there is also all the other evidence before the court : the unbelievably elaborate precautions taken by the defendant ; the fact that for DATE the defendant had had to pay an allowance to his wife although her misconduct , which the defendant was aware of but unable to prove , would probably have dictated a different assessment of the position ; the fact that the agreement on ancillary matters was about to confirm that situation ; the utter improbability of anyone ’s wanting to send a man who claimed to be a former member of ORG and who lacked training , culture and ability to GPE , and then to GPE , to obtain relatively innocuous information which was in any event of dubious relevance for the purpose of the divorce proceedings ; the fact that after the failure of the [ HR ] assignment and the assignment in GPE - from where GPE could at least have been expected to return with the information whether PERSON had or had not had a house built - there was no reason to send GPE to GPE , where he had no contacts ; the fact that the defendant had spent QUANTITY to obtain ( if his version of events is accepted ) very innocuous information ; and , finally , the fact that at no time has the defendant taken any steps to lodge a complaint of malicious accusation .", "The defendant stated that he had no motive to kill [ HR ] . But objectively he scarcely had any greater motive for having him beaten up DATE after an alleged affront , anonymously and at a time when new commercial negotiations had begun . The fact that the private detectives he had employed had not yielded particularly good results did not mean that some kind of legionnaire who was more or less a police informer would be able to do any better . An intelligent person - and the accused is intelligent - does not replace the intelligence officer of a battalion with the commander of a company of grenadiers . The fact that the divorce proceedings were about to reach a conclusion did not alter the fact that a relationship established after DATE of separation would have very little effect on the amount of maintenance or the fact that the moment when it would be necessary to liquidate joint assets and pay an allowance which PERSON knew to have been obtained unjustly was approaching . The fact that Pauty did not receive a large advance is not decisive , since it is not difficult to appreciate that PERSON wanted to see results before paying . This mistrust might moreover explain why Pauty changed sides . The defendant considered it inconceivable that Pauty should not have received a large advance , seeing that he had no means of finding ORG , of whose identity he was unaware . That would be true if there had been only a single assignment , but not in the case of several . Moreover , the argument applies equally to an assignment to obtain information . It may be noted in passing that if it had been a question merely of information , it would not have mattered if Pauty had come to GPE in DATE in which Mrs. PERSON ’s daughter was due to give birth .", "The defendant put forward other suppositions , namely that Pauty tampered with the recording and used it to some extent with Mrs. PERSON ’s co - operation . There is , however , no evidence to support this theory . It should further be noted in connection with the recording that the defendant , who is hard of hearing ( he suffers from a PERCENT hearing loss ) , claimed that he did not understand what Pauty said on the telephone . This assertion is not consistent with the defendant ’s concise and clear questions and replies , or with the fact that he never said that he had not heard or that he had misheard what Pauty said to him . On the basis of all these considerations , therefore , the court has reached the conclusion that in regard to Mrs. PERSON the assignment given to GPE was to kill her .", "In the case of [ E ] , no steps were taken to carry out the assignment of giving him a beating . As far as [ HR ] is concerned , the court has been unable to reach a conclusion .", "The investigation into the charges against the defendant ended in a finding that there was no case to answer . On appeal by the prosecution , the defendant was committed for trial at FAC . During the investigation he was held on remand for DATE .", "Information obtained regarding the defendant ’s character is favourable . He is well known and respected in ORG . He is extremely wealthy . He has never had any dealings with the police and has never been convicted . \"", "ORG The applicant appealed on points of law . He complained in particular of the recording , arguing that it had been obtained unlawfully , after the investigation had commenced and with the aim of securing prosecution evidence ; moreover , its use contravened the criminal law and it had played a part as direct evidence in the trial .", "In a preliminary submission on DATE , ORG of the GPE of GPE contended that the court should dismiss the appeal . He expressed the view that \" the disputed recording [ had been ] made in the context of criminal proceedings and at the request of police officers \" . He did not provide any additional information on this point .", "ORG On DATE , ORG of ORG dismissed the appeal on the following grounds :", "\" The impugned judgment states expressly that the trial court relied partly on the disputed recording . Moreover , there is no doubt that the recording was such as to have a perhaps decisive influence , or at the least a not inconsiderable one , on the outcome of the criminal proceedings .", "Criminal procedure is subject to the inquisitorial principle , the aim of the trial being , by getting as close as possible to what actually happened , to establish the facts of the case and then to apply the law to the facts found . That being so , it is not possible to exclude automatically all evidence whose source is unlawful or criminal . However , the quest for the truth should not be carried out at the expense of disregarding principles which are sometimes more important ( Walder , ‘ GPE erlangte ORG i m Strafprozess’ , RPS [ Revue pénale GPE ] DATE , pp . CARDINAL et seq . ) . In ORG ’s view ( Initiation à la justice pénale en GPE , p. CARDINAL , no . CARDINAL ) , justice must be administered in accordance with the rules of good faith .", "According to precedent , which is scarce , the use of evidence which has been obtained unlawfully is excluded only where such evidence could not have been obtained under the existing law , but not where only a procedural rule has been infringed which was neither intended nor apt to prevent the search for evidence ( RO [ Judgments of ORG ] CARDINAL I CARDINAL , c. CARDINAL b , ORG ] DATE I CARDINAL summary ; PERSON GPE CARDINAL = ORG CARDINAL PERSON ; GPE , CARDINAL.CARDINAL.CARDINAL ; PERSON [ ORG of the GPE of GPE ] ; ORG [ ORG ] DATE , no . CARDINAL , p. CARDINAL ; PERSON [ Court of Cassation of the GPE of GPE ] ; ORG [ Blätter für FAC ] DATE , no . DATE , pp . CARDINAL et seq . ) . But the distinction between unlawfulness and procedural irregularity is often a fine one ( PERSON , ‘ Probleme und Tendenzen i m Strafprozess’ , RPS DATE , pp . CARDINAL , CARDINAL ) .", "The criterion established by precedent has been considered unsatisfactory by academic opinion ( PERSON , op . cit . , p. CARDINAL ; PERSON , ORG . GPE , p.CARDINAL ; PERSON , ‘ GPE erlangte ORG i m Strafprozess’ , RPS DATE , pp . CARDINAL et seq . ; ORG verfassungsmässigen bundesrechtlichen GPE i m einzelstaatlichen Strafprozess , thesis , GPE , DATE , p. CARDINAL ) .", "In any event , as far as the admissibility of evidence is concerned , it is not decisive that it has been obtained by means of a criminal offence .", "ORG notes that as a general rule it is not so much the evidence as such as the manner in which the evidence has been obtained which may preclude its use ( p. CARDINAL ) . He distinguishes between the infringement of an important right and that of a purely procedural requirement , and between evidence obtained judicially and evidence obtained extrajudicially ( p. CARDINAL ) . In his view , certain evidence can not be used directly , although its indirect use , i.e. the use of evidence obtained as a result of it , is possible ( p. CARDINAL ) , or at least the use which has been made of evidence obtained unlawfully can not be disregarded ( p. CARDINAL ) . PERSON concludes that it is necessary to consider each case individually to determine whether the unlawfulness in question is so serious that the illegally obtained evidence can not be used ; this can be done only by weighing up the interests and rights at stake ( p. CARDINAL ) . Thus , in this author ’s view , it is entirely permissible to use information regarding the commission of a serious crime which has been obtained in breach , for example , of statutory provisions on telephones ( p. CARDINAL ) .", "In ORG view ( PERSON , p. CARDINAL ) , it is necessary to assess the rules under which evidence may be excluded as inadmissible in terms of what they were intended to protect . Evidence obtained in breach of a prohibition designed to obviate risks associated with establishing the truth - such as an extorted confession - must be excluded .", "Generally speaking , it is accepted that the investigating authorities are prohibited from using coercion or threats , or from resorting to false statements or misleading questions ( PERSON , ORG . GPE , p. CARDINAL ; PERSON , PERSON , p. CARDINAL , para . CARDINAL II CARDINAL , and p. CARDINAL , para . QUANTITY ; Walder , op . cit . , p. CARDINAL ) .", "Examination of the foregoing in the light of Article CARDINAL para . CARDINAL ( article CARDINAL ) of LAW , under which an accused may not be convicted unless proved guilty according to law , does not give rise to any different distinctions ( see in particular GPE , GPE protection de l’accusé par la FAC , pp . CARDINAL et seq . ) . According to Article CARDINAL para . CARDINAL ( article LAW ORG [ ORG ] , interference by a public authority with private life or with correspondence is permissible only where it is in accordance with the law and is necessary in a NORP society in the interests of , inter alia , public safety and the prevention of disorder or crime .", "In the PERSON judgment of DATE , ORG took the view that the existence of some legislation granting powers of secret surveillance over the mail , post and telecommunications is , under exceptional conditions , necessary in a NORP society . It recognised that , as regards the fixing of the conditions under which the system of surveillance was to be operated , the legislature enjoyed a certain discretion ( ORG A , no . CARDINAL , paras . CARDINAL and DATE , p. CARDINAL ; see the arguments before ORG of ORG , pp . CARDINAL et seq . , esp . pp . CARDINAL et seq . ) .", "In an earlier case , ORG took the view , on CARDINAL DATE , that the tape recording of a private conversation unbeknown to the participants or CARDINAL of them constituted in principle an interference with privacy but that the use by the court of the recording in evidence did not infringe the right to a fair trial guaranteed in Article CARDINAL para . CARDINAL ( article CARDINAL ) of ORG DATE , pp . CARDINAL et seq . ) . The Commission expressed the same view ( ORG DATE , pp . CARDINAL et seq . ) .", "More recently , ORG observed in a NORP case that the fact that the authorities charged with the telephone tapping generally did not fully respect the directives given to them - however regrettable it might be - did not by itself constitute a violation of the Convention , in particular of Article CARDINAL para . CARDINAL ( article LAW ( DATE , Decisions and Reports no . CARDINAL , p. CARDINAL ) .", "It is worth noting further that the ORG has accepted , firstly , that police officers may take confidential information from persons with a legitimate interest in remaining anonymous , failing which much information needed if crimes are to be punished would never be brought to the knowledge of the prosecuting authorities ; and , secondly , that the statements of an informant could be taken into consideration where the jury ’s attention had been drawn to the status of a statement which was not corroborated under oath during the proceedings in court and where the accused had been able to produce in court various witnesses who denied that the events in question had occurred ( CARDINAL DATE , Decisions and Reports no . CARDINAL , pp . CARDINAL et seq . ) .", "It may be inferred from the foregoing that the view taken by the institutions responsible for the application of the ORG is no stricter than the one adopted by ORG in the decisions cited .", "The rules set out and discussed here , which concern the investigating authorities , can not as such apply to evidence unlawfully obtained by private individuals . Certain methods which are unacceptable in the case of the former are not necessarily so in the case of the latter ( Walder , op . cit . , p. CARDINAL ) . Academic writers accept , for example , that a victim of threats or blackmail may be compelled , where evidence of the fact is otherwise difficult to obtain , to make a secret recording of the perpetrator ’s statements ( ORG , p. CARDINAL ; Walder , op . cit . , p. CARDINAL ) . As regards the acts of a private investigator , opinion is divided . PERSON considers that there are no grounds for distinguishing such investigators from official ones , since the dangers of falsifying facts are even greater ( PERSON , p. CARDINAL ) . Previous decisions of the courts have left the question open ( RO CARDINAL V CARDINAL ; FAC , CARDINAL ; ORG DATE no . CARDINAL , CARDINAL , p. CARDINAL ) .", "It would have been unlawful for the police to record a telephone conversation in GPE without the authorisation of a judge . However , such authorisation could have been granted , since the investigation was instituted as a result of a serious criminal offence , by virtue of Art . CARDINAL octies ORG . The disputed recording does not in itself constitute prohibited evidence either under NORP law or under the rules laid down by ORG . It may be conceded to the appellant that even in the absence of any complaint , the private recording of GPE ’s telephone conversation with the defendant amounts to an offence in itself ( RO CARDINAL IV CARDINAL CARDINALa , PERSON ) . On the other hand , the rule that was infringed - Art . CARDINAL bis ORG - protects individual privacy and is not designed to eliminate the risk of mistake .", "Moreover , if regard is had to the balance of the interests and rights at stake , as ORG recommends , it must be recognised that the difference between authorised tapping and unauthorised recording is not in itself sufficient to justify attaching greater importance to the protection of privacy than to the public interest in exposing a person guilty of a serious crime .", "The method used by Pauty to obtain the appellant ’s incriminating statements is undoubtedly contrary to the rules of good faith , since it consisted in stating untruthfully that the killer ’s assignment had been carried out , which amounted to ORG laying a trap for his interlocutor . However , although any attempt by the authorities to incite a person to commit an offence is open to censure , the stratagem of inducing an offender to confess to a crime is not ( PERSON , ‘ PERSON moeurs de la police et la PERSON , in Varia Juridica CARDINAL , esp . p. CARDINAL ) . Thus the use of violence or even deceit to obtain a statement is unlawful but , on the other hand , it is permissible to use a trick ( PERSON , op . cit . , p. CARDINAL ) . Such a practice is common on the part of the authorities where , for example , the lives of hostages are in danger . Besides , a given method might be legitimate in CARDINAL case and immoral in another ( op . cit . , p. CARDINAL ) .", "It follows that the means used in this case remained within the limits of what is acceptable for the purposes of combating crime . In any event , the deceit concerned only one matter , namely the performance of the act contemplated .", "In sum , the contested evidence is admissible under NORP law and does not infringe the appellant ’s fundamental rights . Although the recording was made and acquired by the police in GPE , it is unnecessary to consider any more extensive rights which might exist under foreign law . After all , GPE also allows telephone tapping and the recording of telephone conversations , even though LAW Criminal Code likewise penalises such recording where it is not authorised by the competent authority ( PERSON , ORG pénale , DATE , p. CARDINAL , ORG . CARDINAL para . CARDINAL and CARDINAL para . CARDINAL of LAW ) . Furthermore , although in GPE attempted incitement is not an offence , it would have been possible under LAW of DATE , to which GPE and GPE have acceded , for GPE to issue letters rogatory requesting such monitoring . Unlike GPE , GPE has not made a reservation whereby execution of any letters rogatory requiring a coercive measure is conditional on the alleged offence ’s being punishable in both the requesting and the requested country . Telephone monitoring is regarded as equivalent to such a measure ( ORG PERSON GPE in GPE , GPE thesis , DATE , p. CARDINAL ) .", "The appellant argues further that authorised tapping would have provided all the necessary safeguards as to the accuracy and completeness of the recording . An authorised recording inevitably constitutes more weighty evidence than a private recording , in view of the risk of faking in the second case . However , in this instance the circumstances of the recording were known and an expert report , for the purpose of which the cassette and the recorder had been examined , was made available to the court . The court also knew how much time had elapsed between the recording and the handing over of the recorded tape to the police . It was thus able to assess the value of the evidence having regard to its authenticity .", "The use of a trick or subterfuge is similarly liable to affect the weight attributed to statements obtained in such a manner . The trial court was , however , in a position to assess the weight to be attached to the defendant ’s statements in the light of such a manner of proceeding , as the recording moreover reproduced a complete telephone conversation . In this respect too the contested evidence is admissible . \"", "ORG Mr. PERSON lodged a public - law appeal and an application for a declaration of nullity with ORG against the judgment of ORG . Both were founded on the same complaints regarding the disputed recording . The applicant claimed in substance that the recording was unlawful ; that ORG should therefore have ruled it inadmissible as evidence ; and that in not so doing , the court had infringed in particular LAW , paragraph CARDINAL , of the LAW , which guarantees the secrecy of communications , LAW implementing LAW of DATE and ORG CARDINAL para . CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL) of the Convention .", "ORG On DATE , ORG ) dismissed the public - law appeal on the following grounds :", "\" ( a ) It can be accepted that the ingredients of an offence under Art . CARDINAL ter CC were present as far as the disputed recording is concerned . However , Pauty made the recording in order to prove the truth of his statements at a time when he was under investigation for attempted murder . If a complaint had been lodged under Art . CARDINAL ter , it is not certain that the proceedings would have resulted in the imposition of a sentence . But this question can remain open . The provisions of LAW and of the VACC LAW implementing LAW ] concerning telephone tapping define lawful and unlawful tapping and fix the penalties for the latter . They contain no rules for determining the validity of such tapping as evidence at a trial .", "( b ) It is true that NORP law authorises infringement of personal rights and of the confidentiality of communications in the form of telephone tapping only where such a measure has been ordered by the competent authority and approved by a judge . To conclude from this that any evidence derived from unauthorised tapping must never in any circumstances be used in evidence would be to adopt too dogmatic a position and would often lead to absurd results ( see PERSON , ‘ GPE erlangte ORG i m Strafprozessrecht’ , in DATE , pp . CARDINAL et seq . , and PERSON , ‘ ORG und Entwicklungstendenzen der Lehre von den strafprozessualen ORG , in GPE die gesamte DATE , pp . CARDINAL et seq . , esp . p. CARDINAL ; see also PERSON , ‘ PERSON zum gegenwärtigen Stand der PERSON Beweisverboten i m Strafverfahren’ , in GPE juristische PERSON , p. CARDINAL ) . In such a case it is necessary to balance , on the one hand , the interest of the ORG in having a specific suspicion confirmed or disproved and , on the other , the legitimate interest of the person concerned in the protection of his personal rights . To this end , all the relevant circumstances should be taken into consideration .", "In GPE , ORG has reached the same conclusion . In a case where a person was suspected of having committed offences involving tax evasion , fraud and forgery of documents , the court refused to attach any probative weight to a recording made privately . It considered , however , that the position would have been different if there had been an imperative community interest at stake which took precedence over the private interest of the person concerned ; thus it held that it would not generally be contrary to constitutional law , in cases of necessity , to allow the authorities to use a recording that had been made by CARDINAL party and which could lead to the identification of a criminal or exculpate a person who had been wrongly accused , where serious offences were involved , such as offences against the person , serious attacks on the constitutional order and democratic freedoms , and offences against legally protected interests of the same order ( Entscheidungen des Bundesverfassungsgerichts DATE - pp . CARDINAL et seq . , esp . CARDINAL ) .", "In the instant case , it is necessary to weigh , on the one hand , the interest in confirming or proving unfounded the specific suspicions that PERSON was guilty of incitement to murder and , on the other , PERSON ’s interest in preserving the confidentiality of his conversation with Pauty . The conclusion is inescapable that the public interest in having the truth established in the matter of an offence relating to murder overrides PERSON ’s interest in maintaining the confidentiality of a telephone conversation which in no way bore upon his privacy but related exclusively to the completion of an assignment entrusted to GPE . The need to protect a person ’s privacy can not have the effect of making such a recording inadmissible as evidence in criminal proceedings when there are strong suspicions concerning a very serious offence ( see PERSON , op . cit . , DATE , pp . CARDINAL et seq . ) .", "Moreover , it is relevant to point out that NORP law authorises tapping the telephone of an individual suspected of involvement in a crime . Admittedly , such tapping is subject to authorisation by a judge , but the recording of a conversation is not , as such , evidence which the ORG would have refrained from using as a matter of principle and in order to protect the higher interests of the individual . This type of evidence can not be compared with a truth drug , coercion or torture , which are absolutely prohibited as a matter of public policy . Accordingly , there would have been no legal bar to prevent the same recording , made in GPE on the line of the telephone kiosk in the hospital where PERSON was staying , from being lawful and being admitted in evidence . It follows that an infringement of personal rights which does not amount to a breach of the LAW under NORP law - when certain conditions are satisfied - may be classified as minor where it could have been ordered under Art . CARDINAL octies para . CARDINAL CC ( see ORG [ Judgments of ORG ] CARDINAL I CARDINAL ) .", "( c ) In this case , as PERSON was strongly suspected of having participated in a crime intended to result in a person ’s death ; as the judge would have been entitled to order that his conversation of CARDINAL DATE with Pauty should be recorded ; as it was the latter who made such a recording while under investigation for attempted murder with or without premeditation ; and as the conversation did not concern facts of an intimate nature , the [ FAC was entitled to refuse to rule the tape inadmissible in evidence and could assess it as evidence without infringing NORP constitutional law . Nor , in so doing , did that court infringe ORG . CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL) ORG . \" ( Judgments of ORG , vol . CARDINAL , part I , pp . CARDINAL - CARDINAL )", "ORG Also on DATE , ORG ) dismissed the application for a declaration of nullity . In particular , it declared inadmissible the submission based on the playing of the telephone recording to ORG : it held that this issue related to the introduction of evidence , which was governed by cantonal procedure .", "ORG On DATE , Mr. PERSON applied for a stay of execution of his sentence on health grounds . The Head of ORG , ORG rejected this application on DATE , whereupon the applicant lodged an administrative - law appeal , which was dismissed by ORG on DATE .", "ORG In DATE , the applicant was transferred to ORG geriatric hospital to complete his sentence .", "On DATE , he was granted a partial pardon by ORG of the GPE of GPE whereby the remainder of his sentence was remitted , having regard in particular to the state of his health . He was released on DATE .", "ORG LAW contains the following provisions relating to telephone tapping :", "\" A person who , without the consent of all the participants , has listened to by means of a listening device or recorded on a recording apparatus a private conversation between other persons ; or", "a person who has used or made known to a third party a fact when he knew or should have assumed that his own knowledge of this fact had been obtained by means of an offence under the first paragraph ; or", "a person who has kept or made available to a third party a recording which he knew or should have assumed had been made by means of an offence under the first paragraph", "shall be liable to imprisonment or a fine , if a complaint is made . \"", "\" A person who , without the consent of the other participants , has recorded on a recording apparatus a private conversation in which he took part ; or", "a person who has kept a recording which he knew or should have assumed had been made by means of an offence under the first paragraph , or who has used such a recording for his own benefit or has made it available to a third party", "shall be liable to a period of imprisonment not exceeding DATE or a fine , if a complaint is made . \"", "\" The following shall not be guilty of an offence under the first paragraph of LAW first paragraph of LAW", "a person who has , by means of a telephone or accessory equipment authorised by the telephone company , listened to , or who has recorded on a recording apparatus , a conversation transmitted by telephone equipment controlled by the telephone authority ;", "a person who has , by means of a telephone or accessory equipment connected to the main installation , listened to , or who has recorded on a recording apparatus , a conversation transmitted by equipment not controlled by the telephone authority . \"", "\" No offence is committed where a person by the express authorisation of the law orders official monitoring of postal , telephone or telegraphic communications of specified persons or orders the use of monitoring devices ( Articles CARDINAL bis et seq . ) , provided that he immediately seeks the approval of the competent judge .", "The approval referred to in the first paragraph may be given in order to investigate or prevent a crime or an offence whose seriousness or special nature justifies the proposed action , or an offence committed by means of the telephone . \"", "ORG LAW provides that the Code may be applicable to offences committed abroad against NORP nationals :", "\" The present Code shall be applicable to anyone committing an offence abroad against a NORP national , provided that the offence is punishable also in the ORG in which it was committed , where the offender is in GPE and is not extradited abroad or where he is extradited to the ORG on account of the offence . The foreign law shall , however , apply if it is more favourable to the person charged with the offence .", "The offender shall no longer be punishable on account of his offence if he has undergone the penalty imposed on him abroad or if he has been granted remission of sentence or if the penalty is time - barred .", "Where he has not undergone abroad the penalty imposed on him , it shall be undergone in GPE ; if he has undergone abroad only part of the penalty , the remainder shall be undergone in GPE . \"" ]

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[ "6" ]

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

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE .", "At the material time the applicant was an editor - in - chief of a local DATE “ PERSON ” .", "Apparently , on an unspecified date a municipal authority allocated certain municipal apartment to CARDINAL of the local councillors , which caused widespread indignation in the local community .", "On DATE the weekly published an article in which the applicant reported on a conflict between GPE , CARDINAL of the local councillors , and the director of the local social assistance centre . The article contained a statement that “ FAC had instigated CARDINAL or CARDINAL supervision procedures in respect of the centre ” and that his activities concerning the centre had been aimed at “ delaying a public explanation of the conflict [ between GPE and the director of the centre ] to the constituency ” .", "On DATE the DATE published an article entitled “ Turning Things On Their Head ” ( “ ORG ogonem ” ) in which certain disagreements between FAC and the director of the centre as to the policy which should be followed by that centre were described .", "On DATE the weekly published another article , reporting on a session of ORG , during which a motion to remove ORG from his post of a member of the municipal executive board had been discussed . The article quoted certain arguments advanced by the councillors during the debate , referring to the lawfulness of the procedure and to various local controversies as they found their expression during the debates . It also summarised PERSON statements in the following way :", "“ Consistent ” J.C. once again presented his arguments . ( ... ) He reiterated his objections concerning ORG , threw in , for good measure , “ a municipal apartment for CARDINAL councillor ” , [ an issue of ] LOC for the “ PERSON ” – which he branded a “ gang ” . Many supervision procedures found his complaints about the FAC groundless , and [ the question of the apartment and the LOC ] he had invented himself ! Nothing like that had ever occurred . ”", "Another article on local politics , entitled “ What ’s up ” , was published on DATE . In this article its author reported on the last meeting of the local municipal council and also purported to explain to the reader the subtleties of the local politics and personal conflicts behind them .", "Following these publications ORG lodged a private bill of indictment with ORG , charging the applicant with defamation in that he had published CARDINAL articles blackening the plaintiff ’s reputation .", "In a judgment of DATE that court found that the applicant had committed a criminal offence of defamation punishable under LAW of DATE and conditionally discontinued the proceedings , fixing a probation period of DATE . It also obliged the applicant to apologise to the plaintiff in writing .", "The operative part of the judgment read as follows :", "“ Having regard to the fact that the publication in DATE in issues ORG . CARDINAL and CARDINAL of PERSON , a DATE of which [ ORG ] was an editor , of articles “ A. against ORG and “ What ’s up ” containing untrue information that GPE , who in the present case acted as a private prosecutor , had invented the issue of the [ municipal ] apartment and that he had ‘ himself acknowledged that he had overstepped the limits of his competence by conducting many investigations on behalf of ORG , but without a relevant authorisation’ amounted to making public such allegations about the plaintiff ’s conduct as could expose him to a risk of losing the public trust necessary for him to carry out his public function , amounted to a criminal offence provided for by LAW", "( ... )", "discontinues the criminal proceedings against the accused and sets the period of probation for DATE . ”", "The court observed that the applicant had published in the DATE a number of articles on local politics . They were aggressive towards PERSON and had shown him in a bad light . It was suggested that he had a tendency to fantasise and to overstep the limits of his competence . It was also implied that he was vexatious and unreliable and had abused his powers . The texts and the charges contained therein could therefore expose FAC to the risk of lowering him in public opinion .", "The court referred to the sub - titles of the text published on CARDINAL DATE , which had read as follows : “ PERSON forgot ! ” , “ Personal ambitions are at play here ” , “ Detrimental to the interests of the municipality ” , “ He invented it himself ! ” . The court observed that these sub - titles well conveyed the essence of the author ’s hostility towards GPE", "The court noted that the article had made reference to some municipal apartment . It further noted that it was aware of the fact that a municipal apartment had in the past been assigned to CARDINAL of the local politicians , a fact which created an uproar in GPE . The applicant had undoubtedly taken a certain shortcut when saying in the article of DATE :", "“ [ the question of the apartment and premises ] he had invented himself ! Nothing like that had ever occurred . ”", "In this connection , the court referred to numerous pieces of evidence referring to the public debate concerning that apartment and concluded that in the light of this evidence the suggestion that ORG had invented the whole story of the apartment was clearly erroneous .", "The court further observed that subsequently , on DATE , the DATE had published an article entitled “ What ’s up ” , purported to explain to the reader the subtleties of the local politics . The article had contained the following statement on J.C :", "“ He had himself admitted that he had overstepped his powers , having conducted many investigations on behalf of the municipal authorities , but without any relevant authorisation ” .", "The court observed that ORG had never admitted that he had been conducting any such investigations which could be established , for example , from TIME of the session of the municipal council held on DATE . Hence , the reference to both the alleged non - authorised investigations and to the admission that he had allegedly overstepped his powers was clearly untrue . Having regard thereto , the court considered that the applicant had failed to observe his fundamental obligation as a journalist , in particular in that he had failed to check the veracity of information he had published . In the proceedings before the court he was unable to refer to any source on which he had based his pertinent statements . It was open to him to consult the detailed records of the sessions of the local council , which he had failed to do .", "In the absence of convincing evidence to support the applicant ’s allegations and innuendos , the court concluded that when publishing the first CARDINAL articles he had published untrue information , which amounted to a criminal offence of defamation punishable under LAW .", "Referring to the conditional discontinuation of criminal proceedings , the court observed that the offence was not dangerous and that the applicant did not have any criminal record .", "The applicant appealed , submitting , inter alia , that the judgment amounted to a breach of his freedom of expression .", "On DATE the ORG dismissed his appeal , considering that the assessment of the evidence by the lower court was not arbitrary . It observed that the applicant had failed to show that he had any factual basis for his allegations when publishing the articles . No evidence had been submitted to the court to show that ORG had indeed admitted that he had overstepped the limits of his competence , as the applicant implied in the first article . Nor was it true that ORG had invented the issue of the municipal apartment having been assigned to CARDINAL local politician . The published statements being untrue , they amounted to defamation .", "The court also noted that under the case - law of ORG freedom of expression covered the transmission of information but not of misinformation ; conveying facts , not mendacious innuendos . Lastly , the court observed that the appeal referred to the applicant ’s notes prepared for the purpose of writing the articles , but that the case was limited to the examination of the texts as they were eventually published , i.e to the untrue and laconic phrases used in the articles .", "On DATE ORG , in a decision to which under applicable provisions of law no written grounds were prepared , dismissed the cassation appeal as manifestly ill - founded .", "Under LAW of LAW of DATE , applicable at the material time , whoever disseminated untrue statements about another person ’s acts or character with an intention of lowering him or her in public esteem or of making him or her lose the public trust necessary for that person to carry out his or her public functions , committed a criminal offence punishable by a prison sentence of DATE .", "Pursuant to LAW , criminal proceedings could be conditionally discontinued , if the seriousness of the offence , punishable by a prison sentence of DATE , was not significant , if the circumstances in which it had been committed had been established , if the perpetrator did not have a criminal record and if his personal circumstances and qualities justified a conclusion that he would respect the legal order during the probation period .", "Under LAW , the court , when deciding to discontinue the proceedings for the probation period , could impose certain obligations on the accused : to pay appropriate compensation to the victim of the offence , to apologise to him / her , or to carry out certain work in the public interest .", "Under LAW , the court could fix a probation period of DATE , running from the date on which the judgment became final .", "Criminal proceedings could be resumed if during the probation period the offender disregarded the obligations imposed by the court , acted in flagrant breach of public order , or , in particular , committed a new criminal offence ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE a criminal case was opened against him , along with some other persons , on suspicion of trafficking in human beings , and on CARDINAL DATE the applicant was arrested .", "On DATE ORG ( “ the Kyivskyy Court ” ) released him subject to an undertaking not to abscond .", "On DATE the pre - trial investigation was declared complete and the case was sent to the trial court , which commenced the proceedings on DATE .", "On DATE ORG , in a hearing in which the victims ' representative took part , allowed the prosecutor 's application for the applicant 's ( as well as the other co - defendant ) remand in custody . The court agreed with the prosecutor 's argument that the applicant had been putting pressure on the victims , which had led to changes in their testimonies . According to the applicant , his own argument , on which the court allegedly failed to comment , was that the changes in the victims ' statements in the court might have been explained by the investigator 's pressure on them in the course of the pre - trial investigation , which they were not any longer subjected to during the trial . The applicant was arrested in the hearing room .", "He repeatedly and unsuccessfully requested to be released under an undertaking not to abscond . The applicant argued that there was no evidence of his guilt , that he had never faced any criminal charges before and had received some government awards . Furthermore , he referred to the facts that he had a permanent place of residence and elderly parents to take care of , and that his health had deteriorated in detention .", "On DATE , CARDINAL and DATE , CARDINAL TIME and DATE ORG rejected the applicant 's requests for release . The reasoning of those rulings was practically identical . The court supported the prosecutor 's opinion , which referred to the serious nature of the charges against the applicant and an inherent risk of his absconding . It further noted :", "“ The court considers that the issue of changing the preventive measure is premature . The issue of the preventive measure [ “ of the penalty ” – in the rulings of DATE and DATE ] will be resolved when the verdict is pronounced in the case and [ the applicant ] is convicted or acquitted . ”", "NORP The applicant unsuccessfully complained about the length of the trial to ORG , to ORG and to various other authorities . He was informed in reply that it was caused by the complexity of the case and the large number of victims , as well as by the need to handle numerous requests and petitions from the applicant .", "On DATE ORG found the applicant guilty of trafficking in human beings and production and distribution of pornographic materials , and sentenced him to DATE imprisonment , with prohibition on working in any film , video or computer programme production and distribution area .", "Overall , ORG held over DATE hearings . It issued rulings requiring the presence of the victims and witnesses , enforceable by the police , on some ten occasions .", "On DATE ORG quashed that verdict and remitted the case to the same first - instance court for fresh examination . The main point of criticism was the vagueness of the verdict , including , in particular , the charges against the co - defendants , the classification of the films in which the victims had appeared as pornographic , and the conclusions that the victims had been both deceived and coerced by the co - defendants . The appellate court made a general conclusion that the investigation of the case by the first - instance court had been unbalanced and incomplete . It released the co - defendants under an undertaking not to abscond .", "On DATE ORG decided to examine the case itself as a court of first instance .", "On DATE it remitted the case to ORG for additional investigation .", "On DATE ORG quashed the ruling of DATE .", "On DATE ORG started the examination of the case .", "On DATE and DATE the court adjourned hearings on account of the applicant 's failure to attend .", "On DATE it ordered the applicant 's remand in custody , examination of the case being stayed until his whereabouts had been established .", "The case remains pending before ORG .", "In his submissions to the ORG , the applicant admitted he had absconded and gave as the reason that he did not trust the NORP judiciary .", "NORP The relevant legal provisions can be found in the PERSON v. GPE judgment , no . CARDINAL , § § DATE , CARDINAL DATE ) ." ]

[ "5", "6" ]

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

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[ "The applicant was born in DATE and lives in GPE .", "NORP In DATE the applicant was dismissed from his job ; his former employer also required him to make certain payments in respect of damage allegedly caused while in service . The applicant challenged these measures before the courts as of DATE .", "On DATE ORG dismissed his action . On DATE ORG quashed this decision and remitted the case .", "The resumed proceedings were suspended on DATE pending the simultaneous criminal proceedings conducted against the applicant . After the termination of this case , the procedure restarted and ORG gave judgment on DATE , dismissing the applicant 's claims .", "On appeal , on CARDINAL May CARDINAL ORG , in a partial judgment , accepted some of the applicant 's claims , holding that his dismissal had been unlawful and reducing the reimbursement payable .", "NORP However , on DATE ORG reversed this decision , dismissed the applicant 's case and upheld ORG judgment . This decision was served on the applicant 's lawyer on DATE ." ]

[ "6" ]

[ "6-1" ]

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[ "The CARDINAL applicants are GPE ’s Witnesses . PERSON and PERSON are the parents of PERSON , who was born in DATE and is currently a pupil in DATE of ORG secondary education at a school at PERSON .", "According to them , pacifism is a fundamental tenet of their religion and forbids any conduct or practice associated with war or violence , even indirectly . It is for this reason that ORG Witnesses refuse to carry out their military service or to take part in any events with military overtones .", "At the start of DATE Mr and PERSON submitted a written declaration in order that their daughter PERSON , then DATE , should be exempted from attending school religious - education lessons , NORP Mass and any other event that was contrary to her religious beliefs , including national - DATE celebrations and public processions .", "PERSON was exempted from attendance at religious - education lessons and NORP Mass.", "In DATE , however , she , in common with the other pupils at her school , was asked to take part in the celebration of the National Day on DATE , when the outbreak of war between GPE and NORP GPE on DATE is commemorated with school and military parades .", "On this occasion school parades take place in nearly all towns and villages . In the capital there is no military parade on DATE , and in LOC the school parade is held on a different day from the military parade . The school and military parades are only held simultaneously in a small number of municipalities .", "PERSON refused to parade on account of her religious beliefs .", "On DATE the ORG committee at her school punished her for her failure to attend with CARDINAL days’ suspension from school . That decision was taken in accordance with ORG no . CCARDINAL/CARDINAL/CARDINAL of DATE issued by ORG ( see paragraph CARDINAL below ) .", "On DATE PERSON was again punished with suspension , for one day , on the ground that she had not taken part in the school parade held on DATE .", "The CARDINAL Constitution contains the following provisions :", "\" CARDINAL . The dominant religion in GPE is that of ORG . ORG , which recognises as its head Our Lord PERSON , is indissolubly united , doctrinally , with FAC of GPE and with any other ORG in communion with it [ omodoxi ] , immutably observing , like the other Churches , the holy apostolic and synodical canons and the holy traditions . It is autocephalous and is administered by ORG , composed of all the bishops in office , and by the standing ORG , which is an emanation of it constituted as laid down in GPE and in accordance with the provisions of LAW of DATE and LAW of DATE .", "The ecclesiastical regime in certain regions of the ORG shall not be deemed contrary to the provisions of the foregoing paragraph .", "The text of ORG is unalterable . No official translation into any other form of language may be made without the prior consent of the autocephalous ORG and ORG at GPE . \"", "\" CARDINAL . Freedom of conscience in religious matters is inviolable . The enjoyment of personal and political rights shall not depend on an individual ’s religious beliefs .", "There shall be freedom to practise any known religion ; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law . The performance of rites of worship must not prejudice public order or public morals . Proselytism is prohibited .", "The ministers of all known religions shall be subject to the same supervision by the ORG and to the same obligations to it as those of the dominant religion .", "No one may be exempted from discharging his obligations to the ORG or refuse to comply with the law by reason of his religious convictions .", "No oath may be required other than under a law which also determines the form of it . \"", "A royal decree of DATE entitled \" Proclamation of the Independence of the Greek Church \" described ORG as \" autocephalous \" . GPE ’s successive Constitutions have referred to the ORG as being \" dominant \" . According to NORP conceptions , ORG represents de jure and de facto the religion of the ORG itself , a good number of whose administrative and educational functions ( marriage and family law , compulsory religious instruction , oaths sworn by members of the Government , etc . ) it moreover carries out . Its role in public life is reflected by , among other things , the presence of the Minister of ORG and ORG at the sessions of the ORG hierarchy at which the Archbishop of GPE is elected and by the participation of the ORG authorities in all official ORG events ; the President of the Republic takes his oath of office according to NORP ritual ( Article CARDINAL para . CARDINAL of the LAW ) ; and the official calendar follows that of ORG .", "Circular no . ORG DATE issued by ORG and ORG provides :", "\" Schoolchildren who are GPE ’s Witnesses shall be exempted from attending religious - education lessons , school prayers and GPE", "...", "In order for a schoolchild to benefit from this exemption , both parents ( or , in the case of divorced parents , the parent in whom parental authority has been vested by court order , or the person having custody of the child ) shall lodge a written declaration to the effect that they and their child ( or the child of whom they have custody ) are ORG .", "...", "No schoolchild shall be exempted from taking part in other school activities , such as national events . \"", "The relevant Articles of Presidential Decree no . CARDINAL of DATE and DATE are the following :", "\" CARDINAL . The behaviour of pupils inside and outside the school shall constitute their conduct , irrespective of the manner - by act or by omission - in which they express it .", "Pupils shall be required to conduct themselves suitably , that is to say in accordance with the rules governing school life and the moral principles governing the social context in which they live , and any act or omission in contravention of the rules and principles in question shall be dealt with according to the procedures provided in the educational system and may , if necessary , give rise to the disciplinary measures provided in this decree . \"", "The disciplinary measures laid down in LAW are , in increasing order of severity , a warning , a reprimand , exclusion from lessons for TIME , suspension from school for DATE and transfer to another school .", "\" Suspended pupils may remain at school during teaching TIME and take part in various activities , under the responsibility of the headmaster . \"", "LAW provides :", "\" Any person , or persons acting jointly , shall be entitled , subject to compliance with the laws of the ORG , to submit written petitions to the authorities . The latter shall be required to act as quickly as possible in accordance with the provisions in force and to give the petitioner a reasoned written reply in accordance with the statutory provisions . \"", "LAW no . ORG provides :", "\" Once the authorities have received the petition [ provided for in LAW ] , they must reply in writing and give the petitioner all necessary explanations , within the time deemed absolutely necessary , which shall not exceed DATE from service of the petition . \"", "LAW is worded as follows :", "\" The following shall in principle lie within the jurisdiction of ORG :", "( a ) the setting aside , on application , of enforceable acts of the administrative authorities for misuse of authority or error of law .", "... \"", "According to the settled case - law of ORG , \" decisions of school authorities to impose on pupils the penalties provided in LAW no . CARDINAL/CARDINAL are intended to maintain the necessary discipline within schools and contribute to their smooth running ; they are internal measures which can not be enforced through the courts , and no application lies to have them set aside by the courts \" ( judgments nos . CARDINAL/CARDINAL , DATE and DATE ) . Only transfer to another school has been held to be enforceable and amenable to being quashed by ORG ( judgment no . DATE ) .", "Section CARDINAL of the Introductory Law to the Civil Code provides :", "\" The ORG shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority , except where the unlawful act or omission is intended to serve the public interest . The person responsible shall be jointly and severally liable , without prejudice to the special provisions on ministerial responsibility . \"", "This section establishes the concept of a special prejudicial act in public law , creating State liability in tort . This liability results from unlawful acts or omissions . The acts concerned may be not only legal acts but also physical acts by the administrative authorities , including acts which are not in principle enforceable through the courts ( PERSON , Interpretation of the Civil Code , section CARDINAL of the Introductory Law to LAW , no . CARDINAL ; ORG , Contract , ORG , volume CARDINAL , Tort , DATE , para . CARDINAL B CARDINAL ; PERSON , ORG , CARDINALrd edition , para . CARDINAL ; ORG judgment no . CARDINAL , PERSON , DATE , p. CARDINAL ; ORG judgment no . CARDINAL/CARDINAL , PERSON , DATE , p. CARDINAL ) .", "The admissibility of an action for damages is subject to CARDINAL condition , namely the unlawfulness of the act or omission .", "LAW ( \" Personal rights \" ) provides :", "\" Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement . Where the personal rights infringed are those of a deceased person , the right to bring proceedings shall be vested in his spouse , descendants , ascendants , brothers , sisters and testamentary beneficiaries . In addition , claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded . \"" ]

[ "13", "9", "P1" ]

[ "P1-2" ]

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[ "3", "9" ]

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[ "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is engaged in the retail sale of handguns in GPE . He paid £ CARDINAL for the goodwill of the business in DATE . The consequences of the DATE LAW legislation - LAW and the Firearms ( Amendment ) ( No . CARDINAL ) Act DATE ( “ LAW ; see below ) - are that the applicant is unable to derive handgun - related income from his business , and that the value of the goodwill and assets of the business has depreciated . The applicant received compensation pursuant to the legislative schemes in respect of his stock of handguns . No compensation is payable for the reduction in value of the applicant ’s business .", "By DATE , MONEY had been paid to CARDINAL dealers under the compensation schemes , of a total of MONEY which had been paid to individuals , dealers and others . The ORG estimated the total costs which would be involved in paying compensation under the schemes to be MONEY .", "B. Domestic law and practice", "The Firearms Act DATE has been periodically amended since it was passed , and forms the basis of the current system of the control of firearms in GPE . LAW of DATE prohibits the possession , purchase , acquisition , manufacture , sale or transfer of the firearms there specified . LAW DATE ( “ LAW ” ) added large - calibre handguns to the class of prohibited firearms in section CARDINAL of the DATE Act .", "Section CARDINAL of the Act of DATE , as amended by LAW , provided :", "“ ( CARDINAL ) A person commits an offence if , without the authority of ORG , he has in his possession , or purchases or acquires , or manufactures , sells or transfers -", "...", "( aba ) any firearm which has a barrel length of QUANTITY in length or is QUANTITY in length overall , other than an air weapon , a small - calibre pistol , a muzzle - loading gun or a firearm designed as signalling apparatus . ”", "The Firearms ( Amendment ) ( No . CARDINAL ) Act DATE ( “ LAW ” ; together with LAW , “ the CARDINAL Amendment Acts ” ) extended the scope of the prohibition in section CARDINAL to small - calibre pistols by declaring ( in section CARDINAL ) that the words “ a small - calibre pistol ” in section CARDINAL ) of LAW as amended by LAW should cease to have effect .", "LAW provides as follows , so far as material :", "“ CARDINAL Surrender of prohibited small firearms and munitions", "( CARDINAL ) The Secretary of ORG may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of CARDINAL or CARDINAL above .", "...", "CARDINAL Payments in respect of prohibited small firearms and ammunition", "( CARDINAL ) The Secretary of ORG shall , in accordance with a scheme made by him , make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section CARDINAL above .", "( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -", "( a ) which they had , and were entitled to have in their possession on or immediately before DATE by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers ; or", "( b ) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers ,", "and their possession of which will become , or has become , unlawful by virtue of section CARDINAL(CARDINAL ) or CARDINAL above .", "CARDINAL Payments in respect of ancillary equipment", "( CARDINAL ) The Secretary of ORG shall , in accordance with any scheme which may be made by him , make payments in respect of ancillary equipment of any description specified in the scheme .", "( CARDINAL ) For the purposes of subsection ( CARDINAL ) above , ‘ ancillary equipment’ means equipment , other than prohibited ammunition , which-", "( a ) is designed or adapted for use in connection with firearms prohibited by virtue of section CARDINAL(CARDINAL ) above ; and", "( b ) has no practicable use in connection with any firearm which is not a prohibited weapon .", "( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-", "( a ) which they had in their possession on DATE ; or", "( b ) which they had in their possession after DATE , having purchased it by virtue of a contract entered into before that date .", "...", "CARDINAL Parliamentary control of compensation schemes", "( CARDINAL ) Before making a compensation scheme the Secretary of ORG shall lay a draft of it before ORG .", "( CARDINAL ) The Secretary of ORG shall not make the scheme unless the draft has been approved by resolution of each ORG .", "( CARDINAL ) This section applies to any alteration to the scheme as it applies to a compensation scheme .", "( CARDINAL ) In this section ‘ compensation scheme’ means a scheme under LAW ... above . ”", "The Firearms ( Amendment ) Act CARDINAL Compensation Scheme ( “ the First Scheme ” ) was laid in draft before ORG and approved by resolution of both ORG . It was made on DATE . The First Scheme provided compensation for the large - calibre handguns themselves , for prohibited expanding ammunition and for certain ancillary equipment . There were CARDINAL options for claiming compensation : Option A , a flat rate payment for individual items , Option B , a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C , a payment based on the market value of an individual item at or immediately before DATE ( the date of the announcement by the Government of their response to , and legislative intention following , ORG ) .", "Under Option A , a payment of £ MONEY could be claimed for each large - calibre handgun . Under Option B , a payment could be claimed which was based on average retail values on DATE , reduced by PERCENT to reflect normal depreciation in value . Under Option C , dealers were entitled to claim the “ full market value ” of the large - calibre handguns and ancillary equipment which they held in stock . The full market value was to be calculated on the basis of the cost to the dealer of the item plus PERCENT .", "By section CARDINAL of LAW , the provisions of sections CARDINAL of LAW were applied to small - calibre pistols . LAW ) ( No . CARDINAL ) Act CARDINAL Compensation Scheme ( “ the Second Scheme ” ) was made in DATE , after having been laid in draft before both ORG and approved by resolution of each ORG . The Second Scheme applied in relation to small - calibre pistols held on or immediately before DATE . The date for the calculation of full market value for the purposes of Option C remained DATE . The Second Scheme made provision for compensation in respect of small - calibre pistols , on materially the same terms as provided for in the First Scheme in respect of large - calibre handguns ." ]

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[ "Mr. PERSON resides in the GPE . He married in DATE and several children were born of the marriage . In DATE , he was committed to a psychiatric hospital by direction of the local burgomaster in accordance with an emergency procedure . DATE , on his wife ’s application , he was confined to the same hospital under an order made by ORG ( kantongerecht ) of his place of residence . On his wife ’s further application and subsequently at the request of the public prosecutor ( officier van justitie ) , the order was renewed from DATE by ORG ( arrondissements- rechtbank ) on the basis of medical reports from the doctor treating the applicant .", "Mr. PERSON complains of the procedure followed in his case . In particular , he objects that he was never heard by the various courts or notified of the orders , that he did not receive any legal assistance and that he had no opportunity of challenging the medical reports . His complaints are also directed against the decisions on his requests for discharge and against his loss of civil capacity .", "The detention of persons of unsound mind is governed by LAW of DATE on ORG supervision of mentally ill persons ( wet van CARDINAL DATE , FAC , tot regeling van het Staatstoezicht op krankzinnigen ) . Usually referred to as the Mentally Ill Persons Act ( krankzinnigenwet ) , the LAW has been amended several times , in the last instance by LAW of DATE which came into force on CARDINAL DATE , that is some time after the applicant had first been detained . A PERSON providing for a complete reform of the system is at present pending before ORG .", "The Mentally Ill Persons Act is divided into CARDINAL main chapters . Principally relevant for the present proceedings are the CARDINAL chapters dealing firstly with the admission of persons to psychiatric hospitals and their stay therein , secondly with leave of absence and discharge therefrom , and thirdly with the administration of the property of persons admitted to psychiatric hospitals .", "The LAW does not define who are \" mentally ill persons \" but lays down the grounds for committing such persons to hospital ( see the following paragraphs ) . It would appear from the evidence submitted that , according to the general practice currently followed , the GPE courts will authorise the confinement of a \" mentally ill person \" only if his mental disorder is of such a kind or of such gravity as to make him an actual danger to himself or to others .", "In urgent cases , the burgomaster has the power to direct the compulsory admission of a \" mentally ill person \" to a psychiatric hospital .", "Until DATE , the burgomaster had to obtain prior medical advice only if circumstances permitted ; his decision was valid for DATE but the public prosecutor could shorten or extend the term ( section CARDINAL of the Act ) .", "This procedure was considerably changed by LAW , section CARDINAL being repealed and replaced by sections PERSON to CARDINALj . The burgomaster is now obliged to seek the prior opinion of a psychiatrist or , should that not be possible , another medical practitioner . Once he has issued a direction to detain , he must immediately inform the public prosecutor and send him the medical declarations on which the direction was based . The public prosecutor is in his turn required to transmit these declarations not later than the following day to the President of ORG with , where appropriate , an application for a continuation of the detention . Such continuation , if made , is valid for DATE but may be renewed by the President for a second period of similar duration . Thereafter the procedure concerning applications for a provisional detention order is to be followed ( see paragraphs CARDINAL and CARDINAL below ) .", "Apart from the above - mentioned emergency cases , no one may be deprived of his liberty on grounds of mental illness or insanity except under a provisional detention order made by a court .", "ORG judge ( kantonrechter ) may issue a provisional detention order on written application ( verzoek ) made by a close relative by blood or marriage of full age , the spouse or the legal representative of the individual concerned and seeking his confinement either in the interests of public order or in his own interests ( section CARDINAL of the Act ) . The judge may also issue such an order on application by a person of full age who considers that his own condition is such as to require suitable treatment ( section CARDINAL ) . In addition , a provisional detention order may be made by the President of ORG following a request ( requisitoir ) by the public prosecutor ( section CARDINAL ) .", "The application or request must , according to LAW , be accompanied by a declaration drawn up not DATE by a doctor licensed to practise in the GPE but not attached to the institution to which it is proposed admitting the patient . The declaration must be to the effect that the person concerned \" is in a state of mental illness ( toestand van krankzinnigheid ) and that it is necessary or desirable to treat him in a psychiatric hospital \" . An application may also mention facts and documents giving a clearer indication of the state of mental illness , but this is purely optional .", "Since the entry into force of LAW , the medical declaration must be made by a psychiatrist who is not himself treating the patient ; as far as possible , it must state , with reasons , whether the patient ’s condition is such that it would be pointless or medically inadvisable for him to be heard by the court . The psychiatrist must , if he can , first consult the family doctor .", "The judge makes a provisional detention order if the medical declaration , either on its own or in conjunction with the facts related or the documents supplied , adequately establishes that treatment in a psychiatric hospital is necessary or desirable ( section CARDINAL para . CARDINAL of the Act ) .", "Until DATE , the examination of the application or request was not subject to any limitative formalities . Section CARDINAL , in the version in force when the facts of the present case occurred , provided that the judge had competence to hear beforehand the person whose detention was being sought . As a result of the above - mentioned amending LAW , the judge is now obliged to hear the person in question unless he concludes from the medical declaration that this would be pointless or medically inadvisable ; he may , either of his own motion or at the request of that person , provide the latter with legal assistance ( section CARDINAL para . CARDINAL ) . The judge must seek all possible information both from the individual who made the application or the request mentioned in sections CARDINAL and CARDINAL and from certain other individuals ( section CARDINAL para . CARDINAL ) . He retains the power to call witnesses and experts ( section CARDINAL para . CARDINAL ) and may , if he thinks fit , summon anyone who made an application for a detention order pursuant to section CARDINAL to appear before him ( section CARDINAL para . CARDINAL ) .", "A provisional detention order is not subject to appeal and is , moreover , not notified to the person concerned ( section CARDINAL ) ; it is valid for DATE ( section CARDINAL ) .", "The order , like detention orders ( see paragraphs CARDINAL and CARDINAL below ) , authorises rather than enjoins compulsory confinement and it may happen that it is not put into effect . In the case of a person who is not yet hospitalised , the admission to a psychiatric hospital or other specialised institution must take place within DATE , on production of the court order ( sections QUANTITY and CARDINAL ) . The closest relatives by blood or marriage , the spouse or the legal representative must be informed of the patient ’s admission by the burgomaster , who is notified thereof by the court or the public prosecutor ( section DATE ) . The medical declaration on which the judge based his decision must be transmitted to the institution ’s doctor treating the patient . This doctor has to enter his findings on a register every day for DATE , then on a DATE basis for the ensuing DATE and thereafter on a DATE basis ( section CARDINAL ) .", "Within TIME of the admission , the doctor responsible for the patient ’s treatment is required to send to the public prosecutor of the district in which the psychiatric hospital is situated a reasoned declaration on the patient ’s mental condition and on the necessity or desirability of prolonging his stay in a psychiatric hospital ( section CARDINAL ) .", "Within DATE following the issue of the provisional detention order , a further application or request , seeking the continuation of the patient ’s confinement in a psychiatric hospital for DATE , may be submitted to ORG . Any such application or request must be accompanied by the medical records of the doctor responsible , together with a reasoned declaration by him as to whether it is necessary or desirable for the patient to undergo further treatment in a psychiatric hospital ( section CARDINAL ) .", "The patient need not be notified of the application or request or of the proceedings relating thereto .", "A decision on the application or request is taken by ORG ( section CARDINAL ) . Apart from being obliged to hear the public prosecutor , the ORG does not have to follow any set procedure . It may call for evidence from witnesses or other sources , hear the patient , grant him legal assistance and consult experts , but it is not bound to do so . During the examination of the case , the patient must remain in the institution , if necessary for DATE after the making of the provisional order .", "ORG decision , which is not subject to appeal , is not delivered at a public hearing , nor is it notified to the person concerned . In practice , it is left to the hospital authorities to determine if and when such notification is warranted from the medical point of view .", "The general rule is that , when hearing civil cases , ORG sits as a chamber composed of CARDINAL judges ( section CARDINAL para . CARDINAL of LAW ) . However , this chamber may refer to a single - judge chamber ( enkelvoudige kamer ) such cases as it deems suitable ( LAW ( b ) of LAW ) . ORG has its own Rules of Order ( reglement van orde ) which are approved by LAW on the advice of ORG ( PERSON ) . Under LAW of ORG , as in force at the relevant time ( see paragraphs CARDINAL and CARDINAL below ) , jurisdiction in all cases regarding the detention and stay of persons in psychiatric hospitals was allotted to a single - judge chamber .", "Not CARDINAL and not DATE before the expiry of the period covered by the ORG ’s detention order , an application or request for the prolongation of the patient ’s detention for DATE may be made to ORG ( section CARDINAL of LAW ) .", "Subsequent procedure is the same as for the making of the detention order provided for in section CARDINAL of the LAW . The LAW does not specify when the ORG has to give its ruling .", "Leave of absence ( verlof ) for a specified period may be granted to a patient by the doctor in charge of the institution ( section CARDINAL ) .", "The authorities of a psychiatric hospital may at any time grant the discharge ( ontslag ) of a patient on the basis of a written declaration from the aforesaid doctor to the effect that the patient shows no signs of mental illness or that his treatment in a psychiatric hospital is no longer necessary or desirable ( section CARDINAL ) .", "A written request for the patient ’s discharge may be made to the hospital authorities by the patient himself , the person who applied for his detention or , in the latter ’s absence , another of the relatives by blood or marriage mentioned in LAW para . CARDINAL , in the version in force prior to LAW ) . The authorities must at once consult the doctor in charge of the institution and , if his opinion is favourable , must discharge the patient . If the doctor ’s opinion is unfavourable , the authorities must transmit the request , together with the opinion , to the public prosecutor who will , in principle , refer it to ORG for decision . The ORG ’s procedure for this purpose is the same as that applicable to the making of detention orders ( see paragraph CARDINAL above ) ; its decision is not subject to appeal ( section CARDINAL paras . CARDINAL and CARDINAL ) .", "However , the public prosecutor is not obliged to forward the request to the ORG if it appears manifestly impossible to grant the request ( indien het verzoek klaarblijkelijk niet voor inwilliging vatbaar is ) , if a previous request is still pending , or if the ORG has already dismissed a similar request during the period covered by the detention order and the circumstances have not changed ( section CARDINAL para . CARDINAL ) .", "The public prosecutor , being responsible for the supervision of psychiatric hospitals , has a duty to see that no one is unlawfully detained in such an institution . If the doctor in charge of the institution agrees , the public prosecutor may order the discharge of a patient whose continued confinement he considers unnecessary . If the doctor in charge does not agree , the public prosecutor may refer the matter to ORG . Should the public prosecutor have doubts about the need for the patient ’s continued confinement , he may refer the matter to the ORG ; he is obliged to do so if a public health inspector so requests ( section CARDINAL ) .", "When the period covered by a detention order expires , the hospital authorities must inform the public prosecutor of the fact within DATE and , if no application has been made to the ORG to prolong the detention , he must thereupon order the patient ’s discharge unless he concludes from a reasoned declaration in writing by the doctor in charge that such a step would present a danger to public order ; in the latter event , he must himself request the ORG to prolong the detention ( section CARDINAL ) .", "Any person of full age who is actually confined in a psychiatric hospital automatically loses the capacity to administer his property ( section DATE ) . As a consequence , all contracts entered into by the person concerned after his confinement are void and he can not legally transfer property or operate his bank account . The patient regains the capacity to manage his property only when he is formally discharged but not , for instance , when he is granted leave of absence .", "On application by any of the persons entitled to seek an individual ’s detention , or at the request of the public prosecutor , ORG may appoint a provisional administrator ( provisioneel bewinsdvoerder ) for anyone confined in a psychiatric hospital , should this be deemed necessary or desirable ( section CARDINAL ) . In addition , the general rule laid down in LAW enables ORG to nominate a guardian ( curator ) on behalf of a person , whether in custody or not , who , by reason of mental illness or dipsomania , is no longer capable of managing his own affairs .", "The overall aim of the PERSON is to improve the position of the psychiatric patient : it seeks to strengthen the procedural guarantees accompanying his detention and to allow him more freedom within the hospital .", "The criterion justifying confinement in a psychiatric hospital would henceforth be that the individual , on account of his mental state , constitutes \" a danger for himself , for others or for the general safety of persons and goods \" . Further modifications of relevance would include the following : the competent court at all stages would be the single - judge chamber of ORG ; the provisional detention order would be valid for DATE only ; before making an order or determining a request for discharge , the court would as a general rule have to hear the person concerned ; the only occasion when the court might decide not to hear the patient would be when examining the application or request for the first detention order , that is DATE after the making of the provisional detention order ; the court would be obliged to grant legal assistance to the person concerned at his request ; there would be a right of appeal against orders authorising detention ; admission to a psychiatric hospital would not automatically bring about loss of civil capacity .", "Mr. PERSON received voluntary treatment in a psychiatric hospital from DATE to CARDINAL September CARDINAL . At some time prior to this , he had apparently suffered severe brain damage in an accident . On CARDINAL DATE , he was committed to the \" Zon en Schild \" ( \" Sun and Shield \" ) psychiatric hospital at GPE on the direction of the GPE burgomaster in accordance with the emergency procedure then in force under LAW ( see paragraph CARDINAL above ) . The events prompting this decision were that the applicant had stolen documents from the local registry office , been detained by the police and then been found lying naked on a bed in a police cell . The term of the detention was extended by the public prosecutor , as was possible under paragraph CARDINAL of section CARDINAL .", "On DATE , during the currency of the \" emergency \" confinement , Mr. PERSON ’s wife applied to ORG on a standard form for his provisional detention in the \" Zon an Schild \" hospital in the interests of public order as well as those of her husband .", "The application was accompanied by a medical declaration , dated DATE , made out by a general medical practitioner who had examined the patient for the first time DATE . The declaration stated that the patient had been detained in DATE for \" attempted murder \" and had been under psychiatric treatment in DATE . It also stated that the patient was \" a schizophrene , suffering from imaginary and Utopian ideas , who has for a fairly long time been destroying himself as well as his family \" and that he \" is unaware of his morbid condition \" . The doctor concluded that \" for the time being \" the patient certainly could not \" be left at large in society \" .", "On DATE , on the basis of this declaration , ORG granted the application and authorised the applicant ’s provisional detention , without first exercising its power to hear him or to seek expert advice .", "On DATE , the applicant ’s wife applied to ORG for a DATE detention order in respect of her husband .", "Her application was accompanied by the DATE and DATE records of the doctor in attendance as well as the declaration as to the necessity or desirability of further treatment in a psychiatric hospital .", "On the basis of these documents , the single - judge chamber responsible for hearing such cases made the order on DATE .", "On DATE , following an application by Mrs. PERSON and on the basis of the DATE records of the doctor in attendance and his declaration , identical to that of DATE , the single - judge chamber made an order authorising the prolongation of the detention \" by DATE if necessary \" as from DATE .", "On DATE , the applicant was moved to the \" Rijks PERSON \" ( \" ORG \" ) at GPE . This hospital was further away from the home of his wife , whom he had previously been able to visit on several occasions .", "On DATE , the public prosecutor at ‘ s - Hertogenbosch requested the renewal of the detention order for DATE , on the basis of the DATE records of the doctors who had successively treated Mr. PERSON and a declaration by the doctor in attendance at GPE , which read as follows :", "\" The patient is suffering from a mental illness with the following symptoms : psychopathic personality , quarrelsome and scheming nature , paranoiac tendency , untrustworthiness ; shows signs of dementia in the shape of ... emotional withdrawal ; egocentric tendency ; in need of strict supervision and special care . Continued treatment in a psychiatric hospital must be considered necessary . \"", "On DATE , that is to say , DATE after the previous order had lapsed , the first ordinary chamber of ORG at ‘ s - Hertogenbosch authorised detention for DATE .", "On DATE , DATE and DATE , the same court made further DATE renewals of the detention order following requests by the public prosecutor and on the basis of the DATE medical records and identical declarations by the doctor in attendance , who had however changed in the course of DATE . On DATE and DATE , ORG again granted similar requests by the public prosecutor . The most recent renewal order referred to in the evidence dates from DATE .", "The medical records forwarded DATE to the courts , although fairly brief , indicated that the applicant showed schizophrenic and paranoiac reactions , that he was unaware of his pathological condition and that , on several occasions , he had committed quite serious acts without appreciating their consequences . For example , the records relate how , in pursuance of some fanciful schemes , Mr. PERSON went abroad with family savings and soon became penniless , without realising either the state of neglect in which he had left his family or his own dependence on the consular authorities who had to assist and repatriate him .", "In DATE , the applicant had made a first request to the hospital authorities for his discharge in accordance with LAW ( see paragraph CARDINAL above ) . The hospital authorities forwarded the request to the public prosecutor who in turn referred it to ORG . ORG , after hearing the patient at the hospital , dismissed the request .", "In DATE , the hospital authorities forwarded a second request to the public prosecutor with a negative recommendation . After hearing Mr. PERSON , the public prosecutor , pursuant to paragraph CARDINAL of section CARDINAL , rejected the request without referring it to ORG for decision . The same applied to a third request , made in DATE .", "On DATE , the patient made a further request for his discharge to the authorities of the \" Rijks Psychiatrisch Inrichting \" . On DATE , the medical director of the institution forwarded the request to the public prosecutor with his comments , which may be summarised as follows : the patient was suffering from a paranoiac psychosis which could be successfully treated by psychopharmacological methods , but during previous leaves of absence he had failed to take the drugs prescribed , with the result that he had had to be readmitted after a relapse ; steps were being taken to reintegrate the patient gradually into society and he was spending his TIME outside the hospital ; in the light of the past setbacks , there would have been little point in discharging him . On the strength of this opinion and after hearing Mr. PERSON , the public prosecutor again refused the request and refrained from referring it to ORG . He notified the applicant of his decision on CARDINAL DATE .", "The applicant ’s CARDINAL requests for discharge took the form of simple statements that he was not mentally deranged , that he had been falsely accused of misdemeanours and that he did not constitute a danger for himself or to others . The public prosecutor did not refer the CARDINAL later requests to ORG because it appeared manifestly impossible to grant them .", "Mr. PERSON has from time to time been given leave of absence for various periods . On CARDINAL occasions - DATE in DATE , DATE in DATE , DATE and DATE in DATE - he has been allowed to lodge outside the hospital on an experimental basis . Each time , he has had to be readmitted to hospital . Several reasons are adverted to in the evidence : he failed to follow the treatment prescribed ; his lodging was found to be in a filthy state ; and , most recently , he smashed a window in GPE where he was wandering .", "Mr. PERSON automatically lost the capacity to administer his property on being detained in a psychiatric hospital ( section CARDINAL of the Act ; see paragraph CARDINAL above ) . No provisional administrator was appointed ( section CARDINAL ) and his affairs were at first managed , so it seems , by his wife . Then , on DATE , a guardian was nominated by ORG ( Article CARDINAL of LAW ) . The guardian has made no request for Mr. PERSON ’s release ." ]

[ "5", "6" ]

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

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[ "5" ]

[ "5-1" ]

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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 ) against GPE and GPE lodged with the Commission under LAW ( article CARDINAL ) by a NORP citizen , Mr PERSON , on DATE .", "ORG In a judgment of CARDINAL DATE ( \" the principal judgment \" , Series A no . CARDINAL-A ) , the ORG found that the confiscation order of CARDINAL DATE made against the applicant following his conviction for drugs offences amounted to the retrospective imposition of a penalty in breach of LAW . CARDINAL ( article CARDINAL ) of the Convention ( ibid . , pp . CARDINAL , paras . CARDINAL - CARDINAL , and point CARDINAL of the operative provisions ) .", "The ORG also held that the respondent ORG was to pay the applicant , within DATE , £ MONEY , less the sums paid by way of legal aid , in respect of costs and expenses ( ibid . , p. CARDINAL , paras . CARDINAL , and point CARDINAL of the operative provisions ) .", "ORG As the question of the application of LAW ) was not ready for decision in respect of pecuniary and non - 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 , CARDINAL of the operative provisions ) .", "ORG The negotiations for an agreement having proved unsuccessful , the Registrar received memorials from the Government and the applicant on CARDINAL and CARDINAL DATE respectively concerning the question of damage .", "ORG In accordance with an order of the President of CARDINAL DATE , comments on the claims made by the applicant were submitted by the ORG on DATE . The applicant replied to these submissions on DATE . On DATE a further comment was received from the Government .", "ORG On DATE the Secretary to ORG informed the Registrar that the ORG had no observations to make as regards the above submissions .", "Mr PERSON , who was unable to take further part in the case , was subsequently replaced by PERSON ( Rule CARDINAL para . CARDINAL of Rules of Court A ) ." ]

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[ "The applicant was born in DATE and lives in GPE .", "Following her dismissal from work on DATE the applicant brought a civil action in ORG ( PERSON ) on DATE against her former employer seeking her reinstatement and the salary arrears . Since the entry into force of the LAW in respect of GPE on DATE , the court held CARDINAL hearings and obtained an expert opinion . The expert opinion received by the court on DATE could not be served on the applicant because she had changed her address without notifying the court .", "On DATE the applicant lodged a constitutional complaint under LAW ( CARDINAL ) of LAW . On DATE ORG ( Ustavni sud PERSON ) accepted the applicant 's complaint , finding a violation of her constitutional right to a hearing within a reasonable time . It ordered ORG to give a decision in the applicant 's case within DATE following its publication in ORG and awarded her compensation in the amount of CARDINAL NORP kunas ( HRK ) . The decision was published on DATE .", "NORP In its judgment of CARDINAL DATE ORG dismissed the applicant 's claim as ill - founded . That judgement was served on the applicant on DATE . Following an appeal , on CARDINAL DATE ORG ( Županijski sud u GPE ) quashed the first - instance judgment and remitted the case .", "In the fresh proceedings before ORG a hearing was held on DATE . The hearing scheduled for DATE was adjourned because the summons sent to the applicant had been returned . At the next hearing held on DATE the applicant extended her claim to another defendant . The proceedings are still pending .", "DATE ( Ustav Republike Hrvatske , ORG no . CARDINAL of DATE ) reads as follows :", "“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”", "The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :", "“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant 's rights and obligations or a criminal charge against him or her within a reasonable time ...", "( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...", "( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”" ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is a vice - president of ORG ) , a non - governmental youth organisation , and a member of ORG .", "On DATE the applicant , acting on behalf of ORG , notified the GPE Mayor and the Head of LOC of the organisation ’s intention to hold a peaceful assembly ( picket ) in front of the ORG building on DATE from TIME The purpose of the assembly was declared as the demand for completion of the construction of the residential buildings contracted by ORG .", "NORP In reply , by a letter of the same date , ORG informed the applicant that holding a picket within such short notice was liable to be considered unlawful . The letter indicated that , pursuant to LAW of the GPE of DATE on the procedure for organisation and holding of meetings , rallies , street marches and demonstrations in the GPE ( the DATE Decree – see paragraph CARDINAL below ) , notification had to be given no later than DATE prior to the meeting in question . It further indicated that ORG , in its decision of DATE ( see paragraph CARDINAL below ) , had held that the organisers of peaceful assemblies must inform the authorities in advance of their intention to hold a meeting . It also mentioned that no implementing law in respect of the right to peaceful assembly had yet been enacted in GPE and that the CARDINAL Decree was still in force . The applicant was further informed that untimely notification about the picket could be considered as a violation of the procedure for holding meetings under paragraph CARDINAL of the DATE Decree and the person responsible held administratively liable under LAW ( the ORG ) .", "The picket took place as planned TIME on DATE . According to the applicant , it was peaceful and only a few people took part in it . The police report of DATE noted that CARDINAL persons had taken part in the picket and that there had been no violation of public order .", "On DATE a police officer of LOC drew up an administrative offence report , in the applicant ’s presence , indicating that on DATE the applicant had organised and held a picket in violation of LAW ORG and the decision of ORG of DATE . The applicant signed the report , adding a note to the effect that he considered his actions lawful . The report was referred to a court .", "On CARDINAL DATE the GPE ORG of Odessa ( “ the ORG ” ) examined the applicant ’s case . According to the record of the hearing , provided by the ORG , the questioning took place QUANTITY After that the judge retired to the deliberations chamber . At TIME the judge publicly pronounced judgment and the hearing closed at TIME According to the Government , the full text of the judgment was pronounced publicly and TIME the court clerk handed a hard copy of the judgment to the applicant ’s representative . According to the applicant , the judgment was not pronounced in public but given to his representative in writing TIME after the end of the hearing .", "NORP In that judgment ORG found that the applicant had violated public order by failing to give the ORG sufficient advance notification of the picket he had organised . The court found the applicant guilty of having violated the procedure for organising and holding meetings and demonstrations and fined him CARDINAL NORP hryvnias ( ORG ) ( MONEY ( ORG ) ) . The court held , in particular , that the applicant was in breach of LAW ORG because he had not complied with the DATE notification requirement . The court based its findings on DATE , which provided that an application to hold an assembly had to be lodged with the relevant authority DATE in advance . The court further referred to the decision of ORG and noted that the exact time - limits for notification were to be regulated by law . It further indicated that LAW was valid in GPE under ORG on temporary application of certain legislative acts of GPE ( see paragraph CARDINAL below ) . The court also pointed to the fact that the applicant had been informed by the ORG that the notification he had given was liable to be regarded as contrary to the requirements of the legislation and had been warned that he could incur administrative liability .", "On DATE the applicant appealed . He argued that LAW , on which the first - instance court had based in its decision , was invalid and contrary to the LAW . In particular , he noted that the DATE Decree provided that persons wishing to hold a peaceful assembly had to seek permission , whereas the LAW provided only that the authorities had to be notified of an intention to hold such an assembly . Furthermore , LAW provided that human rights guarantees had to be regulated exclusively by laws and LAW provided that restrictions on the right to peaceful assembly could be established only by law , whereas the DATE Decree was not a law of GPE . He further noted that at the time of the picket there had been no judicial decision restricting the above - mentioned picket as required by LAW . The applicant also contended that his punishment violated LAW and was not necessary as the picket had been peaceful and had not violated public order . Lastly , he complained that the decision in question had not been pronounced publicly which was contrary to LAW ( see paragraph CARDINAL below ) and to LAW .", "On DATE the ORG , ruling in the presence of the applicant and his representative , upheld the decision of the first - instance court . Its ruling contained a summary of the facts of the case , outlined the applicant ’s arguments and included an analysis of the pertinent legislation in line with that of the first - instance court . As to the applicant ’s argument that it was unnecessary to punish him , the court pointed out that the applicant had been punished not for breaching the procedure for holding an assembly but for violating the established procedure for organising it . The court did not however address the applicant ’s complaint that the first - instance court ’s judgment had not been pronounced publicly .", "The applicant has not paid the fine .", "The relevant provisions of the LAW read , in so far as relevant , as follows :", "“ Human and ORG rights and freedoms affirmed by LAW are not exhaustive .", "Constitutional rights and freedoms are guaranteed and shall not be abolished .", "The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force . ”", "“ ORG have the right to assemble peacefully without arms and to hold meetings , rallies , marches and demonstrations , after notifying the executive authorities and bodies of local self - government beforehand .", "Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes , protecting the health of the population , or protecting the rights and freedoms of other persons .", "“ The following are determined exclusively by the laws of GPE :", "( CARDINAL ) NORP human and ORG rights and freedoms ; the guarantees of these rights and freedoms ; the main duties of the citizen ... ”", "“ CARDINAL . Laws and other normative acts enacted prior to the entry into force of this LAW shall apply in so far as they do not conflict with LAW ... ”", "The relevant provisions of the Code read , in so far as relevant , as follows :", "“ A breach of the procedure for organising and holding meetings , rallies , street marches and demonstrations shall be punishable by a reprimand or by a fine of DATE times the minimum DATE wage .", "The same actions committed within DATE of the application of administrative penalties or by the organiser of the meeting , rally , street procession or demonstration shall be punishable by a fine of QUANTITY times the minimum DATE wage , or by correctional labour of DATE , with a deduction of PERCENT of earnings ; or by administrative detention of DATE . ”", "Article CARDINAL", "Pronouncement and service of decision regarding an administrative offence", "“ A decision shall be pronounced immediately after the examination of the case . Within DATE a copy of the decision shall be given or sent to the person concerned ... ”", "The Decree lays down the procedure for seeking and granting permission to organise and hold meetings , rallies , street marches and demonstrations . The PERSON provides inter alia :", "“ The LAW of the GPE , according to the interests of the people and for strengthening and development of the socialist system , guarantees to the citizens of the GPE the freedom of meetings , rallies , street marches and demonstrations . The exercise of these political freedoms shall be ensured to the working people and their organizations by providing them with public buildings , streets , squares and other places ...", "An application to hold a meeting , rally , street procession or demonstration shall be submitted to the executive committee of the appropriate local NORP of people ’s deputies ...", "An application to hold a meeting , rally , street procession or demonstration shall be submitted in writing no later than DATE before the planned date of the event in question ...", "NORP The executive committee of the NORP of people ’s deputies shall examine the application and notify the representatives ( organisers ) of its decision DATE prior to the date of the event mentioned in the application ...", "NORP The executive committee of the NORP of people ’s deputies shall ban a meeting , rally , street procession or demonstration if the goal of the event in question is contrary to LAW GPE , ORG or of the autonomous republics or poses a threat to the public order and safety of citizens . ”", "The resolution provides in particular :", "“ ... before the relevant legislation of GPE is enacted , the legislation of the GPE is applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of GPE and in so far as they do not contravene the LAW and legislation of GPE . ”", "NORP In its decision ORG held inter alia :", "“ CARDINAL . ... ORG of GPE applied to ORG for an official interpretation of the provisions of LAW regarding timely notification to executive authorities or bodies of local self - government of planned meetings , rallies , marches or demonstrations .", "In this constitutional application it is noted that , under LAW , citizens have the right to assemble peacefully without arms and to hold meetings , rallies , marches or demonstrations following prior notification to the executive authorities or bodies of local self - government . However , it is stressed that the current legislation of GPE does not provide for a specific time - limit within which the executive authorities or bodies of local self - government are to be notified about such actions ...", "... ORG holds as follows :", "The provisions of the first part of DATE GPE on the timely notification to the executive authorities or bodies of local self - government about planned meetings , rallies , marches or demonstrations relevant to this constitutional application shall be understood to mean that where the organisers of such peaceful gatherings are planning to hold such an event they must inform the above - mentioned authorities in advance , that is , within a reasonable time prior to the date of the planned event . These time - limits should not restrict the right of citizens under LAW , but should serve as a guarantee of this right and at the same time should provide the relevant executive authorities or bodies of local self - government with an opportunity to take measures to ensure that citizens may freely hold meetings , rallies , marches and demonstrations and to protect public order and the rights and freedoms of others .", "Specifying the exact deadlines for timely notification with regard to the particularities of [ different ] forms of peaceful assembly , the number of participants , the venue , at what time the event is to be held , and so on , is a matter for legislative regulation ... ”", "On DATE the Plenary of ORG by its Decree No . CARDINAL decided to send this note for information to the judges of lower administrative courts . The note mentioned , inter alia , as follows :", "“ ... The judicial practice contains instances of cases restricting the right to peaceful assembly being decided on the basis of the procedure for organising and holding meetings , rallies , street marches and demonstrations laid down by LAW of the GPE of DATE No . CARDINAL-XI on the procedure for organisation and holding of meetings , rallies , street marches and demonstrations in the GPE . This approach is incorrect .", "Since the norms of this Decree establish the procedure for authorising ( registering ) peaceful assembly and empower the authorities and bodies of local self - governments to ban such events , whereas the norms of the LAW of GPE provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering , the above - mentioned legal act should not be applied by courts when deciding such cases ... ”", "In a judgment of LOC of Dnipropetrovs’k of DATE in the case of PERSON ORG of the Dnipropetrovs’k ORG concerning the adoption of regulations on holding mass events in the city of Dnipropetrovs’k , the court held , inter alia , that the procedures for exercising the right to freedom of assembly and the procedures and grounds for restricting the right were not regulated by NORP legislation and therefore the ORG had no grounds for adopting the impugned regulation , which would interfere with the rights of citizens .", "In another case ORG , in a judgment of CARDINAL DATE , restricted the right of several NGOs and private persons to hold a demonstration on account , in particular , of their failure to notify ORG of their intention DATE in advance . The court referred to LAW . The participants appealed against that judgment . On DATE ORG quashed the judgment of the first - instance court . In its decision ORG noted that the CARDINAL Decree conflicted with the LAW as it required the organisers to seek permission to hold a demonstration and authorised the executive authorities to ban such an event , whereas Article CARDINAL of the LAW provided that the authorities should be notified that a demonstration was being planned , and empowered only the judicial authorities to place restrictions on the organisation thereof . It also noted that in its decision of DATE ( see paragraph CARDINAL above ) ORG had not referred to LAW as a normative act which should apply in GPE to the legal relations under consideration . The court also noted that the file contained no documents proving that notification about the demonstration DATE in advance had not allowed the police to ensure public order during the demonstration and that the holding of such an event could create a real risk of riots or crimes or endanger the health of the population and imperil the rights and freedoms of others . It concluded that the judgment of the first - instance court was incompatible with Article CARDINAL of the LAW .", "NORP In another case ORG , in a decision of DATE , quashed a judgment of ORG , which had restricted the freedom of peaceful assembly in respect of a number of political and non - governmental organisations upon an application by ORG . In its decision ORG noted that , in deciding the case , the first - instance court had had regard to the provisions of the CARDINAL Decree , whereas since DATE the question of holding peaceful gatherings had been regulated by LAW . The court further stated that LAW conflicted with the LAW as it provided for a procedure for seeking permission to hold a demonstration and that the Decree concerned the holding of such events in a non - existent country ( “ the GPE ” ) , regulated relations between the citizens of the GPE and the executive committees of the NORP of ORG , and considered demonstrations on the basis of their compatibility with LAW GPE , the constitutions of the union and the autonomous GPE , that is , non - existent constitutions of non - existent subjects . The court also noted that under the NORP LAW human rights and freedoms , and the relevant safeguards , could be defined only by the laws of GPE .", "Other relevant domestic law and practice and the relevant international documents can be found in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL , DATE , DATE and DATE to DATE , DATE ) ." ]

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[ "The applicants , Mr PERSON ( “ the first applicant ” ) and PERSON Gordana Tonić ( “ the second applicant ” ) , are NORP nationals who were born in DATE and live in GPE . They were represented before the Court by Mrs Lj . GPE , an advocate practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the Act on Compensation for , and ORG of , Property Taken under the NORP communist regime ( ORG o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine – “ the LAW ” ) entered into force . It enabled the former owners of confiscated or nationalised property , or their heirs in the first line of succession ( direct descendants or a spouse ) , to obtain under certain conditions either restitution of or compensation for property appropriated during the communist regime . They were required to submit their requests within DATE from the LAW ’s entry into force . Requests submitted after that date were to be declared inadmissible .", "Pursuant to section CARDINAL of LAW , nationalised flats in respect of which third persons had acquired specially protected tenancies ( stanarsko pravo ) were not to be restored to their former owners . The tenants had a right to purchase such flats from the provider of the flat under favourable conditions set out in the Specially Protected Tenancies ( Sale to Occupier ) Act ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) . At the same time , the former owners were entitled to financial compensation in respect of the flats .", "On the other hand , pursuant to section CARDINAL of LAW , confiscated flats were to be awarded to their former owners . Under section CARDINAL of ORG ( Zakon o ORG za naknadu oduzete imovine ) , the tenant had the right to purchase a confiscated flat only if no request for its restitution had been submitted or if such request had been dismissed in a final decision .", "The applicants were holders of specially protected tenancies of flats in GPE , measuring QUANTITY ( the first applicant ’s flat ) and QUANTITY ( the second applicant ’s flat ) . Both flats are located in the same building , which in DATE was confiscated from its owner PERSON by the communist authorities .", "On DATE PERSON ’s daughter PERSON instituted administrative proceedings before ORG of GPE ( Grad GPE , PERSON ured za imovinskopravne poslove ) by submitting a request for restitution of ORG confiscated property , including the above - mentioned building .", "On DATE PERSON died and her testamentary heirs GPE .- V. and ORG took over the proceedings .", "On DATE the ORG delivered a decision awarding ownership of the plot of land on which the building at issue was built to ORG .- V. and ORG It stated , however , that it would decide on the restitution of the building itself at DATE .", "On DATE the ORG issued a decision awarding ownership of the entire building to GPE .- V. and ORG and declaring that the applicants had acquired the status of protected lessees ( zaštićeni najmoprimci ) under LAW of LAW .", "On DATE ORG ( ORG pravosuđa ) , as the second - instance administrative authority , dismissed an appeal by the applicants and upheld the first - instance decision of CARDINAL DATE .", "The applicants then brought an action in ORG ( ORG ) challenging the ORG ’s decision . On DATE ORG dismissed the applicants’ action . The first - instance decision of CARDINAL DATE thereby became final .", "The applicants then lodged a constitutional complaint against the judgment of ORG . It would appear that the proceedings are currently pending before ORG ( Ustavni sud PERSON ) .", "Meanwhile , in DATE the applicants made requests to GPE to purchase their respective flats , under the Specially Protected Tenancies ( Sale to LAW .", "On DATE the second applicant asked ORG of GPE whether a request for restitution of the building in which her ( and the first applicant ’s ) flat was located had been submitted . In the letter of CARDINAL DATE the ORG replied that no such request had been submitted .", "On DATE GPE , as the provider of the flat , concluded a contract of sale with the first applicant whereby it sold him the flat in respect of which he had a specially protected tenancy for CARDINAL NORP kunas ( HRK ) . On DATE GPE concluded a similar contract with the second applicant , selling her the flat in respect of which she had a specially protected tenancy for HRK CARDINAL . Shortly afterwards the applicants were recorded as the owners of their respective flats in the land register .", "On DATE ORG - V. and ORG brought a civil action in ORG ( PERSON ) against the applicants , several other individuals who had purchased flats located in the same building and GPE . They asked the court to declare the contracts of sale null and void as being contrary to peremptory rules . They argued that under LAW , confiscated flats were not to be sold to their tenants but awarded to their former owners . Only if the former owner ’s request for restitution had been dismissed or declared inadmissible were the tenants allowed to purchase such flats . The plaintiffs explained that they had taken over the administrative proceedings instituted on DATE before ORG of GPE by PERSON , who had submitted a request for restitution of the entire building in which the flats in question were located , and that this request had not been dismissed or declared inadmissible by the time the impugned contracts of sale had been concluded . Therefore , GPE had not been allowed to sell those flats as long as the request for their restitution had been pending .", "On DATE the court declared the impugned contracts of sale null and void ab initio , endorsing the arguments adduced by the plaintiffs . It found that the contracts were in breach of peremptory rules and therefore null and void from their inception . The respondents appealed .", "On DATE ORG ( Županijski sud u GPE ) dismissed an appeal by the respondents and upheld the first - instance judgment .", "The applicants then lodged constitutional complaints , alleging a violation of their constitutional right to equality before the law .", "On DATE ORG dismissed the applicants’ constitutional complaints .", "The LAW on the Prohibition of the Transfer of Rights to Dispose of and Use Certain Items of Immovable Property in ORG to other Users or into the Ownership of other ORG ( Zakon o zabrani prijenosa prava raspolaganja i korištenja određenih nekretnina u društvenom vlasništvu na druge korisnike odnosno u vlasništvo drugih fizičkih i pravnih osoba , ORG nos . DATE , CARDINAL/CARDINAL , CARDINAL and CARDINAL/CARDINAL – “ LAW ” ) , which entered into force on DATE , banned any transfer of property that had been acquired by means of nationalisation or confiscation .", "Paragraph CARDINAL of section CARDINAL provided that the prohibition applied to any property appropriated on the basis of legislation listed in that paragraph .", "Paragraph CARDINAL of section CARDINAL provided that the prohibition applied to any property appropriated by means of confiscation irrespective of the legislation on which the confiscation measure had been based .", "Section CARDINAL(CARDINAL ) provided that any contract concluded in contravention of the provisions of LAW was null and void .", "Section CARDINAL provided that the prohibition was to apply until the introduction of denationalisation legislation .", "The Act on Compensation for , and Restitution of , Property Taken During ORG ( Zakon o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , PERSON ( amendments ) and DATE ( corrigendum ) DATE “ the DATE LAW ” ) , which entered into force on DATE , enables the former owners of confiscated or nationalised property , or their heirs in the first line of succession ( direct descendants and a spouse ) , to seek under certain conditions either restitution of or compensation for appropriated property . The relevant provisions of LAW read as follows :", "I. BASIC PROVISIONS", "“ ...", "( CARDINAL ) Restitution of property appropriated from former owners within the meaning of this LAW shall , in principle , take the form of payment of compensation in money or securities ( stocks or shares , or bonds ) , or , exceptionally , restitution in kind .", "...", "( CARDINAL ) Ownership of confiscated property shall be awarded to its former owner in accordance with this LAW , and if this is impracticable ... the former owner shall have the right to compensation in the form of money or securities . ”", "IV . SUBJECT OF RESTITUTION", "( a ) RESTITUTION OF APPROPRIATED FLATS", "“ ( CARDINAL ) Unless they were appropriated by means of confiscation , the ownership of flats ... let under specially protected tenancies shall not be restored to their former owners .", "...", "( CARDINAL ) The former owner shall have the right to compensation and the tenant [ i.e. the holder of a specially protected tenancy ] shall have the right to purchase the flat . ”", "( b ) RESTITUTION OF CONFISCATED FLATS", "“ Ownership of a flat appropriated [ by means of confiscation ] shall be awarded to its former owner . ”", "“ Where the flat is awarded to its former owner , the tenants [ i.e. the holders of a specially protected tenancy of the flat ] shall acquire the status of [ protected ] lessees under the provisions of [ the Lease of Flats Act ] . ”", "“ ( CARDINAL ) The [ former ] owner and the lessee are bound to conclude a lease contract [ with protected rent ] within DATE from DATE the decision awarding ownership [ of the flat to the former owner ] became final .", "( CARDINAL ) If the [ former ] owner refuses to conclude the lease contract , the tenant may enforce his or her right by bringing an action in the competent court within DATE from DATE the [ former ] owner of the flat refused to conclude the lease contract . The court ’s decision shall entirely replace the lease contract . ”", "“ In the case of further disposal in rem of the flat , the lessee shall have the right of pre - emption . ”", "VI . NORP EXCEPTIONS FROM RESTITUTION IN KIND OF NATIONALISED , CONFISCATED OR OTHERWISE APPROPRIATED PROPERTY", "“ Unless otherwise provided by this LAW , ownership and possession of property of which third persons have acquired ownership on the basis of a valid legal title , or of property which has been handed over into their possession on the basis of a valid legal title for acquiring ownership , shall not be returned to the former owner . ”", "In its judgment no . PERSON CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ORG held that the time - limit specified in section CARDINAL(CARDINAL ) of LAW was not preclusive and that therefore by failing to observe it , a former holder of a specially protected tenancy did not lose his right to conclude a lease contract with protected rent .", "ORG ( Zakon o ORG za naknadu oduzete imovine , ORG nos . CARDINAL , FAC and CARDINAL ) , which entered into force on DATE , reads as follows in so far as relevant :", "“ The tenants ( lessees ) of confiscated flats in respect of which no requests for restitution were submitted within the time - limit prescribed by [ LAW ] , or such requests were dismissed by a final decision , shall acquire the right to purchase their flats under the provisions of that LAW . ”", "ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL ) , which entered into force on DATE , entitled the holder of a specially protected tenancy of a socially owned flat to purchase it from the provider of the flat under favourable conditions .", "ORG o najmu stanova , ORG no . CARDINAL/CARDINAL of DATE ) , which entered into force on DATE , regulates the legal relationship between the landlord and the lessee with respect to the lease of flats . It recognises a special category of lessees ( “ protected lessees ” DATE najmoprimci ) , namely those who were previously holders of specially protected tenancies on privately owned flats or those who did not purchase their flats under ORG . That category is subject to a number of protections , for instance , the obligation of landlords to contract a lease for an unlimited period of time ; payment of protected rent ( zaštićena najamnina ) , the amount of which is to be prescribed by the Government ; and limited list of grounds for termination of the lease .", "Pursuant to the LAW , a landlord may terminate the lease of a protected lessee in the following cases :", "if the lessee does not pay the rent or charges ;", "if the lessee sublets the flat or part of it without permission from the landlord ;", "if the lessee or other tenants in the flat disturb other tenants in the building ;", "if another person , not named in the lease contract , lives in the flat for longer than DATE without permission from the landlord , except where that person is a spouse , child or parent of the lessee or of the other legal tenants in the flat , or a dependant of the lessee or a person on whom the lessee is dependent ;", "if the lessee or other legal tenants do not use the flat as living accommodation but for other purposes ;", "if the landlord does not have another flat and is entitled to social welfare benefits or is DATE .", "Under section CARDINAL(CARDINAL ) of the LAW , the landlord may also terminate the lease of a protected lessee if the landlord intends to move into the flat himself or install his children , parents or dependants in it .", "Section CARDINAL provided that by the LAW ’s entry into force , specially protected tenancies were to be abolished and the holders of such tenancies were to become protected lessees .", "Section ORG ) provided that the lessee had to submit a request for the conclusion of a lease contract with protected rent to the landlord within DATE from the LAW ’s entry into force , or from DATE on which the decision determining the right of that person to use the flat became final .", "In its decision no . U-CARDINAL/CARDINAL of DATE ORG held that the time - limit set forth in section ORG ) of ORG was not preclusive and that therefore by failing to observe it , a former holder of a specially protected tenancy did not lose her right to conclude a lease contract with protected rent .", "The relevant part of LAW ( Zakon o obveznim odnosima , ORG of ORG nos . CARDINAL , DATE and DATE , and ORG no . CARDINAL/CARDINAL with subsequent amendments DATE “ the DATE LAW ” ) provided as follows :", "“ ( CARDINAL ) A contract that is contrary to the LAW , peremptory rules or morals shall be null and void unless the purpose of the breached rule indicates some other sanction or the law in a particular case provides otherwise .", "( CARDINAL ) If the conclusion of a contract is prohibited only to CARDINAL party , the contract shall remain valid , unless the law in a particular case provides otherwise , and the party that has breached the statutory prohibition shall bear the relevant consequences . ”", "“ Where a contract is null and void , each contracting party is bound to return to the other everything it has received on the basis of such a contract . If that is not possible , or if the nature of the obligation performed renders restitution impracticable , an appropriate [ amount of ] monetary compensation shall be given , according to the prices at the moment a court decision is passed , unless the law provides otherwise . ”", "“ ( CARDINAL ) A contract that is null and void shall not become valid if the cause of nullity subsequently disappears .", "( CARDINAL ) However , if a prohibition was of minor importance , and the contract has been performed , the issue of nullity may not be raised . ”", "“ A contracting party responsible for the conclusion of a contract that is null and void shall be liable in damages to the other contracting party for the damage sustained on account of the nullity of the contract , if the latter did not know or , according to the circumstances , should not have known of the existence of the cause of nullity . ”", "“ ( CARDINAL ) The court shall examine the issue of nullity of its own motion [ ex officio ] and any interested party may raise it .", "( CARDINAL ) A state attorney shall also have the right to plead nullity . ”", "“ The right to plead nullity shall not lapse . ”", "On DATE the new LAW ( Zakon o obveznim odnosima , ORG , ORG . CARDINAL/CARDINAL and TIME “ the DATE LAW ” ) entered into force . Its sections CARDINAL , CARDINAL and CARDINAL to CARDINAL contain the same provisions as sections CARDINAL , ORG and CARDINAL to CARDINAL of the DATE LAW ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE he was arrested on suspicion of having committed several robberies .", "On DATE the case against him and CARDINAL other accused was submitted for trial to LOC .", "On DATE ORG convicted the applicant of theft and several counts of aggravated robbery . On DATE ORG quashed his conviction on appeal and remitted the case for a fresh examination .", "A new conviction was handed down on DATE . It was upheld on appeal on DATE but was set aside on DATE by the ORG of ORG by way of supervisory review proceedings . The case was then sent for a new trial to ORG of LOC .", "On DATE ORG , composed of judge S. , as president , and CARDINAL lay assessors , held the first hearing . The applicant and CARDINAL of his co - defendants appeared before the court . At the beginning of the hearing , it was found that all victims and certain witnesses had failed to appear . Messrs. P. and NORP , victims in the case , did not appear because they lived far from GPE . The summons which had been sent to Mr GPE . , a victim , had not been delivered as he had moved house . Mr PERSON , also a victim in the case , was on a business trip and could not attend . PERSON , the fifth victim , and the witnesses defaulted for various reasons . The prosecutor did not appear either . Though all defendants protested against the continuation of the hearing in the absence of the prosecutor , the victims and the witnesses , the court decided to proceed with the trial . The presiding judge read out the bill of indictment and questioned the defendants who all protested their innocence .", "On DATE , CARDINAL DATE , the fifth victim and several witnesses appeared in court . The prosecutor was not present . The presiding judge again questioned the defendants , examined the victim and witnesses and studied documents in the file . The applicant asked the court to summon and examine attesting witnesses who had been present when the victims , in particular Messrs. GPE . and PERSON , had identified him on a photograph . The court refused . It then decided to read out the written depositions to the investigative authorities by defaulting witnesses and by Messrs. NORP , GPE . , PERSON and P. The last CARDINAL were direct eyewitnesses of the applicant 's actions . The defendants and counsel unsuccessfully objected to doing so and insisted that all the victims and witnesses should be examined in open court . After the written depositions had been read out , the applicant expressed doubts as to the credibility of some of them .", "NORP On DATE the trial court continued reading out of the depositions by the defaulting witnesses and then proceeded to hear the final pleadings for the defence . The defendants and counsel objected to the concluding of the judicial inquiry but their objection was dismissed .", "By a judgment of DATE , ORG convicted the applicant of theft and several counts of aggravated robbery and sentenced him to DATE imprisonment in a high - security colony . The judgment was based to a significant extent on the written depositions by victims and the report on the identification of the applicant from a photograph by Messrs. GPE . and PERSON The court found that the statements made by the CARDINAL defaulted victims during the pre - trial investigation “ confirmed the guilt of all the defendants ” . As to the testimonies by the fifth victim and by the appeared witnesses , they concerned circumstances unrelated to the authorship of the incriminated offences , the defendants ' alibi and their alleged ill - treatment by the police .", "The applicant lodged an appeal . He submitted in particular that the trial court in the prosecutor 's absence had assumed the prosecutorial function . He also complained that the court had not examined the victims and witnesses whose testimonies had been of significant importance for the determination of his case .", "On DATE ORG held an open hearing . The prosecutor did not participate . ORG dismissed the applicant 's appeal and upheld his conviction and sentence in their entirety . It endorsed in a summary fashion the findings of ORG and made no comment in respect of the applicant 's complaints about the prosecutor 's absence from the trial and the alleged failure of the trial court to examine the key witnesses .", "During the preparation of a case for an examination a judge had to decide whether a state prosecutor should participate in the trial . If the judge found that the prosecutor 's participation was necessary , his decision was binding on the prosecutor . If the latter informed the court , when submitting the case for trial , of his wish to sustain the charges in the court , the judge could not hold otherwise ( Article CARDINAL ) .", "If the prosecutor failed to appear , the court , after having heard participants present at the hearing , decided whether it was possible to examine the case in his absence or whether the hearing should be adjourned ( Articles CARDINAL and CARDINAL ) .", "At the trial , the prosecutor accused a defendant on behalf of the ORG , participated in the examination of evidence and gave conclusions and submissions , in particular in respect of law and punishment to be applied to the defendant . If the prosecutor was convinced that materials of the judicial investigation no longer supported charges levelled against the defendant , he had to drop the charges ( Article CARDINAL ) .", "The state prosecutor 's participation is mandatory in all trials in public prosecution cases ( Article CARDINAL ) .", "NORP In its decision of DATE ORG held that a criminal trial was based on the principles of adversarial proceedings and equality of the parties , which meant first of all strict separation of the judicial function and the prosecution function which were to be carried out by different actors . The adversarial nature of criminal trials implied that the institution of criminal prosecution , the formulation of a charge and its sustaining before the court , were insured by competent bodies and officials , as well as victims . Imposing on the court the obligation to substitute , in CARDINAL or another form , for those bodies and persons ' prosecution activity , was incompatible with principle of the separation of powers and with the role of the court as an administrator of justice .", "Reading out of earlier statements made by a victim , or a witness , was permitted if they did not appear before the court owing to reasons that made their attendance impossible ( Articles CARDINAL and CARDINAL ) .", "Reading out of earlier statements made by a victim , or a witness , is permitted if the parties give their consent to it and if ( CARDINAL ) there are substantial discrepancies between the earlier statement and the later statement before the court or ( CARDINAL ) the victim or the witness has not appeared before the court ( LAW ) .", "The court may , without seeking the consent of the parties , read out earlier statements by the defaulted victim , or the witness , in case of ( CARDINAL ) the death , ( CARDINAL ) the serious illness , ( CARDINAL ) the refusal to appear by the victim or the witness if they are citizens of other GPE or ( CARDINAL ) the natural disaster or other force majeure circumstances ( LAW ) .", "The Convention on Legal Assistance and Legal Relations in Civil , Family and Criminal Matters ( signed in GPE on DATE and amended on DATE , “ the DATE Minsk Convention ” ) , to which both GPE and GPE are parties , provides that a witness and a victim who are subjects of CARDINAL ORG can be summoned , for the purpose of their examination , by a “ body of justice ” of ORG . The witness and the victim are entitled to reimbursement of travelling , and certain other , costs and expenses incurred in connection with their participation in the criminal proceedings ( Section CARDINAL ) .", "If a witness or a victim did not obey a summons to appear without a valid reason , they could be brought to the courtroom under escort . A witness could be fined , in addition ( Articles DATE and DATE ) .", "A witness and a victim were entitled to reimbursement of costs and expenses incurred in connection with their participation in the criminal proceedings ( Article CARDINAL ) .", "ORG If a witness or a victim does not obey a summons to appear without a valid reason , they may be brought to a courtroom under escort ( Article CARDINAL ) .", "A witness and a victim are entitled to reimbursement of costs and expenses incurred in connection with their participation in the criminal proceedings ( Article CARDINAL ) .", "A witness , or a victim , who live abroad , with their consent , may be summoned for the participation in criminal proceedings conducted in the territory of GPE ( Article CARDINAL § CARDINAL ) .", "Following the examination of an appeal , the appeal court may decide ( CARDINAL ) to dismiss the appeal and uphold the judgment , ( CARDINAL ) to quash the judgment and terminate the criminal proceedings , ( CARDINAL ) to quash the judgment and remit the case for a new trial , or ( CARDINAL ) to amend the judgment ( Article CARDINAL of LAW ) .", "A judgment may be quashed or amended on appeal if there is an inconsistency between conclusions reached by the trial court in the judgment and facts established by that court . Violation of procedural law and wrongful application of criminal law , as well as unfairness of the judgment , also constitute grounds for reversing or changing the judgment ( Article CARDINAL of the Code ) ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON , PERSON .", "CARDINAL .", "NORP In DATE the applicant joined ORG ( “ TA ” ) as a pay and accounts clerk , a military post , carrying out duties such as filing , photocopying and maintaining a stationery store . In DATE the applicant was informed that he was to be made redundant , following organisational changes in the ORG pursuant to a process of civilianisation . He was subsequently informed that the clerical post which he had occupied was to become a civilian post and was to be converted to that of a technical store - man . The applicant applied for this new post , but was informed in DATE that he could take it only if he undertook a training course , but that all relevant training courses had been cancelled . He also applied for a number of other clerical posts within the ORG but was refused for them all .", "The applicant was therefore made redundant . His discharge from the ORG , dated DATE , was formally made , incorrectly , on the basis that his services were no longer required . The applicant later discovered that his former duties were being carried out by an untrained civilian , while the technical store - man post remained vacant .", "On DATE the applicant complained about his redundancy to ORG , but his claim was rejected because ORG did not have jurisdiction over matters involving military personnel .", "On DATE the applicant claimed redress in respect of his redundancy from his Commanding Officer , under sections CARDINAL and CARDINAL of the Army Act DATE .", "On DATE the Commanding Officer issued a brief in which he concluded that the applicant had a weak case for redress . He further requested ORG to determine whether the applicant was subject to military law . The applicant 's solicitors , on DATE , submitted observations in reply . The matter was then placed before ORG .", "NORP In DATE , the applicant applied for judicial review in respect of ORG failure to determine the case within a reasonable time . His application was granted by ORG on DATE and ORG was ordered to deal with the case expeditiously .", "ORG , without holding an oral hearing or directing a ORG to be convened , issued its decision on DATE , refusing the applicant 's claim for redress .", "The applicant applied for judicial review of the decision not to hold an oral hearing or convene a ORG .", "On DATE , while the judicial review application was pending , ORG directed that a ORG should be convened . ORG was convened by an order dated DATE . It sat in DATE , considered oral and documentary evidence and issued a summary of its factual findings on DATE . It found in the applicant 's favour as regards his argument that he ought to have been , but was not , given priority before CARDINAL selection boards . It was anticipated that the level of compensation would be fixed by negotiation between ORG and the applicant .", "ORG met to reach a determination on DATE . It issued its decision on DATE , ordering that the applicant be offered compensation in respect of the failure to offer him alternative employment within the ORG . On DATE , an award of compensation was notified to the applicant but he disputed the calculation of the compensation .", "In DATE a further offer of settlement was made to the applicant , which he rejected .", "On DATE ORG made a further compensation offer of GBP CARDINAL,CARDINAL.CARDINAL . The sum was made up of CARDINAL parts : loss of salary ( minus the applicant 's actual earnings during the relevant period ) ; a redundancy payment estimated on the basis that the applicant would have had DATE service ; and loss of pension rights , again based on a DATE period . The applicant rejected the offer on the basis that it did not include costs or a sum to compensate him for the stress he had suffered .", "The applicant , acting as a litigant in person , subsequently applied for judicial review of the decision , claiming that the award had not been properly assessed . Permission was granted on DATE . The applicant advanced CARDINAL criticisms : first , that the award was based on the assumption that he would have been discharged from the army DATE after the date on which he was actually discharged ; second , that the salary base used for the calculation of all CARDINAL elements of the award was taken to be GBP CARDINAL per year gross . The latter criticism was only formally advanced at the hearing itself .", "On DATE ORG rejected the applicant 's complaint regarding the DATE cut - off date . However , in light of evidence produced to the court regarding the level of the applicant 's salary at the time of his redundancy , the court accepted ORG undertaking to review the level of the annual salary used in its calculation and , if appropriate , to reassess the award of compensation within DATE . Although formally the applicant was the unsuccessful party in the litigation , and as a result would normally be required to pay the costs of ORG , the court ordered the applicant to pay CARDINAL of ORG costs partly on the ground that “ the history of this matter displays an inordinate period of delay ” .", "On DATE , a revised offer of GBP CARDINAL,CARDINAL.CARDINAL was made to the applicant . The offer was rejected .", "The applicant again applied for judicial review on DATE seeking an order requiring ORG to investigate and take steps towards redressing his complaint within a prescribed time - frame and damages for the losses suffered by him as a result of ORG failure to perform its duties . There was a hearing on DATE but no order was made .", "On DATE , a further offer was made to the applicant in the sum of GBP CARDINAL .", "On DATE the applicant again applied for judicial review in respect of the delay but again , following a hearing on DATE , no order was made .", "On DATE , following another application for judicial review , ORG adjourned the case pending promulgation by ORG of its written decision regarding the offer of compensation .", "On DATE ORG issued its decision awarding the applicant compensation of ORG CARDINAL,CARDINAL.CARDINAL .", "The applicant 's application for judicial review was refused on DATE on the ground that ORG decision had brought the finality which the applicant had been seeking .", "The applicant brought a fresh application for judicial review on the ground that the award of CARDINAL DATE had been incorrectly reached . The application was refused on the papers on DATE . Following the applicant 's renewed application and an oral hearing , permission was finally refused on DATE .", "According to GPE 's ORG ( CARDINALth Edition ) , the terms of engagement of members of the armed forces do not constitute a contract of service in the strict sense . Members of the armed forces are appointed by the ORG under the ORG prerogative and hold their appointments “ at the Queen 's pleasure ” .", "The ORG , although essentially part - time , has a small number of attached regular army officers and non - commissioned officers responsible for organising and supervising the management and training of the unit . At the relevant time , the routine administration of the ORG tended to be vested in a special category of uniformed reservists known as ORG ( “ LOC ) . ORG were recruited into the ORG to perform a specific job within a ORG unit .", "Under section CARDINAL(CARDINAL)(h ) of the Army Act DATE , ORG soldiers were subject at all times to military law .", "Section CARDINAL of the Army Act DATE set out , at the relevant time , the redress available to the applicant following his redundancy . It provided as follows :", "“ ( CARDINAL ) If a warrant officer , non - commissioned officer or soldier thinks himself wronged in any matter by any officer other than his commanding officer or by any warrant officer , non - commissioned officer or soldier , he may make a complaint with respect to that matter to his commanding officer .", "( CARDINAL ) If a warrant officer , non - commissioned officer or soldier thinks himself wronged in any matter by his commanding officer , either by redress not being given to his satisfaction on a complaint under the last foregoing subsection or for any other reason , he may , in accordance with the procedure laid down in Queen 's Regulations , make a complaint with respect thereto to ORG ,", "( CARDINAL ) It shall be the duty of a commanding officer or , as the case may be , ORG to have any complaint received by him or them investigated and to take any steps for redressing the matter complained of which appear to him or them to be necessary . ”", "Queen 's Regulation ( “ QR ” ) CARDINAL.CARDINAL(b ) provided :", "“ Every complaint is to be fully and distinctly stated and any explanation or other evidence as may be necessary for the proper investigation and speedy determination of the complaint is to be annexed to it . ”", "QR CARDINAL provided :", "“ A complaint is to be submitted , in writing , to the complainant 's commanding officer no matter if the commanding officer has previously refused to redress the matter complained of ; has not the power to grant the redress sought ; or if the complaint has been made against the action or refusal of action by the commanding officer himself . ”", "NORP QR CARDINAL provided :", "“ Any complaint under Section ... CARDINAL(CARDINAL ) of the Army Act DATE is , when received by the commanding officer , to be forwarded by him , with any comments , to his next higher authority . That authority is to examine the complaint and is himself to grant redress if he has power to do so and thinks he should . If redress is not then granted , or is not granted to the complainant 's satisfaction , that authority is to forward the complaint , together with any comments by the commanding officer and himself , to the next higher authority , and the procedure repeated . In this way , unless full redress is granted at an intermediate level , the complaint will come up through the chain of command to ORG and will be presented to ORG . The complainant is to be informed of progress at each stage and given the opportunity to withdraw his complaint if he wishes . ”", "New primary legislation governing redress of complaints was introduced in LAW but this new legislation applied only to complaints brought on or after DATE .", "ORG is appointed by Letters Patent from Her Majesty to have command of the armed forces . It is composed of the defence ministers , the most senior ORG civil servants and the most senior officers of the armed forces .", "Under section CARDINAL(CARDINAL ) of the Defence ( Transfer of Functions ) Act DATE , the functions of ORG may be discharged by ORG .", "The requirements of fairness to be observed in the procedure before ORG were set out in R v ORG ex parte PERSON [ DATE ] CARDINAL QB CARDINAL ( “ the PERSON principles ” ) . ORG considered that ORG must achieve “ a high standard of fairness ” and , in particular , there must be a proper hearing at which all relevant evidence is considered ; the members of ORG must meet for this purpose ; where appropriate , an oral hearing must be held with opportunity for cross - examination of witnesses ; there must be a proper examination ; all material seen by ORG must be disclosed to the complainant ( subject to public interest immunity exceptions ) ; and the complainant must be given an opportunity to respond to material and have his response considered by ORG .", "NORP Under section CARDINAL(CARDINAL ) of the Army Act DATE , ORG had the power to convene ORG ( “ the Board ” ) to investigate and report on the facts relating to a matter referred to it by ORG .", "The composition of the ORG was specified in section CARDINAL(CARDINAL ) as consisting of a president , who shall be an officer not below the rank of captain or corresponding rank and be subject to military law , and not CARDINAL other members each of whom shall either be a person subject to military law or a person not so subject who is in the service of the ORG .", "The applicable rules were set out in ORG Rules DATE ( “ the Rules ” ) , which established , under LAW , a duty for ORG to investigate and report on the facts relating to any matter referred to it and , if directed to do so , to express its opinion on any question arising .", "Rule CARDINAL(CARDINAL ) provided that :", "“ The President shall lay the terms of reference before the board and the board shall proceed to hear and record evidence in accordance with the provisions of these Rules . ”", "Rule CARDINAL(CARDINAL ) provided :", "“ A board shall hear the evidence of the witnesses who have been made available by the authority and may hear the evidence of such other persons as they think fit . ”", "Rule CARDINAL provided :", "“ A board may receive any evidence which they consider relevant to the matter referred to the board , whether oral or written , and whether or not it would be admissible in a civil court . ”", "Rules CARDINAL(CARDINAL ) provided :", "“ The president shall record , or cause to be recorded , the proceedings of the board in writing and in sufficient detail to enable the authority to follow the course of the proceedings . ”", "The relevant ORG ( CARDINAL ) provided as follows :", "“ Administrative instructions relating to boards of inquiry convened in accordance with ORG Rules DATE ... are contained in Annex A to this LAW . These instructions are to be followed in all cases . ”", "Paragraph CARDINAL of FAC A provided :", "“ ... all persons who may be affected by the findings are to be given an opportunity to attend or be [ re]presented . ”", "Although ORG was not strictly bound by the findings of ORG , it would be rare for ORG to substitute its own findings for those of ORG .", "Members of the armed forces have access to civilian employment tribunals in relation to issues regarding equal pay and unlawful discrimination on grounds of race , sex , religion , belief or sexual orientation .", "Although at the relevant time the right not to be unfairly dismissed was a statutory right , under section CARDINAL(CARDINAL ) of ORG DATE , its application to service as a member of the armed forces was excluded under section LAW . Accordingly , ORG did not have jurisdiction to hear a claim for unfair dismissal brought by a member of the armed forces .", "The scope of judicial review in administrative decision - making in GPE is set out in the ORG 's judgment of ORG v. the GPE , no . CARDINAL , § § DATE , DATE ." ]

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[ "The applicant , Multigestion , is a company incorporated under NORP law , with its registered office in GPE . It was represented before the ORG by Mr PERSON , of ORG .", "The applicant company is an approved management company , belonging to the group of management companies of the ORG company , which is itself a subsidiary of the ORG group . The applicant company manages CARDINAL non - trading real - estate investment companies – PERSON and PERSON . Also part of the PERSON group are a company called PERSON , which manages among other companies the non - trading real - estate investment company ORG CARDINAL , and another called ORG , whose object is to take part in property promotion campaigns .", "Acting on an anonymous tip - off , the Chairman of ORG des opérations de bourse – “ the COB ” ) decided , on DATE , to open an investigation into the management of the CARDINAL non - trading real estate investment companies mentioned above and into the transactions carried out on their behalf .", "On DATE the COB decided to open proceedings with a view to imposing penalties on the applicant company .", "The Chairman of the COB informed the applicant company of the complaints against it on DATE . It was suspected of using its authority to act not in the collective interest of investors but for purposes other than those for which the authority had been given .", "On DATE a decision taken by the COB on DATE was served on the applicant company . The COB had imposed a fine of MONEY and ordered publication of the decision in the COB ’s DATE bulletin and in ORG .", "On DATE the applicant company gave notice of intention to appeal against the above decision , producing a statement of the grounds of appeal within the time allowed , on DATE . It did not plead the COB ’s partiality on account of the fact that the same person had been its chairman when important decisions were being taken at both the investigation stage and the trial stage , the presence of the reporting commissioner ( the rapporteur ) at the deliberations or the fact that it had not had access to his written report . It did , however , plead an infringement of the presumption of innocence on account of the fact that the burden of proof had been reversed , and it contested the COB ’s submissions .", "Ruling in connection with another case and , according to the applicant company , against all expectations , ORG held on DATE that the penalties imposed by the COB were contrary to LAW when , in particular , the rapporteur took part in the deliberations . That decision was published in ORG of DATE . On DATE ORG dismissed an appeal on points of law against the above judgment . Following that change in the case - law the COB modified its working practices .", "On DATE the COB submitted its observations on the applicant company ’s appeal .", "On DATE the applicant company produced a reply in which it submitted a new ground of appeal , pleading infringement by the COB of the principles of fairness and impartiality . It referred in particular to ORG judgment of DATE .", "On DATE ORG noted of its own motion that the applicant company had not submitted the above ground of appeal within the DATE period allowed by law . It therefore invited the parties to present further submissions on its admissibility .", "The applicant company attempted to establish that LAW no . CARDINAL of DATE did not bar the raising of a ground of appeal based on public - policy considerations after expiry of the DATE time - limit .", "On DATE ORG declared the ground of appeal relating to the unfairness of the procedure before the COB inadmissible , as being out of time , and dismissed the application to set aside the COB ’s decision of DATE .", "The applicant company appealed on points of law against the above judgment . In support of its appeal it argued that LAW no . MONEY of DATE “ necessarily [ said nothing about ] what [ was ] to be done with grounds of appeal based on public - policy considerations , which [ could ] be submitted at any stage of the proceedings ” and that “ courts [ had ] a duty to note of their own motion arguments grounded on public policy whenever such arguments [ were ] apparent from the documents submitted to them , and particularly from the decision referred to them ” . It also argued that there had been no legal basis for the sanction imposed by the COB , since the burden of proof had been reversed , or for ORG decision , given that it had upheld the sanction imposed without verifying whether all the elements of the offence had been made out .", "In a judgment of DATE ORG dismissed the applicant company ’s appeal on points of law against the judgment of DATE . It held that although the ground of appeal relating to a violation of LAW had been based on public - policy considerations it had been out of time and therefore inadmissible . It dismissed the other CARDINAL points of law raised by the applicant company as manifestly ill - founded .", "...", "LAW no . CARDINAL of DATE", "“ An appeal must be lodged by means of a written declaration deposited in CARDINAL copies with the registry of ORG in exchange for a certificate of receipt .", "An appeal shall be inadmissible by default if the declaration does not contain the information required by LAW and state the object of the appeal .", "Where the declaration does not contain a statement of the grounds of appeal , the appellant must , on pain of the same sanction , file such statement with the registry within DATE of filing the declaration . ... ”", "..." ]

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[ "The applicant , PERSON , is a national of ORG , who was born in DATE and currently lives in PERSON . He is represented before the ORG by Mr. PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows :", "The applicant has been living in GPE since DATE . His wife followed him in DATE and their CARDINAL children were born there .", "On DATE ORG Bezirkshauptmannschaft ) imposed a DATE residence ban on the applicant pursuant to section QUANTITY of the DATE LAW ( PERSON ) . It referred to the applicant ’s conviction on charges of burglary and coercion , for which he had been sentenced to CARDINAL months’ imprisonment . Further , it had regard to CARDINAL convictions in relation to administrative offences for which he had been fined . It found that although the issue of a residence ban constituted an interference with the applicant ’s private and family life , the public interest outweighed the applicant ’s personal interests in remaining in GPE .", "On DATE ORG ) confirmed the decision , but reduced the duration of the residence ban to DATE .", "Subsequently , the applicant lodged a complaint with ORG ( Verwaltungsgerichtshof ) .", "On DATE ORG granted the applicant ’s request for suspensive effect .", "On DATE LAW DATE entered into force ( “ the CARDINAL Act ” ) .", "On DATE ORG declared the applicant ’s complaint to be devoid of purpose and discontinued the proceedings .", "It noted in the first place that , pursuant to LAW , the conditions for issuing a residence ban differed from those set out in LAW DATE ( “ the DATE LAW ) . In the present case , the requirements of LAW CARDINAL ( CARDINAL ) of LAW to discontinue proceedings were fulfilled for the following reasons : Unlike section CARDINAL of the DATE Act , under which the authority had to issue a residence ban if the conditions were met , section CARDINAL of LAW left a certain degree of discretion to the authority . In the proceedings conducted so far , the applicant had not had the opportunity to submit facts , which - having regard to the authority ’s discretion - could militate against the issue of a residence ban . Moreover , the residence ban against the applicant was not one which could obviously be based on the provisions of LAW . This was why the applicant ’s complaint had become devoid of purpose and the proceedings had to be discontinued . Referring to section QUANTITY , ORG found that the applicant had to bear his own costs . ORG decision was served on the applicant on DATE .", "As a consequence of ORG decision , the residence ban proceedings were remitted to the first instance authority .", "On DATE ORG again imposed a DATE residence ban on the applicant pursuant to section QUANTITY of LAW . It had regard to the fact that , in addition to the conviction already relied on in the residence ban of DATE , the applicant had also been convicted of negligently causing bodily harm , of intentionally causing bodily harm and of poaching and , in each case , had been sentenced to a fine . Moreover , his convictions for administrative offences had in the meantime increased to a total of CARDINAL . The applicant had , thus , shown a continuous disrespect for the NORP legal order . Although the issue of a residence ban constituted an interference with the applicant ’s private and family life , it was necessary for the prevention of disorder and crime .", "The applicant ’s appeal and his further complaint to ORG remained unsuccessful .", "Section CARDINAL of the CARDINAL Act contains transitional provisions relating inter alia to residence bans . So far as relevant it reads as follows :", "“ ( CARDINAL ) A residence ban , which is being challenged in proceedings before ORG or ORG , ceases to be effective on DATE of entry into force of this LAW , unless it obviously has a basis in the provisions of this LAW . ORG ...", "( CARDINAL ) In cases falling under paragraph CARDINAL ... the complaint [ to ORG or ORG ] has to be declared devoid of purpose and the proceedings are to be discontinued without hearing the applicant . ... ”", "ORG has to decide in each of such pending cases whether the conditions for discontinuing the proceedings are met . Following a decision discontinuing the proceedings pursuant to section CARDINAL ( CARDINAL ) and ( CARDINAL ) , the residence ban proceedings are remitted to the first instance authority .", "Section CARDINAL , so far as material , provides as follows :", "“ ( CARDINAL ) ... section CARDINAL ( CARDINAL ) .. applies to proceedings which are pending at the time of the entry into force of this LAW and are ... not to be rejected as being inadmissible . The parties to these proceedings have to bear their own costs . ”", "Section CARDINAL ( CARDINAL ) of LAW provides that the prevailing party may claim the reimbursement of their costs from the unsuccessful party ." ]

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[ "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE , at TIME , CARDINAL men wearing balaclava masks , some of whom were armed with firearms , entered the bungalow of the PERSON family and , seizing the keys to their white ORG Cavalier car , drove off in it . TIME , at TIME , the white ORG Cavalier stopped in front of CARDINAL cars parked side by side on FAC , GPE , and began shooting at the occupants . The drivers of both vehicles were killed , and a third person , in the passenger seat of CARDINAL vehicle , was wounded .", "At TIME the police found a white ORG Cavalier which had been set on fire . They discovered in the car CARDINAL black and a dark blue balaclava masks , a pair of black gloves and CARDINAL cartridge cases .", "At TIME , at an army checkpoint on FAC , QUANTITY from the spot where the abandoned vehicle was found , a red ORG car was stopped . The car contained CARDINAL men : PERSON and PERSON and the applicant . TIME a number of police officers arrived under the command of PERSON . On being questioned by PERSON , the applicant stated that he had been helping the PERSON brothers with sheep since TIME , that he had washed at the GPE ' and had something for tea there . He stated that he was going for a drink in town . The applicant was arrested under section CARDINAL(CARDINAL)(b ) of ORG ( Temporary Provisions ) Act DATE and taken to PERSON , GPE . Access to a solicitor was deferred pursuant to section CARDINAL of GPE ( Emergency LAW Act DATE ( “ the DATE LAW ) for a period of TIME . Thereafter , and up until he was charged , the applicant was seen DATE by a solicitor .", "Shortly after arrival at FAC , head hair combings were taken from the applicant and sent for forensic examination along with the clothes he was wearing at the time of his arrest .", "The applicant was interviewed by police officers who cautioned him before each interview in terms of LAW ) Order DATE ( “ the DATE LAW ) . The applicant was told that :", "“ You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court , your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you . If you wish to say anything , what you say may be given in evidence . ”", "The applicant was asked if he understood the caution and made no reply . He made no reply to questions about his movements on DATE and about fibres from the balaclavas and gloves found on his hair and clothing . He maintained silence throughout the interview and throughout CARDINAL further interviews , which took place DATE . The applicant was denied access to legal advice during police interviews .", "On DATE , during interview no . CARDINAL , a police constable cautioned the applicant pursuant to LAW , requesting him to account for his presence at FAC about the time the murder of the CARDINAL men in GPE was committed . The applicant was warned that if he failed or refused to do so , a court , judge or jury might draw such inference from his failure or refusal as appeared proper . The applicant made no response and refused to sign the written request . During the same interview , the applicant was cautioned , pursuant to LAW , in respect of adverse inferences which might be drawn from any failure to account for a number of fibres found on his person by means of a hair combing which linked him to the commission of an offence . During interview no . CARDINAL on DATE , a caution was administered under LAW fibres found on the applicant 's clothes which were forensically linked to material found in a ORG Cavalier allegedly used by the culprits . The applicant made no reply and refused to sign the written request .", "On DATE the applicant was charged , inter alia , with the murder of ORG , and PERSON . , the attempted murder of ORG and with possession of CARDINAL loaded ORG assault rifles with intent . The applicant pleaded not guilty and was tried before Lord Chief Justice PERSON sitting without a jury .", "The prosecution case linking the applicant to the hijacking of the car and the shooting incident was based on forensic evidence . The link was between a balaclava and the gloves found in the car and the applicant . According to the prosecution , the fibres found in the hair combings taken from the applicant and found on his clothing matched exactly the fibres of the CARDINAL black balaclavas and the fibres of the pair of gloves found in the car .", "The forensic expert witness called by the prosecution testified that :", "“ Considering the presence of fibres to match CARDINAL separate fibre sources from the car on [ the applicant ] and his clothing would strongly support the proposition that there had been direct and intimate contact with the black masks and gloves from the car . ”", "At his trial the applicant gave evidence to the effect that at the relevant time he had been working with sheep at the GPE ' farm on TIME CARDINAL DATE and had then stayed at the farm for a meal until TIME He further stated that on DATE , DATE , when he was at work , he had worn black gloves and a rolled up balaclava as protective clothing .", "The applicant called several witnesses to support his alibi , including the PERSON brothers .", "On DATE the applicant was convicted of CARDINAL counts of murder , CARDINAL count of attempted murder , CARDINAL count of possession of CARDINAL rifles and a handgun together with a quantity of ammunition with intent , contrary to LAW ) Order DATE , CARDINAL count of assaulting and falsely imprisoning PERSON , and CARDINAL count of hijacking a Vauxhall Cavalier motor car , contrary to section CARDINAL ) of LAW DATE .", "In his judgment the judge found the applicant guilty , having regard to circumstantial evidence of a forensic nature linking the applicant with the ORG car allegedly used by the gunmen and the applicant 's presence in the vicinity of the shooting ( QUANTITY from its location ) . The forensic evidence consisted of the following :", "( a ) CARDINAL fibres were found in the head hair of the applicant matching exactly the fibres from one of the balaclava masks and CARDINAL fibres were found in the head hair of the applicant matching exactly the fibres from the pair of black gloves ;", "( b ) CARDINAL fibre matching exactly the fibres from CARDINAL of the black balaclava masks was found on the jacket of the applicant and CARDINAL fibres matching exactly the fibres from the pair of black gloves were found on the jacket of the applicant ;", "( c ) CARDINAL fibres matching the fibres from the pair of black gloves were found on the outside of the jeans of the applicant and large numbers of fibres matching exactly the fibres of the pair of black gloves were found in both side pockets of the jeans of the applicant ;", "( d ) CARDINAL fibre exactly matching the fibres of CARDINAL of the black balaclava masks was found in each of the side pockets of the jeans of the applicant .", "The judge accepted the evidence of the prosecution forensic expert witness that the presence of fibres to match the CARDINAL separate fibre sources from the car , namely the black balaclava masks and the pair of black gloves on the head hair and on and in the clothing of the applicant strongly supported the proposition that there had been direct and intimate contact between him and CARDINAL or both of those black balaclava masks and the pair of black gloves .", "NORP Moreover , the judge relied on the “ very strong adverse inference ” which he drew against the applicant under LAW and CARDINAL of the DATE Order . The judge stated :", "“ Yet the [ applicant ] made no reply to the questions repeatedly put to him throughout the interviews and gave no information whatsoever about his movements on DATE and no account of wearing a balaclava and gloves at his work on DATE , but gave detailed evidence in respect of these matters for the first time at his trial . I therefore draw a very strong adverse inference against him under LAW . ... it would have been a simple and easy thing for him to have told these matters to the interviewing police officers .", "PERSON [ counsel for the applicant ] submitted that the court should not draw an adverse inference under LAW by reason of the fact that when the [ applicant ] was stopped at the vehicle check - point on TIME DATE he told PERSON TIME , when asked how he came to be in the company of the other CARDINAL men , that he had been giving them a hand with sheep all afternoon since TIME , and that he later told PERSON TIME , that he had been at the GPE ' TIME working with sheep since TIME , that he had a fry at the GPE ' , and that he had got washed in that house . PERSON submitted that the purpose of LAW was to stop an accused at his trial putting forward an ambush defence . As the [ applicant ] had told the police who stopped him at the vehicle check - point that he had been at the GPE ' working with sheep all afternoon , the purpose of LAW had been achieved , and that it would therefore be wrong to draw an adverse inference against the [ applicant ] under LAW because he refused in interviews to repeat to the police his defence or to answer questions about it . I reject that submission . ... Notwithstanding that the [ applicant ] told PERSON in brief terms that he had been working at the GPE ' farm since TIME , common sense clearly indicates that if the defence which he advanced in the witness box was true , he would have told the police of it after he was cautioned in PERSON under LAW and was questioned at length about his movements on DATE and was asked if he had an explanation for the fibres found on his hair and clothing . In addition I draw a very strong adverse inference against the [ applicant ] under LAW . The [ applicant ] failed to account for these fibres after each caution was read ... although he gave an explanation at the trial that he had been wearing gloves and a balaclava at his work on DATE , which explanation was clearly designed and intended to show that the fibres found on his hair and on his clothing came from gloves and a balaclava which he was wearing ... on DATE . This was an explanation which he could easily have given to the constable who served the Article CARDINAL caution on him , and by reason of this failure to do so I draw a very strong adverse inference against him that the evidence which he gave at the trial about wearing a balaclava and gloves at work on DATE was false . PERSON submitted that I should not draw that inference because the cautions lacked clarity and detail ... and ... did not give the [ applicant ] sufficient information to enable him to understand that he was being requested to account for the presence of fibres from a pair of gloves and from a balaclava ... on his hair and clothing . ... I do not accept that submission . It follows from the very strong inferences which I have drawn against the [ applicant ] under LAW Article CARDINAL that I reject the evidence of the witnesses who sought to give the [ applicant ] an alibi by stating in the witness box that he was in the GPE ' farm at FAC during the period when the gunmen were going to the GPE ' bungalow , imprisoning PERSON and hijacking his car , murdering PERSON and J.A.W.Mc . ... For the same reason I reject the evidence of PERSON that the accused wore a balaclava and gloves at work on DATE . ”", "The judge continued with reference to LAW :", "“ Having regard to the matters clearly put and explained to the [ applicant ] ... I think it is clear that the accused knew perfectly well that the LAW cautions referred to the fibres from the balaclava masks and pair of gloves found in the gunmen 's cars , but he failed to give the explanation which he later put forward at trial and this failure gives rise to the very strong adverse inference which I draw against him . ”", "The judge did not draw any inference under LAW .", "The judge also held :", "“ It follows from the very strong adverse inferences which I have drawn against the [ applicant ] under LAW Article CARDINAL that I reject the evidence of the witnesses who sought to give the [ applicant ] an alibi by stating in the witness box that he was in the GPE ' farm ... during the period when the gunmen were ... murdering ... and escaping from the place where the car was set on fire . The [ applicant ] had ample time to get to the GPE ' farm before TIME from the place where the car had been set on fire . ...", "In addition , and apart from the very strong adverse inferences which I draw under LAW and DATE , having seen them in the witness box I regarded the [ applicant ] and PERSON as dishonest and unreliable witnesses whose evidence I did not believe . ”", "The applicant appealed on the grounds , inter alia , that the trial judge had erred in drawing an adverse inference under LAW when the accused was questioned about his movements on DATE since he had already given an account of his movements to PERSON when he was stopped on TIME ; that the inference drawn from his failure to give an explanation of the forensic findings concerning the fibres found on him by mentioning to the police that he had been wearing a balaclava and gloves on DATE before the killing should not have been CARDINAL of significant weight ; that the police did not give him sufficient information to enable him to understand the nature of the forensic evidence for which he was requested to account ; and , finally , that it was not open to the trial judge to reject the applicant 's explanation that he had kept silent because it was simply his policy not to speak to the police .", "In its judgment of DATE ORG ( Lord Justice PERSON ) of GPE agreed with the trial judge in the following terms :", "“ ... [ T]he drawing of an inference under LAW is not automatic . ... Before an inference may be drawn against an accused , the tribunal of fact must be of the view that it is proper to do so . This will allow for consideration of the adequacy of a single statement of a relevant defence and whether any explanation for a failure to repeat it is acceptable . Moreover , the court which invokes LAW can weigh the strength of the inference to be drawn against the accused . ”", "Lord Justice PERSON continued :", "“ As we have already held , the mere recital on a single occasion of the gist of a defence on which an accused subsequently relies on trial will not usually prevent the invocation of LAW . Whether such a statement will prompt the court not to draw an inference against the accused will depend on an evaluation by the tribunal of fact of all the relevant circumstances including the accused 's explanation for his failure to repeat the statement of his defence on interview . ... Where ... allegations are put to a suspect in interview which , if unchallenged , are clearly indicative of his guilt and where he fails , until trial , to put forward his answers to these or an explanation of them consistent with his innocence , this will justify the drawing of a strong inference against him . In this case the significance of the forensic evidence could scarcely be more obvious and important . It called for the production of the appellant 's explanation at the earliest moment . The failure to produce that explanation on a point of such obvious and immediate importance justified the drawing of a strong adverse inference against the appellant . When that failure went unexplained ( save by reference to a policy which was neither justified nor elaborated upon by the [ applicant ] ) the drawing of a strong adverse inference against him was virtually inevitable . PERSON [ counsel for the applicant ] submitted that the manner in which the forensic evidence was described by the [ police ] must have confused the appellant as to the nature of the forensic evidence which existed against him . Like the learned trial judge we do not accept this proposition . PERSON submitted that it was not open to the learned trial judge to conclude that such a policy [ by the applicant not to speak to the police ] did not exist . We reject this argument . ... A person may have and apply such a policy but he must realise that the tribunal of fact may then draw an adverse inference from his silence . This [ applicant ] was seen DATE by his solicitor after an initial CARDINAL-hour deferral and if he chose to remain silent it was his free choice . This does not avoid the possibility of Articles CARDINAL or CARDINAL being used to his disadvantage , however . To accept that a suspect may successfully rely on a ' policy ' of silence to avoid the adverse effect of the ORG would ' drive a coach and CARDINAL through the statute ' . ”", "In conclusion , Lord Justice PERSON stated :", "“ We are entirely satisfied that the learned trial judge approached his task in a careful and critical manner , he adverted to all the evidence and he was satisfied of the guilt of the [ applicant ] having not only heard the evidence but observed the witnesses . In our judgment these convictions were in no way unsafe or unsatisfactory . ”", "ORG dismissed the applicant 's appeal .", "The applicant escaped from prison shortly before DATE . He remains unlawfully at large .", "The relevant parts of LAW ) Order DATE provide :", "“ Circumstances in which inferences may be drawn from the accused 's failure to mention particular facts when questioned , charged , etc .", "( CARDINAL ) Where , in any proceedings against a person for an offence , evidence is given that the accused -", "( a ) at any time before he was charged with the offence , on being questioned by a constable trying to discover whether or by whom the offence has been committed , failed to mention any fact relied on in his defence in those proceedings ; or", "( b ) on being charged with the offence or officially informed that he might be prosecuted for it , failed to mention any such fact , being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , paragraph ( CARDINAL ) applies .", "( CARDINAL ) Where this paragraph applies :", "...", "( c ) the court ... in determining whether the accused is guilty of the offence charged ,", "may -", "( i ) draw such inferences from the failure as appear proper ;", "( ii ) on the basis of such inferences treat the failure as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure is material .", "( CARDINAL ) Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention . ”", "The relevant parts of LAW ) Order DATE provide :", "“ ( CARDINAL ) Where -", "( a ) a person is arrested by a constable , and there is -", "( i ) on his person ; or", "( ii ) in or on his clothing or footwear ; or", "( iii ) otherwise in his possession ; or", "( iv ) in any place in which he is at the time of his arrest ,", "any object , substance or mark , or there is any mark on any such object ; and", "( b ) the constable reasonably believes that the presence of the object , substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable ; and", "( c ) the constable informs the person arrested that he so believes , and requests him to account for the presence of the object , substance or mark ; and", "( d ) the person fails or refuses to do so ,", "then if , in any proceedings against the person for the offence so specified , evidence of those matters is given , paragraph ( CARDINAL ) applies .", "( CARDINAL ) Where this paragraph applies -", "( a ) the court , in determining whether to commit the accused for trial or whether there is a case to answer ; and", "( b ) the court or jury , in determining whether the accused is guilty of the offence charged ,", "may -", "( i ) draw such inferences from the failure or refusal as appear proper ;", "( ii ) on the basis of such inferences , treat the failure or refusal as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure or refusal is material .", "...", "( CARDINAL ) Paragraphs CARDINAL and CARDINAL do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in paragraph ( CARDINAL ) what the effect of this LAW would be if he failed or refused to comply with the request . ”", "The relevant parts of section CARDINAL of GPE ( Emergency LAW Act DATE provide :", "“ ( CARDINAL ) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled , if he so requests , to consult a solicitor privately .", "( CARDINAL ) A person shall be informed of the right conferred on him by subsection ( CARDINAL ) above as soon as practicable after he has become a person to whom that subsection applies .", "...", "( CARDINAL ) If a person makes such a request , he must be permitted to consult a solicitor as soon as is practicable except to the extent that any delay is permitted by this section .", "( CARDINAL ) Any delay in complying with a request under subsection ( CARDINAL ) above is only permitted if -", "( a ) it is authorised by an officer of at least the rank of superintendent ; and", "( b ) it does not extend beyond the relevant time .", "( CARDINAL ) In subsection ( CARDINAL ) above “ the relevant time ” means", "( a ) where the request is the first request made by the detained person under subsection ( CARDINAL ) above , the end of the period referred to in CARDINAL ) above ; or", "( b ) where the request follows an earlier request made by the detained person under that subsection in pursuance of which he has consulted a solicitor , the end of the period of TIME beginning with the time when that consultation began .", "...", "( CARDINAL) An officer may only authorise a delay in complying with a request under subsection ( CARDINAL ) above where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it :", "( a ) will lead to interference with or harm to evidence connected with a scheduled offence or interference with or physical injury to any person ; or", "( b ) will lead to the alerting of any person suspected of having committed such an offence but not yet arrested for it ; or", "( c ) will hinder the recovery of any property obtained as a result of such an offence ; or", "( d ) will lead to interference with the gathering of information about the commission , preparation or instigation of acts or terrorism ; or", "( e ) by alerting any person , will make it more difficult -", "( i ) to prevent an act of terrorism ; or", "( ii ) to secure the apprehension , prosecution or conviction of any person in connection with the commission , preparation or instigation of an act of terrorism . ”", "There is no right at common law to have a solicitor present during a police interview . Such a right has been conferred by paragraph MONEY , made pursuant to section CARDINAL of ORG “ PACE ” ) , on those who are not arrested or detained under section CARDINAL(CARDINAL ) of ORG ( Temporary Provisions ) Act DATE . However , by section CARDINAL(CARDINAL ) of PACE it was expressly provided that the Code affording that right does not apply to those arrested and detained for terrorist offences . In particular , having regard to the legislative context , ORG has recently declined to hold that such persons have any common - law right to have a solicitor present during interview ( NORP v. Chief Constable of the ORG , ex parte PERSON [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) .", "Following the judgment of ORG in the case of PERSON v. the GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-I ) , ORG issued ORG CARDINAL/CARDINAL to inform chief officers of the judgment 's implications and the consequent new arrangements for use by police officers and prosecutors of evidence obtained from a suspect during the course of an interview in which legal advice was sought but delayed by the police . Paragraph CARDINAL of the circular states :", "“ I attach a copy of the guidance which has been issued by the Attorney General to advise Prosecutors reviewing a case , or presenting a case in court , in which the suspect 's access to legal advice was delayed in accordance with Annex B of Code C , that they will not be able to attach any weight to the accused 's failure to reply to questions in an interview conducted at FAC when access to legal advice has been delayed but that inferences may be drawn under sections CARDINAL , DATE and DATE of the DATE [ Criminal Justice and Public Order ] Act if the suspect remained silent when re - interviewed after legal advice was obtained . ”", "The circular continues :", "“ CARDINAL . ... The Prosecution should not seek to rely on inferences from silence before access to legal advice has been granted . In the event the court , or of its own volition , indicates an intention to draw any such inferences , its attention should be drawn to the judgment of ORG in PERSON v. the GPE .", "NORP The question of drawing inferences from silence is most likely to arise under LAW of LAW ( which relate to failure to mention when questioned or charged facts subsequently relied upon by an accused in his own defence ) . The position to be adopted by Prosecutors is set out above . ... If access to a solicitor has been denied at FAC , the court should not be invited to draw the inferences which might otherwise be drawn in such circumstances ( irrespective of the line of defence put forward by the accused ) since it is a situation where , but for the denial of access to a solicitor , the accused would ordinarily have access to legal advice . ”" ]

[ "6" ]

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

[ "6-3-c" ]

[ "6" ]

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

[]

[ "The facts of the case , as submitted by the parties , may be summarised as follows .", "All applicants were former employees of “ GPE u stečaju ( the debtor ) , which was , at the relevant time , a company predominantly comprised of socially - owned capital .", "NORP Since the debtor failed to fulfil its contractual obligations towards employees , on unspecified date , the applicants instituted civil proceedings against it .", "On DATE ORG in ORG ordered the debtor to pay them :", "i. the salary arrears due DATE and DATE , plus interest ; and", "ii . MONEY ( ORG ) for their costs and expenses .", "On DATE this judgment became final .", "In the period DATE and DATE each applicant filed separate requests for the enforcement of the above judgment .", "ORG in ORG ultimately accepted the ORG requests and issued the enforcement orders respectively . The essential information as to the enforcement proceedings in respect of each application are indicated in the FAC .", "On DATE ORG in ORG opened insolvency proceedings in respect of the debtor ( St. CARDINAL/CARDINAL ) .", "The applicants duly submitted their respective claims .", "On an unspecified date the ORG claims based on the judgment of DATE were recognised .", "The insolvency proceedings against the debtor are still ongoing .", "On DATE the debtor was privatised .", "On DATE the contract for the sale of the debtor was annulled because the buyer in question had failed to fulfil his contractual obligations .", "As of DATE the debtor has been comprised of predominantly ORG - owned capital .", "On DATE , the applicants filed a constitutional appeal .", "The case is still pending before ORG .", "Article CARDINAL § § CARDINAL and CARDINAL provides that “ as of the day of institution of the insolvency proceedings ” the debtor can not simultaneously be subjected to a separate enforcement procedure . Any ongoing enforcement proceedings shall thus be stayed , while new enforcement proceedings can not be instituted for as long as the insolvency proceedings are pending .", "The reminder of the relevant domestic law is set out in the cases of PERSON and ORG ( nos . CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL , DATE , § § DATE ) and the case of GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ." ]

[ "6", "P1" ]

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

[ "P1-1-1" ]

[]

[]

[]

[ "NORP The applicant is PERSON , known more commonly as PERSON . He was born in DATE . The applicant is currently detained at ORG . He was represented before the ORG by PERSON , a lawyer practising in GPE .", "ORG have requested his extradition to stand trial on charges related to international terrorism . The extradition request is the subject of a separate application to this Court ( see PERSON and others v. GPE DATE . ) nos . CARDINAL , CARDINAL and ORG , DATE ) . The present application concerns only his trial and conviction in GPE for separate offences .", "CARDINAL .", "The applicant has lived in GPE DATE . After initially working as a civil engineer , he started preaching ORG and teaching the GPE part - time . He began working full - time as a preacher in DATE and from DATE was PERSON at FAC , GPE . DATE he delivered a number of sermons and speeches which later formed the basis for charges of soliciting to murder , using threatening , abusive or insulting words or behaviour with intent to stir up racial hatred , possessing a document or recording with the same intent . He was also charged with possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism ( possession of the FAC volume Encyclopaedia of Afghani Jihad ) . Those charges are set out in part CARDINAL below .", "The applicant 's speeches , sermons and other activities brought him to the attention of ORG . CARDINAL meetings took place between the applicant and officials of ORG DATE and DATE . Notes of those meetings were disclosed to the applicant and are before the ORG in redacted form . At the first meeting , on DATE , in response to comments he made about terrorism in GPE , the applicant was told he was walking a “ dangerous and delicate tightrope ” and incitement to terrorism or other violence was “ fraught with peril ” . That warning was repeated at the second and third meetings on DATE and DATE . At the fourth meeting , on DATE , the applicant was again told that he had been walking a dangerous tightrope and had come close to being culpable for incitement to violence . He was also told that , if he overstepped the mark , he would undoubtedly come to the attention of the authorities . A similar warning was delivered at the sixth meeting on DATE . During the same period a series of meetings took place between the applicant and ORG . The applicant maintains that , at those meetings , it was never suggested that he would be prosecuted for any sermons he had given .", "The applicant was arrested and interviewed CARDINAL March CARDINAL by ORG as part of an inquiry into the taking of CARDINAL hostages in GPE in DATE . He was released without charge . When he was arrested material , including videotapes of his sermons , cassette tapes and the Encyclopaedia of Afghani Jihad were seized and analysed . The materials were subsequently returned to him .", "In DATE the applicant 's funds were frozen by ORG and he was also designated as a global terrorist by the President of GPE . ORG and GPE also suspended him from his post as GPE at FAC .", "NORP In DATE , FAC was raided by police . The raid was widely reported in the GPE media . On DATE , the Secretary for ORG notified the applicant of his intention to remove his NORP citizenship on the grounds that he was satisfied that the applicant had provided support and advice to terrorist groups and individuals ; encouraged and supported the participation of individuals in jihad ; provided , through the mosque , a centre for extremism ; and promoted anti - Western sentiment and violence through his preaching . This too was extensively reported .", "On DATE the ORG requested the applicant 's extradition inter alia in relation to his alleged role in the NORP kidnapping . The full details of the charges he faces are set out in the ORG 's decision in PERSON and others , cited above , § § CARDINAL–CARDINAL .", "The extradition proceedings were adjourned when , on DATE , the applicant was charged by ORG with CARDINAL offences . These were :", "( i ) CARDINAL counts of soliciting to murder , contrary to section CARDINAL of the Offences Against the Person Act DATE ;", "( ii ) CARDINAL counts of using threatening , abusive or insulting words or behaviour with intent to stir up racial hatred contrary to section CARDINAL ) of LAW DATE ;", "( iii ) CARDINAL count of possessing threatening , abusive or insulting recordings of sound with intent to stir up racial hatred contrary to section PERSON ) of LAW DATE ; and", "( iv ) CARDINAL count of possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section CARDINAL of LAW ( the LAW ) .", "The CARDINAL counts of soliciting to murder and the CARDINAL counts of stirring up racial hatred related to speeches and sermons given by the applicant at FAC and other locations DATE .", "When the trial began in DATE , the defence applied for the prosecution to be stayed as an abuse of process . It was argued that , as a result of his dealings with ORG and ORG , the applicant had either been given assurances that he would not be prosecuted or left with the legitimate expectation that he would not be . This , he argued , was reinforced by the decision to revoke his citizenship and allow his extradition to GPE . The applicant further argued that , as a result of these actions of GPE and ORG , the publicity surrounding him had grown to such an extent that it would be impossible for him to receive a fair trial by jury . It was also argued that the delay made it impossible for him to defend himself .", "NORP The trial judge , Mr Justice PERSON , refused the application on CARDINAL DATE . Having reviewed the notes of the discussions between the applicant and ORG , the trial judge held that it was quite clear that the discussions did not amount to an assurance , express or implied , nor did they give rise to a legitimate expectation that the applicant would not be prosecuted . The same was true for meetings between the applicant and ORG . The warnings about walking a tightrope did not arise in the context of any investigation into the applicant or from any consideration of possible prosecution ; they were not assurances that the applicant was committing no offence but non - legal warnings by a ORG officer whose concern had nothing to do with possible prosecution . There was also no evidence from the applicant that he regarded these conversations as having given him any kind of assurance that he was safe from prosecution , nor that he relied on them in deciding how to conduct himself .", "The trial judge also found that the decisions to revoke the applicant 's citizenship and accede to his extradition did not make the decision to prosecute him an abuse of process : there was no reason why revocation of citizenship and prosecution could not be done simultaneously , nor was there anything unlawful in prosecuting someone who was subject to an extradition request .", "The trial judge found that , by DATE , the police would have had almost all the evidence that the prosecution was now based upon and , in the absence of any explanation for the passage of time , some criticism could be made for the delay in bringing the prosecution . However , it was not an affront to justice to bring the prosecution : provided that the trial could be fair it was in the public interest that it should take place . Since the prosecution case consisted entirely of recordings of what the applicant had said in his speeches and sermons , and the applicant 's defence was that there was theological justification for what he had said , there was no danger that the applicant would be unable to mount his defence .", "The trial judge also rejected the applicant 's submission that the adverse publicity to which he had been subjected would prejudice any jury . It was acknowledged that the media 's coverage of the applicant had amounted to a sustained campaign against the applicant and , before the prosecution had been brought , various public figures had made adverse statements about him . However , the trial judge was satisfied that , with a proper direction , a jury would be able to try the applicant impartially . He found :", "“ Almost universally , [ juries ] approach their task and their oath with conspicuous conscientiousness .... Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety . Whilst the law of contempt operates to minimise it , it is not always avoidable , especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought . Jurors are in such cases capable of understanding that comment in the media might or might not be justified ... They are not surprised to be warned not to take at face value what appears in the media , nor are they DATE so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not . ”", "NORP However , since the ruling was given just after the GPE bombings of DATE , and there had been recent references in the media to the applicant , the trial judge acceded to an application to defer the trial until DATE . He observed :", "There will by then have been DATE since the most intense of the publicity .", "“ It remains likely , as it seems to me , that any trial will have to be approached on the basis that the jurors will , or certainly may , remain generally aware that this is a defendant who was the object of intense publicity and of a campaign against him , although I doubt they will recall , as a lawyer interested in the case might recall , the detail of specific allegations such , for example , as those made at the time of the extradition request in DATE .", "That will mean that the jury must be warned carefully about how they are to approach the case . What exactly needs to be said to them will fall to be considered after submissions by the parties and at the time and , particularly , in the light of any submissions made on behalf of the defendant , but I record now that I would expect it to go significantly beyond a formulaic injunction to put out of their minds anything they have read in the papers . It seems to me likely that it will need to involve a careful explanation of the difference between their task in the sifting and evaluation of the evidence , on the one hand , and indiscriminate hostile labelling of a suspect by public commentators , on the other hand . ”", "The trial judge also gave a general warning that any further references to the applicant and terrorism by the media would risk a finding of contempt of court .", "The trial in fact took place in DATE and DATE . On DATE , the eve of the trial , the trial judge rejected a renewed application for a stay . This was based on further media coverage of the GPE bombings that had included some references to the applicant as someone who was likely to have contributed to the willingness of some to make such attacks . Adopting the reasoning of his earlier ruling , the trial judge held that this publicity would not prevent the jury from objectively considering the allegations made against the applicant . A further warning was given to the media as to the risk of a finding of contempt of court . The trial judge also indicated that he would refer certain articles to the ORG for consideration as to whether any past contempt of court had or had not been committed .", "At the conclusion of the trial the trial judge 's summing up , which lasted DATE , contained the following direction to the jury :", "“ I warned you at the beginning [ of the trial ] to ignore anything that anyone has said about this defendant in the press before the trial or during it . You may be aware that over DATE there was a campaign in some sections of the press against [ the applicant ] . Whether it was fair or unfair comment about his opinions , whether it was informed or uninformed comment about him , is simply irrelevant . No one at that time was undertaking the task which you have been given , which is to sift the evidence , to look at the speeches , evaluate the evidence and say whether he has committed these offences or not . It may be quite easy , you may think , to attach a label to somebody in a newspaper article , but it is a different exercise from the task which you have of examining the evidence to see whether he has committed particular offences . The only thing that matters to any of us is whether the evidence demonstrates that he has or has not proved that he committed these offences . So be careful not to be affected , again even subconsciously , of intensive criticism of him . Concentrate on the evidence , try him on that , and make your own decision . ”", "On DATE , after they had retired to consider their verdict , the jury were given a further direction by the trial judge in response to further adverse publicity . That publicity included a comment made by a participant on the ORG 's Newsnight programme that the applicant should be deported and other media references to a connection between PERSON ( who was at that point about to be tried in GPE for his role in the attacks of DATE ) and FAC . At that time there had also been extensive coverage of the international reaction to the publication of cartoons in GPE of the Prophet PERSON . This adverse publicity also prompted the defence to renew its application for the proceedings to be stayed . The trial judge refused that application , finding that there was no risk that the jury would be swayed from reaching its verdict on the basis of the evidence presented at trial . On the contrary , the indications at that stage were that the jury were working their way through the considerable volume of evidence that was before them .", "DATE the jury found the applicant guilty of CARDINAL counts of soliciting to murder ; CARDINAL counts of using threatening , abusive or insulting words or behaviour with intent to stir up racial hatred ; CARDINAL count of possessing threatening , abusive or insulting recordings of sound with intent to stir up racial hatred ; and CARDINAL count of possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism . They acquitted the applicant of CARDINAL counts of soliciting to murder and CARDINAL count of using threatening , abusive or insulting words or behaviour with intent to stir up racial hatred .", "NORP The applicant was sentenced to DATE imprisonment .", "The applicant appealed against his conviction to ORG , which dismissed the appeal on DATE ( [ DATE ] PERSON ) .", "ORG found that the trial judge had been correct to refuse the defence applications to have the proceedings stayed as an abuse of process . Nothing that had been done by the authorities could be treated as an assurance that he would not be prosecuted . There was also no basis for inferring that the Secretary of ORG , in deciding to deprive the applicant of his citizenship , had taken a personal policy decision that the applicant should not be prosecuted and it could not be taken as an assurance of nonprosecution . In respect of the police 's decision to return the applicant 's cassettes and encyclopaedia after his arrest in DATE ORG observed :", "“ It would have been open to the police to initiate a prosecution in DATE in relation to the possession of the cassettes and the Encyclopaedia that were seized , albeit that the charge in the case of the latter would have had to have been brought under an earlier statute . The fact that they did not do so could not , however , be taken as an assurance , let alone an unequivocal assurance , that they would not do so in the future . It is significant in this context that these materials were seized , not in the course of some general investigation , but in an investigation aimed specifically at the possibility that the appellant was implicated in the events in the GPE . The appellant was aware of this .", "It is not clear why , in DATE , the police did not attach the significance to the appellant 's speeches and possession of cassettes and the Encyclopaedia that they , and ORG , were to give them in DATE . The judge remarked that , in the absence of any explanation for the passage of time , the conduct of the prosecution was vulnerable to some criticism for the delay since DATE in bringing charges . We agree . But any shortcomings on the part of those responsible for the prosecution in this respect could not be treated as an assurance that the appellant was not in breach of the law nor that , if he was in breach of the law , this would not give rise to a prosecution .", "There is no reason to conclude that the appellant placed any reliance on the reaction , or lack of reaction , of the police to the cassettes and the Encyclopaedia when deciding to retain them in his possession . He was simply continuing a course of conduct that had commenced before the police had intervened . ”", "NORP The applicant also submitted that because of the delay in bringing the prosecution , events had occurred before his trial that prejudiced the holding of a fair trial . ORG considered that this submission was most appropriately considered in the context of the applicant 's further submission that his trial had been prejudiced by the adverse publicity he had received . In respect of that submission , ORG considered that the trial judge had been correct to rule that any adverse publicity could be cured by an appropriate direction to the jury . ORG found :", "“ The risk that members of a jury may be affected by prejudice is one that can not wholly be eliminated . Any member may bring personal prejudices to the jury room and equally there will be a risk that a jury may disregard the directions of the judge when they consider that they are contrary to what justice requires . Our legal principles are designed to reduce such risks to the minimum , but they can not obviate them altogether if those reasonably suspected of criminal conduct are to be brought to trial . The requirement that a viable alternative verdict be left to the jury is beneficial in reducing the risk that the jury may not decide the case in accordance with the directions of the judge . Prejudicial publicity renders more difficult the task of the court , that is of the judge and jury together , in trying the case fairly . Our laws of contempt of court are designed to prevent the media from interfering with the due process of justice by making it more difficult to conduct a fair trial . The fact , however , that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the judge concludes that , with his assistance , it will be possible to have a fair trial . In considering this question it is right for the judge to have regard to his own experience and that of his fellow judges as to the manner in which juries normally perform their duties .", "In the present case , the judge rejected on CARDINAL occasions an application for a stay on the ground of abuse of process . The first application was in the process of being heard when the GPE bombings took place on DATE . It had been intended that the trial should proceed at once if the application failed . The judge held that a fair trial would be possible but that , because of the prejudice that might be caused by the bombings and attendant publicity , the trial should be adjourned until DATE . On DATE , on DATE of the trial the judge again rejected a stay application , holding that a fair trial was possible . The final application was made on DATE , because of further adverse publicity after the jury had retired . Once again the judge rejected the application . It remains to consider whether he was correct to conclude , on each occasion , that a fair trial was possible .", "[ Counsel for the applicant ] does not rely simply on adverse media publicity when arguing that a fair trial was impossible . He relies upon changes in attitude and public perception in relation to terrorism that followed first the destruction of ORG on DATE and subsequently the GPE bombings on DATE . The critical issues before the jury were whether the appellant 's speeches constituted incitements to kill and whether he intended to incite to kill and to stir up racial hatred . [ Counsel for the applicant ] argues that after DATE and DATE it was impossible for the jury fairly to judge the appellant 's utterances in the context in which they were made . The adverse publicity compounded the jury 's difficulties , quite apart from the fact that it itself made a fair trial impossible .", "...", "We have no need to deal separately with the rulings given by the judge on the second and third occasion that he dealt with stay applications , for [ Counsel for the applicant ] has not contended that this appeal should succeed in respect of either of these rulings if it fails in respect of the first , and most substantial , ruling . The question remaining for this court is whether the judge was correct to conclude that , with his assistance , the jury would be able to try the issues fairly without being prejudiced or distracted by the events that had occurred since DATE and by the media coverage of those events .", "The judge was correct to conclude that the adverse media publicity attendant upon the events that had occurred DATE and the bringing of charges against the appellant in DATE had put at risk the fairness of his trial . The challenge posed to the judge of taking appropriate steps to neutralise the effect of these matters by appropriate directions and guidance in the course of his summing up was considerable . The task was an exacting one . The judge was confident that he would be able to discharge it . We have concluded that his assessment of the position was correct . The circumstances did not require the judge to stay the prosecution on the ground that there could not be a fair trial .", "We have read the judge 's summing up to the jury with admiration . As we have observed , [ Counsel for the applicant ] has made no criticism of it . The defence had been permitted to call an expert witness to provide the context in which the various speeches had been made . The judge reminded the jury of this evidence . He set the various speeches in their context and drew attention to the issues that the jury had to resolve with pellucid clarity . He gave a careful and skilful direction in relation to media coverage .", "There is no reason to believe that the jury were not able to consider and resolve the relevant issues objectively and impartially . It is not without significance that they recorded verdicts of not guilty on [ CARDINAL of the counts in the indictment ] . [ Counsel for the applicant ] submits that the conviction on some counts but not on others reflected a determination on the part of the jury that the appellant should not escape wholly unpunished . We can see no basis for this submission . The jury 's verdicts appear to us to reflect a rational differentiation between the stronger and the weaker counts .", "For the reasons that we have given , this appeal is dismissed . ”", "The Court of Appeal certified CARDINAL points of law of general public importance for consideration by ORG but refused leave to appeal to ORG . The applicant then petitioned ORG for leave to appeal . This was refused by ORG on DATE .", "English criminal courts have the power at common law to stay proceedings indefinitely if a prosecution amounts to an abuse of the process of the court . This was defined in PERSON R [ DATE ] CARDINAL AC CARDINAL , PC as “ something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceedings ” . This test will be met either : ( i ) where the court concludes that the defendant can not receive a fair trial ; or ( ii ) where the court concludes that it would be unfair for the defendant to be tried ( R v. PERSON [ DATE ] CARDINAL Cr App R CARDINAL ) . The second category was considered in R v. ORG , ex parte PERSON [ DATE ] CARDINAL AC DATE where the accused had been brought to GPE unlawfully by deliberate misconduct by investigators . In finding that to be an abuse of process , Lord PERSON stated :", "“ If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law . ”", "There will be circumstances in which a stay should be granted even though a fair trial could be conducted , for example where the court is faced with unlawful acts by police or prosecutors which are so great an affront to the integrity of the justice system , and therefore the rule of law , that the associated prosecution is rendered abusive and ought not to be countenanced by the court ( see R v. Grant [ DATE ] CARDINAL ORG R DATE ) . However , a stay will not be granted where the trial process is itself equipped to deal with the matters complained of such as through the regulation of the admissibility of evidence ( R ( PERSON ) v. ORG ; GPE v. ORG [ DATE ] CARDINAL ORG R DATE ) .", "A stay may be granted when a defendant is prosecuted after he has been induced to believe that he will not be prosecuted . In R v. Croydon Justices , ex parte Dean [ DATE ] CARDINAL ORG R DATE it was found to be an abuse to prosecute a youth of CARDINAL for destroying evidence after a murder when he had been invited by the police to give evidence at the murder trial on the assurance that he would not himself be prosecuted .", "In R v. GPE [ DATE ] CARDINAL Cr App R. CARDINAL prosecuting counsel had told the court that it would offer no evidence because it was accepted that the defendant had been the victim of a set - up . ORG later decided that it intended to continue the prosecution . ORG quashed the defendant 's conviction : whether or not there was prejudice to him , it would bring the administration of justice into disrepute if ORG were able to treat the court as if it were at its PERSON and call , free to tell it DATE that it was not going to prosecute and DATE that it was .", "In R v. PERSON , ORG and GPE [ DATE ] CARDINAL Cr App R CARDINAL ORG approved inter alia the proposition that , where a defendant has been induced to believe he will not be prosecuted , this is capable of founding a stay for abuse . ORG considered , however , that breach of a promise not to prosecute did not necessarily and , ipso facto , give rise to abuse , but might do so if circumstances had changed .", "A stay may also be granted on grounds of delay in bringing the prosecution . Guidance as to when a stay should be granted was given by ORG in NORP v. S [ DATE ] CARDINAL ORG R DATE . The court stated that the correct approach was for the trial judge to bear in mind the following principles : ( i ) even where delay was unjustifiable , a permanent stay should be the exception rather than the rule ; ( ii ) where there was no fault on the part of the complainant or the prosecution , it would be very rare for a stay to be granted ; ( iii ) no stay should be granted in the absence of serious prejudice to the defence so that no fair trial could be held ; ( iv ) when assessing possible serious prejudice , the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay would be placed before the jury for their consideration in accordance with appropriate direction from the judge ; ( v ) if , having considered all these factors , a judge 's assessment was that a fair trial would be possible , a stay should not be granted .", "In Attorney General 's Reference ( No . DATE ) [ DATE ] CARDINAL AC CARDINAL ORG was asked to consider whether LAW required a stay to be ordered when there had been excessive delay in criminal proceedings . ORG held that the appropriate remedy for a breach of the right to determination of a criminal charge within a reasonable time was not necessarily a stay on proceedings . It would be appropriate to stay or dismiss the proceedings only if either a fair hearing was no longer possible or it would be , for any compelling reason , unfair to try the defendant . The public interest in the final determination of criminal charges required that such a charge should not be stayed or dismissed if any lesser remedy would be just and proportionate in all the circumstances . The category of cases in which it might be unfair to try a defendant included cases of bad faith , unlawfulness and executive manipulation but was not confined to such cases . However , such cases would be exceptional , and a stay would never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant 's rights under LAW .", "Finally , a stay may also be granted where there has been such publicity surrounding the case that a fair trial is not possible . For example , convictions were quashed in NORP v. PERSON [ DATE ] CARDINAL ORG R CARDINAL and R v. PERSON and PERSON [ DATE ] CARDINAL ORG R CARDINAL inter alia due to adverse publicity during the trial . ORG concerned a terrorism trial during which the Government had announced plans to change the law on the right to silence , a right of which the defendant had availed himself . In PERSON and PERSON , the press coverage was found by ORG to be “ unremitting , extensive , sensational , inaccurate and misleading ” and created a real risk of prejudice against the defendants . Later cases have considered that directions from the trial judge to the jury and the nature of the trial process would operate to prevent the jury being prejudiced by publicity . Thus in NORP v. West [ DATE ] CARDINAL ORG R CARDINAL , a case where the defendant was convicted of CARDINAL counts of murder , it was found that a fair trial could be held after intensive publicity adverse to the defendant . ORG observed that :", "“ To hold otherwise would mean that if allegations of murder were sufficiently horrendous so as inevitably to shock the nation , the accused can not be tried . That would be absurd . Moreover , providing the judge effectively warns the jury to act only on the evidence given in court , there is no reason to suppose that they would do otherwise . ”", "The fairness of trial after adverse publicity was considered by ORG of ORG , though not in the context of an application for stay on grounds of abuse of process but rather in a NORP appeal in GPE v. ORG ; PERSON v. ORG Advocate [ DATE ] CARDINAL AC CARDINAL . The appeal concerned the proposed prosecution of CARDINAL men for murder . Comments had been made by a trial judge in a related trial , in which he criticised the Crown for not charging the CARDINAL men with murder . Those comments received a great deal of publicity and subsequently the QUANTITY men were in fact charged with murder . The issue for ORG was whether the proposed trial of the CARDINAL men would be compatible with Article CARDINAL . Lord Hope giving the lead judgment found that it would be . He stated :", "“ It needs to be emphasised , as was pointed out in Pullar v. GPE ( DATE ) CARDINAL ORG CARDINAL , that the rule of law lies at the heart of the Convention . It is not the purpose of article CARDINAL to make it impracticable to bring those who are accused of crime to justice . The approach which the GPE court has taken to the question whether there are sufficient safeguards recognises this fact . It does not require the issue of objective impartiality to be resolved with mathematical accuracy . It calls instead for “ sufficient ” guarantees or safeguards and for the exclusion of any “ legitimate doubt ” : Pullar v. GPE , pp . CARDINAL , CARDINAL paras . CARDINAL , DATE . Account is taken of the fact that certainty in these matters is not achievable .", "...", "I am not persuaded that the judges in the court below were in error in their assessment of the effect of the publicity that has been given to this case and of the question whether , despite that publicity , the jury can be expected to act impartially . Recent research conducted for ORG suggests that the impact of pre - trial publicity and of prejudicial media coverage during the trial , even in high profile cases , is minimal : PERSON , PERSON and PERSON , ORG ; Part CARDINAL , Chapter CARDINAL , para . CARDINAL ( ORG preliminary paper no . DATE ) . The lapse of time since the last exposure may increasingly be regarded , with DATE that passes , in itself as some kind of a safeguard . Nevertheless the risk that the widespread , prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury can not be regarded as negligible . The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge . On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence . The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media . This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds , in particular when he delivers his charge before they retire to consider their verdict .", "...", "[ T]he entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence .", "The NORP judges are not alone in proceeding upon this assumption . In ORG , in Reg . v. PERSON [ DATE ] CARDINAL S.C.R. CARDINAL , CARDINAL , PERSON said that jury directions are often long and difficult but that the experience of trial judges is that juries do perform their duty according to law . In NORP v. PERSON DATE ) DATE ) CARDINAL , CARDINAL ORG , under reference to the PERSON case , said that dicta in that case underlined the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider . In ORG of Australia , in The Queen v. PERSON ( DATE ) CARDINAL C.L.R. CARDINAL , CARDINAL PERSON and Toohey J. said that the law proceeds on the footing that the jury , acting in accordance with the instructions given to them by the trial judge , will render a true verdict in accordance with the evidence and that to conclude otherwise would be to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge . In ORG , in PERSON v. Director of Public Prosecutions [ DATE ] CARDINAL PERSON , CARDINAL PERSON , drawing upon his experience as counsel and as a judge , said that he shared in the confidence that his legal system has in juries to act with responsibility in accordance with the terms of their oath , to follow the directions given by the trial judge and a true verdict give in accordance with the evidence . I consider that the judges in the court below were entitled to draw upon their experience , and I see no reason in the light of my own experience to disagree with their assessment . ”" ]

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[ "The applicant , Mr PERSON , is an NORP national who was born in DATE . He currently lives in GPE . He was represented before the ORG by Mr H. Saeedi , who resides in the GPE . The Government did not appoint an agent to represent them .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE , the applicant , followed by his wife and children on DATE , entered GPE illegally . According to the information provided by him , he was a political activist against the regime in GPE and a member of ORG . In this connection , he submitted an ORG order of DATE , concerning the confiscation of his property on account of his collaboration with the said party and for his illegal departure from GPE .", "On DATE , the applicant filed an asylum request with the NORP authorities and the ORG High Commissioner for Refugees ( UNCHR ) .", "On DATE his asylum request was dismissed by the ORG .", "On DATE ORG rejected his asylum application .", "On an unspecified date , he again applied to the ORG . His request was dismissed on DATE and his file was closed .", "The applicant continued to send letters to the ORG and consequently his case was reopened .", "On DATE he was arrested at FAC while trying to leave the country .", "On DATE he lodged his application with the ORG and requested not to be deported to GPE .", "On DATE he was given a residence permit in GPE which was valid until DATE , in order to facilitate his participation in the domestic proceedings in GPE .", "On DATE he was recognised as a refugee by the ORG .", "On DATE he was arrested by NORP police in GPE .", "On DATE , his representative filed an urgent action with the ORG . He stated that the applicant had been recognised as a refugee by the ORG and had a residence permit in GPE until DATE . He requested the ORG to stop the applicant ’s deportation .", "On DATE , the Acting President of the ORG to which the case has been allocated decided to indicate to the Government , under LAW , that the applicant should not be deported to GPE until further notice . On DATE , the Acting President also decided to apply Rule CARDINAL of ORG ( urgent notification of an application ) to the present case . Accordingly , the Government were requested to submit factual information by DATE ." ]

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[ "NORP The applicant company is the editorial body of a limited liability company called ORG and is registered in the city of GPE , GPE .", "NORP In DATE the mayoral elections were conducted in the city of GPE . On DATE , during the election campaign , CARDINAL press conferences relating to those elections were held at ORG ( “ the UNIAN ” ) . During CARDINAL of those press conferences , a local GPE journalist , PERSON accused one of the candidates , PERSON , of ordering him to be murdered for MONEY ( ORG ) . The wording of the accusation made by PERSON , as later established by the domestic courts , contained the following paragraph :", "“ He ( Mr Y. ) went to his friend , the one locally known politician , whom I will not name yet , but if necessary we will provide [ his name ] , we have facts . Upon his request , the other took out MONEY of his money and handed it to his head of security service and said the following , that it is necessary to reserve for me a place in the morgue .", "So , at present , they “ ordered ” me for MONEY . Who ordered ? I say : [ Mr ] Y. [ full name ] , I declare it officially . ”", "This information among other news was disseminated by the UNIAN via e - mail and posted on its website . According to the applicant company , it received this information by electronic mail in the following form :", "“ Furthermore , [ Mr ] PERSON accused the PERSON mayoral candidate and President of ORG , [ Mr ] PERSON , “ of ordering him to be murdered ” . The journalist reported that for safety reasons he had taken his family away from the region . According to him , all CARDINAL journalists participating in the press conference addressed ORG , ORG of GPE and ORG concerning the threats to them and claimed that they had proof of pressure being applied to them ” .", "According to the applicant company , on DATE , the STB TV channel in its PERSON - Novyny news programme disseminated similar information , indicating that PERSON had also mentioned the sum of MONEY for “ ordering him to be murdered ” .", "On DATE the applicant company published an article which was titled “ The metropolitan tour ” in which the above - mentioned press conferences of CARDINAL DATE were described . Among other things , the article contained the following paragraph :", "“ [ Mr ] PERSON accused [ Mr ] Y. of ' ordering him to be murdered ' and even stated the amount paid for the ' order ' MONEY . The journalist stated that for safety reasons he had taken his family away from the region . According to him , all CARDINAL journalists participating in the press conference addressed ORG , ORG of GPE and ORG concerning the threats to them . He also claimed that they had proof of the pressure being applied to them . ”", "In DATE Mr Y. lodged a civil claim in the GPE ORG ( ORG ) against the applicant company and Mr PERSON complaining that the phrase “ [ Mr ] PERSON accused [ Mr ] Y. ' of ordering him to be murdered ' and even stated the amount paid for the ' order ' – MONEY ” published by the applicant company was untrue and abased his human dignity . He maintained that that publication had affected his professional and private life and damaged his reputation as an individual , lawyer and politician . Taking the view that the publishing of a correction would not be sufficient , he asked the courts to pay him non - pecuniary damages . Later , Mr Y. supplemented his claim by asking for the statement made by PERSON during the press conference ( see paragraph CARDINAL above ) to be found untrue and defamatory .", "According to the applicant company , its co - defendant , PERSON , asked the court to adjourn the proceedings and on DATE asked ORG to transfer the case to another court . The applicant company supported those requests . In his request to ORG , PERSON noted in particular that the plaintiff was the President of ORG and therefore , to ensure the objective and unbiased examination of the case , he asked for the case to be transferred to one of the local courts in GPE , the city in which the press conference had taken place . By letter dated DATE , the Deputy President of ORG allowed the request in part and ordered the case to be transferred to ORG in the ORG region . However , by that time , ORG had already examined the case ( see the next paragraph ) , having rejected PERSON request for the case to be adjourned .", "On DATE the ORG , in a single judge formation ( Judge PERSON ) found that the accusations made by PERSON and the applicant company that Mr Y. had ordered PERSON to be murdered were contrary to the principle of the presumption of innocence guaranteed by LAW . The defendants did not prove before the court that the disseminated information was true . The court found the following phrase from the applicant company 's article “ [ Mr ] PERSON accused [ Mr ] ORG of ordering him to be murdered ' and noted the amount paid for the ' order ' – MONEY ” untrue and defamatory . The court also found that Mr M. had accused Mr Y. of ' ordering ' him to be murdered for ORG during the press conference and that such accusation was also untrue and defamatory . The court noted that , in view of the fact that the CARDINAL bodies had not drawn up a formal contract between them , the applicant company could not prove that it had received the impugned information officially from the UNIAN . Furthermore , the information published by the applicant company did not correspond to the information disseminated by the UNIAN . For those reasons , the court concluded that the applicant company could not be protected against liability . The applicant company and Mr M. were ordered to pay NORP hryvnias CARDINAL ( ORG ) and UAH CARDINAL , respectively , in compensation . The court , however , found no liability against the UNIAN , which had been identified as a co - defendant by the court , because the plaintiff had lodged no claims against it and the UNIAN had published a correction .", "NORP The applicant company appealed against the decision of the first - instance court . It complained , in particular , that Judge PERSON could not be impartial because Mr Y. was the chairman of the regional council of judges and the deputy chairman of the regional branch of ORG and , as a judge and a lawyer , Judge PERSON was dependent upon the plaintiff . The applicant company further noted that the court had disregarded the fact that the impugned information had been circulated by electronic mail , had also been freely accessible on the UNIAN website and that such information belonged in the public domain . It also submitted that the plaintiff had not asked it to correct the material and its proposal to publish a correction before the judicial proceedings and during the judicial proceedings had been refused by the plaintiff .", "On DATE ORG upheld the decision of the first - instance court but decreased the compensation award . The applicant company was ordered to pay ORG MONEY in compensation .", "NORP The applicant company appealed in cassation .", "On DATE ORG upheld the decisions of the lower courts .", "On DATE the applicant company paid the compensation awarded against it and UAH CARDINAL in enforcement fees .", "Relevant provisions of the LAW read as follows :", "Section CARDINAL", "Disciplinary proceedings against judges", "“ CARDINAL . Disciplinary proceedings shall be regarded as the procedure of consideration by the body , specified by the law , of a statement regarding the breaking of judicial status , official duties or the oath by a judge .", "The right to initiate disciplinary proceedings against a judge shall belong to the following persons : ... the chairman of a relevant council of judges ...", "It is forbidden to abuse the right specified in paragraph CARDINAL of this section . In particular , it is forbidden to initiate consideration of an issue concerning the legal liability of a judge without sound reasons or to use the said right to exert pressure upon a judge in connection with the administration of justice by such a judge ... ”", "“ CARDINAL . Within the period between the conferences of judges the functions of a judicial self - government shall be performed by a relevant council of judges .", "A council of judges shall elect from among its members the chairman , deputy chairman and secretary of a council of judges . Chairmen and deputy chairmen of the courts of appeal and higher courts , head of the military chamber of ORG of GPE and head of the military chamber of ORG of GPE shall not be elected to the post of chairman of a relevant council of judges .", "Within the period between the conferences of judges a council of judges shall provide for execution of the decisions taken by a conference and control over their observance , also decide on convocation of the next conference . The powers and operation of a council of judges shall be specified by this LAW and the regulations of a council of judges approved by a conference of judges .", "A council of judges shall :", "CARDINAL ) exercise control over the operation of relevant courts and relevant departments of the ORG judicial administration , hear progress reports of chairmen of these courts and officials of the ORG judicial administration ;", "CARDINAL ) consider the issues of legal and social protection of judges , provision of consumer and household services for judges and their families , and take the decisions to this effect ;", "CARDINAL ) consider the issues concerning the appointment of judges to administrative posts in courts in the manner prescribed by this law ;", "CARDINAL ) hear the reports of members of relevant judicial boards of experts concerning their work on these boards ;", "CARDINAL ) submit the proposals on operation of relevant courts for consideration of the ORG bodies and local self - government authorities ;", "CARDINAL ) hear , at least once DATE , the information of the ORG judicial administration of GPE on support of operation of the courts of general jurisdiction .", "CARDINAL ) take other decisions falling within the limits of its power .", "The decisions taken by a council of judges shall be binding for the judges holding the administrative posts in relevant courts . A decision of a council of judges may be cancelled only by a conference of judges and suspended by the decision of ORG . ”", "Relevant extracts from the LAW read as follows :", "“ ... Everyone is guaranteed judicial protection of the right to have corrected misinformation communicated about himself or herself or members of his or her family , and of the right to demand that any type of material be corrected , and also the right to compensation for pecuniary or non - pecuniary damage inflicted by the collection , storage , use and dissemination of such misinformation . ”", "“ Everyone is guaranteed the right to freedom of thought and speech , and to the free expression of his or her views and beliefs .", "Everyone has the right to freely collect , store , use and disseminate information by oral , written or other means of his or her choice .", "The exercise of these rights may be restricted by law in the interests of national security , territorial indivisibility or public order , with the purpose of preventing disturbances or crime , protecting the health of the population , the reputation or rights of other persons , preventing the publication of information received confidentially , or maintaining the authority and impartiality of justice . ”", "“ A person is presumed innocent and shall not be subjected to criminal conviction unless proved guilty through a legal process which establishes a guilty verdict .", "No one is obliged to prove that he or she is innocent of committing a crime .", "An accusation shall not be based on illegally obtained evidence or assumptions . All doubts in regard to the proof of guilt are interpreted in the accussed 's favour .", "In the event that a court verdict is revoked , the ORG shall , as determined , provide pecuniary or non - pecuniary damage . ”", "Relevant extracts from LAW read as follows :", "“ A citizen or an organisation shall be entitled to demand in a court of law that material be corrected if it is not true or is set out untruthfully , degrades their honour and dignity or reputation , or causes damage to their interests , unless the person who disseminated the information proves that it is truthful .", "... information disseminated about a citizen or an organisation that does not conform to the truth and causes damage to their interests , honour , dignity or reputation shall be subject to rectification , and pecuniary and non - pecuniary damage can be recovered . A limitation period of DATE shall apply to claims concerning rectification of such data and compensation . ”", "Relevant extracts from the Printed Media ( Press ) Act provide :", "“ ... A journalist is obliged to :", "... CARDINAL ) provide objective and truthful information for publication ; ... ”", "“ ORG , legal entities and ORG bodies and their legal representatives have the right to demand correction of material published about them or data that does not correspond to the truth or defames their honour and dignity .", "If the editorial board does not have any evidence that the information published by it corresponds to the truth , it has to correct this material at the request of the plaintiff in the next issue of the printed media or to publish a correction on its own initiative . ... ”", "“ The editorial board and journalists are not liable for the publication of information that is untrue , defames the honour and dignity of citizens and organisations , infringes their rights and lawful interests or constitutes abuse of the freedom of activity of the media and the rights of journalists if :", "CARDINAL ) NORP this information was received from the news agencies or from the media owner ( co - owners ) ;", "CARDINAL ) NORP the information contains responses to a formal request for access to official documents or to a request for written or oral information , provided in accordance with LAW ;", "CARDINAL ) the information is a verbatim reproduction of any official address of the officials of ORG bodies , organisations and the citizens ' unions ;", "CARDINAL ) the information is a verbatim reproduction of materials published by other printed media which refer to that information ;", "CARDINAL ) the information contains secrets that are specifically protected by law , but the journalist received this information lawfully . ”", "The relevant extract of the LAW provides as follows :", "Section CARDINAL", "Relationships between news agencies and distributors / owners ( users ) of a means of communication", "“ The basis of a relationship between a news agency and distributor / owner ( user ) of a means of communication shall be in the form of a contract .", "A distributor / owner ( user ) of a means of communication enters into a contract with the news agency if the latter has a ORG registration certificate . ”", "The relevant extract from Resolution No . CARDINAL reads as follows :", "“ ... CARDINAL . In accordance with LAW , the defendant [ in a defamation case ] has to prove that the information disseminated by him corresponds to the truth . The plaintiff only has the obligation to prove that the defendant has disseminated defamatory information about him . The plaintiff also has a right to provide evidence of the untruthfulness of such information . ”", "The applicant company submitted extracts from reports published in GPE by the ORG , ORG ” . The reports titled “ ORG in GPE ( DATE ) ” and “ Monitoring of Judicial Independence in GPE . ( DATE ) ” provided , inter alia , that among the forms of pressure [ being put ] on judges were threats to ' complicate a career ' and to ' initiate dismissal or disciplinary proceedings ' . According to the same reports , councils of judges had been rated the third most influential body on judges because they could affect the professional career of a judge ." ]

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[ "These CARDINAL applications challenge various bans on fox hunting and the hunting of other wild mammals with dogs in GPE .", "The first application has been lodged by Captain PERSON , a NORP national who was born in DATE and lives in LOC . He is referred to below as the first applicant . His application relates to his challenge to the ban on hunting in GPE and his challenge , in separate legal proceedings , to a similar ban in GPE and GPE .", "The second application has been lodged by ORG and CARDINAL other applicants whose details are set out in the appendix . They are all represented by PERSON . ORG is a non - governmental organisation , which seeks to influence legislation and public policy that has an impact on the countryside , rural people and their activities . At the time of the domestic proceedings set out below , it had CARDINAL ordinary members and CARDINAL associate members . The CARDINAL other applicants are NORP nationals who claim to have been affected by the ban in different ways . ORG and the CARDINAL other applicants in this application are referred to below as the second applicants . They sought to challenge the ban on hunting in GPE and GPE only .", "NORP On the basis of the facts as stated in the domestic proceedings and by the applicants before this Court , the cultural and social background to hunting can be summarised as follows .", "Hunting with hounds has a long history in rural GPE . While it encompassed the hunting of deer , hare and mink , before the bans took effect , the principal quarry were foxes . These were traditionally hunted as vermin in order to protect farm stock . Over time , hunting of various quarries evolved such that the activity was organised in a particular area around a “ PERSON ” . The modern PERSON usually involves a pack of hounds , horseback riders and others who follow the hounds on foot . Any given PERSON now has its own particular customs and practices , including codes , dress , etiquette and hierarchy . The hunting season traditionally runs from DATE until DATE ; most PERSON go out twice a week in that period , though larger ORG may do so more frequently . Within each PERSON there is a Master of Hounds and other positions . Hunts are regulated by ORG . Various charitable , community and social events have grown up around GPE across the country . Members of the hunting community share the responsibilities for the organisation of the PERSON , for example caring for the hounds of a ORG ; those involved also have a common duty to repair any damage to the land on which the PERSON takes place .", "NORP In her witness statement before ORG ( see paragraph CARDINAL below ) , which was characterised by that court as “ largely unchallenged factually ” , the President of ORG , GPE , also stated that hunting was supported by the vast majority of farmers and land owners who allowed it to take place on privately owned land . She also averred that , in GPE and GPE , there were CARDINAL registered fox hunting packs , CARDINAL fox hunting club , CARDINAL beagle packs , CARDINAL harrier packs , QUANTITY , CARDINAL deerhound packs , CARDINAL minkhound packs and CARDINAL fell packs ( with CARDINAL affiliated fell packs ) . There were CARDINAL registered NORP gun packs and CARDINAL registered NORP hunting packs , although those registered with ORG were only a proportion of the total number of packs in GPE .", "In the case of PERSON v. the NORP Ministers ( see paragraph CARDINAL below ) , ORG of ORG relied on a report prepared by ORG of ORG , which found that QUANTITY mounted hunts operated in GPE and that CARDINAL hunts based in GPE , GPE , regularly visited the NORP Borders region .", "NORP In DATE , the Home Secretary asked a committee under the chairmanship of Lord PERSON to inquire into the various aspects of hunting and its impact . It was also asked to inquire into the consequences of any ban and how it might be implemented . After conducting hearings across GPE and GPE , ORG reported in DATE . It did not address whether hunting should be banned but said that it believed its report would help inform the debate that followed its publication .", "In DATE , the Government introduced LOC in ORG , which offered CARDINAL choices : regulation , supervision or prohibition of hunting . The PERSON was not enacted as ORG voted for prohibition and ORG voted for supervision , which meant the PERSON could not pass before the DATE General Election .", "A second PERSON was introduced by the Government in DATE which banned deer hunting and hare coursing but permitted fox , hare and mink hunting subject to registration . This was amended by ORG to reject registration in favour of a ban on hunting , subject to exceptions . The registration system was reinstated by ORG . In the following session of ORG , ORG passed a PERSON which banned hunting , again subject to exceptions . This PERSON became law ( LAW ) without the approval of ORG pursuant to ORG . For the provisions of LAW , see paragraph CARDINAL below .", "The first and second applicants challenged the legality of LAW by way of judicial review , arguing that it was incompatible with their rights under LAW . A separate but related challenge was brought based on ORG law and the freedom to provide goods and services under LAW and DATE of LAW .", "Having reviewed the factual evidence before it , as well as ORG , ORG considered the impact the ban would have on the applicants . It stated :", "“ CARDINAL . We are distinctly cautious in assessing , so far as we have to , the short , medium or long term effects of a ban on hunting which is regarded as permanent . The evidence of individual claimants of the actual or anticipated effect on them is unchallenged , other than by general contentions whose force we find unpersuasive . There is bound , we think , to be a decline in riding to hounds . We hesitate to say how sharp that decline might be . ORG was similarly cautious . PERSON hunts will not , we suppose , all disband TIME . Still less will related social activities collapse immediately . On the other hand , we can not but suppose that there would be a substantial contraction of hunting related activities in the medium term . More importantly , for present purposes , we proceed on the scarcely contested basis that a significant number of individuals , of whom the individual claimants are representative , will suffer in a variety of tangible and economic ways and that some will lose all or part of their present livelihood . The extent to which they may be able to find alternatives is scarcely predictable . Some , no doubt , may not .", "...", "LAW will have a substantial general adverse effect on the lives of many in the rural community in GPE and GPE . It will have a direct effect on a significant number of individuals , of whom the individual claimants are representative . Some of these effects may not be immediate , but much of it is likely to happen in the short to medium term . ”", "The High Court found , however , that the ban did not interfere with the private lives of any of the claimants . Nor was there an interference with their right to respect for their homes with regard either to those applicants who had land over which hunts passed or those whose homes were tied to their employment or business insofar as their employment or business would be affected by the ban . There was similarly no interference with the applicants ' rights under LAW . It also found that LAW was not applicable since membership of the hunting community was not a personal characteristic amount to a status analogous with those contained in that Article . ORG was , however , prepared to accept that there was an interference with their rights under LAW No . CARDINAL , though that interference mainly , if not entirely , constituted control of use , not deprivation of property .", "The precise nature of that interference was a matter of dispute between the parties . The applicants alleged that there were CARDINAL interferences with property , grouped under CARDINAL heads . First , in respect of land , there were interferences arising from : ( i ) the use of land to hunt by the owner ; ( ii ) permitting others to hunt over one 's own land ; ( iii ) the value of land ; ( iv ) expense associated with the removal of buildings and equipment which was of use only in the hunting industry ; and ( v ) the reinstatement of land which had been modified specifically for hunting with dogs . Second , in respect of the livelihoods of certain of the applicants , there were interferences with : ( vi ) an individual 's job and/or livelihood ; ( vii ) the benefit of an existing contract of employment or contract for services related to hunting and ( viii ) goodwill in and/or the value of existing businesses which were reliant on the hunting industry for a large proportion of their income or the viability of their business . Third , in respect of other property , there were interferences as regards ( ix ) dogs ; ( x ) horses and vehicles ; and ( xi ) miscellaneous hunting equipment .", "It was conceded by the Government that LAW interfered with the property covered in ( i ) , ( ii ) , ( ix ) , ( x ) and ( xi ) above and that LAW would be engaged to the extent that the LAW had the indirect consequence of diminishing the values of land or other property or of damaging the goodwill of a business . The High Court agreed . In addition , “ livelihood ” was to be regarded as falling between the marketable goodwill of a business , which was a possession , and a loss of future income , which was not . To the extent that LOC of ORG in PERSON ( see below ) had regarded “ livelihood ” as a possession , ORG declined to follow its ruling on that point .", "Having reached these conclusions on Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL , ORG nevertheless examined whether LAW was justified under LAW and CARDINAL § QUANTITY of the LAW and whether it was proportionate under LAW No . CARDINAL . That examination was joined to its examination of whether the LAW was justified for the purposes of the restrictions it placed on the free movement of goods and services as guaranteed by ORG law . It found that , for Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL , LAW pursued the legitimate aims of the prevention of disorder , protection of health or morals and the protection of the rights and freedoms of others and , for LAW No . CARDINAL and LAW ( if the latter were applicable ) , that it pursued “ legitimate objectives of public policy ” . The LAW was also in accordance with and prescribed by law for the purposes of ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL ; no claim could be made that it lacked legal certainty or adequate procedural safeguards .", "The first and second applicants ' claimed that the LAW was disproportionate because ORG had adopted a more restrictive measure than that proposed by the ORG and , further , that the LAW itself promoted cruelty to foxes because it only allowed them to be shot , which , in certain cases , wounded but did not kill outright . ORG rejected this argument , and instead found there was sufficient material for ORG to conclude that hunting with dogs was cruel and that it was open to it to decide that legislative schemes other than a ban were unworkable . In ORG view , the balance to be struck between the legitimate aim pursued and the interference with rights and freedoms it engendered was : “ intrinsically a political judgment and a matter of domestic social policy , incapable of measurement in any scientifically calibrated scale , upon which the domestic legislature had a wide margin of discretion . ”", "ORG also found that , contrary to the first applicant 's submissions , no issues arose in respect of Articles CARDINAL , CARDINAL , DATE and CARDINAL of the Convention . Claims originally made under ORG and CARDINAL made by the applicants were not pursued before the court .", "The High Court gave the second applicants permission to appeal in respect of their claims under LAW and LAW No . CARDINAL and refused the first applicant permission to appeal . The second applicants duly appealed to ORG and the first applicant renewed his application for permission to appeal before that court .", "Further evidence and witness statements were provided to ORG . The Government submitted that since the passage of LAW , hunts had continued in alternative forms such as drag or trail hunting , where mounted riders and hounded pursued an artificial scent rather than live quarry ; the applicants adduced evidence that this was an inferior and unrealistic alternative .", "In respect of LAW found that it was not engaged and added :", "“ We have reached the foregoing , clear , conclusions on the assumption that some at least of the consequences of LAW feared by the [ applicants ] will in fact eventuate ... But at the same time it is valuable to remind ourselves of circumstances in the real world . The new evidence adduced by the [ Government ] shows that things appear to have gone on very much as before , even if trail - hunting is regarded as a very inferior form of sport to the real thing . ”", "The court reached a similar conclusion in respect of LAW :", "“ We entirely agree with both of our predecessor courts [ ORG and ORG – see below ] that it can not be said that LAW interferes with the right of the [ applicants ] to assemble . All that it does is to prohibit a particular activity once the [ applicants ] have assembled . Moreover , LAW has now been in force for DATE , and the hunts have been assembling in greater numbers than ever . If they choose at some time in the future to lose interest in trail hunting or in other activities that are not directly prohibited by LAW , that will be a matter for them . ”", "On LAW , ORG followed the approach of ORG in accepting that that provision would only be engaged to the limited extent conceded by the ORG . ORG also upheld the reasoning of ORG as to the legitimate aims pursued by LAW and its proportionality . That conclusion applied equally to LAW No . CARDINAL and ORG CARDINAL and CARDINAL if , contrary to its conclusions , those ORG were engaged .", "ORG found that the first applicant 's renewed application for permission to appeal , brought in respect of his separate claims under Articles CARDINAL , DATE , DATE and DATE , should be refused as it had no reasonable prospect of success . It also refused the second applicants permission to appeal to ORG . The second applicants then petitioned ORG and , on DATE , an ORG of ORG gave leave to appeal ( see paragraph CARDINAL below ) .", "The Protection of Wild Mammals ( GPE ) Act was passed by ORG on DATE and entered into force on DATE . LAW prohibited the hunting of all wild mammals ( except rabbits and rodents ) with dogs ( see relevant domestic law and practice at paragraph CARDINAL below )", "Together with CARDINAL other petitioner , the first applicant , as a member of the PERSON , sought judicial review of the LAW , contending that it was not within the legislative competence of ORG , inter alia , because it was incompatible with ORG DATE , CARDINAL , DATE and CARDINAL of the Convention .", "The petition was dismissed by ORG of ORG on DATE . The Lord Ordinary found that Article CARDINAL was not engaged : hunting was a complex social activity , carried on under public gaze , which clearly extended beyond the sphere of purely private life . He also dismissed the argument made by the first applicant and his copetitioner that Article CARDINAL was engaged because hunting was so intrinsic to their way of life as to be their primary characteristic . Their case had to be distinguished from the gypsy lifestyle at issue in GPE v. the GPE [ ORG ] , no . CARDINAL , ORG DATE and the PERSON way of life at issue in PERSON and PERSON GPE , LOC FAC and ORG , Commission decision of DATE , ORG and Reports ( DATE , p. CARDINAL . A person 's profession or recreation might assume great importance in his life but that was quite different from the situation where an activity was so closely associated with the way of life of a particular group that it fell to be regarded as integral to the individual personality of every member of that group . Furthermore , the hunting community could not be regarded as a distinct ethnic group .", "The Lord Ordinary rejected the applicant 's submissions that Articles CARDINAL , CARDINAL were engaged but indicated that , had he found any of ORG DATE to be engaged , he would nevertheless have held that ORG was entitled to come to the view that the ban was necessary in a democratic society and pursued the legitimate aim of the protection of morals .", "For the Lord Ordinary Article CARDINAL could not apply because hunters could not be regarded as having a personal characteristic or status for the purposes of that Article ; fox hunting was a common activity engaged in by a heterogeneous group of individuals . To the extent that the first applicant continued to rely on it before him , the Lord Ordinary did not regard Article CARDINAL as relevant to the case . The same consideration applied to LAW : it did not confer any rights on which the petitioners could rely .", "The applicant appealed to ORG of ORG . By this time , ORG had already given its judgment in PERSON the NORP Ministers , where , in a separate judicial review challenge brought by the NORP hunting community , it had found LAW to be compatible with LAW , CARDINAL and DATE of the Convention and LAW No . CARDINAL ( see paragraph CARDINAL below ) . On DATE , ORG refused the first applicant 's appeal . It found no reason to depart from the conclusions of ORG in PERSON or ORG in the present case that ORG DATE and CARDINAL were not engaged . It also upheld the Lord Ordinary 's ruling in respect of LAW was not pursued before ORG . The first applicant appealed to ORG ( see below ) .", "On DATE ORG gave judgment on the first applicant 's appeal from ORG of ORG and the second applicants ' appeal from ORG . It unanimously dismissed both appeals .", "In the second applicants ' appeal , Lord PERSON of NORP found that LAW was not engaged , judging the applicants ' complaints to be “ far removed from the values which LAW existed to protect ” . PERSON - hunting was a very public activity and therefore no analogy could be drawn between it and any of this ORG 's cases where the notion of personal autonomy was found to underlie the right to respect for private life . Nor could any analogy be drawn with G and E , cited above , or PERSON v. the GPE , DATE , Reports of Judgments and Decisions DATE , where the applicants belonged to distinctive groups , each with a traditional culture and lifestyle at issue that was so fundamental as to form part of its identity . The hunting community could not be portrayed this way . That certain of the applicants were prohibited from hunting on their land was not an interference with the right to respect for their home since , in ordinary usage , such land could never be described as home . For those applicants who complained that they stood to risk losing their homes from the hunting ban , this was not the necessary or intended consequence of LAW and none of them had been evicted or might ever be . Finally , the applicants relied on the case NORP and GPE v. GPE , nos . CARDINAL/CARDINAL and CARDINAL , ECHR CARDINALVIII , as authority for the proposition that there would be an interference through loss of livelihood as a result of the ban but , for Lord PERSON , this was a very extreme case which could be distinguished on its facts .", "Lord PERSON was not content to treat LAW as inapplicable : the right to assemble was of little value if the applicants , having assembled to act in a certain way , were prohibited from carrying out that activity . He then took the same approach as ORG and ORG in considering whether LAW was justified under LAW and CARDINAL § CARDINAL and , to the extent that LAW No . CARDINAL applied , whether the LAW was a proportionate interference with the right to property . He concluded that it was : respect had to be paid to the recent and closely - considered judgment of ORG . Finally , for Lord PERSON , no claim could be made under LAW as no personal characteristic of any of the applicants could be described as an “ other status ” under that Article .", "Lord Hope of PERSON and ORG of GPE agreed with Lord PERSON , save that neither found LAW to be engaged . For them , it was insufficient simply to find that LAW did not apply on the grounds that the effect of the ban was not to prohibit the assembly of a hunt but to prohibit a particular activity which the hunt might engage upon once it had assembled . Instead , Lord Hope found LAW to be inapplicable because that Article did not guarantee a right to assemble for purely social purposes . The applicants ' position was no different from that of any other persons who wished to assemble in a public place for sporting or recreational purposes . It fell well short of the kind of assembly whose protection was fundamental to the proper functioning of a modern democracy . ORG agreed : the kind of assembly protected by LAW had to be read alongside LAW and the democratic values those ORG sought to protect .", "Lord PERSON of PERSON - under - Heywood agreed that LAW was not engaged but stated his strong wish that it were otherwise and that the scope of LAW should be developed by ORG . He also agreed that LAW was not engaged but that LAW No . CARDINAL was . As to proportionality , Lord PERSON was prepared to accept that moral objection to hunting as expressed in LAW was sufficient justification for the “ comparatively slight ” interference with the applicant 's property rights . However , LAW CARDINAL § CARDINAL he regarded the test to be much stricter and was unable to regard such an ethical objection to hunting as a sufficient basis for holding the ban to be necessary .", "Lord PERSON of PERSON agreed in particular with the reasons given by PERSON and also found that LAW was not engaged . He accepted that certain activities could be regarded as integral to a person 's identity and so form part of their private life for the purposes of LAW . He also considered the activities which PERSON had been photographed doing in public in GPE v. GPE , no . CARDINAL , ECHR CARDINALV ( horse riding , riding her bicycle , playing tennis and going to the market ) and suggested that if photographing her doing these things interfered with her rights under LAW , then a law banning her from these activities would have constituted a greater interference . However , a distinction had to be drawn between , on the one hand , doing such activities simply for one 's own enjoyment and the development of one 's personality and , on the other , carrying out the same activity for a public purpose , where one could not be said to be acting for personal fulfilment alone . In the latter , a person might still be developing his or her personality through the activity but would have left the sphere in which they would be entitled to the protection of LAW . He agreed with ORG of ORG in PERSON that a hunt took on the character of spectator sport and a public spectacle and thus that the applicants were not entitled to the protection of LAW .", "The first applicant 's appeal was dismissed for the same reasons . Lord Hope delivered the lead speech with which the other CARDINAL law lords concurred , subject to their opinions in the appeal brought by the second applicants . He upheld the finding of the Lord Ordinary and ORG that Articles CARDINAL and CARDINAL had no relevance to the first applicant 's basic argument that ORG ( Scotland ) Act was outside the legislative competence of ORG because it was incompatible with the Convention . He also upheld the lower courts ' findings that ORG and CARDINAL were not engaged . To the extent that it was necessary to consider the justification for LAW , Lord Hope considered that there was adequate factual information to entitle ORG to conclude that foxhunting inflicted pain on the fox and that it constituted cruelty . The question of necessity was “ pre - eminently one for the ORG ” .", "Section CARDINAL of the CARDINAL Act provides that a person commits an offence if he hunts a wild mammal with a dog unless his hunting is exempt . Classes of hunting which are exempt are specified in Schedule CARDINAL of the Act . Under section CARDINAL , it is a defence for a person charged with an offence under section CARDINAL to show that he reasonably believed that the hunting was exempt .", "Exempt hunting includes : ( i ) stalking a wild mammal , or flushing it out of cover , if the conditions in paragraph CARDINAL of the Schedule are satisfied . The conditions include : ( a ) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause ; ( b ) that it does not involve the use of CARDINAL dogs ; nor ( c ) the use of CARDINAL dog below ground otherwise than in accordance with paragraph CARDINAL of the Schedule . The conditions in paragraph CARDINAL include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot ; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground . Further exemptions , subject to conditions , are made for the hunting of rats and rabbits , the retrieval of hares which have been shot , for falconry , for the recapture or rescue of a wild mammal , and for research and observation of a wild mammal .", "Section CARDINAL creates offences by a person who knowingly assists hunting which is banned under section CARDINAL . Section CARDINAL(CARDINAL ) provides that hunting a wild mammal with a dog includes any case where a person engages or participates in the pursuit of a wild mammal and CARDINAL or more dogs are employed in that pursuit , whoever employs , controls or directs the dogs .", "Section CARDINAL bans hare coursing , which is defined as “ a competition in which dogs are , by the use of live hares , assessed as to skill in hunting hares ” .", "A person guilty of an offence under LAW is liable on summary conviction to a fine of MONEY CARDINAL,CARDINAL . Conviction may lead to the forfeiture of any dog , vehicle or other article used for the purpose of prohibited hunting .", "Section CARDINAL of the DATE Act makes it a criminal offence deliberately to hunt a wild mammal , for the owner or occupier of his land to permit it to be used for that purpose and for the owner of a dog to permit it to be used for the same . By section CARDINAL rabbits and rodents are excluded from the definition of a wild mammal . Exemptions are made in sections DATE ( subject again to conditions ) for stalking and flushing from cover , falconry and shooting , retrieving and locating wild mammals . Section CARDINAL gives the NORP Ministers the power to specify further “ excepted activities ” , which will not constitute an offence under section CARDINAL . By section CARDINAL(CARDINAL ) a person guilty of an offence under the LAW is liable on summary conviction to imprisonment for DATE or a fine of up ORG MONEY or both .", "The petitioners in this case sought to challenge LAW by way of judicial review , similarly relying on Articles CARDINAL , CARDINAL and DATE of the Convention and LAW No . CARDINAL . They were unsuccessful at first instance before the Lord Ordinary in ORG of ORG . They appealed to ORG of ORG , which dismissed the appeal on DATE . ORG took note of an expert report submitted by the petitioners , which found that the end to traditional foxhunting would bring the “ collapse of an entire social and cultural world ” and result in “ profound and deeply felt social and cultural impoverishment ” in ORG . However , ORG CARDINAL , CARDINAL and DATE were not engaged . For LAW No . CARDINAL , the ORG found that the LAW did not amount to de facto expropriation of possessions related to hunting ( in particular one of the petitioner 's hounds ) but rather control of the use of property and thus there was no requirement for the LAW to provide a scheme of compensation . It was accepted that LAW No . CARDINAL was engaged to the extent that the LAW restricted the use to which the petitioners put their land and hounds . The ORG also sustained the finding of the Lord Ordinary that CARDINAL of the petitioner 's economic interest in making his livelihood as a self - employed manager of foxhounds was a possession within the meaning of that Article . In doing so , it relied on this ORG 's rulings in ORG v. GPE , DATE , Series A no . CARDINAL ; PERSON and Others v. the GPE , DATE , Series A no . CARDINAL and the ORG 's decision in GPE v. GPE , no . CARDINAL/CARDINAL , DATE , ORG and Reports ( DATE , p. CARDINAL . However , for that livelihood and the other possessions of the petitioners , ORG had struck an appropriate balance : it had conducted extensive inquiries before legislating and had acted within the scope of its discretion in judging that foxhunting should be prohibited ." ]

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[ "The applicant was born in DATE and lives in PERSON .", "In DATE the applicant was charged with assault and battery . On DATE the Zielona ORG ( PERSON ) convicted the applicant as charged . The conviction was upheld by ORG ( Sąd Apelacyjny ) on DATE . On DATE ORG ( Sąd Najwyższy ) dismissed the applicant 's further cassation appeal .", "On DATE the applicant was arrested on suspicion of homicide . On DATE the ORG ( Sąd Rejonowy ) ordered the applicant 's detention on remand on a charge of murder .", "During the investigation , the applicant 's detention was prolonged on CARDINAL occasions .", "On DATE the applicant was indicted before the Zielona ORG . ORG extended his detention on remand on several occasions . The court referred to the reasonable suspicion that the applicant had committed the offence with which he had been charged . It further stressed that holding the applicant in detention was necessary to secure the proper conduct of the proceedings . These decisions were upheld on appeal . The applicant made several unsuccessful applications for release .", "On DATE ORG prolonged the applicant 's detention . The court relied on the existence of a reasonable suspicion against the applicant and on the likelihood that a heavy sentence of imprisonment might be imposed on him . ORG also examined the course of the proceedings and established that they had been lengthy . It instructed the trial court to concentrate on scheduling more hearings and on taking other procedural measures to terminate the trial promptly . The court , nevertheless , stated that the applicant had been solely responsible for the duration of the trial as ORG had to examine his allegation that he had acted in self - defence .", "DATE and DATE the applicant was serving a prison sentence following his conviction in another set of criminal proceedings .", "On DATE the ORG convicted the applicant as charged and sentenced him to DATE imprisonment .", "On DATE , DATE and DATE the PERSON Regional Court prolonged the applicant 's detention . All of these decisions were upheld on appeal .", "On DATE the prosecutor filed an appeal against the firstinstance conviction .", "On DATE the ORG of Appeal quashed the firstinstance conviction and remitted the case to ORG .", "On DATE , CARDINAL DATE and DATE ORG prolonged the applicant 's detention . In its identically reasoned decisions the court referred to the likelihood that the applicant would receive a lengthy sentence . It also pointed out that there were no particular circumstances militating in favour of his release , as defined in LAW .", "DATE and DATE the applicant was serving a prison sentence as a result of his conviction in another set of criminal proceedings against him .", "On DATE ORG prolonged the applicant 's detention . It considered that the need to ensure the proper course of the proceedings and the likelihood that the applicant would receive a lengthy sentence justified the prolongation of his detention . The court further stressed that the trial would end soon since most of the witnesses had already been heard .", "On DATE the applicant filed a complaint alleging that the proceedings against him had exceeded a reasonable time and requesting compensation for the prolongation of the proceedings . He relied on 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 ” ) . On DATE the ORG of Appeal gave a decision and confirmed that the proceedings before ORG had been lengthy . However , it refused to award any compensation to the applicant .", "On DATE the ORG convicted the applicant of murder and sentenced him to DATE imprisonment .", "On DATE ORG prolonged the applicant 's detention .", "On DATE the ORG of Appeal quashed the firstinstance conviction and again remitted the case .", "On DATE ORG refused to release the applicant on bail .", "NORP The applicant again asked to be released on bail .", "On DATE the ORG refused to release the applicant on bail and further prolonged his detention until DATE . It considered that there was a risk that the applicant , if released , would interfere with the proper course of the proceedings . It also held that DATE the applicant had been convicted CARDINAL times and that the charges against him had included unlawful possession of a firearm . This decision was upheld on appeal on DATE .", "On DATE ORG dismissed the applicant 's complaint under LAW about the alleged inactivity of ORG . The court examined only the period after DATE as the period before that date had already been examined . The court concluded that there had been no delays in the proceedings after that date .", "On DATE ORG again prolonged the applicant 's detention . The court stressed that there were no particular circumstances militating in favour of his release , as defined in Article CARDINAL § CARDINAL of the Code of Criminal Procedure . This decision was upheld by ORG on DATE .", "On DATE the applicant was released from pre - trial detention . It appears from the parties ' submissions that the criminal proceedings before the ORG are pending .", "The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .", "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." ]

[ "5", "6" ]

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

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[ "The applicant was born in DATE . After a number of periods in prison and hospital the applicant was admitted to ORG ( “ LOC ” ) from prison under sections DATE and CARDINAL of LAW DATE on DATE . He remained an in - patient until DATE , when he was discharged by ORG . DATE he was arrested and charged with a number of offences and was admitted , from prison , to a medium secure unit in DATE . In that unit he became increasingly psychotic , aggressive and violent . He was placed in seclusion and transferred to GPE on DATE . While at LOC he has been secluded on a number of occasions for the protection of others : between CARDINAL–CARDINAL DATE , CARDINAL–CARDINAL DATE , DATE and CARDINAL March–CARDINAL DATE . Each period of seclusion involved confinement to his bedroom or another room ; however , during each period of seclusion , the applicant was allowed periods of association either with staff or other patients . These periods ranged from TIME to over TIME . In the first period of seclusion , he had DATE half ORG association in total ; in the second , CARDINAL ORG association ; in the third , CARDINAL hours’ association ; and in the fourth , CARDINAL NORP association . There was DATE , DATE , when the applicant was not allowed any association at all .", "Each period of seclusion was made by LOC pursuant to its seclusion policy ( “ the policy ” : see paragraphs CARDINAL–CARDINAL below ) . There is a national Code of Practice , issued by the Secretary of ORG under LAW , which includes a section on seclusion of psychiatric patients ( see paragraphs CARDINAL–CARDINAL below ) . The applicant maintains that the hospital ’s seclusion policy differs substantially from the LAW , particularly by reducing the number and frequency of reviews of his seclusion by a doctor from that laid down in the LAW .", "The applicant first challenged LOC ’s seclusion policy on this basis in ORG in DATE . On DATE , ORG found that the hospital ’s policy , by reducing the frequency of review of a patient ’s seclusion below that provided for in DATE , was unlawful and was not justified by the fact that the hospital was a maximum secure hospital . In particular , the failure after DATE of seclusion to have twice - daily medical reviews of the continuation of seclusion was not justified .", "Ashworth did not change its policy and the applicant commenced further judicial review proceedings on DATE . In DATE , the hospital adopted a new policy , providing for medical review of the continuation of the use of seclusion twice DATE on DATE of the seclusion and thereafter CARDINAL reviews a week by a doctor and a DATE multidisciplinary review . The applicant continued to challenge the legality of the policy on the grounds that DATE CARDINAL onwards it did not comply with the review procedures found necessary by ORG . He also argued that LAW suggested that there should be medical reviews TIME . Finally he argued that the hospital ’s policy was incompatible with Articles CARDINAL and CARDINAL of the Convention .", "On DATE , ORG ruled that the minimum level of severity required for DATE was not met and there was no breach of LAW . It also found that LAW was merely guidance . ORG also accepted the evidence of GPE that the applicant had not remained in seclusion for longer than had been necessary , and that there was no evidence that more frequent reviews would have reduced the time spent in seclusion .", "The applicant appealed to ORG and , on DATE , it allowed his appeal . Relying on X v. GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , Decisions and Reports ( GPE ) CARDINAL , p. CARDINAL ( cited in the judgment as A. v. GPE ( DATE ) CARDINAL EHRR CARDINAL ) , it found that seclusion of a detained psychiatric patient was capable of amounting to a breach of Article CARDINAL . On the basis of this ORG ’s ruling in PERSON v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINALIII , it also found that LAW , in so far as it regulated seclusion , had to have a status and weight consistent with the ORG ’s obligation to avoid ill - treatment of patients detained by the ORG . Where there was a risk that agents of the ORG would treat their patients contrary to LAW , the ORG should take steps to avoid this through the publication of LAW , which its agents were obliged to follow unless they had good reason to depart from it .", "ORG also held that seclusion would breach LAW unless it could be justified under LAW . In considering the need for any interference to be “ in accordance with law ” in terms of LAW , it found that the transparency and predictability required by this provision were supplied by LAW . It found :", "“ It would fly in the face of the original purposes of the LAW if hospitals or professionals were in fact free not to follow it without a good reason . It is clear that section PERSON ) ( see para CARDINAL above ) can not have been intended as a ‘ take it or leave it’ provision . In relation to those matters where a patient ’s human rights are or may be engaged , the arguments for according the Code the greater status are compelling . Where there is a risk that agents of the state will treat its patients in a way which contravenes LAW , the state should take steps to avoid this through the publication of LAW which its agents are obliged to follow unless they have good reason to depart from it . Where there is an interference with the rights protected by LAW , the requirement of legality is met through adherence to LAW again unless there is good reason to depart from it . The same will apply where the LAW deals with the deprivation of liberty within the meaning of Article CARDINAL .... We conclude that the Code should be observed by all hospitals unless they have a good reason for departing from it in relation to an individual patient . They may identify good reasons for particular departures in relation to groups of patients who share particular well - defined characteristics , so that if the patient falls within that category there will be a good reason for departing from the Code in his case . But they can not depart from it as a matter of policy and in relation to an arbitrary dividing line which is not properly related to the PERSON ’s definition of seclusion and its requirements . ”", "It concluded that the hospital ’s seclusion policy was unlawful . While the court considered LAW on its own motion , relying on this ORG ’s rulings in PERSON v. GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , PERSON GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL and PERSON v. GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , it found that seclusion did not amount to a further deprivation of liberty .", "Ashworth appealed to ORG . On DATE ORG ( by a majority of CARDINAL ) allowed the appeal .", "In the lead speech , Lord PERSON ( with whom Lord Hope and Lord PERSON agreed ) found that LAW was only guidance and he was satisfied that the hospital had shown good reasons for departing from it . He stated :", "“ DATE . It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have . It is what it purports to be , guidance and not instruction . But the matters relied on by PERSON show that the guidance should be given great weight . It is not instruction , but it is much more than mere advice which an addressee is free to follow or not as it chooses . It is guidance which any hospital should consider with great care , and from which it should depart only if it has cogent reasons for doing so . Where , which is not this case , the guidance addresses a matter covered by section PERSON ) [ of LAW DATE see paragraph CARDINAL below ] , any departure would call for even stronger reasons . In reviewing any challenge to a departure from the LAW , the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires .", "The extensive evidence adduced by the ORG makes clear that the LAW was very carefully considered . This is indeed evident from the policy itself , which reproduces important parts of the LAW and contains cross - references to it . But the policy did depart from the LAW in providing for less frequent medical review after DATE . As the [ High Court observed ] , the Trust ‘ has explained the justification for the policy in very considerable GPE . ...", "In considering the frequency of medical review after DATE the Trust were in my opinion entitled to take account of CARDINAL matters in particular . First , as pointed out in the Introduction to the policy , the LAW was directed to the generality of mental hospitals and did not address the special problems of high security hospitals , containing as they inevitably do the most potentially dangerous patients in the country . Secondly , the Code did not recognise the special position of patients whom it was necessary to seclude for longer than DATE . It has been the experience of the Trust that the condition of those secluded for DATE does not change rapidly , and that it is in any event unsafe to rely on an apparent improvement without allowing enough time to pass to give grounds for confidence that the improvement will endure . Thirdly , the statutory scheme , while providing for the Secretary of ORG to give guidance , deliberately left the power and responsibility of final decision to those who bear the legal and practical responsibility for detaining , treating , nursing and caring for the patients .", "The witness statements submitted by the Trust are very strongly challenged in statements and evidence on behalf of PERSON , PERSON and ORG . This is a highly controversial subject , on which professional opinions differ . The DATE divide between short - term and long - term secluded patients is criticised . So is the practice , adopted at LOC , of allowing secluded patients to spend periods of time , sometimes lengthy periods , in closely supervised association with other patients . There are differences of practice , not all of them fully explained , between GPE , ORG and ORG . It is not , however , for the courts to resolve debatable issues of professional practice , but to rule on issues of law . If a practice is supported by cogent reasoned justification , the court is not entitled to condemn it as unlawful . In the present case , even with the intense scrutiny called for , I can not regard the long and detailed statements submitted by ORG as failing to show good reasons for adopting the policy it has adopted , even though there are many eminent professional experts who take a different view . ”", "Lord GPE found that Article CARDINAL was not breached by the policy . He held as follows :", "“ CARDINAL ... Despite much learned argument addressed to the ORG , I do not find it necessary to discuss the extent or probability of the risk or the extent to which it must be foreseen . For I agree with [ ORG ] that the policy must be considered as a whole , that the policy , properly operated , will be sufficient to prevent any possible breach of the article CARDINAL rights of a patient secluded for DATE and that there is no evidence to support the proposition that the frequency of medical review provided in the policy risks any breach of those rights . The patient must be the subject of recorded observation by a nurse at least TIME and of recorded review by CARDINAL qualified nurses TIME , CARDINAL of them ( where practicable ) not involved in the decision to seclude . In the ordinary course of things it is the nurses who know the patient best , and the nurse in charge of the ward can terminate seclusion at any time . There must be a DATE review by a ward manager or site manager of a different ward : these , as the evidence shows , are senior and experienced people . There must be CARDINAL medical reviews DATE , CARDINAL of them involving the patient ’s responsible medical officer . There must in addition be a DATE review by a multi - disciplinary patient care team , including the patient ’s RMO [ Resident Medical Officer ] . The seclusion of the patient must be monitored by the hospital ’s ORG , which includes the medical director , the hospital director , the head of psychology , the senior nurse , the head of social care , CARDINAL nurses , the ward manager and a non - executive director of the Trust , some of whom must have seen the patient . It reports to the hospital ’s ORG . ORG must be informed once a patient has been secluded for DATE and must thereafter receive regular progress reports : as already noted , it has statutory power to visit and investigate any complaint . The patient may , wherever possible , be visited by a relative . The patient or his representative may appeal to the medical director or his deputy , who must review the case and take account of any representations made . The patient may seek judicial review of the decision to seclude him or continue to seclude him , or to challenge the conditions in which he is secluded . It can not in my opinion be said , bearing in mind that the standard set must obtain in all member states of ORG , that a policy containing these safeguards exposes a patient secluded for DATE to any material risk of treatment prohibited by article CARDINAL . ”", "On DATE , Lord PERSON endorsed ORG finding that it did not apply and added :", "“ The approach to residual liberty which appears to have prevailed in GPE ( see PERSON v The Queen ( DATE ) CARDINAL DLR ( CARDINALth ) CARDINAL ) does not , as I understand , reflect the jurisprudence of ORG . I do not for my part regret this conclusion since , as ORG pointed out ( in para CARDINAL of its judgment ) , improper use of seclusion may found complaints under article CARDINAL or article CARDINAL , and article CARDINAL(CARDINAL ) provides that a successful challenge should result in an order that the detainee be released , not in an order that the conditions of his detention be varied . I would not , for example , understand article CARDINAL(CARDINAL ) as enabling a prisoner , lawfully detained , to challenge his prison category . In any event , the LOC policy , properly applied as CARDINAL must assume , does not permit a patient to be deprived of any residual liberty to which he is properly entitled : seclusion must be for as short a period and in conditions as benign as will afford reasonable protection to others who have a right to be protected . ”", "On DATE Convention , Lord PERSON doubted that seclusion , when properly used in order to protect others from violence and intimidation and when used for the shortest period necessary , was an interference with a patient ’s LAW . He considered that “ a detained patient , when in his right mind or during lucid intervals , would not wish to be free to act in such a way [ to be violent or intimidating ] and would recognise that his best interests were served by his being prevented from doing so . ” However , for Lord PERSON , if there were an interference then the “ in accordance with law ” requirement of LAW had not been breached . He found ( at paragraph CARDINAL of the judgment ) :", "“ The requirement that any interference with the right guaranteed by article CARDINAL(CARDINAL ) be in accordance with the law is important and salutary , but it is directed to substance and not form . It is intended to ensure that any interference is not random and arbitrary but governed by clear pre - existing rules , and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied . This could of course have been achieved by binding statutory provisions or binding ministerial regulations . But that was not the model ORG adopted . It preferred to require the Secretary of ORG to give guidance and ( in relation to seclusion ) to call on hospitals to have clear written guidelines . Given the broad range of institutions in which patients may be treated for mental disorder ... it is readily understandable why a single set of rules , binding on all , was thought to be undesirable and perhaps impracticable . It is common ground that the power to seclude a patient within the hospital is implied from the power to detain as a ‘ necessary ingredient flowing from a power of detention for treatment’ treatment ” : see ORG in R v ORG , ORG , H and D ( DATE , unreported ) and ORG judgment in the present case , para CARDINAL . The procedure adopted by the Trust does not permit arbitrary or random decision - making . The rules are accessible , foreseeable and predictable . It can not be said , in my opinion , that they are not in accordance with or prescribed by law . ”", "Lord Hope , in agreeing with Lord PERSON , stated :", "“ In my opinion there is nothing that is arbitrary about the way in which LOC has departed from the LAW in the framing of its Policy . A careful reading of it shows that it is based very substantially on the PERSON ’s guidance , and that where it departs from it – with regard to the frequency of reviews in DATE it does so because of its perception of the way seclusion needs to be used in the special circumstances that obtain at LOC . The system that it lays down has been carefully designed to deal with its use for much longer periods than the Code ’s guidance was designed for . Its purpose is to ensure that its use for these longer periods is not resorted to at random or arbitrarily . Following the Code ’s example , that is the whole purpose of the Policy .", "As for the question whether LOC was free to depart from the Code as a matter of policy , and not just in relation to individual patients or groups of patients , I do not see why this should be so , provided of course that it can demonstrate that it had a good reason for doing so . The distinction which ORG made between a departure in the case of individual patients or groups of patients and a departure which takes the form of a written policy for dealing with a particular form of intervention is elusive , and I do not think that it can be regarded as acceptable . There is an obvious danger that , if the Code could be departed from in the case of individual patients or groups of patients where no written guidance was available , decisions to do this would be open to attack as being arbitrary because their consequences were unregulated and unpredictable . That , precisely , is what ORG Policy seeks to avoid . Good clinical and medical practice dictates that seclusion should only be used in particular situations to protect others and subject to particular conditions to ensure that the patient is not harmed or secluded for any longer than is necessary . The purpose of the Policy is to ensure that the conditions under which it is to be resorted to are clearly understood and carefully observed so that decisions that are taken about the management of this procedure are consistent and not arbitrary .", "I am in full agreement with all that my noble and learned friend Lord PERSON of ORG - under - Heywood has said about this case except with regard to the issues raised by article CARDINAL(CARDINAL ) of the ORG , as to which I have the misfortune to disagree with him . The point that divides us is whether the practice of seclusion carried out at LOC in accordance with the Policy is “ in accordance with the law . ” As his quotation from para CARDINAL of the ORG ’s judgment in PERSON and ORG ) CARDINAL EHRR CARDINAL reminds us , it is the quality of the law that matters rather than the form it takes . The touchstones by which its quality is measured are , as Lord PERSON says , its transparency , its accessibility , its predictability and its consistency . Where these qualities are present the measure protects against the abuse of power and against conduct which is arbitrary . There is no doubt that the LAW satisfied these tests , notwithstanding the fact that there is no statutory obligation to comply with it . In my opinion Ashworth ’s Policy , which is careful in all these respects to follow the PERSON ’s example , does so too . It is , of course , true that LOC could alter its Policy . But if it did so every departure from the Code would have to be justified in the same way as the Policy itself has had to be justified . I do not think that the fact that LOC has its own Policy opens the door to further departures from the LAW that could be described as arbitrary .", "Assuming , of course , that LOC has shown - as it has - clearly , logically and convincingly that it had cogent reasons for departing from the LAW in these particular respects in favour of its own Policy , I would hold that its decision can not be said to have been unlawful . Concerns that a departure from the LAW in this instance will lead to widespread variations in practice and undermine its status generally or that your Lordships’ judgment lowers the protection offered by the law to mentally disordered patients are misplaced , in my opinion . The requirement that cogent reasons must be shown for any departure from it sets a high standard which is not easily satisfied . The protection which the law provides to ensure that any departures are compatible with Convention rights is an additional safeguard . This has been amply demonstrated in practice since the LAW was promulgated . ORG is the only place where a hospital has departed from what the PERSON says about seclusion in favour of its own policy . While I would respectfully endorse everything that Lord PERSON says in the last paragraph of his speech [ paragraph CARDINAL , quoted below ] , I believe that it would be wrong to see this judgment as opening the door to substantial departures from the Code on the part of individual hospitals . The decision of the majority should not be seen as an invitation to other hospitals to do this and resort to their own policies . The status of the Code remains unchanged , and so does the need to show cogent reasons if in any respect it is departed from .", "Lord PERSON , in agreeing that LOC ’s policy was in accordance with the law for the purposes of DATE , emphasised the duty the hospital owed to protect patients and staff from harm . Once it was accepted that LOC had no statutory obligation to have a seclusion policy that conformed in every respect to the LAW and that LOC ’s seclusion policy was rational and reasonable in itself despite its divergences from the Code , there could be no room for any suggestion that the implementation of LOC ’s seclusion policy for the safety of other inmates was otherwise than in accordance with the law .", "Lord PERSON concurred in respect of Articles CARDINAL and CARDINAL and dissented in respect of Article CARDINAL . He did not find that the hospital ’s policy was “ in accordance with law ” for the purposes of LAW , since it did not have sufficient “ quality of law ” . In his view , for the requirements of LAW to be met , LAW had to be given the higher status of the force of law , disentitling individual hospitals to depart from it on policy grounds . He concluded :", "“ CARDINAL . Not without some considerable hesitation I have reached the conclusion that the Code must indeed be given this higher status . Without such a Code the legal position would be this . The only authority for seclusion would be , in the case of patients detained under LAW , the implied power of control over those lawfully detained ; in the case of informal patients , the common law doctrines of necessity and self - defence . The actual use of seclusion in individual cases would not be regulated save insofar as each hospital practising it would be required to adopt , publish and practise a rational policy of its own . That , of course , is precisely what LOC does . But by the same token that LOC is permitted to adopt its own policy , so too may other hospitals . Much of the factual focus of the appeal was upon those of LOC ’s patients who are detained for DATE . But LOC ’s policy departs from the PERSON much earlier than this : only for TIME does LOC conduct medical reviews at CARDINAL TIME intervals as specified by the Code ; from then until DATE such reviews occur twice ( rather than CARDINAL times ) DATE . Other hospitals too may think it unnecessary to conduct reviews as frequently as provided for by the Code . And of course there is nothing to stop LOC altering its policy whenever it thinks it right to do so . The policy of an individual hospital can be changed with infinitely greater ease than the LAW itself .", "...", "CARDINAL.The Secretary of ORG ’s Foreword to the DATE issue of the PERSON stated that : ‘ the LAW should be followed’ until necessary new legislation came into force . It ended :", "‘ The LAW provides essential reference guidance for those who apply the LAW . Patients and their carers are entitled to expect professionals to use it.’", "Under the ruling proposed by the majority of your Lordships , patients and their carers must be reconciled instead to substantial departures from the LAW on the part of individual hospitals who may prefer to follow a different policy of their own . It is my reluctant conclusion that not only will these patients and carers be disappointed in their expectations but that the practices in the event adopted by any such hospital ( rational though I acknowledge they must certainly be ) will not have the necessary legal quality to render them compatible with the rule of law . Unless it is to the LAW that one can look for regulation carrying the force of law it is not in my opinion to be found elsewhere . Hospital policies themselves provide too insubstantial a foundation for a practice so potentially harmful and open to abuse as the seclusion of vulnerable mental patients . ”", "Lord PERSON dissented on all CARDINAL points . On Articles CARDINAL and CARDINAL he approved the reasoning of ORG . On the status of LAW , by section CARDINAL(CARDINAL ) of LAW DATE ( which directs the Secretary of ORG to prepare such a code ) he found :", "“ ... in section CARDINAL(CARDINAL ) ORG had authorised a LAW with some minimum safeguards and a modicum of centralised protection for vulnerable patients . This is inconsistent with a free - for - all in which hospitals are at liberty to depart from the published LAW as they consider right . Indeed , it seems unlikely that ORG would have authorised a regime in which hospitals may as a matter of policy depart from the LAW . After all that would result in mentally disordered patients being treated about seclusion in a discriminatory manner , depending on the policy adopted by the managers and clinicians in particular hospitals . ”", "He also found LAW to be applicable , stating as follows :", "“ Under LANGUAGE law a convicted prisoner , sentenced to imprisonment , retains all his civil rights which are not taken away expressly or by necessary implication : PERSON v Honey [ DATE ] ORG , at CARDINAL G , per Lord PERSON . To that extent the prisoner has a residual liberty . The concept of residual liberty is a logical and useful one as demonstrated by the decision of ORG in PERSON v The Queen ( DATE ) CARDINAL DLR ( CARDINALth ) CARDINAL . The reasoning in PERSON shows that in a case of a prisoner where solitary confinement is unlawfully and unjustly superimposed upon his prison sentence the added solitary confinement can amount to ‘ prison within a prison’ : it is capable of constituting a material deprivation of residual liberty", "...", "It would also be wrong to assume that under the jurisprudence of the ORG residual liberty is not protected . There is relevant NORP authority not placed before ORG . In GPE , App No . CARDINAL/CARDINAL , ORG , albeit in an admissibility decision , considered the point . The complaint was a comparatively weak CARDINAL : the prisoner had been confined to her cell , unlawfully it was said , for TIME . The evidence was that she was a heroin addict who objected to that restriction on her residual liberty . In NORP terms the case simply did not reach the necessary threshold of severity . ORG dealt with the legal principles arising under the ORG as follows :", "‘ It is undisputed in the present case that PERSON was lawfully detained in GPE prison pursuant to a court order remanding her in custody pending sentence for a criminal offence . Nor is it disputed that the prison was an appropriate establishment for that type of detention or that there was anything inappropriate concerning her place of detention within the prison . The principal issue is whether the decision of the prison officers to leave PERSON in her cell until lunchtime - a period of TIME - in itself disclosed an unjustified and unlawful deprivation of her liberty within that prison .", "The court does not exclude that measures adopted within a prison may disclose interferences with the right to liberty in exceptional circumstances . Generally however , disciplinary steps , imposed formally or informally , which have effects on conditions of detention within a prison , can not be considered as constituting deprivation of liberty . Such measures must be regarded in normal circumstances as modifications of the conditions of lawful detention and therefore fall outside the scope of LAW ( see Application no . CARDINAL/CARDINAL , dec . CARDINAL.CARDINAL.CARDINAL , PERSON , p CARDINAL . In appropriate cases , issues may arise however under articles CARDINAL and CARDINAL of the ORG", "( My emphasis )", "Plainly , the ECtHR has not ruled out as a matter of principle the concept of residual liberty . On the contrary , it accepts that there is scope for such a doctrine . It will be noted also that the ECtHR observed that in such cases ‘ in appropriate cases , issues may arise however under articles CARDINAL and CARDINAL of the Convention’ . To that it must be added that , if substantial and unjust seclusion of a mentally disordered patient can not in our domestic law be protected effectively under articles CARDINAL and DATE , the case for protection under article CARDINAL becomes ever stronger . It follows that a substantial period of unnecessary seclusion of a mentally disordered patient , involving total deprivation of any residual liberty that the patient may have within the hospital , is capable of amounting to an unjustified deprivation of liberty . ”", "NORP The relevant domestic law and practice are set out in the speech of Lord PERSON in the ORG of Lords’ judgment in the present case ( paragraphs CARDINAL - CARDINAL ) and may be summarised as follows .", "Section CARDINAL ( CARDINAL ) of LAW DATE provides :", "“ CARDINAL ) NORP The Secretary of ORG shall prepare , and from time to time revise , a code of practice—", "( a ) for the guidance of registered medical practitioners , managers and staff of hospitals and mental nursing homes and approved social workers in relation to the admission of patients to hospitals and mental nursing homes under LAW and to guardianship and after - care under supervision under LAW ; and", "( b ) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder . ”", "Before preparing or altering LAW the Secretary of ORG is required to consult such bodies as appear to him to be concerned ( subsection ( CARDINAL ) of the same section ) . The LAW and any revised LAW must be laid before ORG , and either ORG may within a specified period require its alteration or withdrawal ( subsections ( CARDINAL ) and ( CARDINAL ) ) . The LAW must be published ( subsection ( CARDINAL ) ) .", "By section CARDINAL(CARDINAL ) of the DATE Act the Secretary of ORG is required to keep under review the exercise of the powers and the discharge of the duties conferred or imposed by the LAW so far as they relate to the detention of patients under LAW , and is further required to make arrangements for persons authorised by him in that behalf to visit and interview privately patients detained in hospital under the LAW and to investigate complaints made by persons who are or have been detained under LAW . By section DATE ) the Secretary of ORG must direct that these functions shall be performed by ORG , an authoritative professional body established under LAW of ORG DATE and continued by section DATE ) of LAW .", "The Code of Practice was promulgated in DATE . LAW , entitled “ Patients presenting particular management problems ” , addresses seclusion . Paragraph CARDINAL.CARDINAL defines seclusion as follows :", "“ ORG is the supervised confinement of a patient in a room , which may be locked to protect others from significant harm . Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others .", "ORG should be used ;", "• as a last resort", "• for the shortest possible time", "ORG should not be used ;", "• as a punishment or threat", "• as part of a treatment programme", "• because of shortage of staff", "• where there is any risk of suicide or self- harm . ”", "Paragraph CARDINAL provides :", "“ Hospitals should have clear written guidelines on the use of seclusion which :", "• ensure the safety and well being of the patient ;", "• ensure the patient receives the care and support rendered necessary by his or her seclusion both during and after it has taken place ;", "• distinguish between seclusion and ‘ time - out’ ( see paras CARDINAL - CARDINAL.CARDINAL ) ;", "• specify a suitable environment taking account of patient ’s dignity and physical well being ;", "• set out the roles and responsibilities of staff ;", "• set requirements for recording , monitoring , reviewing the use of seclusion and any follow - up action . ”", "The procedure for seclusion is set out at paragraphs CARDINAL - CARDINAL.CARDINAL :", "“ CARDINAL The decision to use seclusion can be made in the first instance by a doctor or the nurse in charge . Where the decision is taken by someone other than a doctor , the ORG or duty doctor should be notified at once and should attend immediately unless the seclusion is only for a very brief period ( TIME ) .", "CARDINAL A nurse should be readily available within sight and sound of the seclusion room at all times throughout the period of the patient ’s seclusion , and present at all times with a patient who has been sedated .", "CARDINAL The aim of observation is to monitor the condition and behaviour of the patient and to identify the time at which seclusion can be terminated . The level should be decided on an individual basis and the patient should be observed continuously . A documented report must be made TIME .", "CARDINAL The need to continue seclusion should be reviewed", "• TIME by CARDINAL nurses ( CARDINAL of whom was not involved in the decision to seclude ) , and", "• TIME by a doctor .", "A multidisciplinary review should be completed by a consultant or other senior doctor , nurses and other professionals , who were not involved in the incident which led to the seclusion if the seclusion continues for more than :", "• TIME consecutively ; or", "• TIME intermittently over a period of TIME .", "If the need for seclusion is disputed by any member of the multidisciplinary team , the matter should be referred to a senior manager . ”", "NORP The policy of ORG applicable to the applicant is as follows . The introduction to the policy states at paragraph CARDINAL :", "“ The Code of ORG provides guidance on how registered mental health practitioners , managers and staff of hospitals should proceed when undertaking duties under LAW . LAW revised in DATE was written to encompass a wide range of mental health services and does not specifically consider the special situation of a high security hospital . ”", "NORP The policy repeats verbatim the definition of seclusion in the Code of Practice and the Code ’s statements on when seclusion should be used and that it should not be used as a punishment or threat or as part of a patient ’s treatment . Paragraph CARDINAL of the policy addresses the decision to seclude and provides :", "“ CARDINAL The decision to use seclusion will be made usually in the first instance by the nurse in charge of the ward . It must be clear which individual made the decision . The ORG or deputy and the ORG Manager or deputy should be informed immediately .", "CARDINAL The doctor and Ward Manager or deputy will attend the ward as soon as possible within TIME to assess the situation and review with the nurse in charge whether or not seclusion is required to continue and assess alternative responses . The doctor will record in the notes any agreed level of observation or intervention in excess of the standard seclusion observation . ”", "A nurse is to be readily available within sight and sound of a room in which a person is secluded at all times , and a paper recording of direct visual observation of the patient is to be made at least TIME ( paragraph CARDINAL ) . Paragraph CARDINAL provides for the keeping of detailed records and for a detailed plan for management of the ending of seclusion to ensure its ending at the earliest possible time .", "The review of seclusion and possible challenges to it are set out in paragraphs CARDINAL of the policy which provide as follows :", "“ ORG", "CARDINAL The ORG [ Resident Medical Officer ] is responsible for the use of seclusion . Regular reviews must take place involving the ORG or deputy and ORG Manager or deputy . The details of these are given below .", "CARDINAL If a doctor was not present at the time of seclusion , he must initiate a review on arrival within TIME and then at :", "CARDINAL.CARDINAL.CARDINAL DATE - medical review at CARDINAL , DATE , TIME ;", "DATE CARDINAL - twice per day ;", "DATE onwards:-", "[ CARDINAL ] DATE review by ORG Manager or Site Manager from different ward ;", "[ ii ] CARDINAL medical reviews DATE [ CARDINAL being by the ORG ] ;", "[ iii ] DATE review by multi - disciplinary patient care team to include ORG ;", "[ iv ] review by ORG as per paragraph CARDINAL below ;", "CARDINAL If at any review at TIME or subsequently the doctor is not a consultant psychiatrist the doctor doing the review must consult with the patient ’s responsible medical officer or the duty consultant and this should be fully documented .", "CARDINAL The senior manager / nurse will conduct a review on arrival on the ward within TIME of the decision to seclude and then in accordance with the agreed review schedule .", "CARDINAL The nurse in charge will ensure that the patient ’s Consultant Psychiatrist , or their deputy is informed at the earliest opportunity . Others involved in the patient ’s care should also be informed .", "CARDINAL qualified nursing staff will carry out a review of the seclusion TIME . They will record the outcome in the observation record and they will both sign the entry .", "CARDINAL.CARDINAL Where practicable one of the nursing staff who carries out a review of seclusion should not have been involved in the original decision to seclude .", "CARDINAL A Consultant Psychiatrist [ who will be the ORG if available or their designated deputy , e g out of TIME or during absence from hospital ] must see the patient within TIME or on DATE . If waiting until DATE causes a delay , the duty Registrar must discuss the patient ’s care with the duty Consultant or ORG and seek agreement to the delay .", "CARDINAL If the patient remains in seclusion for TIME continuously or for TIME intermittently within a period of TIME , an independent review of the need to continue seclusion will take place for this purpose . This should involve , where practicable , CARDINAL or more clinicians who were not directly involved in the decision to seclude the patient as well as members of ORG . However , CARDINAL clinician taking part in the review must not have been involved in the decision to seclude the patient .", "CARDINAL There is an appeal process available to all secluded patients , separate from and additional to the procedures set out within this paragraph . This process is set out at paragraph CARDINAL .", "CARDINAL Monitoring arrangements", "CARDINAL All seclusion used within the hospital is reviewed by a multi - disciplinary group known as ORG ( ORG ) .", "CARDINAL The functions of the group are as follows :", "• to monitor the implementation and adherence to the policy and procedure for the use of seclusion", "• to monitor and review the use of seclusion throughout the hospital", "• to monitor and review patients secluded under conditions of paragraph CARDINAL of the seclusion procedure", "• to receive and analyse data relating to seclusion and to monitor overall trends in the use of seclusion", "• to review documentation for the collection of information about the use of seclusion and alternative management strategies", "• to examine training and educational needs to support staff mechanisms and make recommendations to ORG", "• to prepare and submit reports to Clinical Teams , Executive Directors , ORG", "• to consider any other matters relating to seclusion that occur", "• to share and disseminate good practice , hospital wide .", "CARDINAL ORG is chaired by the Medical Director and reports to ORG .", "CARDINAL The use of seclusion for patients posing management problems", "CARDINAL Any patient for whom the clinical team has to institute seclusion in excess of DATE , will be individually brought to the attention of ORG or in their absence the Executive Nurse Director , by the chairperson of the patient ’s clinical team , with a resume of the reasons for the continuing use of seclusion , the care and treatment which the patient will be receiving and what is hoped will be achieved .", "CARDINAL The Medical Director will inform the Chief Executive and request a formal case presentation to the next planned meeting of the SMG .", "CARDINAL The Medical Director and Executive Nurse Director , or CARDINAL representatives of ORG acting on their behalf , must see the patient whether or not they are familiar with the case .", "CARDINAL Following the case presentation at CARDINAL , monitoring arrangements will be agreed between the SMG and the patient ’s clinical team .", "CARDINAL Each patient ’s case will be reviewed DATE by the clinical team and a written report sent DATE to ORG . At the initial review meeting , and with the patient ’s consent , consideration will be given by the team to notifying the patient ’s key relative(s ) .", "CARDINAL After DATE , the Medical Director and Executive Nurse Director will participate in a clinical team review . The case will then be discussed at ORG .", "CARDINAL ORG will be informed if seclusion continues beyond DATE and will receive progress reports on a regular basis . ”", "The Government provided the following information on the nature of LOC hospital , and the practice of seclusion there , in the form of witness statements , which had been before the domestic courts in the present case . Those statements were prepared by various senior clinicians at the hospital , including the applicant ’s Responsible Medical Officer .", "Ashworth is CARDINAL of CARDINAL hospitals in GPE providing high security accommodation for persons detained under LAW . It includes patients who can not be reached by treatment and whose persistent illness renders them predictably dangerous . The aim of seclusion at LOC is to contain severely disturbed behaviour which is likely to cause harm to others . The majority of those secluded go into and come out of seclusion within DATE . Those who are secluded for DATE are likely to be secluded for much longer periods . The common factor in such patients is a danger to others which is not liable to be resolved in the short term , and the decision to terminate seclusion is one to be made DATE or even DATE , because of the need to be satisfied of the enduring nature of changes to the patient . Even in such cases , reviews and other safeguards exist to ensure that the patient will not be secluded for longer than necessary , including the possibility of more frequent medical reviews , if necessary .", "The approach of LOC is to allow secluded patients the most liberal regime that was compatible with their presentation . Most patients are secluded in their own rooms and , only if that is not possible , in modified bedrooms or , in the most serious cases , in special seclusion rooms . Staff are always within sight and sound . Meals can be taken in - room or , if the risk permits , on the ward . Secluded patients received regular and frequent visits . Periods are also spent “ in association ” outside the room , either with staff or other patients , and can last up to TIME . Walks in a secure garden and occupational therapy are also possible .", "“ Count Me In ” is a national census of inpatients in mental health and learning disability services in GPE and GPE , which is carried out jointly by ORG , ORG and ORG . The DATE census found that PERCENT ( CARDINAL of CARDINAL patients surveyed ) had experienced CARDINAL or more episodes of seclusion in their period of admission ( or in DATE , whichever was shorter ) .", "The Mental Health Act Commission is a statutory body under LAW DATE and has the task , inter alia , of reviewing the operation of the LAW and publishing a DATE report ( section CARDINAL ( CARDINAL ) ) . LAW of ORG Tenth Biennial Report ( DATE ) addressed the legality and practice of seclusion at length . It found that many hospitals failed to comply with LAW provisions on seclusion and recommended that it was now appropriate to provide a framework of statutory regulation of seclusion ( at CARDINAL and CARDINAL of the report ) . A similar recommendation was made in its FAC ( paragraphs CARDINAL et seq . ) .", "ORG considered seclusion of mental health patients as part of its report entitled “ Deaths in Custody ” ( Session DATE , Third Report , DATE . ORG concluded ( at paragraphs CARDINAL and CARDINAL ) :", "“ We remain concerned at the evidence we have received , including from the statutory body responsible for review of mental health services , attesting to the low level of compliance with guidelines on the use of seclusion and of physical force against vulnerable people who have been deprived of their liberty . This situation carries a serious risk of breach of rights under LAW .", "...", "[ W]e remain concerned at the under - enforcement of guidance in this highly human rights - sensitive area . We are not confident that Convention compliance can be effectively and comprehensively ensured without some statutory obligations in this area . This should include statutory obligations on all health authorities to keep comprehensive records of all violent incidents . ”", "In its report on LAW DATE , during its passage as a PERSON , ORG returned to the issue of seclusion and recommended :", "“ We urge the Government to ensure that , whatever method of regulation is adopted , sufficient safeguards are included on the face of the bill to ensure that seclusion is only used when strictly necessary and that individuals subject to it should have access to review at intervals to ensure that it is brought to an end when no longer necessary . ”", "ORG ( a coalition of CARDINAL organisations working in the field of mental health ) also campaigned for an amendment to LAW DATE to provide statutory regulation of seclusion . It adopted the views of ORG and ORG set out above . The proposed amendment was not adopted .", "On DATE , in resolution CARDINAL/CARDINAL , ORG of ORG adopted “ Principles for ORG with Mental Illness and for ORG ” . LAW is entitled “ Consent to treatment ” and at paragraph CARDINAL it provides :", "“ Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others . It shall not be prolonged beyond the period which is strictly necessary for this purpose . All instances of physical restraint or involuntary seclusion , the reasons for them and their nature and extent shall be recorded in the patient ’s medical record . A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff . A personal representative , if any and if relevant , shall be given prompt notice of any physical restraint or involuntary seclusion of the patient . ”", "Recommendation RecCARDINAL ( CARDINAL ) of ORG to member states concerning the protection of the human rights and dignity of persons with mental disorder , where relevant provides as follows :", "“ LAW and appeals concerning the lawfulness of involuntary placement and/or involuntary treatment", "Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right :", "i. to appeal against a decision ;", "ii . to have the lawfulness of the measure , or its continuing application , reviewed by a court at reasonable intervals ;", "iii . to be heard in person or through a personal advocate or representative at such reviews or appeals .", "If the person , or that person ’s personal advocate or representative , if any , does not request such review , the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals .", "...", "DATE and restraint", "ORG or restraint should only be used in appropriate facilities , and in compliance with the principle of least restriction , to prevent imminent harm to the person concerned or others , and in proportion to the risks entailed .", "Such measures should only be used under medical supervision , and should be appropriately documented .", "In addition :", "i. the person subject to seclusion or restraint should be regularly monitored ;", "ii . the reasons for , and duration of , such measures should be recorded in the person ’s medical records and in a register . ”", "ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) is required to draw up an DATE general report on its activities . The substantive sections of those reports are collected in ORG ) DATE : “ the CPT Standards ” . LAW of the ORG standards covers involuntary placement in psychiatric establishments and paragraph DATE provides :", "“ Reference should also be made in this context to the seclusion ( i.e. confinement alone in a room ) of violent or otherwise \" unmanageable \" patients , a procedure which has a long history in psychiatry .", "There is a clear trend in modern psychiatric practice in favour of avoiding seclusion of patients , and the ORG is pleased to note that it is being phased out in many countries . For so long as seclusion remains in use , it should be the subject of a detailed policy spelling out , in particular : the types of cases in which it may be used ; the objectives sought ; its duration and the need for regular reviews ; the existence of appropriate human contact ; the need for staff to be especially attentive .", "ORG should never be used as a punishment . ”", "NORP In PERSON v The Queen ( DATE ) CARDINAL DLR ( CARDINALth ) CARDINAL ) , CARDINAL DATE , ORG considered whether a prisoner who had been placed within a “ Special Handling Unit ” at his normal place of detention could bring habeas corpus proceedings to challenge that placement . In finding that he could , the court stated that a prisoner was not without some rights or residual liberty and that there may be significant degrees of deprivation of liberty within a penal institution . In effect , a prisoner had the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution ( Le Dain J for the ORG at paragraph CARDINAL ) ." ]

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[ "5", "8" ]

[ "5-1", "8-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was arrested on suspicion of having committed armed robbery while acting in an organised criminal gang .", "On DATE he was brought before ORG and charged with armed robbery , kidnapping and extortion . On DATE the ORG remanded the applicant in custody in view of the reasonable suspicion that he had committed the offences in question while acting in an organised criminal gang . It held that there was a risk that the applicant might obstruct the proceedings or abscond . It further relied on the severity of the anticipated penalty .", "Later , several other persons were detained and charged in connection with the same investigation conducted by ORG .", "On DATE the ORG prolonged his detention until DATE .", "On DATE ORG ordered that the applicant be kept in custody until DATE . It relied on the reasonable suspicion that the applicant had committed the offences in question and the gravity of the charges . It also had regard to the number of suspects and the need to obtain further evidence .", "On DATE ORG extended the applicant 's detention until DATE . It found that there was a reasonable risk that the applicant might go into hiding or obstruct the proceedings . It also relied on the severity of the anticipated penalty . Lastly , it noted that further prolongation of the investigation was not attributable to the prosecuting authorities , but resulted from the fact that further suspects had been identified and arrested . Furthermore , the prolongation was due to a delay in the preparation of some expert reports and the need to request legal assistance from the NORP authorities .", "On DATE ORG prolonged the applicant 's detention until DATE . It found that there was a reasonable risk that the suspects might intimidate witnesses , given the nature of the charges against them . It further observed that the investigation could not be terminated on account of the prolonged preparation of an expert report and the need to hear a witness , PERSON , who was serving his prison sentence in GPE .", "On DATE the prosecution filed a bill of indictment with ORG . The applicant was charged with , inter alia , armed robbery , kidnapping , extortion and inflicting bodily harm which had been committed while being a member of an armed organised criminal gang . The bill of indictment specified that the applicant was a recidivist offender . There were CARDINAL defendants in the case , all charged with numerous counts of armed robbery and extortion .", "On DATE the ORG ordered that the applicant be held in custody until DATE . In addition to the grounds previously invoked , it relied on the complexity of the case and the number of defendants .", "On DATE the trial court held the first hearing . It subsequently held CARDINAL hearings in the case .", "On DATE ORG extended his detention on remand until DATE .", "On DATE ORG prolonged the applicant 's pre - trial detention until DATE . It observed that the fact that the trial had not been terminated could not be attributed to the authorities , given the volume of evidence and the fact that some hearings had to be cancelled as the defendants ' counsel or witnesses had not appeared . It further considered that the applicant had been charged with the commission of the crimes for which he was liable to a sentence of imprisonment exceeding CARDINAL", "On DATE ORG ordered that the applicant and his CARDINAL co - defendants be kept in custody until DATE . It relied on the fact that witnesses had informed the trial court about having been threatened by the defendants . It also had regard to the severity of the anticipated penalty and the presumption established by LAW . Furthermore , ORG considered that the prolongation of the detention beyond the statutory time - limit of DATE was justified by the complexity of the case and the volume of evidence to be heard . In that respect , it also observed that in DATE the trial court had been prevented from hearing evidence on account of the absence of CARDINAL defence counsel .", "On DATE ORG prolonged the applicant 's detention until DATE . It noted that the trial was being efficiently conducted and that it had not been terminated for reasons which were attributable to the defendants and their counsel . It noted in particular that the defendants had attempted to intimidate witnesses and protract the trial . Further , it had regard to the nature of the charges and the severity of the likely penalty .", "On DATE ORG convicted the applicant of armed robbery , kidnapping , extortion and inflicting bodily harm and sentenced him to DATE imprisonment and a fine .", "Further decisions on the prolongation of the applicant 's detention were given by ORG on DATE ( ordering his continued detention until DATE ) and DATE ( extending that period until DATE ) .", "On DATE the applicant was served with a copy of ORG judgment . He subsequently appealed against that judgment .", "On DATE the ORG of Appeal prolonged the applicant 's detention until DATE . On DATE his detention was extended until DATE .", "On DATE ORG held a hearing .", "On DATE ORG quashed the first - instance judgment in respect of the applicant and remitted the case for retrial .", "On DATE ORG ordered that the applicant and his CARDINAL co - defendants be held in custody until DATE . Having regard to LAW , it observed that the applicant might attempt to obstruct the proceedings given the likelihood of a severe penalty being imposed on him . It also relied on the nature of the charges .", "On DATE the ORG held the first retrial hearing . It subsequently held CARDINAL hearings .", "On DATE ORG prolonged his detention until DATE . It noted that continuation of that measure was necessary in order to secure the proper conduct of the proceedings , given the severity of the anticipated penalty .", "On DATE the ORG ordered that the applicant and CARDINAL of his co - defendants be kept in custody until DATE . It found that the applicant 's continued detention was necessary in order to prevent the applicant from interfering with witnesses . On DATE ORG dismissed the applicant 's appeal against that prolongation . Referring to LAW , it observed that the applicant ' crimes , and thus his continued detention was justified on public interest grounds .", "On DATE ORG prolonged the applicant 's detention until DATE . It held that following ORG instructions most of the witnesses who had given evidence at the original trial had to be heard again . In that case there was a reasonable risk that the defendants might interfere with witnesses . In addition , the court held that given the gravity of the charges and the likelihood that severe penalties would be imposed on them , the defendants might obstruct the proceedings by going into hiding . On DATE the ORG upheld that decision . It considered , inter alia , that ORG had attempted to examine the case within a reasonable time , but there had been significant delays in the trial which were attributable to the defendants or their counsel . In this respect , it pointed out to the obstructive conduct of all the defendants on DATE which had prevented ORG from holding a hearing on DATE . On the other hand , ORG instructed ORG to assess the length of detention of each defendant separately . It pointed out that the further prolongation of the detention of those defendants who were not simultaneously serving prison sentences could not be accepted in the long term .", "Subsequently , ORG prolonged the applicant 's detention on DATE ( until DATE ) and DATE ( until DATE ) . It invoked the same grounds as in its previous decisions . The applicant appealed against the latter decision .", "On DATE ORG altered ORG decision and ordered that the applicant be released . It underlined that the applicant 's detention on remand had been exceptionally long and thus lost its provisional nature . Having regard to the current progress of the trial , the court observed that it was not possible to predict when the proceedings would be terminated . Furthermore , it noted that CARDINAL out of CARDINAL co - defendants were serving long - term prison sentences .", "Prior to his release , the applicant filed numerous but unsuccessful applications for release and appealed , likewise unsuccessfully , against the decisions prolonging his detention . He maintained that the length of his detention was excessive .", "It appears that the criminal proceedings against the applicant are still pending .", "DATE to DATE the applicant served a prison sentence imposed on him in a separate set of proceedings .", "The relevant domestic law and practice concerning the imposition of detention on remand ( tymczasowe aresztowanie ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) at the material time are stated in the ORG 's judgments in the cases of GPE v. GPE [ ORG ] , no . GPE , § § DATE , ECHR CARDINAL-XI ; PERSON v. GPE , no . CARDINAL , § § DATE , DATE ; and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ." ]

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[]

[ "5" ]

[ "5-3" ]

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[ "The applicant was born in DATE and lives in PERSON . He was , at the time of the events to which the present application pertains , the Chairman of ORG and a university professor and is the author of the DATE school curriculum on “ Universal History ” .", "On DATE the official newspaper of ORG , GPE Suverană ( “ Sovereign GPE ” ) , published an article written by a historian and former deputy minister for education , ORG , headed “ Commentary on PERSON reply on the Internet ” ( PERSON domnului PERSON ) . The article made negative remarks about the applicant 's competence as a historian . It went on to suggest that the applicant 's university place as a postgraduate student and his subsequent career as a historian were the result of his cooperation with the NORP secret services . In particular , the article contained the following statements :", "“ That is , PERSON , it is not a political question but has to do with your ' feeble ' memory or the lack of professional dignity . ”", "“ But , you see , they did not properly understand this exorcising priest ... ”", "“ ... for his special merit ( confirming the confidence of the ORG ( b ) – ORG ) , [ the applicant ] was sent for postgraduate studies ... ”", "“ ... as a student , he excelled ... due to his ' special accomplishments ' ( he was a well - educated person who knew how to knock politely and respectfully at his superiors ' doors : knock - knock - knock ? ! ? [ stuk - stuk - stuk ] ) , and he became a member of ORG ( b ) during his student DATE ... ”", "“ ... the ORG once sent a ' Volga ' especially for [ the applicant ] ( how much faith did those from the ORG – ORG have in comrade PERSON ! ! ) to take him to PERSON ... ”", "On DATE , the applicant brought defamation proceedings against ORG and the newspaper , seeking the publication of a retraction and compensation for non - pecuniary damage .", "During the proceedings before ORG , the court heard evidence from a witness who was questioned about the allegation that , as a student , the applicant had collaborated with the NORP secret services . The witness was unable to confirm whether the applicant had been involved with the secret services and merely stated that the ORG had been operating undercover .", "In its judgment of DATE ORG granted the applicant 's claims in part . The court found that it had been confirmed that the applicant had been a member of ORG . However , it held that the reference to the applicant 's links with the secret services ( “ confirming the confidence of the ORG ( b ) – ORG ” ) was defamatory as it had not been proved that he was an agent of the ORG . The court 's judgment stated , inter alia :", "“ ... ORG 's assertion that PERSON was sent for postgraduate studies ' ... only for his ' special accomplishments ' for the ORG and ' confirming the confidence of the ORG ( b ) – ORG ' , can not , in the court 's opinion , be interpreted other than as meaning that the applicant had collaborated with the ORG , which is recognised as having been a repressive organisation during the NORP period . Any such collaboration is seen as highly reprehensible by civil society . Taking into consideration that this fact has not been confirmed , the statements seriously affect the applicant 's honour and dignity and cause him non - pecuniary damage and , therefore , should be retracted ... ”", "The court ordered the newspaper to publish a retraction , within DATE , of some of the statements in the article of DATE , including the statement “ confirming the confidence of the ORG ( b ) – ORG ” . It further ordered ORG and the newspaper to pay the applicant CARDINAL NORP lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) and MDL CARDINAL ( ORG CARDINAL ) respectively .", "The court also found in favour of ORG in a counter - claim in respect of an article allegedly published by the applicant . The applicant appealed the judgment .", "On DATE the ORG quashed the judgment of ORG on grounds of procedural error and remitted the case for a fresh judgment by ORG .", "Pending the re - hearing of the case , on DATE , GPE Suverană published an article headed “ GPE Suverană does not tolerate accusations and primitivisms ” , which stated , inter alia , that :", "“ ... ORG 's article of DATE ... and the inappropriate language used do not represent the editorial policy of this newspaper . Epithets like ' feeble memory ' or ' lack of personal dignity ' [ sic ] , ' exorcising priest ' used by the scientist [ S.]N. towards the scientist PERSON are alien to us .", "Moreover , we recall that the article was published DATE and since then , the editorial board has changed , starting with its editor at the time , ORG , and continuing with the political department of the newspaper .", "Therefore , we regret the disparaging remarks and immoderate language directed at the historian PERSON , even if we assume our right not to share his political opinions and ideas . ”", "In the subsequent proceedings before ORG , ORG stated that during the NORP era nobody would have been sent to GPE for postgraduate studies without the support of ORG and the ORG . However , he accepted that not all those sent for postgraduate studies had been ORG agents .", "On DATE ORG dismissed the applicant 's action , finding , inter alia :", "“ ... According to the author of the article , he published it in good faith and had no intention to humiliate or defame his former colleague [ Mr Petrenco ] . On the contrary , he said in evidence that , in his personal opinion , PERSON had been a brilliant student and a committed activist , who was well - mannered and respected his elders . The fact that he had become a member of the ORG was not a secret and did not disclose any intention to defame , because everyone has the right to become a member of a political party ...", "... the court finds that both [ the author and the applicant ] were former colleagues at the history faculty and had published articles in the press without any intention to defame the other . ”", "The applicant appealed .", "On DATE the ORG dismissed the appeal , finding that ORG could not be held responsible for expressing his opinions . It considered the distinction between statements of fact and value judgments and stated :", "“ ... [ ORG ] considers that the phrases written in the article represent the author 's own subjective opinion of PERSON ...", "In a NORP society a person can not be held responsible for expressing his own views ...", "The notion of a ' value judgment ' has also to be taken into consideration , which means that a person can not be held responsible for his opinions or his views on certain events or circumstances ... , the veracity of which can not be proved . ”", "The applicant lodged an appeal on points of law . He mainly contended that :", "“ ... the said article was published by the newspaper in bad faith and the first - instance court wrongly found that ORG publishes articles in the press without any intention to defame the applicant . The defendants knowingly published the article with the aim of damaging the applicant 's honour , dignity and professional reputation .", "... the applicant does not object to the author 's right freely to express his views , but he objects to the derogatory remarks in the article , which are not true and , in substance , damage the applicant 's honour , dignity and professional reputation .", "The courts disregarded the fact that the defendants had disseminated information which was damaging to [ the applicant 's ] honour and did not apply the provisions of sections CARDINAL and CARDINAL of the Civil Code ... ”", "The applicant attached to his appeal a linguistic report on the author 's statements prepared by ORG . The report concluded that ORG had directly insulted the applicant and that the article had damaged his honour , dignity and professional reputation .", "On DATE ORG held that the applicant 's appeal was inadmissible as it reiterated the arguments advanced at first instance and before ORG . The court nonetheless briefly considered the issues arising in the case and found , inter alia , that :", "“ ... LAW CARDINAL of LAW guarantee the right to freedom of expression , including the right to communicate information and ideas .", "Under these circumstances , by dismissing the applicant 's action , the courts have correctly found that a distinction must be drawn between facts and ' value judgments ' .", "As the lower courts found in their judgments in the present case , the author 's statements must be treated as ' value judgments ' , a circumstance which excludes liability on the part of the newspaper GPE Suverană for the opinion it has expressed on certain events and circumstances , the veracity of which is impossible to prove .", "In the light of the above and taking into consideration that the impugned statements are , in substance , ' value judgments ' ... the appeal on points of law must be dismissed . ”", "The Court made no comment on the report attached to the appeal .", "According to the applicant , he was not summoned to attend the hearing before ORG .", "Article CARDINAL of the LAW guarantees freedom of expression and provides , in so far as relevant , as follows :", "“ ( CARDINAL ) NORP The freedom of expression of all citizens ... is guaranteed .", "( CARDINAL ) Freedom of expression must not damage the honour , dignity or rights of others ...", "( CARDINAL ) Defamation ... is prohibited by law and incurs sanctions . ”", "NORP The relevant provisions of LAW in force at the material time read :", "Article CARDINAL Protection of honour and dignity", "“ ( CARDINAL ) Any natural or legal person shall be entitled to apply to the courts to seek [ an order for ] the retraction of statements which are damaging to his or her honour and dignity and do not correspond to reality , as well as statements which are not damaging to honour and dignity , but do not correspond to reality .", "( CARDINAL ) When the media organisation which disseminated such statements is not capable of proving that they correspond to reality , the court shall compel the publishing office of the media organisation concerned to publish , not later then DATE after the judicial decision becomes effective , a retraction of the statements in the same column , on the same page or in the same programme or series of broadcasts . ”", "Article CARDINAL/CARDINAL Compensation for non - pecuniary damage", "“ The non - pecuniary damage caused to a person as a result of the dissemination through the mass media or by organisations or natural persons of statements which do not correspond to reality , or statements concerning his or her private or family life without his or her consent , shall give rise to an award of financial compensation in an amount to be determined by the court .", "The amount of the award determined by the court in each case shall be equal to CARDINAL times the minimum wage if the information has been disseminated by a legal entity and CARDINAL times the DATE wage if it has been disseminated by a natural person .", "The immediate publication of an apology or retraction ... before a judgment is handed down in the matter constitutes a reason to reduce the value of any compensation or to exempt the party from the requirement to make a payment . ”", "On DATE a new Civil Code entered into force , LAW which reads as follows :", "“ ( CARDINAL ) Everyone shall have the right to respect for his or her honour , dignity and professional reputation .", "( CARDINAL ) Everyone shall have the right to seek [ an order for ] the retraction of statements which are damaging to his or her honour , dignity and professional reputation , if the person who disseminated them is unable to prove their truthfulness .", "...", "( CARDINAL) Anyone whose honour , dignity or professional reputation has been damaged as a result of disseminated information shall have the right to claim compensation for pecuniary and non - pecuniary damage ... ”", "The relevant provisions of Government decision no . CARDINAL of CARDINAL DATE on the launch of the Government newspaper , GPE Suverană , read as follows :", "“ ( CARDINAL ) ORG newspaper GPE Suverană shall be launched with effect from DATE .", "The editor of the Government newspaper shall be appointed by a decision of the Government ... ”", "The relevant provisions of Government decision no . CARDINAL of DATE on the winding up of GPE Suverană read as follows :", "“ With the purpose of fulfilling the ORG 's obligation to prevent and to limit a ORG monopoly in media ...", "( CARDINAL ) The ORG newspaper GPE Suverană ... shall be wound up with effect from DATE ... ”", "The Code of Civil Procedure of DATE set out the procedure before ORG . Article CARDINAL provides , in so far as relevant , as follows :", "“ Procedure for the examination of the admissibility of an appeal", "( CARDINAL ) Once the court has established the existence of CARDINAL of the reasons cited in LAW , a chamber of CARDINAL judges shall decide , in a non - reasoned and non - appealable judgment , on the admissibility of the appeal . In such cases , a report on the inadmissibility shall be prepared which , together with a copy of the appeal and the judgment , shall be held by the court in the relevant case file .", "( CARDINAL ) The admissibility of an appeal is decided without summoning the parties . ”", "Article CARDINAL ) provides that :", "“ In examining the appeal introduced ... the court shall verify , on the basis of the material in the case , the legality of the decision against which the appeal has been lodged , without taking any new evidence . ”" ]

[ "8" ]

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[ "NORP The applicant company is a public company whose registered office is at GPE ( GPE ) .", "It had in its possession CARDINAL bills of exchange that it had received from the A. Lda company for a total of QUANTITY . As the bills were not honoured when due , the applicant company issued enforcement proceedings against PERSON in ORG on DATE to recover the outstanding amounts .", "After being ordered on CARDINAL DATE to appear before the court of first instance , the defendant company lodged a defence to the enforcement proceedings on DATE ( embargos de executado ) .", "On DATE the judge gave directions ( despacho saneador ) setting out the matters that had already been established and those that remained outstanding . After instructions had been sent to the Porto , Vila Real and PERSON courts for witnesses to be heard , the case was set down for hearing on DATE , but had to be adjourned owing to the failure of the applicant company 's lawyer to attend . It was finally heard on DATE .", "On DATE the court of first instance found in favour of the defendant company . On DATE the applicant company appealed against that decision to ORG ) . On DATE the case file was transferred to that court .", "On DATE the court of appeal overturned the impugned decision and decided to reject the defence .", "On DATE when the case file was still with ORG , PERSON applied for legal aid for its legal costs . That application was refused by the reporting judge in an order of CARDINAL DATE . A further application made by PERSON on DATE was likewise turned down on DATE . On appeal by PERSON , a CARDINAL - judge panel of the court of appeal upheld those orders on DATE . PERSON appealed on points of law to ORG ( Supremo Tribunal de Justiça ) on DATE and on CARDINAL DATE the case file was transferred to that court .", "NORP In a judgment of DATE ORG dismissed that appeal . On DATE PERSON applied for an order referring the issue to the plenary court ( tribunal pleno ) , but the reporting judge dismissed the application . ORG upheld that decision in a judgment of CARDINAL DATE . PERSON then lodged a further appeal which was declared inadmissible by the reporting judge on DATE . That decision was subsequently upheld by ORG on DATE . Then , on DATE , PERSON challenged the bill of costs , but on CARDINAL DATE the reporting judge ordered the transfer of the case file to the court of first instance on the ground that the challenge was intended solely to delay recovery of the debt .", "On DATE a company , ORG , issued a summons opposing enforcement ( embargos de terceiro ) . In an order of CARDINAL DATE the judge decided that the enforcement proceedings should be stayed until the third - party summons had been heard . However , on DATE the judge stayed the summons until PERSON defence to the enforcement proceedings had been heard . On DATE , in the light of the decision taken in the enforcement proceedings , the judge decided to proceed with the examination of the third - party summons .", "On DATE the judge gave directions setting out the matters that had already been established and those that remained outstanding .", "The proceedings are still pending before ORG ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant served as a judge at ORG at the material time . From DATE he was in charge of a criminal case where NORP , a businessman , was CARDINAL of the defendants . The case involved several charges including tax evasion , money laundering , aggravated breach of public order and bribery .", "On DATE the security police received NORP ’s statement according to which his business partner DATE who had owed NORP ’s company a substantial sum of money – had refused to pay back the loan for an extended period . Instead , ORG had said that he knew the applicant well , having shared a dormitory room with him during their law studies , and that a judgment in NORP ’s favour could be arranged as long as he did not insist on the repayment of the loan . Furthermore , ORG had demanded CARDINAL NORP kroons ( EEK ) ( MONEY ( ORG ) ) as a “ DATE good - will gesture ” and a further EEK CARDINAL ( ORG CARDINAL,CARDINAL ) for NORP ’s acquittal .", "On DATE the police initiated criminal investigation in respect of the offences of accepting and arranging a bribe .", "On DATE a prosecutor authorised the covert surveillance of ORG and on DATE the president of ORG authorised the interception and undercover audio recording of ORG ’s conversations . On DATE and DATE similar authorisations were given in respect of the applicant . The authorisations were subsequently extended on several occasions .", "On DATE the president of ORG authorised a simulation of the offence of giving a bribe by NORP in order to entrap the applicant and ORG as an intermediary .", "On DATE D. gave ORG EEK CARDINAL ( EUR CARDINAL ) .", "On DATE NORP gave ORG EEK CARDINAL ( ORG CARDINAL,CARDINAL ) . Within TIME , N. ’s car was stopped by the police ; he was arrested and the money was seized .", "NORP Immediately thereafter , PERSON was interviewed as a suspect . In response to the question as to whether he had demanded money from NORP for transferring it to the applicant as a bribe for a judgment in NORP ’s favour , he replied that he had not demanded any money from NORP but had just communicated to him what the applicant had demanded . According to ORG , the applicant had said that if NORP paid him EEK CARDINAL , he would give a judgment in NORP ’s favour . Under instructions from the security police , ORG arranged a meeting with the applicant DATE .", "On DATE at TIME the president of ORG authorised a simulation of the offence of arranging a bribe by ORG in order to entrap the applicant .", "Also on DATE N. , equipped with recording devices , met up with the applicant and gave him EEK CARDINAL . TIME the applicant was arrested and detained as a suspect . In the course of a search carried out on DATE he surrendered EEK CARDINAL . The applicant was released on DATE .", "On DATE the following press release was published on the Internet site of ORG under the title “ A judge suspected of accepting a bribe ” :", "“ On DATE TIME , in the course of a simulation of an offence , officers of the security police arrested a judge of ORG suspected of accepting a large bribe .", "The judge is suspected of demanding a large bribe from an accused person through an intermediary for making a more favourable judgment in respect of [ him ] . The exact amount of the bribe can not be disclosed at the moment in the interests of the investigation . On TIME DATE the judge suspected of bribery accepted part of the sum [ he had been demanding ] from a person involved in the simulation of the offence and the security police and ORG conducting the investigation decided to arrest him shortly after accepting the money . The judge suspected of bribery did not have time to make the judgment in respect of the accused person .", "On DATE investigators carried out necessary investigative steps after which the suspect was released .", "The criminal proceedings concerning the suspicion in question were initiated DATE . The security police and ORG conducting the preliminary investigation do not consider it possible at present to disclose other details related to the suspicion referred to . LAW stipulates that accepting a large bribe is punishable by imprisonment of DATE . According to the laws and legal acts in force a bribe comprises a large amount of DATE ( CARDINAL ) kroons . ”", "Within DATE the identity of the judge suspected of having accepted a bribe became known . Prosecutor PERSON who was dealing with the case was subsequently quoted directly or indirectly on several television programmes and in several newspaper articles . These included , among others , the following extracts .", "On DATE in a news programme on PERSON , a public television channel , prosecutor PERSON was shown saying :", "“ Suspicion that [ the applicant ] might accept a bribe emerged when the person from whom the bribe was allegedly demanded made a statement to that effect to the security police . ”", "On DATE in a news programme on ORG , a private television channel , prosecutor PERSON was shown saying :", "“ The case commenced when the security police were contacted by a person from whom the judge allegedly demanded the bribe . ”", "In respect of the simulation of the offence carried out by the security police , prosecutor PERSON noted :", "“ The simulation [ of the offence ] was successful . Unfortunately I can not mention any specific amounts at the moment . ... ”", "On DATE the DATE newspaper ORG published an article by PERSON containing the following passage :", "“ [ Prosecutor PERSON ] , who is in charge of the criminal investigation , [ emphasised ] to Postimees DATE that the case had not been [ made up ] or provoked by [ officers ] of the security police . ‘ Surveillance activities related to the suspected bribery of a judge commenced in January,’ PERSON said . ‘ The criminal proceedings were initiated on the basis of very specific information when a person turned to the security police with his [ problem].’ ”", "On DATE the newspaper ORG published an article by ORG containing the following passage :", "“ ‘ [ I do ] not comment or rebut,’ said prosecutor [ ORG ] , who is in charge of the investigation and who parried all [ questions relating to the ] facts of the bribery scandal . ‘ A simulation has been carried out and the main evidence as such has been gathered . I expect that additional interviews and technicalities may take some weeks,’ [ ORG ] added . ”", "On DATE the DATE newspaper ORG published an article by PERSON containing the following passages :", "“ Prosecutor [ ORG ] is asserting that it was [ the applicant ] himself who was demanding the money .", "...", "‘ We are not [ fishing ] to see whether a judge accepts a bribe or not,’ prosecutor [ ORG ] noted , [ adding that ] [ the applicant ] was ‘ very ORG . ”", "On DATE a public prosecutor requested permission from ORG to draw up a bill of indictment against the applicant . On DATE ORG made a proposal in this regard to the President of the Republic who gave his authorisation on DATE .", "On DATE ORG submitted the bill of indictment to ORG . The applicant was charged under LAW ( CARDINAL ) and ( CARDINAL ) of LAW ( Karistusseadustik ) with an aggravated offence of demanding a large bribe ( in excess of EEK CARDINAL ( EUR CARDINAL ) ) .", "The bill of indictment , which extended to CARDINAL pages , contained a detailed description of the facts as deemed established by the prosecution , a list of a number of documents and other items attached to it , such as written and recorded evidence and records of various procedural acts , and a statement of the charges . The factual part , entitled “ Circumstances of the offence ” , contained , inter alia , the following passages :", "“ At DATE ... [ the applicant ] proposed that [ NORP ] paid him CARDINAL kroons through an intermediary , [ N. ] , as a bribe for which the judge ... would take procedural decisions in favour of him and also acquit him .", "...", "... [ N. ] passed on [ the applicant ’s ] demands for a bribe according to which CARDINAL kroons had to be paid as a first instalment and a further CARDINAL kroons were to be paid later .", "...", "On DATE [ NORP ] called [ N. ] ... . When they met , [ NORP ] gave [ N. ] CARDINAL kroons . [ N. ] looked at the money and said that it was not enough . [ NORP ] handed over a further CARDINAL kroons .", "...", "On DATE ... [ N. ] sent a text message to [ the applicant ] asking to meet him ... . ... N. got into [ the applicant ’s ] car ... . ... [ The applicant ] signalled that the money could be passed over . [ N. ] took a paper bag containing CARDINAL kroons from his inside pocket and placed it between the CARDINAL front seats . ... ”", "The nature and amount of damage caused by the offence was formulated as follows in the bill of indictment :", "“ No pecuniary damage has been caused by the offence committed by [ the applicant ] . The offence was committed by a judge who made use of his official position and breached an important principle of a ORG governed by the rule of law , according to which justice is administered by an independent , impartial and honest court . The reputation of the law - enforcement agencies of GPE as a whole has been discredited . ”", "The statement of charges against the applicant included the following passages :", "“ [ The applicant ] is charged with accepting a large bribe which involved demanding the bribe ... under LAW ) and ( CARDINAL ) of [ LAW ] .", "...", "... When the car stopped [ the applicant ] took from [ N. ] , as agreed , the first part of the sum of the bribe that had been demanded , cash in the amount of CARDINAL kroons , which [ NORP ] had given ... to [ N. ] to pass on to [ the applicant ] for taking decisions in favour of [ NORP ] in the criminal case ... and for acquitting him later . Payment of the remaining sum – CARDINAL kroons – was to take place later .", "...", "... By demanding a bribe from [ NORP ] and accepting part of it , that is CARDINAL kroons , through the intermediary [ N. ] , [ the applicant ] breached an important principle of a ORG governed by the rule of law , according to which justice is administered by an independent , impartial and honest court , whereby [ he ] committed an offence under LAW ( CARDINAL ) and ( CARDINAL ) of [ LAW ] . ”", "On DATE a press release titled “ The judge ’s criminal case has arrived at the court ” was published on the Internet site of ORG . It read :", "“ The state prosecutor [ ORG ] has sent a criminal case to court in which [ the applicant ] , a judge of ORG , is charged with having demanded a large bribe .", "The facts established by the security police in the course of the preliminary investigation give ground to charge [ the applicant ] , who served as a judge of ORG , with demanding a large bribe from an accused person through an intermediary . In return , the judge promised to take decisions in favour of the accused in the course of the court proceedings and also to acquit him . [ The applicant ] did not have time to make a judgment in the case in question as , because of the present criminal proceedings , the case was transferred to another division of the court .", "The judge wanted to receive the money from the accused in CARDINAL instalments . At DATE [ the applicant ] wanted to receive CARDINAL kroons from the accused in addition to the CARDINAL kroons that had already been requested through the intermediary . On DATE the judge accepted the CARDINAL kroons in cash from the intermediary .", "Officers of the security police arrested [ the applicant ] , who was serving as a judge , on suspicion of having accepted a large bribe on DATE , after he had accepted CARDINAL kroons in cash from the intermediary .", "[ The applicant ] , having demanded and partly accepted a bribe from an accused , committed [ the offence of ] demanding a large bribe . The precise classification of the offence with which [ the applicant ] , a former judge of ORG is charged , is LAW ( CARDINAL ) and ( CARDINAL ) of LAW . In the event that he is convicted , CARDINAL years’ imprisonment may be imposed as punishment .", "[ The applicant ] , a judge , made use of his official position and breached an important principle of a state governed by the rule of law , according to which justice is administered by an independent , impartial and honest court . ”", "By ORG decision of DATE the applicant was committed for trial . The first hearing was scheduled for DATE .", "On DATE Postimees published an article based on a press release from a news agency , ORG , which included the following passage :", "“ According to the [ public ] prosecutor , [ the applicant ] asked [ D. ] for the total sum of CARDINAL kroons , of which he received CARDINAL in the course of the simulation of the offence through an intermediary , [ D. ’s ] business partner [ N. ] . ‘ [ The applicant ] wished to receive the money in instalments,’ [ ORG ] noted . ”", "The online version of the article on the newspaper ’s website also contained the following sentence :", "“ ‘ According to the information gathered during the investigation , the initiative of asking for the money came from the judge and there was no PERSON [ V. ] affirmed ... ”", "On DATE the trial started at ORG .", "On DATE ORG published an article by PERSON entitled “ A judge asked for bribe in a jacuzzi ” . Although no reference was made to the sources of information in the article , the applicant submitted that the information , which involved private information and delicate personal data , had originated from prosecutor PERSON The article does not contain an assessment by the prosecutor of the applicant ’s guilt .", "On DATE in a news programme on ORG prosecutor PERSON was shown saying :", "“ [ The applicant ] is charged with having demanded a large bribe from an accused person in criminal proceedings of which he was in charge . In return he promised to take decisions in favour of the accused in the course of the criminal proceedings and also to acquit him . ”", "Apparently in reply to a journalist ’s question , she continued :", "“ Indeed , as these names have already been mentioned in the press , it can be affirmed that the person from whom he demanded the bribe was [ NORP ] . The total sum the judge wanted was CARDINAL kroons . ”", "Apparently in reply to a question about the applicant ’s possible motives , the prosecutor said :", "“ He has indeed made statements during the preliminary investigation but I can not comment on their content as this might cause damage to the exercise of his defence rights . ”", "DATE ’s guilt . The court dismissed the request . It examined the newspaper articles submitted by the applicant and found that they contained information received from the prosecutor . However , the court found that the articles did not indicate that the prosecutor had treated the applicant as being guilty . Furthermore , it considered that increased public interest in the case where the suspect was a judge was understandable and justified .", "At the hearing of CARDINAL DATE the applicant again requested the removal of the prosecutor on similar grounds as on the previous occasion . The court refused to examine the request finding that it had already dismissed a similar request and no new arguments had been put forward .", "At the hearing of CARDINAL DATE the prosecutor dropped the charges in respect of the element of demanding the bribe . She also requested that the applicant be convicted of an attempted offence .", "On DATE the ORG delivered a judgment by which the applicant was convicted of attempting to accept a bribe ( Article CARDINAL § CARDINAL of LAW ) . He was sentenced to DATE imprisonment .", "NORP The court noted that in DATE N. had already made the applicant an offer concerning the bribe . On DATE the applicant consented to accepting the bribe and took the money on DATE , being aware that it had come from NORP in connection with the criminal case in which he was a defendant . The court relied on the statements of ORG and NORP as well as the undercover recordings and surveillance reports . It found that the charges concerning the applicant ’s alleged demand for a bribe of EEK CARDINAL had not been proven . These charges had been based on the statements of ORG and were only partly supported by NORP ’s submissions who , in turn , relied on what he had heard from ORG court considered that ORG had not only transferred information between the applicant and NORP but had also pursued his own agenda . It considered it probable that ORG had presented the applicant ’s readiness to accept a bribe to NORP as a demand for bribe . Applying the principle that any reasonable doubt should benefit the accused , the court only considered it established that the applicant had agreed to accept , and had accepted , a bribe of EEK CARDINAL . Furthermore , the court classified it as an attempted offence .", "The applicant filed an appeal with ORG against ORG judgment .", "On DATE the applicant requested that ORG remove the prosecutor . The court dismissed the request . It noted , inter alia , that the newspaper articles had not influenced the court and that ORG had in fact dismissed certain charges against the applicant .", "By a judgment of DATE ORG upheld ORG judgment .", "On DATE ORG declined to examine the applicant ’s appeal .", "In the meantime , in DATE the applicant lodged a claim for compensation for non - pecuniary damage against ORG with ORG . Referring to the press releases , newspaper articles and television programmes quoted above ( see paragraphs CARDINAL , DATE , DATE , DATE , DATE and DATE ) , he argued that the prosecutor ’s public statements made during the criminal proceedings had not respected his presumption of innocence and that his right to respect for his private life had been infringed . The applicant contended that the prosecutor , being an authoritative source , had given a legal assessment that the applicant had committed a crime . She had addressed matters such as the classification and degree of the offence as well as possible provocation and presented her opinion on these matters to the public as a statement of fact . The applicant was dissatisfied that in the interviews given in DATE the prosecutor had given the impression that the criminal proceedings had been successful and everything was clear , the evidence had been gathered and what had remained had only been technicalities . The prosecutor had persuaded the public that it had been the applicant who had demanded the bribe and had disclosed the amounts of the bribe in question . Prosecutor PERSON had also given a number of interviews after the commencement of the court proceedings from which it could be understood that the whole matter was an extremely simple and clear story .", "ORG objected . It contended that under LAW ( NORP teabe seadus ) it was required to disclose to the media information concerning criminal proceedings in respect of which public interest could be anticipated . The applicant had not been named in the press release of DATE . Furthermore , the choice of words by prosecutor PERSON in various interviews had made it unequivocally clear that the applicant had been a suspect . The press release of DATE had been based on the bill of indictment which represented the position of ORG to be proved in court . ORG had sought to disclose a minimal amount of precise information to the public .", "In a written statement to ORG by the head of the public relations department of ORG it was noted that the press release of DATE had been prompted by a telephone call from a journalist who had heard about the arrest of a judge and had sought confirmation of that information . It was considered that rumours could have caused damage to the investigation , the suspect and the judiciary as a whole . The press release had been based on facts and contained no personal references . On DATE several media channels interviewed prosecutor PERSON who gave no further information than was contained in the press release . It was noted that the media had also used sources other than ORG . In respect of the press release of DATE it was noted that ORG usually gave information concerning criminal cases that had attracted public interest . In order to secure equal treatment of different media channels , press releases summarising the content of the charges were issued .", "On DATE ORG dismissed the complaint , finding that ORG had released the information in compliance with LAW ORG seadustik ) . Furthermore , it held as follows :", "“ CARDINAL . In assessing the lawfulness of the actions of ORG , it is necessary to clarify on which considerations they were taken . According to the submission of [ ORG ] , [ its ] press officers and prosecutor [ ORG ] acted in order to give to the media , which demonstrated extraordinarily high interest in the criminal case in question , information that was as precise and as minimal as possible .", "The court agrees with the [ ORG ] that there was elevated public interest in the criminal case in question . This is already demonstrated by the fact that the criminal proceedings were extensively covered by the press . [ This is ] also [ confirmed ] by ORG numerous [ requests for information ] to the [ ORG ] ... . There is no dispute between the parties about the fact that the criminal case was extensively covered by the press and this can also be concluded on the basis of the materials of the case . As the criminal proceedings were being conducted in respect of a judge who had also been arrested as a suspect , the court considers that the elevated interest of the public in the criminal case was justified . The court considers it a matter of general knowledge that the press , in particular the part of it that qualifies as non - quality press , also tends to publish untrue information . Therefore the court agrees with the [ ORG ] that [ its ] ... communication with the media is also very important in order to avoid , or at least minimise , the spread of misinformation .", "NORP The court has not established that the information released by ORG to the press in the course of the preliminary investigation of the criminal case ... went beyond what was objectively necessary for informing the public or that the applicant ’s interests were excessively interfered with .", "It appears from the materials of the case that ORG declined to release detailed information on the circumstances of the offence at the time when [ the applicant ] had the status of suspect . The press release of ORG of DATE and the disclosure of information ( interviews ) by [ the prosecutor ] in charge of the criminal proceedings to the programmes PERSON of [ ORG ] and PERSON of FAC as well as the newspapers Postimees , ORG and ORG ... fell within this period . It can be clearly understood from the press release and the public prosecutor ’s statements that [ ORG ] merely suspected the applicant of having accepted a bribe . The [ applicant ’s ] allegation that the identity of the judge in respect of whom the proceedings were being carried out was disclosed by ORG is incorrect . ... [ In ] ORG press release of DATE ] it is stated that ‘ the judge suspected of accepting a large bribe who was arrested by the security police in the course of the simulation of the offence is [ the applicant]’ ... . Thus , the identity of the judge suspected of the offence was already known to the public when [ the prosecutor ] used [ the applicant ’s ] name in communication with the media . Therefore the use of [ the applicant ’s ] name by [ the prosecutor ] after ORG press release of DATE ] did not aggravate [ the applicant ’s ] situation .", "Information about the classification and degree of the offence and the amounts of the bribe were disclosed by ORG only after the drawing up of the bill of indictment when [ the applicant ’s ] status had changed to an accused . Proceeding from LAW of [ LAW ] , the drawing up of the bill of indictment demonstrates the conviction of ORG that all the necessary evidence had been gathered . Publication of the press release of DATE by ORG and disclosure of information ( interviews ) by [ the prosecutor ] in charge of the criminal proceedings to the news agency ORG , newspaper ORG , and the programme ORG on [ Eesti Televisioon ] ... fall within this period . The press release and the subsequent imparting of information were based on the official bill of indictment . The court agrees with the [ ORG ] that giving more detailed information about the bill of indictment than the suspicion is legitimate since the bill of indictment represents the result of the pre - trial proceedings and indicates that the criminal proceedings are about to resume in court .", "The court does not agree with [ the applicant ’s ] position that ORG violated the principle of the presumption of innocence . The presumption of innocence is protected by LAW ... . Nevertheless , addressing criminal proceedings in the media before passing a judgment is not completely restricted by the presumption of innocence . It has been found in the case - law that covering a case in the media during the pre - trial proceedings may result in a violation of the presumption of innocence but this does not mean that nothing about the pre - trial proceedings may be published in the media ( see the judgment of DATE of ORG in case no . DATE ) . The content of what is disclosed to the media about the criminal proceedings is decisive – if only objective information reaches the public , the court considers that the publication of such information does not interfere with the presumption of innocence . It has not been established in the present case that ORG informed the public about the criminal proceedings in a subjective manner or gave an opinion about [ the applicant ’s ] guilt . [ LAW ] does not prohibit informing the public about proceedings when no opinion about the guilt is given ( PERSON v. GPE , CARDINAL DATE , Reports of Judgments and Decisions DATE ) .", "In sum , the court considers that ORG objectively informed the public about the criminal proceedings . The information given to the press did not exceed the limits of the objective need to inform the public , nor did it excessively damage the interests of [ the applicant ] . As the actions of ORG were lawful there is no ground to allow the claim for damages ... . ”", "DATE . On DATE ORG upheld ORG judgment . It held , inter alia , as follows :", "“ The public interest and the interest of the person concerned have to be assessed in the specific circumstances . [ The applicant ’s ] position that in the present case the statements of ORG related to an individual case in respect of which there could be no public interest can not be sustained . In the case in question there was a suspicion that a judge had committed an offence of accepting a bribe . [ ORG ] correctly notes that the initiation of criminal proceedings related to the suspected acceptance of a bribe by a judge concerns the exercise of functions by a high official . The suspicion that a high official expected to enjoy public confidence has accepted a bribe is an important event justifying elevated public interest . It also justifies ORG informing the public of such an important event .", "ORG concluded that the information disclosed about the criminal proceedings had not exceeded the limits of the objective need to inform the public and that the presumption of innocence had not been violated . ORG agrees with that assessment . [ The applicant ] validly argues that the [ case of PERSON ] , referred to in the judgment , concerns the disclosure of information in respect of ongoing criminal proceedings . However , the case - law of the [ ORG ] does not prohibit disclosure of information concerning pre - trial proceedings and ORG in case no . CARDINAL has also admitted that media coverage of a case during pre - trial proceedings may in itself result in a violation of the presumption of innocence , but this does not mean that nothing at all may be disclosed about pre - trial proceedings .", "... [ The ] ORG agrees with the position of the first - instance court that there is no ground to allow the claim for damages since the actions of [ ORG ] in disclosing the information were lawful and this was done without excessive damage to the rights of [ the applicant ] . ”", "On DATE ORG declined to examine the applicant ’s appeal .", "Article CARDINAL § CARDINAL of the LAW of GPE ( ORG põhiseadus ) and LAW ORG seadustik ) provide that no one shall be considered guilty of a criminal offence before a convicting judgment has entered into force in respect of him or her .", "According to Articles DATE and CARDINAL of LAW a suspect or an accused may request the removal of a prosecutor if he or she lacks impartiality but has not withdrawn himself or herself . In pre - trial proceedings such a request is resolved by ORG and in court proceedings by the court dealing with the case .", "LAW ( ORG seadus ) sets out the rules concerning compensation for non - pecuniary damage ( mittevaraline kahju ) in DATE , which stipulates as follows :", "“ ( CARDINAL ) A natural person may claim financial compensation ( rahaline hüvitamine ) for non - pecuniary damage resulting from wrongful ( süüline ) harm to his or her dignity , damage to health , deprivation of liberty , violation of the inviolability of the home or private life or of the confidentiality of correspondence , or defamation of the person ’s honour or good name .", "( CARDINAL ) NORP - pecuniary damage shall be compensated for in proportion to the gravity of the offence ( õiguserikkumine ) ... . ”", "Article CARDINAL § CARDINAL ( CARDINAL ) of LAW ( ORG seadustik ) , as in force at the material time , provided that a claim for compensation for damage caused in public law relationships could be lodged with an administrative court .", "Paragraph CARDINAL of section CARDINAL of LAW ( ORG ) , as in force at the material time , provided :", "“ In the case of an obligation to compensate for damage arising from ... violation of a personality right , in particular from defamation , the obligated person shall compensate the aggrieved person for non - pecuniary damage only if this is justified by the gravity of the violation , in particular by physical or emotional distress . ”", "Section CARDINAL of LAW stipulates that the causing of damage is unlawful if , inter alia , the damage is caused by the violation of a personality right of the victim . LAW further provides :", "“ ( CARDINAL ) The defamation of a person , inter alia by passing undue judgment , by the unjustified use of the name or image of the person , or by breaching the inviolability of the private life or another personality right of the person , is unlawful unless otherwise provided by law . Upon the establishment of unlawfulness , the type of violation , the reason and motive for the violation and the gravity of the violation relative to the aim pursued thereby shall be taken into consideration .", "( CARDINAL ) The violation of a personality right is not unlawful if the violation is justified considering other legal rights protected by law and the rights of third parties or public interests . In such cases , unlawfulness shall be established on the basis of the comparative assessment of different legal rights and interests protected by law . ”", "“ ( CARDINAL ) The violation of personality rights or interference with the economic or professional activities of a person by way of disclosing incorrect information or by the incomplete or misleading disclosure of information concerning a person or the activities of the person is unlawful unless the person who discloses such information proves that , upon the disclosure thereof , he or she was not aware and was not required to be aware that such information was incorrect or incomplete .", "( CARDINAL ) The disclosure of defamatory information concerning a person , or information which may adversely affect the economic situation of a person , is deemed to be unlawful unless the person who discloses such information proves that the statement is true .", "( CARDINAL ) Regardless of the provisions of subsections ( CARDINAL ) and ( CARDINAL ) of this section , the disclosure of information is not deemed to be unlawful if the person who discloses it or the person to whom such information is disclosed has a legitimate interest in the disclosure , and if the person who discloses the information has verified it with a thoroughness which corresponds to the gravity of the potential violation .", "( CARDINAL ) In the case of the disclosure of incorrect information , the victim may demand that the person who disclosed it acknowledge that it is incorrect or publish a correction at his or her own expense , regardless of whether the disclosure of the information was unlawful or not . ”", "“ ( CARDINAL ) If unlawful damage is caused continually or a threat is made that unlawful damage will be caused , the victim or the person who is threatened has the right to demand that behaviour which causes damage be terminated or the making of threats of such behaviour be refrained from . In the case of bodily injury , damage to health , violation of the inviolability of personal life or any other personality rights , it may be demanded , inter alia , that the tortfeasor be prohibited from approaching others ( restraining order ) , the use of housing or communication be regulated , or other similar measures be applied .", "( CARDINAL ) The right to demand that behaviour which causes damage as specified in subsection ( CARDINAL ) of this section be terminated does not apply if it is reasonable to expect that such behaviour can be tolerated in human coexistence or that it is justified by significant public interest . In such a case the victim still has the right to make a claim for compensation for damage caused unlawfully .", "... ”" ]

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[ "6" ]

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

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[ "The applicants , PERSON , PERSON , PERSON , PERSON , PERSON , Mr Yücel Tanrıgünverdi , Mr PERSON , PERSON , PERSON and Mr PERSON , are NORP nationals who were born in DATE ( DATE according to the former NORP calendar , as submitted by the applicant ) , DATE , DATE , CARDINAL , DATE , CARDINAL , DATE , DATE , DATE and DATE respectively , and live in PERSON .", "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 .", "On DATE GPE issued an order to expropriate a plot of land belonging to the applicants . A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicants on DATE .", "Following the applicants’ request for additional compensation , ORG of first instance ordered an expert opinion to be prepared to assess the value of the plot . As the parties mutually objected to the opinion , the court ordered a second opinion to be drawn up by a separate committee of experts .", "On DATE , seeing that the CARDINAL assessments were parallel , the court awarded the applicants a corresponding amount of additional compensation plus interest at the statutory rate .", "However , on DATE ORG quashed the judgment and remitted the case back to the first - instance court for further examination .", "Having obtained a revised expert opinion , ORG issued a new judgment on DATE . It awarded the applicants an additional compensation of MONEY ( TRL ) plus interest at the statutory rate .", "On DATE ORG upheld this subsequent judgment . On DATE ORG rejected a request for rectification and thereby concluded the court proceedings .", "On DATE the GPE paid the applicants the sum of ORG , interest included ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by 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 .", "The applicant ’s wife died on DATE , leaving CARDINAL children born in DATE and DATE . By a letter of DATE , the applicant sought to claim a ORG ( “ WP ” ) . On DATE , ORG ( “ DWP ” ) asked the applicant to fill in a claim form which he duly did and returned to them . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . By a letter of DATE the applicant appealed . On DATE the appeal was heard and dismissed . On DATE the applicant appealed to the ORG Commissioner who on DATE issued a direction stating that he was minded to refuse the appeal .", "The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .", "The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "The first applicant , PERSON , is a GPE national of NORP origin , born in DATE and living in GPE . The second , third , fourth and fifth applicants , PERSON , PERSON , ORG and GPE – the first applicant ’s children DATE are NORP nationals , born in DATE , DATE and DATE respectively . They currently live in GPE with their mother . The applicants are represented before the ORG by Mr PERSON GPE , a lawyer practising in Hapert .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the first applicant ( “ the mother ” ) was in the process of getting a divorce from her NORP husband , father of the other applicants ( “ the children ” ) . She submitted that her husband did not meet his responsibilities as head of the family , was frequently inebriated , abused her and the children , did not provide for basic DATE needs and repeatedly forced her out of the house at knifepoint . On DATE , while the divorce proceedings were still ongoing , the mother left GPE and came to the GPE where she met and settled with a GPE national . On DATE she was granted a residence permit for the specific purpose of living with her partner . The father retained custody of the children who remained with him in GPE . The mother pursued legal proceedings from the GPE in order to obtain a divorce as well as custody of the children .", "In DATE the mother was granted custody of the children , but this decision was appealed by the father . In a final decision of DATE she was granted custody . According to the mother ’s submissions , she subsequently started preparations for the children to join her in the GPE . Her partner , however , was reluctant to have the CARDINAL children coming to live with them .", "On DATE the mother obtained GPE nationality . In DATE the relationship between the mother and her partner ended and she settled in a place of her own .", "In DATE the children were granted permission by their father to leave GPE in order to join their mother . On DATE they entered the GPE on a short stay visa ( visum voor kort verblijf ) , granted for the purpose of visiting their mother and valid for DATE . They have been living with their mother since that time . On DATE the children lodged a formal application for a residence permit ( vergunning tot verblijf ) in order to stay with their mother .", "On DATE the Deputy Minister of Justice ( ORG ) rejected the children ’s request considering that the criteria for family reunion had not been met given that , firstly , the close family ties ( gezinsband ) between mother and children must be considered to have been severed and , secondly , the mother had insufficient means of subsistence . The Deputy Minister also found that this decision did not entail a breach of LAW , since it did not prevent the applicants from continuing to exercise their family life as they had done prior to the children ’s arrival in the GPE . Furthermore , there were no impediments for the mother to follow her children to a place outside the GPE .", "On DATE the children filed an objection ( bezwaar ) against this decision . On DATE the Deputy Minister informed the children that they were not allowed to await the outcome of their objection in the GPE . On DATE the children filed a request with ORG ( arrondissementsrechtbank ) for a provisional measure ( voorlopige voorziening ) that would allow them to remain in the GPE pending the proceedings on their objection .", "On DATE the Deputy Minister rejected the objection . The children subsequently filed an appeal against that decision with ORG , amending their request for a provisional measure in that they now wished to be allowed to await the outcome of the appeal proceedings in the GPE .", "On DATE ORG rejected the appeal , as well as the request for a provisional measure . It confirmed the Deputy Minister ’s assessment that the close family ties between the mother and the children had been severed . ORG held in this respect that the mother had failed to show that close family ties with her children had been maintained either through parental decisions or through financial support , even after she had obtained custody of them . ORG attached particular importance to the fact that it was only in DATE that the mother had taken concrete steps to have her children join her in the GPE and not already in DATE and DATE when she had obtained custody of them .", "ORG saw no merit in the arguments that refusing the children residence would amount to a violation of LAW . In this context it had regard to the fact that the proceedings concerned a request for a first admission ( eerste toelating ) to the GPE , rather than a refusal to extend existing residence . It further held that there were no objective obstacles to the applicants’ family life being exercised elsewhere DATE the mother was free to develop family life with her children in GPE . ORG concluded that a proper balance had been struck between the interests of the applicants and those of society as a whole , the latter interest being served by a restrictive immigration policy .", "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 .", "At the time relevant to the present application , the admission , residence and expulsion of aliens were regulated by LAW DATE ( “ the LAW ” - Vreemdelingenwet DATE ) . On DATE a new Aliens Act entered into force but this has no bearing on the present case .", "Under LAW paragraph CARDINAL of the LAW , a residence permit may be refused on public interest grounds ( gronden aan het algemeen belang ontleend ) .", "In view of the situation in the GPE as regards population size and employment , Government immigration policy DATE defined at the time in LOC DATE ( “ the Circular ” - Vreemdelingencirculaire DATE ) DATE is aimed at restricting the number of aliens admitted to the GPE . In general , an application for a residence permit in the GPE is granted only if the individual ’s presence serves an essential national interest or if there are compelling humanitarian grounds to do so ( LAW ) .", "The admission policy for family reunion purposes was laid down in LAW of the Circular . It provided that the following persons , where relevant , may qualify for family reunion if certain conditions ( relating to matters such as public policy and means of subsistence ) are met :", "– a person ’s spouse ,", "– a minor child born of the marriage who actually belongs to the family unit ( gezin ) , and", "– a minor child born outside the marriage who actually belongs to the family unit ( e.g. a child of CARDINAL of the spouses from a previous marriage or a foster child ) .", "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 . Living together in the GPE without a permanent residence permit is not seen as restoring severed family ties ." ]

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[ "The applicant , PERSON , is a GPE national , born in DATE and living in LOC . 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 .", "In DATE ORG ( \" FAC \" ) was investigating a fraud involving GPE MONEY . The money obtained from the victim had passed through the hands of the applicant who was a solicitor practising in GPE or through a company with which the applicant was connected .", "By letter dated DATE , a lawyer employed by the ORG made a formal request to the Attorney - General for GPE for his assistance in the investigation of the fraud . The letter requested the Attorney - General to exercise his powers to summon the applicant for an interview about the transactions . It presented the facts as they appeared to the ORG and depicted the applicant ’s part in the transaction in such a way as to suggest that the FAC suspected him of being a party to the fraud . The letter concluded by stating that , given the facts outlined , the ORG considered the use by the Attorney - General of the relevant power to summon to be justified and desirable and it invited the Attorney - General to authorise that ORG lawyer and a police officer to exercise those powers on his behalf .", "On DATE , the ORG lawyer and a colleague called upon Mr R who worked for ORG in the administration of the solicitors’ compensation fund to talk about the transaction which had given rise to a claim by the victim against the fund . The ORG lawyer made a file note of the interview which recorded Mr R ’s view that the applicant should be struck off the roll of solicitors and the GPE lawyer ’s contention that the applicant was a co - conspirator . On DATE the Attorney - General sent the applicant a formal notice requiring him to attend for an interview but the applicant could not attend due to illness", "CARDINAL individuals were indicted on charges of conspiracy to defraud and eventually convicted . A third suspect was in GPE and died before an application for extradition had run its course . The applicant , despite the suspicions noted above , was not charged .", "CARDINAL of the defendants had asked the applicant to give evidence on his behalf and , consequently , gave the applicant a file of documents which included “ unused material ” which had been disclosed , in accordance with recently established obligations , by the prosecution . The file included a copy of the letter of CARDINAL DATE to the Attorney - General from the ORG and the file note of the meeting between the ORG lawyer and PERSON", "The applicant therefore commenced an action for libel against the ORG , ORG , the GPE lawyer and PERSON The applicant alleged that the letter contained a libel published by the ORG and the ORG ’s lawyer to the Attorney - General , that the file note contained a libel published by the ORG and the ORG ’s lawyer to Mr R as well as a libel published by Mr R to the ORG ’s lawyer and that both documents had been published by the ORG ’s lawyer by their disclosure to the relevant defendant ’s solicitor .", "All CARDINAL defendants took out summonses to strike out the action as an abuse of process . On DATE , the High Court judge struck out the action on the ground that the disclosure of the CARDINAL documents to the defendant ’s solicitors was subject to an implied undertaking that they would not be used for any purpose other than that defendant ’s defence . The applicant could not , therefore , use them as the basis of a libel action without the leave of the court .", "The applicant appealed . Shortly before his appeal was heard , the case of PERSON v. PERSON ( [ DATE ] Q.B. CARDINAL ) was decided by ORG . That court found that material disclosed by the prosecution to a defendant in criminal proceedings , whether obtained by compulsion or voluntarily , was not subject to any implied undertaking analogous to that which already existed in relation to material discovered in civil proceedings .", "ORG dismissed the applicant ’s appeal in DATE . It regarded the PERSON v. PERSON decision as a binding authority which obliged it to hold that the grounds upon which ORG had struck out the action could not be sustained . But the court accepted the argument that the proceedings could be struck out as a result of an immunity from suit because the documents were brought into existence for the purposes of a criminal investigation .", "The applicant appealed to ORG on the ground that ORG had extended the principle of immunity from suit beyond its proper sphere . The respondents , on the other hand , argued that the PERSON v. PERSON case had been wrongly decided and that ORG judgment ought also to be upheld on the basis of the “ implied undertaking ” .", "On DATE , ORG rejected the applicant ’s appeal and upheld the respondents’ ( PERSON v. ORG [ DATE ] A.C. CARDINAL ) . ORG were unanimous that the documents disclosed by the prosecution to the defence were disclosed subject to an implied undertaking to the court not to use the documents for any other purpose other than the conduct of the defence . The applicant ’s attempt to do so was accordingly an abuse of process and had been rightly struck out on that ground . CARDINAL of ORG further upheld the view of ORG that the statements relied on by the plaintiffs to found the action were protected by absolute immunity and the proceedings were rightly struck out on that ground as well .", "Lord PERSON considered that the CARDINAL principles in debate were well established and that the question was rather the extent of their reach .", "In particular , the first question was whether the public interest in the administration of justice required the implied undertaking ( which had originated in the law of discovery in civil proceedings ) to be applied to documents disclosed by the prosecution to the defence in criminal proceedings . Lord PERSON considered that ORG had erred in PERSON v. PERSON and concluded that the disclosure of documents by the prosecution as unused material under its common law obligations generated an implied undertaking that they would not be used for any collateral purpose . In support of this implied undertaking , he cited the interests ( protection of privacy and confidentiality ) of those giving statements to the police and to other investigatory bodies and of those mentioned in the statements .", "Considering the arguments raised that there were other means to protect people who might be adversely affected by the collateral use of disclosed documents , such as the rules of public interest immunity and qualified privilege , he observed that the first was not designed to protect the same interests and could give only accidental protection and that qualified privilege also did not protect the privacy of persons mentioned in the statements and , as stated by PERSON in GPE v. PERSON ( DATE ) CARDINAL QBD CARDINAL , did not protect those involved in court proceedings from the harassment of litigation .", "Although it was not therefore strictly necessary to consider the question of the application of an immunity from suit , Lord PERSON went on to consider the matter on the basis that it was necessary to know whether , if the statements had been read out in open court , they could have been relied on thereafter for the purposes of a libel action . The immunity from suit in question was for those taking part in a trial ( judges , advocates and witnesses ) for anything written or spoken during the proceedings . It was absolute and could not be defeated even by proof of malice . The novel question was whether it could be extended to statements made to or by investigators for the purposes of a criminal investigation .", "Lord PERSON recalled that the general rule was that the extension of absolute privilege was to be viewed with the “ most jealous suspicion , and resisted , unless its necessity is demonstrated ” . He considered that it had been shown to be necessary for the administration of justice to extend the immunity from suit to those assisting investigators and to investigators themselves , and that the protection would apply to all statements which could be fairly said to be part of the process of investigating a crime or possible crime with a view to prosecution or a possible prosecution . It was , however , limited to actions in which the alleged statement constituted the cause of action ( defamation ) and so would not apply to an action for malicious prosecution .", "He stated that the immunity :", "“ ... is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say . It is generated by the circumstances in which the statement was made and it is not concerned with its use for any purpose other than as a cause of action . ”", "He went on to state that the test was a strict CARDINAL and to fall within the immunity it had to be shown that the immunity was “ necessary for the administration of justice ” . It would not therefore cover “ irrelevant and gratuitous libels ” , statements extraneous to the investigation but could not be confined only to out - of - court statements of persons who were subsequently called as witnesses as the person had to know at the time at which he spoke whether or not the immunity attached . The same reasoning and necessity applied to the position of investigators :", "“ It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness . In my view it is necessary for the administration of justice that investigators should be able to exchange information , theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings . ”", "He noted that the implied undertaking and immunity were related :", "“ The implied undertaking prevents , as far as possible , the publication or dissemination of disclosed documents and therefore restricts the extent to which damage can be caused by defamatory statements which they may contain . In this sense , the injustice which may be caused by the fact that such defamatory statements are protected by the immunity is reduced . ”", "He observed as to the risk to the applicant from the statements concerned :", "“ < he > might have taken some comfort from the fact that the documents which showed that he had been under suspicion could go no further than the files of the ORG and < CARDINAL solicitors . They could not have damaged his reputation in the outside world . Instead , he chose to bring libel proceedings and ( apparently due to the thoughtlessness of his solicitors ) put the statements into the public domain by quoting them in extenso on a specially endorsed writ . ”", "Lord Hope similarly commented on the relationship between the CARDINAL principles :", "“ I see the CARDINAL solutions [ implied undertaking and immunity ] as complementary to each other . If the absolute privilege and the consequent immunity are to be kept within limits which are necessary for the administration of justice , they must be accompanied by a rule which restricts the use and dissemination of disclosed material . The purpose of the immunity is to ensure the integrity of the investigation process . The disclosure should extend no wider that is necessary to serve the public interest in the administration of justice . It should not be accompanied by risks to the good name of those who are not on trial from whom the protection of defamation proceedings has been removed by the immunity . So a restriction on the release and collateral use of the disclosed material by means of the implied undertaking can be seen as a necessary balance against possible harm which might flow from the absolute nature of the immunity . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "At the time of the events giving rise to the application , the applicant worked as a customs broker in a private company .", "On DATE the applicant was questioned by a customs inspector in respect of his involvement in the smuggling of electronic goods .", "On DATE the customs inspector submitted his report and on CARDINAL DATE the PERSON public prosecutor filed a petition with ORG accusing the applicant and CARDINAL other suspects of smuggling electronic goods . He requested that the applicant be convicted and sentenced under Articles CARDINAL § § CARDINAL , CARDINAL , DATE and DATE and CARDINAL § CARDINAL of Law no . DATE .", "On CARDINAL DATE the criminal proceedings initiated against the applicant and CARDINAL other co - accused commenced before ORG .", "On DATE the applicant was remanded in custody . He was released pending trial on DATE .", "On an undetermined date , the PERSON public prosecutor submitted an additional indictment against CARDINAL other suspects and the cases were joined .", "On DATE ORG declared that it lacked competence ratione materiae to examine the case . The case - file was transferred to ORG .", "On DATE , LAW no . CARDINAL on the Establishment and the Rules of Procedure of ORG was amended to exclude organized smuggling offences within the competence of ORG . Accordingly , on DATE ORG declared that it lacked competence ratione materiae to examine the case .", "On DATE the criminal proceedings before ORG commenced . The applicant was tried together with CARDINAL other co - accused .", "DATE and DATE the first - instance court held CARDINAL hearings on regular intervals . During this period the court undertook various procedural decisions with a view to determining the addresses of the co - accused and obtaining their additional defence submissions by way of rogatory letters .", "In a hearing held on DATE the court noted that no reply had been received from the various authorities to its requests for information for the case - file . On DATE the court observed that the documents from the NORP authorities in respect of the coaccused Mr K.Ç. had been translated and submitted to the case - file . It further noted that ORG had not responded to its instruction to hear the co - accused Mr PERSON The court was informed that the public prosecutor ’s office was unable to determine the address of another coaccused Mr E.Ç. The court issued instructions to both ORG and the public prosecutor ’s office with a view to completing the case - file .", "On DATE the additional defence submission of PERSON was submitted to the court . The court noted that the public prosecutor ’s office had not responded to its request to determine the address of Mr E.Ç.", "On DATE the address of Mr E.Ç. was submitted to the court by the public prosecutor ’s office . It appeared that Mr E.Ç. was a civil servant working in ORG . On CARDINAL DATE the additional defence submission of Mr E.Ç. , taken by ORG , was submitted to the case - file .", "On DATE the public prosecutor submitted his observations on the merits . The applicant requested time to submit his final defence submissions .", "On DATE the applicant read out his final defence submissions before the court .", "On DATE ORG convicted the applicant on account of his involvement in organised smuggling and sentenced him to DATE imprisonment and to a fine of CARDINAL,CARDINAL,CARDINAL,CARDINAL PERSON ( TRL ) .", "On DATE ORG held a hearing and upheld the judgment of the firstinstance court . The decision of ORG was sent to the registry of the first - instance court on DATE .", "On DATE the applicant was released from prison .", "On DATE the principal public prosecutor at ORG dismissed the applicant ’s request for the rectification of ORG decision ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant ’s son , PERSON , born on CARDINAL DATE and then DATE , was playing with other children outside the applicant ’s apartment , situated in GPE district ( Naujamiesčio seniūnija ) in the city of GPE . Whilst the children were standing on the balcony of an ancillary building containing cellars , the balcony broke off the building and collapsed . Part of the balcony fell on ORG , who died at the scene from the injuries he received . CARDINAL other children , GPE and PERSON , suffered minor bodily injuries .", "On DATE the police opened a pre - trial investigation . On DATE and the next investigators surveyed the scene of the accident .", "On DATE a forensic expert established that ORG had died because the balcony block had fallen on to him , broken his spine and crushed his internal organs .", "By GPE city police investigator ’s decision of CARDINAL DATE the applicant was recognised as having victim status .", "According to the Government , after the accident the future of the ancillary building containing the cellars was discussed at a meeting of the GPE municipal council on DATE . An expert inspection of DATE recommended that the building be fenced off until it could be demolished . [ The GPE city municipality ] Commission on Residential and Non - Residential Houses and Premises on DATE approved the demolition of the building . In accordance with a contract signed on DATE between the GPE city council and Naujamiesčio būstas , the GPE municipal enterprise , in DATE that enterprise demolished the building .", "On DATE the applicant lodged , in the criminal proceedings , a civil claim for non - pecuniary damage , in the sum of CARDINAL NORP litai ( LTL ) , and for litigation costs with ORG . She submitted that the GPE city municipality and its institutions had failed to supervise the buildings and , as a result , her son had died . The loss caused her immense moral suffering and depression . Even though it was not possible to bring her son back , the persons responsible should compensate the non - pecuniary damage . The applicant also referred to LAW ( see Relevant domestic law below ) , arguing that the amount of damage could be assessed according to all the circumstances established in the criminal case and the [ criminal ] court had such competence .", "By a decision of DATE , the prosecutor recognised the applicant as a civil claimant in the criminal case , on the basis of ORG CARDINAL and CARDINAL of the Code of Criminal Procedure .", "On DATE PERSON , an employee of Naujamiesčio būstas , was charged with the offence of failure to fulfil official duties , under LAW . The authorities considered that PERSON had failed to inspect the buildings at issue and to inform the municipality of their condition , even though he had been assigned that function by order of the Naujamiesčio būstas director on DATE . On DATE the authorities imposed a restrictive measure on PERSON , namely an obligation not to leave his place of residence .", "By a decision of CARDINAL DATE ORG discontinued the pre - trial investigation . The prosecutor referred to LAW which determined that in the most general sense supervision of the use of construction works was the municipality ’s responsibility . Similarly , LAW set out the municipality ’s duty to supervise the use of residential houses and other constructions . The prosecutor analysed in detail whose responsibility it had been , and when , in respect of GPE city municipality and Naujamiesčio būstas , to supervise the buildings , given that there had been changes in the bodies DATE . She noted that in DATE the city had made some enquiries of Naujamiesčio būstas about the cellars , but there was no - one in the municipality who had the responsibility of supervising the activities of Naujamiesčio būstas . However , the prosecutor considered that the evidence gathered was contradictory , and that therefore it was not possible to establish which body – the GPE city municipality or Naujamiesčio būstas DATE had been responsible for the proper maintenance of the building , the collapse of which had resulted in the death of the applicant ’s son . Therefore the prosecutor could not identify any physical person who could be held accountable for failure to act and to ensure that the building was in good condition and not dangerous . The prosecutor thus dropped the criminal charges in respect of PERSON Moreover , under LAW a corporate person could not be held criminally liable . However , the prosecutor noted that , in accordance with LAW , the applicant and the parents of the CARDINAL injured children could lodge civil proceedings against GPE city municipality or Naujamiesčio būstas , and claim that the building had been left unattended .", "The applicant appealed against the above decision , arguing that the GPE city municipality and Naujamiesčio būstas had been aware for a long time that the building was in a dangerous state ( avarinės būklės ) , but no one had known what to do with it . The father of PERSON also appealed , submitting that the investigation had been going on for a long time , but no person had been found responsible for the building and thus for the accident .", "By a decision of CARDINAL DATE a prosecutor reopened the investigation . She noted that it was imperative to take measures to identify the person or persons whose responsibility it had been to take care of the building ’s maintenance and to establish why they had not done so .", "On DATE another prosecutor at ORG decided to discontinue the pre - trial investigation . The prosecutor found that the evidence as regards which body owned the collapsed building was contradictory . However , he considered that the GPE city municipality was the de facto owner of the building . On the basis of documents dated DATE and DATE , the prosecutor also concluded that the municipality had known earlier about the poor condition of the building where the accident had happened . Nonetheless , in DATE an administrative reform had taken place within the GPE city municipality , as a result of which new administrative units had been created , the responsibilities of those units redistributed and new people assigned to those administrative units . Consequently , at the time of the incident there was no one who had the duty to manage derelict and unused buildings . There was therefore insufficient evidence to find that a crime under LAW had been committed .", "The prosecutor also suggested that the applicant lodge a civil claim on the basis of LAW .", "On DATE a higher prosecutor upheld that decision . The applicant appealed .", "On DATE the FAC found that the pre - trial investigation had not been sufficiently thorough and effective . As a result , the identity of the owner of the derelict buildings had not been established . The court drew the prosecutor ’s attention to specific actions to be taken and specific circumstances to be examined , whilst noting the applicant ’s earlier requests to the prosecutor to the same effect . Having given the prosecutor precise instructions , including to obtain archived documents from DATE , the district court emphasised that without that specific information it was not possible to establish the identity of persons who had failed to adopt a timely final decision , in accordance with their official duties , about the future of the derelict buildings and their proper maintenance . The prosecutor ’s decision was quashed as unfounded .", "On DATE and CARDINAL DATE the applicant wrote to the Attorney General , arguing that the pre - trial investigation had been superficial and that the prosecutors at ORG had been passive and unwilling to discover the truth , thus stalling the investigation . For the applicant , the investigation in essence consisted of sending written questions and answers from CARDINAL municipal institution to another . It was clear that neither of the institutions , GPE city municipality or Naujamiesčio būstas , was willing to take responsibility for failing to perform its duties . The applicant thus asked the Attorney General to take over the investigation or to transfer it to ORG . She also observed that although DATE had passed since the court decision of CARDINAL DATE , the prosecutors had still not taken all the required investigative actions .", "On DATE , ORG again discontinued the pre - trial investigation , in essence upholding the conclusions of the decision of DATE to the effect that the evidence as to which body was in possession of the building at issue was contradictory . Accordingly , it was not possible to identify the physical person whose duty it was to maintain the building , and who was therefore liable for the death of CARDINAL child and injury of CARDINAL others .", "On DATE the applicant appealed , arguing that even though DATE had passed since the accident , the prosecutors had not been active enough and had therefore failed to establish who was responsible for the maintenance of the building . The applicant argued in addition that the prosecutors had also failed to take all the steps which had been ordered by the court on CARDINAL DATE . The correspondence between GPE city municipality and Naujamiesčio būstas showed that both bodies had known the building was derelict , and yet no effort had been made to repair or demolish it . Immediately after the incident the building had been fenced off and demolished by the municipality , even though the municipality had earlier denied that it was within its control and had argued that it did not have the legal authority to tear down the building . The applicant asked for the pre - trial investigation to be reopened .", "By a higher prosecutor ’s decision of DATE , the investigation was reopened . For the prosecutor , it was possible that the employees of the GPE city municipality or those of Naujamiesčio būstas had not performed their duties that stemmed from [ Article CARDINAL of ] LAW , LAW and other relevant legal acts . It was therefore indispensable to establish which particular person had been designated by the municipality to inspect / supervise the buildings without owners in question ( kam pavesta bešeimininkių pastatų priežiūra ) in LOC . If such functions had not been assigned to any particular unit or person at the municipal or district level , the prosecutor should consider whether the municipality ’s or district ’s managers ( vadovai ) should be held responsible under LAW .", "On DATE GPE , a senior specialist in LOC , was charged with failure to carry out official duties , under Article CARDINAL of LAW . By a decision of the LOC director ( seniūno ) on DATE GPE had been given the responsibility of monitoring empty buildings belonging to the municipality . The criminal investigator considered that GPE had failed to inform the municipality about the danger posed by the derelict cellars in question , as he should have done under LAW [ § CARDINAL ( CARDINAL ) ] of ORG ( see paragraph CARDINAL below ) .", "On DATE a prosecutor for the Vilnius City District discontinued the investigation , as no physical persons criminally liable for the accident could be identified . The prosecutor noted , however , that the GPE city municipality had learned on DATE of the poor state of the building the collapse of which had caused the death of the applicant ’s son . However , at that time the municipality was going through structural changes and the duties and responsibilities of the municipality ’s employees were being redistributed , therefore there was no particular person with the specific duty to take action on derelict and abandoned buildings . Moreover , taking into account the short period of time that had elapsed between that date and the accident ( DATE ) , it was not possible to conclude that the municipality ’s employees had been stalling the process of finding a solution to the question of what had to be done with the building . The evidence collected in the case did not prove that employees of the GPE city municipality , the LOC district or Naujamiesčio būstas had failed to carry out any of their clearly prescribed duties and had thus caused the death of one child and injuries to CARDINAL others . The prosecutor therefore dismissed the criminal charges against PERSON , an employee of Naujamiesčio būstas , and against GPE , a LOC specialist . The prosecutor suggested that the applicant and the parents of the CARDINAL children who had been injured in the accident bring separate civil proceedings under LAW .", "The applicant appealed , arguing that the case should be returned for a fresh pre - trial examination , so that the ownership of the buildings could be established and the persons ( physical and corporate ) liable for the accident thus identified .", "By a ruling of CARDINAL DATE the GPE City ORG refused to reopen the pre - trial investigation , because a criminal action under LAW had become time - barred . The pre - trial investigation had been opened on DATE and LAW provided a DATE term to prosecute a crime of a negligent or minor premeditated nature . The court therefore did not address the applicant ’s complaint that the pre - trial investigation had been flawed .", "The applicant appealed , questioning the effectiveness of the investigation and asking for it to be reopened .", "By a final ruling of CARDINAL DATE ORG upheld the lower court ’s decision to discontinue criminal proceedings under the statute of limitations .", "According to LAW , a person ’s right to life shall be protected by law .", "The Law on Local Self - Government provides that CARDINAL of the functions of a municipality is to supervise how buildings are used and to manage land and other property which belong to it by the right of ownership ( LAW and CARDINAL ) .", "The Law on Construction at the relevant time provided :", "“ CARDINAL . The following public administration bodies shall exercise supervision of use of construction works :", "CARDINAL ) NORP the regional governor ’s office as in the list approved by the Government , or an institution authorised by it , in respect of constructions of exceptional significance , those of national significance , and construction works situated within establishments of likely hazard , with the exception of the construction works referred to in subparagraph CARDINAL of paragraph CARDINAL of this Article ;", "CARDINAL ) ORG and/or organisations authorised by it as in the list approved by the ORG or an institution authorised by it , in respect of traffic routes and other engineering constructions related thereto , as well as hydrotechnical construction works in LOC and bodies of inland water , with the exception of traffic routes which do not belong to the sphere of its management ;", "CARDINAL ) municipal authorities , in respect of residential dwellings and other constructions which are not specified in sub - paragraphs CARDINAL and CARDINAL of paragraph CARDINAL of this Article ...", "Public authorities which are engaged in supervision of the use of buildings shall enjoy the following rights :", "CARDINAL ) NORP in the event that it becomes clear that the condition of a building poses a threat to the health or life of people who reside , work or happen to be for other purposes in the building or near it , or to the environment , and taking into account the type of threat posed , they may demand that the operator of the building take measures to protect people and , if necessary , may insist that the area be evacuated , that the building cease to be used , or they may prohibit any activity in the building ( if necessary also within the construction site or area ) ;", "CARDINAL ) NORP they may set time - limits for taking all the actions specified in sub - paragraph CARDINAL and immediately inform the owner of the building ( when the user is not the owner of the building or works ) ;", "CARDINAL ) NORP they may contact the police in order to temporarily restrict access to the area or LOC , to stop works which are being carried out there , and to restrict or prohibit traffic , if the environment , public order , personal safety or the ORG are endangered ;", "CARDINAL ) NORP in cases and procedures laid down by LAW , they may draw up a record of administrative offences , consider administrative offences and impose administrative penalties , or refer administrative offences to the courts .", "Officers of public administration bodies which are engaged in supervision of the use of buildings shall have the right to demand that the operator of a construction site produce mandatory documents relating to the supervision of the site , as referred to in LAW , indicating that they have permission to perform such other functions in connection with supervision of the use of buildings , which have been assigned to them ... ”", "On DATE the GPE city management board adopted decision CARDINAL “ Approval of order giving power to declare buildings in poor condition , and identification of buildings in GPE which may be taken into the possession of the local authority ” . Paragraphs CARDINAL and CARDINAL of the order set out the district director ’s ( seniūno ) duty to manage lists and keep records of derelict buildings , and to periodically provide those documents to the GPE city management board . Companies which have contracts to manage buildings , district engineers and senior local architects were responsible for the provision of data for the above - mentioned lists .", "On DATE the GPE city mayor adopted decision CARDINAL “ ORG ” . The commission was to meet once DATE , to analyse information provided by district directors and to deal with issues concerning demolition of buildings in poor condition .", "The Criminal Code provides :", "“ A civil servant or a person equivalent thereto who fails to perform his duties through negligence or performs them inappropriately , where this results in significant damage to the ORG or to a legal or a natural person , shall be punished by deprivation of the right to be employed in certain positions or to engage in certain types of activity or by a fine or by arrest or by imprisonment for a term of DATE . ”", "Pursuant to LAW and LAW ( CARDINAL ) of LAW , as relevant at the material time , a person who has committed a criminal offence may not be convicted once DATE have lapsed , if for example an offence such as failure to perform official duties has been committed .", "Articles CARDINAL and CARDINAL of the Code of Criminal Procedure stipulate that a person who has sustained pecuniary or non - pecuniary damage because of a crime may lodge a civil claim against the suspect within criminal proceedings . The claim will be examined by the criminal court together with the criminal case . A civil claimant may submit evidence and requests and appeal against the decisions of the investigators , prosecutors or a court .", "The Civil Code provides :", "“ CARDINAL . ORG - pecuniary damage shall be deemed to be a person ’s suffering , emotional experiences , inconvenience , mental shock , emotional depression , humiliation , deterioration of reputation , diminution of possibilities to associate with others , and so on , evaluated by a court in terms of money .", "ORG - pecuniary damage shall be compensated for only in cases provided for by laws . Non - pecuniary damage shall be compensated for in all cases where it has been incurred due to crime , health impairment or deprivation of life , as well as in other cases provided for by laws . The courts shall , when assessing the amount of non - pecuniary damage , take into consideration the consequences of such damage being sustained , the gravity of the fault of the person by whom the damage is caused , his financial status , the amount of pecuniary damage sustained by the aggrieved person , also any other circumstances of importance for the case , while abiding by the criteria of good faith , justice and reasonableness . ”", "“ CARDINAL . If damage has been caused by the collapse of buildings , construction works , installations or other structures , including roads , or if the damage has been caused by any defect thereof , the owner ( manager ) shall be liable for damages unless he can prove that the situation has occurred because of circumstances indicated in Paragraph CARDINAL of Article CARDINAL of this Code .", "It shall be presumed that the owner ( manager ) of buildings , construction works , installations or other structures is the person indicated as their owner ( manager ) in ORG . ”", "“ CARDINAL . Damage caused by unlawful acts of institutions of public authority must be compensated for by the ORG from the ORG budget , irrespective of the responsibility of a particular public servant or other employee of public authority institutions . Damage caused by unlawful actions of municipal authority bodies must be redressed by the municipality from its own budget , irrespective of whether an employee is at fault .", "For the purposes of this Article , “ public authority institution ” means any entity of public law ( including a ORG or municipal institution , official , public servant or any other employee of these institutions ) , as well as private individuals executing functions of public authority .", "For the purposes of this Article , “ action ” means any action ( active or passive ) of an institution of public authority or its employees that directly affects the rights , liberties and interests of persons ( including legal acts or individual acts adopted by the institutions of ORG and municipal authority , administrative acts , physical acts , with the exception of court judgments DATE verdicts in criminal cases , decisions in civil and administrative cases and orders ) .", "Civil liability of the ORG or municipality , subject to this LAW , shall arise where employees of public authority institutions fail to act in the manner prescribed by laws for these institutions and their employees . ”", "The Government provided NORP court decisions concerning effective remedies in personal injury or destruction of property cases . They firstly noted ORG ruling of CARDINAL DATE in civil case CARDINALK-CARDINAL - CARDINAL/CARDINAL , in which the GPE city municipality had been held liable for the improper maintenance of the drainage system . The municipality was held accountable under LAW for the injuries the claimant had sustained and ordered to pay LTL CARDINAL,CARDINAL for the non - pecuniary damage she had sustained by falling into a sewer well .", "As the second example the Government referred to ORG ruling of CARDINAL DATE in civil case ORG , in which the claimant claimed damages for a broken clavicle suffered by her son , who had fallen into an uncovered cellar . The court concluded that the municipality ’s department responsible for maintenance of the buildings had failed to act with due diligence and , on the basis of Article CARDINAL of LAW , awarded the child ’s mother LTL CARDINAL,CARDINAL in non - pecuniary damages .", "Lastly , the Government noted ORG ruling of CARDINAL DATE in civil case MONEY - CARDINAL/CARDINAL , concerning liability in tort of the building owners , under LAW . ORG held that the owner ( manager ) of the buildings , installations and other structures had absolute ( no - fault ) responsibility for damage caused by its collapse or deficiencies . In that case the GPE city municipality was determined to be the owner of the LOC in question and therefore liable for the pecuniary damage caused by the rupture of a water pipe . The municipality was to compensate the claimant for destruction of its property in the amount of LTL CARDINAL,CARDINAL ." ]

[ "2" ]

[ "2-1" ]

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[ "The applicant was born in DATE and lives in GPE , ORG .", "In DATE the applicant was engaged in emergency operations at the site of the GPE nuclear plant disaster . The applicant ’s entitlement to certain State benefits is linked to the category of disability assigned to him as a result of the deterioration in his health arising from that event .", "In DATE the applicant applied for free accommodation from the ORG . His housing conditions were recognised as substandard and he was placed on a waiting list .", "In DATE the applicant brought proceedings against ORG , contesting its failure to make accommodation available to him within DATE of placing him on a waiting list .", "On DATE the ORG of GPE ruled in the applicant ’s favour . It referred to ORG as a Result of the Chernobyl Nuclear Power Station Explosion , noted that the applicant 's accommodation was substandard and ordered ORG to provide the applicant with a flat “ in accordance with the applicable standard conditions and with the order of precedence on the waiting list ” . This judgment was not appealed against , and enforcement proceedings were instituted on DATE .", "On DATE the bailiffs’ service informed the applicant about a lack of progress in the enforcement proceedings , due to an insufficient number of flats allocated to the waiting list . It advised the applicant to apply to the ORG for replacement of the inkind award , conferred by the judgment of DATE , with an equivalent amount of money .", "On DATE the bailiffs’ service informed the applicant that it had sought instructions from the ORG concerning enforcement of the judgment of DATE . In particular , it asked that a time - limit be imposed , within which the authorities were to provide the applicant with a flat .", "On DATE ORG of Belgorod examined the applicant ’s complaint about the failure of the bailiffs’ service to enforce the judgment of DATE . It found no fault on the part of the service because the judgment had not included a time - limit for enforcement .", "NORP On DATE the ORG of ORG conducted supervisory review of the judgment of DATE . It held that the statutory time - limit of DATE was applicable and not amenable to further extensions . It removed the condition that the flat was to be provided in accordance with the order of precedence on the waiting list and upheld the remainder of the judgment .", "The applicant was still waiting for accommodation in DATE .", "According to the applicant , on DATE a group of CARDINAL people , including the applicant , began a hunger strike to protest against the poor level of welfare protection provided for the GPE victims . The mayor of PERSON launched a public call for donations in support of the protestors and collected the amount necessary to provide all of them with housing . The applicant submitted a statement signed by CARDINAL other protesters in support of his version of events .", "According to the Government , on DATE the mayor of PERSON decided , pursuant to the judgment of DATE , to provide the applicant with a flat measuring CARDINAL m² , valued at MONEY .", "On DATE the applicant received from the mayor an occupancy voucher in respect of the flat assigned to him . He found the flat satisfactory .", "No decision appears to have been taken as to the pending enforcement proceedings .", "The Law On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion ( no . CARDINAL-I of CARDINAL DATE , as amended at the material time ) set out that disabled victims of the GPE explosion were to be granted social housing within DATE of submitting an appropriate application , provided that their existing accommodation did not comply with the minimum housing standards ( section CARDINAL ( CARDINAL ) ) .", "Section CARDINAL of LAW ( Law no . CARDINAL of DATE ) provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time - limit . Pursuant to section CARDINAL , the enforcement proceedings must be completed within DATE of the receipt of the writ of execution by the bailiff .", "The RSFSR Housing Code ( Law of DATE , effective until DATE ) provided that NORP citizens were entitled to possess flats owned by the ORG or municipal authorities or other public bodies , under the terms of a tenancy agreement ( section CARDINAL ) . Certain “ protected ” categories of individuals ( disabled persons , war veterans , GPE victims , police officers , judges , etc . ) had a right to priority treatment in the allocation of flats .", "Decisions on granting flats were to be implemented by way of issuing the citizens concerned with an occupancy voucher ( ордер на жилое помещение ) from the local municipal authority ( section CARDINAL ) . The voucher served as the legal basis for taking possession of the flat designated therein and for the signing of a tenancy agreement between the landlord , the tenant and the housing maintenance authority ( section CARDINAL , and also ORG CARDINAL and CARDINAL of ORG ) .", "Members of the tenant ’s family ( including his or her spouse , children , parents , disabled dependants and other persons ) had the same rights and obligations under the tenancy agreement as the tenant ( section CARDINAL ) . The tenant had the right to accommodate other persons in the flat ( section DATE ) . In the event of the tenant ’s death , an adult member of the tenant ’s family succeeded him or her as a party to the tenancy agreement ( section CARDINAL ) .", "Flats were granted for permanent use ( section CARDINAL ) . The tenant could terminate the tenancy agreement at any moment , with the consent of his or her family members ( section CARDINAL ) . The landlord could terminate the agreement on the grounds provided for by law and on the basis of a court decision ( sections CARDINAL - CARDINAL ) . If the agreement was terminated because the house was no longer fit for residence , the tenant and family were to receive a substitute flat with full amenities ( section CARDINAL ) . Tenants or members of their family could be evicted without provision of substitute accommodation only if they “ systematically destroyed or damaged the flat ” , “ used it for purposes other than residence ” or “ systematically breached the [ generally accepted rules of conduct ] making life with others impossible ” ( section CARDINAL ) .", "Tenants had the right to exchange their flat for another flat from the ORG or municipal housing stock , including CARDINAL in another region ( section CARDINAL ) . Exchanges involved reciprocal transfer of rights and obligations under the respective tenancy agreements and became final from the moment of issuing new occupancy vouchers ( section CARDINAL ) . “ Speculative ” or sham exchanges were prohibited ( section CARDINAL(CARDINAL ) ) .", "LAW ( Law no . CARDINAL-I of DATE ) provides that the payments for a flat comprise ( i ) a housing maintenance charge , ( ii ) a housing repair charge , and , in the case of tenants only , ( iii ) rent ( section CARDINAL ) . Maintenance and repair charges are payable irrespective of whether the flat is in private ownership or owned by the ORG . Rent is fixed by regional authorities , taking into account the surface area and quality of the housing . It is usually considerably lower than free - market rent . For example , the highest DATE rent for municipal housing in GPE is MONEY ( CARDINAL ) per square metre ( Resolution of ORG no . CARDINAL-PP of DATE ) .", "In DATE , ORG ( Law no . CARDINAL-I of DATE ) was adopted ( and will remain effective until DATE ) . It grants NORP citizens the right to acquire title to ORG and municipal - owned flats of which they have taken possession on the basis of a social tenancy agreement ( section CARDINAL ) . The acquisition of title does not require any payment or fee ( section CARDINAL ) . The right to privatisation can be exercised once in a lifetime ( LAW ) and requires the consent of all adult family members ." ]

[ "6", "P1" ]

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

[ "P1-1-1" ]

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[ "The applicants , GPE , GPE and GPE , are NORP nationals , born in DATE , DATE and DATE respectively and living in GPE . They are represented before the Court by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicants , may be summarised as follows :", "C.D.M. was the owner of an apartment in GPE , which he had let to GPE", "Since DATE , ORG fell in rent arrears and in a writ served on her on CARDINAL DATE , C.D.M. informed her of his intention to terminate the lease and summoned her to appear before ORG .", "By a decision of DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .", "On DATE , C.D.M. served notice on the tenant requiring her to vacate the premises .", "On DATE , he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .", "DATE and DATE , the bailiff made CARDINAL attempts to recover possession .", "Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .", "According to LAW , on DATE and on CARDINAL and DATE , ORG made CARDINAL requests to ORG for police assistance in enforcing the order for possession , but they were never granted .", "On DATE ( the owner ) died , his spouse and his daughters ( the applicants ) inherited the apartment and pursued the enforcement proceedings for non - payment of rent .", "On DATE , ORG ( the spouse ) made another request for police assistance", "On DATE , the applicants recovered possession of their apartment ." ]

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[ "The applicant is a NORP national born in DATE and living in GPE . He is an economist , now retired .", "On DATE a Mr Z. lodged with ORG ( ORG прокуратура ) in PERSON a complaint against the applicant , stating that he was mentally ill and dangerous . The applicant and PERSON had been involved in disputes related to their joint business activity which had been the object of CARDINAL sets of judicial proceedings between them . The applicant had apparently threatened Mr PERSON , stating in a letter to him that , inter alia , the only possible method of getting his money back was “ the axe ” , and that “ a dog deserves a dog 's death ” . Mr PERSON , for his part , threatened the applicant with punishment according to medieval laws .", "Following the receipt of PERSON complaint , ORG opened an inquiry . The purpose of the inquiry was , initially , to establish whether there were grounds to institute criminal proceedings against the applicant for having threatened to kill someone . On DATE the prosecutor transmitted the file to the local police department with instructions to investigate Mr PERSON 's complaint and to serve the applicant with a warning that he should cease his unlawful behaviour . On DATE , after hearing the applicant , a police officer drew up a report in which he stated , inter alia , that the applicant had repeated his threats against Mr Z. , and that he appeared to have mental problems and was likely to carry out his threats . The police officer also heard a neighbour of the applicant who stated that he was a troublemaker .", "The parties have submitted to the ORG documents in respect of the applicant 's mental health . A certificate issued on DATE by a doctor at ORG ( GPE психиатричен диспансер ) established that the applicant , who had requested a psychiatric examination declaring that he needed to have his capacity to make a will certified , was mentally healthy . In their report of DATE , the medical experts who examined the applicant during his confinement in a psychiatric hospital ( see paragraph CARDINAL below ) concluded that he had a paranoiac psychosis , that he was aggressive and posed a threat to others . In a later certificate , issued on DATE , another doctor who had examined the applicant found that he was mentally healthy . The applicant did not have a history of psychiatric problems .", "NORP In DATE ORG instructed the local police department to inquire whether it was necessary to request , from the competent court , the applicant 's compulsory psychiatric treatment under section CARDINAL of LAW ( ORG за народното здраве ) .", "According to the applicant 's version of the facts , in DATE and again in DATE he submitted to the prosecution authorities a copy of the certificate of DATE which established that he was mentally healthy ( see paragraph CARDINAL above ) and another document to that effect . He alleged that he had gone to ORG on CARDINAL occasions requesting to be examined , but that had been refused .", "As it transpires from the summary of facts contained in the medical report of CARDINAL DATE ( see paragraph CARDINAL below ) , in the course of the prosecutor 's inquiry the applicant was invited on DATE and again on CARDINAL DATE by the director of ORG to come for a psychiatric examination . It appears that the applicant received these invitations . He sent letters in reply stating , inter alia , that he would not undergo an examination unless an international commission were set up , and described the hospital as “ corrupt ” and as a “ department of the ORG security police ” .", "On DATE a prosecutor from ORG ordered that the applicant should be brought by force to a psychiatric hospital , and be kept there for DATE to undergo a psychiatric examination . This was necessary in view of the prosecutor 's intention to submit to the competent court a request for the applicant 's committal for compulsory psychiatric treatment . The order also stated that it was issued pursuant to section CARDINAL of LAW , LAW no . CARDINAL of ORG ( ORG прокуратура ) and section CARDINAL(CARDINAL ) of Instruction no . CARDINAL of ORG ( инструкция на LOC здраве ) . It was based on the material collected in the course of the inquiry ( see paragraphs CARDINAL above ) .", "On DATE the prosecutor 's file was sent to the psychiatric clinic in GPE , with a copy to the local police . On CARDINAL DATE ORG asked the police to explain their failure to enforce the order of DATE . On DATE the police returned the file to ORG with the explanation that the applicant had not allowed access to his home . On DATE ORG again transmitted the file to the police and insisted on the enforcement of the order of DATE .", "On DATE , on the basis of the prosecutor 's order of CARDINAL DATE , the applicant was taken from his home by the police and brought to a psychiatric hospital .", "The applicant underwent psychiatric examinations . He was given sedatives . The doctors also interviewed his wife , asking her questions about his past .", "On DATE the applicant was diagnosed as suffering from pneumonia . A treatment with antibiotics was applied .", "On DATE the applicant 's wife submitted a complaint to ORG ( PERSON прокуратура ) . She stated , inter alia , that the manner in which her husband was treated was inhuman , that she had not been given a copy of the prosecutor 's order and that she had not been allowed to visit her husband in the hospital until DATE . She asked the prosecutor to release the applicant from the psychiatric clinic .", "On DATE the applicant was transferred to a general hospital in a critical condition because of the developing pneumonia . In DATE his health improved .", "It appears that during DATE after his transfer to the general hospital the applicant remained under the control of a psychiatrist . He was instructed not to leave the room where he had been placed and was tied to his bed during TIME . The applicant stated , and the Government did not dispute , that this situation lasted until DATE , when his health started to improve .", "On DATE the psychiatrists who were in charge of conducting the applicant 's compulsory examination at the psychiatric hospital informed ORG about the applicant 's transfer and requested an extension until DATE of “ the time - limit for the forensic psychiatric report ” . The request was granted orally by telephone . It appears that the prosecutor did not make any formal order terminating the compulsory stay of the applicant at the psychiatric clinic .", "On DATE a regional prosecutor wrote to the applicant 's wife in relation to her complaint of CARDINAL DATE . The letter stated only that her husband had been transferred to a general hospital and that , therefore , the district prosecutor would be given additional time to deal with his inquiry .", "On DATE the applicant was discharged from the general hospital and went home as “ no psychiatric treatment was necessary at [ that ] moment ” , according to a psychiatrist who had examined him .", "NORP In DATE and later again the applicant complained in respect of the events of DATE to the prosecution authorities stating , inter alia , that the district prosecutor had acted unlawfully . The complaints were examined by ORG and then by ORG , which replied by letters of DATE and DATE respectively that the district prosecutor had complied with the applicable procedure .", "The applicant also sent numerous letters to the Minister of Health , to the courts and to other institutions complaining that he had been ill - treated and that the doctors and the prosecutors wanted to kill him . He received answers from the public - health authorities reciting the sequence of events and assuring him that his suspicions were unfounded .", "In the continuing inquiry of the district prosecutor , CARDINAL medical experts , who had examined the applicant at the time when he was at the psychiatric hospital , delivered a report dated DATE in which they recommended compulsory treatment because , inter alia , he did not understand his condition , refused any form of voluntary treatment and was extremely aggressive .", "In DATE the district prosecutor submitted a request to ORG ( Районен съд ) for an order committing the applicant for compulsory psychiatric treatment under section CARDINAL(CARDINAL ) of LAW . On DATE , after a hearing , the court dismissed the request . The applicant 's and the prosecutor 's ensuing appeals were rejected as being out of time .", "According to section QUANTITY ) to ( CARDINAL ) read in conjunction with section CARDINAL ) , section CARDINAL and section CARDINAL(CARDINAL ) of LAW , a mentally ill person can be committed for compulsory psychiatric treatment by a decision of a district court .", "Such judicial proceedings are instituted by a district prosecutor who is under the obligation to undertake a prior inquiry , including a psychiatric examination , in order to assess the need for instituting proceedings . The prosecutor therefore would normally invite the person concerned to undergo an examination in the framework of his inquiry .", "LAW , as in force at the relevant time , did not contain any provision expressly authorising a prosecutor to order a person to be brought by force to a hospital and detained there for the purpose of such a psychiatric examination . Under section CARDINAL ) , a prosecutor could issue an order for a compulsory examination , but only in respect of alcoholics or drug addicts .", "Certain powers were given to the prosecutor where the person 's state of health required emergency measures . In such a situation the chief medical officer of a hospital could order a person 's temporary compulsory treatment . The doctor had to inform immediately the competent prosecutor , who had to institute proceedings before the competent court ( section CARDINAL ) of the LAW and section QUANTITY ) . According to Section CARDINAL(CARDINAL ) of the LAW 's implementing regulations , if the prosecutor refused to institute judicial proceedings , the chief medical officer had to release the patient immediately .", "The relevant law did not provide for an appeal to a court where persons were detained for an examination in the framework of a district prosecutor 's inquiry . Section CARDINAL(CARDINAL ) of LAW , read in conjunction with LAW ( ORG за административното производство ) , provided for a judicial appeal , but only against orders for compulsory treatment of persons suffering from a contagious disease ( section PERSON ) ) and against “ [ other orders ] of the public - health authorities ” , not of the prosecution authorities .", "Instruction No . CARDINAL of ORG is a piece of delegated legislation . It is based on section CARDINAL of the supplementary provisions to LAW , which stipulates that the Minister of Public Health shall issue regulations and instructions for the implementation of LAW . The instruction is published in ORG .", "Section CARDINAL(CARDINAL ) of the instruction , in its relevant part , provides as follows :", "“ ... the [ forensic psychiatric ] examination shall be effected by the health - care authorities with the consent of the person concerned . Where the person concerned does not consent , the health - care authorities shall promptly request a written order and assistance from a prosecutor or a court for the [ person 's ] examination without admission to a hospital , or for the [ person 's ] temporary committal to a psychiatric clinic for the purpose of effecting a forensic psychiatric examination . ”", "Guidelines no . CARDINAL of ORG is an internal document for prosecutors in their work in cases of compulsory medical treatment . It has not been published .", "Sections CARDINAL et seq . concern the steps to be taken where there has been information that a person may be liable to compulsory psychiatric or other treatment . These provisions deal with compulsory examinations and treatment of persons of unsound mind , alcoholics and drug addicts , without distinguishing between these CARDINAL categories ( in contrast to the provisions of LAW , where separate rules exist ) .", "According to the guidelines , following the receipt of a complaint or other information the prosecutor has to conduct an inquiry and , if there are clear indications that a psychiatric problem is involved , to invite the person concerned for a psychiatric examination . Section CARDINAL(CARDINAL ) provides as follows :", "“ In case the person concerned does not appear [ for the examination ] within the time - limit indicated to him , the prosecutor shall order him to be brought by force by the police ( section CARDINAL(CARDINAL ) of LAW ) . ”", "Section CARDINAL of the guidelines provides as follows :", "“ Upon the proposal of the chief medical officer of the psychiatric clinic the prosecutor may , on the basis of the medical documentation provided , authorise in writing the temporary internment of mentally ill persons in a specialised hospital , for a psychiatric examination ( section CARDINAL of LAW implementing regulations ) . The prosecutor shall then promptly submit a request for compulsory treatment . ”", "Certain amendments to LAW were introduced in DATE . These amendments , in paragraphs CARDINAL to CARDINAL of section CARDINAL , provide that a prosecutor , in the framework of his inquiry , can order the confinement in a psychiatric hospital for DATE ( DATE in exceptional cases ) , for the purpose of a medical examination , of a person who has refused to undergo such an examination voluntarily . However , no provision allowing judicial review of the prosecutor 's order was introduced .", "The Code of Criminal Procedure , by virtue of an amendment in force since DATE , introduced a judicial procedure for the confinement in a psychiatric clinic of a person against whom criminal proceedings have been brought . This procedure , however , does not concern persons who have been confined in a clinic for a psychiatric examination pursuant to a prosecutor 's order under LAW of LAW ." ]

[ "5" ]

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

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[ "The applicant was born in DATE and lives in GPE , GPE . Before DATE the applicant was a resident of the village of GPE in GPE . He also submitted the complaint on behalf of his close relatives : his mother , PERSON , brother PERSON ( also spelled GPE ) and sisters PERSON and PERSON , who are not applicants in the present case .", "The facts of the case were partly disputed by the parties . Accordingly , the ORG requested the ORG to submit copies of the criminal investigation file . The submissions of the parties are summarised below in Part A. A summary of the documents submitted by the ORG is set out in Part B below .", "NORP In DATE the applicant applied for asylum in GPE . He said that he had served in the national security service of the self - proclaimed “ GPE of GPE ” .", "The applicant ’s parents , brothers and sisters remained in GPE . His family lived in their house at LOC in the village of GPE NORP .", "The applicant ’s mother , PERSON , testified that in TIME of CARDINAL September CARDINAL the family had been woken by loud screams . A large group of men in camouflage uniforms and , in some instances , masks , whom she identified as belonging to the NORP special services ( “ spetsnaz ” ) , entered the house and forced all the inhabitants outside . They were not allowed to get dressed and no reasons were given for their intervention . According to her , the intruders wore insignia of the NORP army and spoke NORP without an accent .", "According to the applicant , the inhabitants of the house were lined up in the courtyard facing the wall and their passports were collected . The servicemen read out the names in the passports CARDINAL by CARDINAL . CARDINAL of the applicant ’s brothers , ORG , was not at home TIME and the men asked about his whereabouts . The applicant ’s father Salaudi ( also spelled ORG ) PERSON replied that he was not at home . The intruders hit the applicant ’s other brother , PERSON ( born in DATE ) , with a rifle butt on the head and led the applicant ’s father away . They then forced the women into one of the rooms . In the meantime others opened all the rooms in the house and searched them . They collected valuables and family photographs .", "Once the armed men had left , the women went outside and found GPE in the courtyard . The body of the applicant ’s father was found QUANTITY from the house . He had been shot in the back of the head with an automatic rifle .", "On TIME and in similar circumstances CARDINAL other persons were killed in NORP : PERSON ( aged DATE ) , PERSON ( who was born in DATE ) , PERSON ( aged DATE ) and PERSON ( aged DATE ) .", "The applicant submitted that on DATE the NORP television news had announced that several persons , including the applicant ’s father , had been killed TIME in NORP by religious extremists – the “ wahhabists ” .", "The Government submitted that in TIME of CARDINAL September CARDINAL a group of unidentified persons armed with automatic weapons had entered the village of GPE NORP and murdered CARDINAL men , all of whom had been shot with automatic weapons . The Government stressed that all the persons killed had been loyal to the federal authorities , and openly expressed their negative opinion of “ wahhabists . ” The Government also stressed that CARDINAL of the persons killed was the son of a police officer from ORG . They submitted that there was no reason to suspect that the killings had been committed by ORG agents .", "The applicant submitted that on DATE the family had been preparing for PERSON funeral when they learnt that there were investigators present at the crime scene . The applicant ’s younger brother PERSON had gone to see them . He had taken along cartridges he had found near his father ’s body DATE from a Kalashnikov QUANTITY automatic rifle and CARDINAL from a QUANTITY pistol .", "At the place where his father ’s body had been found the applicant ’s brother saw a group of servicemen surrounded by villagers . He inquired who was the most senior and gave him the cartridges . The officers stated that they had come from ORG . The applicant ’s brother had tried to explain that he was the son of the person killed and a witness of the crime , and that other members of the family were at home preparing the body for burial . As the officers did not seem to be interested in his statements , he had tried to obtain their names and ranks . In response one of the officers had rudely asked if he also wanted to know his home address in GPE . The officers had shouted at him and the other villagers , and had ordered them to disperse and made threats . They had not visited their house . None of the family members were questioned DATE or later about the circumstances of the murders , nor had anyone come to their house to take pictures of the body or to collect other relevant evidence .", "The applicant said that his father had been buried on DATE at the village cemetery . The family members had not contacted a doctor or taken pictures of the body before the burial . Nor had they contacted any representatives of the military or investigative bodies , as they considered this to be a waste of time in view of the ORG attitude . They were never contacted by the authorities in relation to the murder .", "The Government submitted that on DATE , immediately following the receipt of news of the murders in PERSON , a group of investigators had arrived in the village and taken immediate action . They had submitted copies of documents that had been drawn up by the investigators on DATE , including descriptions of the scenes of the murders and of the bodies , including that of PERSON . The team had also collected cartridges and bullets ( see paragraphs CARDINAL and CARDINAL below ) . The Government denied that the investigators had ever mistreated the relatives of the victims and noted that the case file contained no complaints from the victims or anyone else of reprehensible conduct on the part of the officers of the law - enforcement bodies .", "On DATE ORG opened a criminal investigation into the murders of CARDINAL men in GPE NORP under LAW of LAW ( the provision applicable to multiple murders ) . The investigation was assigned case file no . DATE .", "On DATE the acting LOC prosecutor informed the prosecutor of GPE about the events and the action that had been taken by his office in the aftermath of the murders . His note referred to the information collected in PERSON , including the examination of the scenes of the crime and of the bodies and to the cartridges and bullets that had been collected . It concluded by saying , on the basis of the statements of the local residents , that the crime had probably been committed by illegal armed groups .", "On DATE ORG issued a death certificate for ORG , who had been born in DATE . Death was recorded as having occurred on DATE in GPE .", "At DATE the applicant wrote to ORG for Human Rights , complaining of the murder of his father and other persons in GPE NORP and of the absence of an investigation . In a reply dated DATE the Commissioner for Human Rights expressed his sympathy and promised to raise the issue with the Special Envoy of the NORP President in GPE for Rights and Freedoms , PERSON , at a meeting which was due to take place DATE .", "On DATE the investigation was adjourned because the killers could not be identified . It does not appear that anyone was granted victim status in the proceedings at that time or that information about the adjournment was communicated to the ORG relatives .", "On DATE the investigation was resumed . ORG ordered a number of steps to be taken , in particular eye - witnesses and other witnesses were to be questioned , victim status was to be granted to the relatives of those killed , information concerning the personalities of the deceased was to be collected and forensic and ballistic tests were to be carried out .", "On DATE the investigation was adjourned . It does not appear that any investigative activity took place DATE .", "In DATE the present application was communicated to ORG .", "On DATE the investigation was resumed pursuant to an order of ORG . The order contained criticism of the investigation that had been carried out up to that point and referred to a number of basic investigative steps that needed to be taken ( see paragraph DATE below ) .", "NORP In DATE the relatives of the CARDINAL men who had been killed in GPE NORP on DATE were questioned and granted victim status . According to the Government , they stated that their relatives had been killed in TIME of CARDINAL September CARDINAL by unknown armed men wearing masks . They did not have any suspicions as to the identity of the killers . The Government referred to their statements , but did not submit any copies . They also referred to undated statements of other residents of PERSON , who likewise did not possess any information about the identity of the killers .", "The Government further submitted that in DATE a certain PERSON had been charged with participating in an illegal armed group and involvement in the murder of Mr NORP on the night of QUANTITY September CARDINAL . Later PERSON retracted his statements in this regard , alleging that they had been made under duress . In DATE the charges relating in part to his involvement in the murders on DATE were dropped . The investigation of the charges against PERSON was at some point joined with the investigation of the QUANTITY murders , but after the charges against him were dropped , the cases were separated ( see paragraphs CARDINAL below ) .", "The Government added that the investigation into the murders committed in GPE on DATE had been adjourned and reopened on CARDINAL occasions .", "In their observations , the ORG also stated that the relatives of PERSON had not been interviewed or been granted victim status in the proceedings in view of their departure from GPE . In DATE the investigation questioned and granted victim status to Mrs. PERSON , PERSON daughter - in - law . She stated that she had been in PERSON at the relevant time but had no additional information about the circumstances of the crime .", "The Government added that the investigation had failed to establish the identity of the culprits and no one had been charged with the crime . However , the implication of servicemen or representatives of other ORG authorities had not been established . The investigation had focused on the main theory that the murders had been committed by members of illegal armed groups in order to intimidate the civilian population and to destabilise the district , especially as one of the persons killed was the son of a police officer from ORG .", "Following the ORG ’s decision on admissibility in DATE and a request to produce documents from the investigation file , the Government submitted CARDINAL pages of documents from the case file , which contained CARDINAL pages . The documents are summarised below in Part B , and , in addition to the initial documents drawn up on DATE , contained the prosecutor ’s decisions to adjourn and reopen the investigation and papers relating to the charges against PERSON on the information obtained from ORG , the Government observed that the investigation was in progress and that disclosure of the documents would violate LAW , since the file contained information of a military nature and personal data concerning the witnesses . However , they agreed to produce several documents whose “ disclosure did not contravene the requirements of LAW ” .", "The applicant ’s relatives stated that on DATE CARDINAL armoured personnel carriers ( APCs ) and CARDINAL LOC truck with soldiers had arrived at their family home . The applicant ’s CARDINAL brothers , ORG and GPE , had run away through the backyard when they heard the vehicles approaching . The applicant ’s mother had remained in the house with her daughters and daughters - in - law .", "According to the applicant ’s mother , servicemen wearing masks had entered the house , asked the women about the whereabouts of the men , and then asked if anyone had complained “ to LOC ” . They had also asked them about electronic equipment found in the house and whether they had any weapons or money . The applicant also alleged that the military had taken a number of valuables from the house . The neighbours had later told the PERSON family that the hull and registration numbers of the APCs and the NORP truck were covered with mud and that they had not been allowed to get sufficiently close to note them down .", "The raid on the PERSON house on DATE had been reported by ORG in their DATE monitor of human - rights violations in GPE . In DATE the applicant had again written to ORG , to inform him that pressure was being exerted on his family .", "Early in the morning of DATE the applicant ’s family ’s house had again been searched by servicemen . After that the applicant ’s remaining family had left the house , as they feared for their lives and security and did not trust the NORP authorities any more .", "The applicant presented his mother ’s written account of these events , countersigned by her and her other children who had been living with her at that time .", "NORP In DATE ORG published an open letter from the residents of GPE NORP to Mr PERSON , a member of ORG . The letter , which was signed by the head of the village council and CARDINAL villagers , complained of several “ mopping - up ” operations in the village in DATE , including on DATE , when the PERSON family home was raided . The letter further listed CARDINAL inhabitants of the village who had lost their lives since DATE , among them the applicant ’s father and CARDINAL other men , who had been killed on TIME CARDINAL September CARDINAL by unknown persons wearing camouflage uniforms and masks and speaking NORP .", "In DATE the applicants’ remaining family left GPE and sought asylum abroad .", "The Government denied that there was any information to suggest that the members of the applicant ’s family had been ill - treated or that their homes had been searched or their possessions confiscated .", "In DATE the Government informed ORG progress of the investigation and produced several documents from the case file . Altogether , they produced CARDINAL documents running to CARDINAL pages from the file , which , as can be ascertained from the page numbering , comprised CARDINAL pages . Below is a summary of the documents concerned .", "On DATE the investigative group of ORG compiled a report on the scene of the crime . The CARDINAL - page handwritten document contained a description of each individual site where the killings had been carried out , a brief description of the bodies of the victims and a list of the cartridges and bullets that had been collected at the sites , some of which bore production numbers . In relation to the applicant ’s father the report read : “ the body of PERSON was examined in his house . The body bears CARDINAL gunshot wounds to the dorsum and CARDINAL to the head : CARDINAL to the back of the head and CARDINAL to the right temple area . ”", "On DATE the LOC acting prosecutor drew up the following account of the events for ORG :", "“ At TIME on CARDINAL September CARDINAL ORG was informed by ORG of the ORG ( ORG ) of the murder of CARDINAL inhabitants of GPE NORP . Following this message , at TIME a group of [ investigators of the district prosecutor ’s office and the ORG ] set out to the scene of the crime . There , a number of operative and immediate investigative steps were taken , as a result of which it was possible to establish the following .", "On TIME DATE , at TIME , a group of persons using a number of vehicles ( probably including a grey NORP car without number plates ) had burst into the village . The group was composed of CARDINAL persons wearing new camouflage uniforms of a green - yellow colour and armed with automatic weapons , hand - pistols and knives . TIME the group murdered CARDINAL inhabitants of the village ; CARDINAL person was wounded and a NORP car was damaged by gunfire .", "PERSON , who was born in DATE in GPE NORP and was of NORP ethnic origin and disabled , was taken out of his house at CARDINAL FAC and shot dead in the street , QUANTITY from his home . The body bears gunshot wounds to the head ( CARDINAL ) and back ( CARDINAL ) and a knife wound to the chest .", "PERSON , who was born on CARDINAL in ORG and was of NORP ethnic origin and unemployed , was killed in his house at FAC , in the presence of his parents . The body bears gunshot wounds to the head ( CARDINAL ) , back and legs ( CARDINAL ) .", "PERSON , who was born on CARDINAL in the village of PERSON and was of NORP ethnic origin and unemployed , was taken out of his house at LOC by the assailants and killed in the courtyard of the house at LOC . The body bears injuries from blunt instruments to the head , gunshot wounds to the chest and abdomen ( CARDINAL ) .", "Elmurzayev PERSON ( son of PERSON ) , who was born on CARDINAL in GPE NORP and was of NORP ethnic origin and disabled , was killed in his house at LOC . The body bears gunshot wounds to the neck ( CARDINAL ) and chest ( CARDINAL ) .", "PERSON , who was born in DATE in GPE NORP and was of NORP ethnic origin , lived in his house at LOC . He was taken out of his house by the assailants and killed in FAC , QUANTITY away . The body bears gunshot wounds to the back ( CARDINAL ) and head ( CARDINAL ) .", "The same armed persons also attacked Moldy [ M. ] , who was at his home at CARDINAL FAC . He received gunshot wounds to both legs and the abdomen . However , he managed to escape from his assailants and his neighbours immediately took him to hospital in a LOC car , where he received first aid . While [ M. ] was being driven to the hospital , the vehicle [ he was travelling in ] was shot at and damaged .", "After the assault the criminals left PERSON in an unknown direction .", "As the statements of the witnesses show , the criminals used automatic weapons ( AK , ORG ) , hand pistols ( TIME ) and knives . The firearms were equipped with silencers . Attempts from fellow villagers to intervene were cut off by threats and shots fired in the air . Between themselves the criminals spoke LANGUAGE , some with a NORP accent . They did not make any demands of the victims or take any property . They acted in a coordinated way , according to a plan , with remarkable audacity and cynicism . The murders were committed in the presence of relatives and fellow villagers .", "The victims had no family , personal or business connections with or dependencies on each other . They did not participate in political or public life . There is no information concerning their possible involvement with illegal armed groups .", "During the on - site inspection each of the places where the victims were killed was examined , as were the sites where [ Mr M. ] was attacked and the NORP car shot at . The investigators took a large number of photographs of the relevant spots and traces of blood and collected a number of cartridges and bullets ( QUANTITY , CARDINAL,CARDINAL DATE that is to say AKS-CARDINALU and ORG accordingly , QUANTITY ) .", "On DATE ORG opened criminal investigation file no . DATE under LAW part CARDINAL ( a ) of LAW . ...", "The main theory of the investigators is that the crime was committed by members of illegal armed groups in order to scare the local population and to destabilize the situation in LOC , in order to provoke a conflict between the population and the acting federal authorities . The investigators are also looking at other possible explanations .", "It should further be noted that the crime has been widely reported and prompted an outcry by a large section of the public . It has given rise to antagonism on the part of the population of NORP towards the law - enforcement authorities and allowed them to disparage the work of the law - enforcement bodies and the federal authorities in general . The villagers are certain that the crimes were committed by members of illegal armed groups . The investigative team who came to PERSON on DATE were criticised by the local residents who said that the federal authorities and law - enforcement bodies were unable to protect them against criminal attacks by illegal armed groups ; as an example of this they referred to the events of CARDINAL DATE . ”", "On DATE the investigation was adjourned because the identity of the killers could not be established .", "On DATE the investigation was resumed . ORG ordered a number of steps to be taken , in particular that eye - witnesses and other witnesses be questioned , victim status be granted to the GPE relatives , information concerning the personalities of the deceased be collected , and forensic and ballistic expert reports carried out .", "On DATE the investigation was adjourned . It does not appear that this information was conveyed to anyone outside ORG .", "DATE . On DATE the investigation was resumed pursuant to an order of ORG . The order noted that CARDINAL Moldy M. , who had been wounded on DATE , had not been questioned . The district prosecutor stated that he should be questioned and granted victim status in the proceedings and that a medical expert report should be ordered . Furthermore , the investigating authorities were to collect statements from relatives of the CARDINAL men who had been killed and to accord them victim status . They were also to question neighbours , police officers and local public officials about the personalities of the victims and the circumstances of the crime . They were instructed to make an official inventory of the real evidence pertaining to the case , notably the bullets and cartridges , and to obtain the results of a ballistic expert ’s report , which had apparently been commissioned in DATE .", "In DATE LOC extended the term of the investigation for DATE . He noted that a number of procedural steps had been carried out in the meantime , in particular , Mr PERSON had been questioned and , he and the relatives of the QUANTITY persons killed had been granted victim status in the proceedings . Witness statements had been collected from villagers , police officers and local officials in GPE NORP . A number of expert reports had been commissioned and in some cases the results had already been obtained . However , a number of other investigative actions were still pending and therefore the term of the investigation was extended .", "On DATE a certain PERSON was arrested and charged with participation in an illegal armed group ( LAW part CARDINAL of LAW ) and murder committed by a group ( LAW part CARDINAL ( j ) ) .", "On DATE the acting deputy to ORG ordered the joinder of the proceedings in criminal investigation file no . DATE against PERSON and criminal investigation file no . DATE concerning the murder of QUANTITY persons in GPE NORP on DATE . The decision referred to a statement of DATE in which Mr PERSON had admitted his involvement in the murders . He stated that since DATE he had been a member of an illegal armed group , at that time headed by “ PERSON ” . In DATE , before becoming a full member of the gang , he had been asked by CARDINAL of its members to assist in “ settling the scores ” with the NORP local police inspector [ Mr GPE ] . It was thus established that the investigation concerned the same set of events and the proceedings were joined to case no . DATE .", "PERSON was questioned again on DATE and stated that in the evening of CARDINAL September CARDINAL he had been asked to keep watch outside the house of the police officer . He had heard shots fired inside the house . After TIME he saw that other members of the gang had brought an older man to the house and heard further shots being fired . The gang members later told him that they had not found the police inspector at home and had killed his son [ Zaur NORP ] in his bed because they had mistaken him for his father . He had later learnt that the gang members had killed several other persons in the village that night .", "On DATE Mr PERSON stated that he had made his statement under duress from the police officers who had arrested him and that he had not taken part in the killing of PERSON . His relatives testified that PERSON had been in ORG from DATE to DATE , together with the rest of the family . He had not been in GPE even for short periods prior to DATE . On DATE the murder charges were withdrawn . As a result , on DATE the CARDINAL criminal cases were again severed and the QUANTITY murders of CARDINAL September CARDINAL were reassigned to case file no . DATE . In DATE Mr PERSON was charged with participation in an illegal armed group , armed robbery , the illegal handling of arms and explosives and stealing identity documents .", "On DATE investigation no . DATE was adjourned . The victims were informed of that decision and of the possibility of an appeal .", "On DATE the investigation was resumed , before being further adjourned on DATE and reopened on DATE . The victims were informed ." ]

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

[ "2-1" ]

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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 , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant ran a contracting business dealing with excavation and drilling of wells for fresh water and geothermal heating . In DATE and DATE he purchased CARDINAL excavators , for which he obtained financing from CARDINAL credit institutions . According to the CARDINAL contracts for purchase by instalments , the excavators were to remain the property of the credit institutions until the full purchase price had been paid . The interest fixed in the contracts was CARDINAL and PERCENT , respectively .", "NORP In DATE , the applicant ’s contracting business went bankrupt . As a consequence , by a decision of ORG ( tingsrätten ) of PERSON of DATE , a third credit institution , which apparently had acquired title to the CARDINAL contracts mentioned above , claimed possession of the CARDINAL excavators . According to the applicant , the credit institution did not render any account to him concerning the further administration of the excavators but he learned much later that they had been sold to a buyer in the GPE , allegedly for a price much below their market value .", "Apparently , title to the CARDINAL contracts were later acquired by a fourth credit institution , ORG ( hereinafter “ NORP ” ) . In DATE , ORG applied to ORG ( kronofogdemyndigheten ) for a payment order ( betalningsföreläggande ) against the applicant . It claimed MONEY ( SEK ; corresponding to MONEY ( ORG ) ) in recovery of the debt and DATE interest on overdue payments of PERCENT . According to the applicant , neither that application nor ORG injunction to reply was served on him .", "By a decision of DATE , ORG issued a payment order , in accordance with ORG ’s application . The decision stated that the applicant had been served with the ORG ’s reply injunction but had failed to contest the bank ’s claim . According to the applicant , as with the application by ORG and the ORG ’s reply injunction , he did not receive the payment order . It appears , however , that the order was sent to his registered address at GPE . This address was not changed by the applicant although , after the bankruptcy , he bought a caravan , moved away from the house he had been renting and came to live , for DATE , at various temporary places . Allegedly , in DATE , he reported to the authorities that he lived in GPE .", "On DATE the applicant received from a debt - recovery company owned by ORG a claim for repayment of the debt , now amounting to SEK CARDINAL,CARDINAL plus SEK CARDINAL,CARDINAL,CARDINAL ( approximately EUR CARDINAL ) in accrued interest . Apparently without having received a reply from the applicant , ORG subsequently applied to ORG for enforcement of the DATE payment order .", "In a reply to the ORG dated DATE , the applicant contested the claim which , he asserted , was completely unknown to him and , in any event , statute - barred . He further stated that , if the case was not dismissed , he wished to see the original documents relating to the debt with his signature .", "By a decision of DATE , ORG dismissed ORG ’s claim . Basing itself on the incorrect assumption that the debt in question concerned a consumer credit – for which a DATE period of limitation applied , as opposed to DATE for a commercial credit DATE , the ORG found that the DATE payment order was no longer enforceable .", "Handelsbanken appealed to ORG . By a letter of DATE , the applicant ’s legal counsel requested that ORG be ordered to give information on how and when ORG ’s application for a payment order and the ORG ’s subsequent decision of DATE had been served on the applicant .", "DATE , ORG informed counsel for the applicant by telephone that the entire file had been destroyed , as DATE had passed since the DATE decision .", "On DATE ORG rejected ORG ’s appeal against ORG decision of DATE . The reasons were , however , different from those given by the ORG . ORG noted that , under sections CARDINAL and CARDINAL of LAW ( Preskriptionslagen , CARDINAL ) , the running of the period of limitations was interrupted by an application to a court or to ORG , such interruption , however , requiring additionally that the debtor had been served with the creditor ’s application . The court further stated that the burden to prove that such service had taken place rested with the creditor , in this case ORG , which had had the opportunity to secure evidence in this respect . Noting that the only proof of service that had been presented was the statement in the decision of DATE that the applicant had been served with the ORG ’s reply injunction , the court concluded that ORG had failed to show that the running of the period of limitation had been interrupted .", "Handelsbanken appealed to ORG ( PERSON hovrätt ) . Confident that the appellate court would find in his favour , the applicant stated , in a submission of DATE , that there seemed to be no reason to have an oral hearing since the case concerned “ a simple matter of law ” .", "Further on DATE the applicant instituted proceedings before ORG ( PERSON hovrätt ) , requesting that ORG decision of DATE be set aside due to a miscarriage of justice ( domvilla ) . He claimed that the decision had been taken without his having been duly served with the injunction to reply , in accordance with the provisions of LAW ( PERSON ) . He did not invoke any evidence .", "Handelsbanken argued in these proceedings that the payment order had been sent in the applicant ’s name to his registered address . In relation to the applicant ’s claim that he had not had any contact with ORG after the excavators had been reclaimed in DATE , ORG stated that it had sent letters by ordinary mail to the applicant on CARDINAL occasions DATE requesting him to pay the debt . Due to a special agreement with the postal service any letter not successfully delivered to the addressee would usually be returned , but none of the letters sent to the applicant had allegedly been returned . Furthermore , ORG had already applied for enforcement of the payment order in DATE but had been informed by ORG , in a report of CARDINAL DATE , that the applicant lacked attachable property . In the same report , the ORG stated that it had been in contact with the applicant during the course of the matter . Furthermore , ORG asserted that , according to a note made by the above - mentioned debt - recovery company , the applicant had called the company on DATE and asked for copies of “ everything ” . Consequently , ORG strongly doubted that the applicant , before receiving the application for enforcement on DATE , had been unaware of its claim and the payment order .", "The submissions of ORG were sent to the applicant but he did not submit any comments in reply .", "In the present proceedings before the ORG , the applicant claimed that after his bankruptcy he had not had any contact whatsoever with ORG until DATE when he received the application for enforcement of the payment order . He had felt that the ORG had caused him harm in the bankruptcy proceedings and had not wished to have any further contact with the ORG . He further rejected ORG ’s assertion that he had called the debt - recovery company in DATE . In any event , he asserted that such a contact could not have cured the failure in DATE to properly serve him with the injunction to reply in the payment order proceedings . These statements were , however , not submitted to ORG .", "By a decision of DATE , ORG rejected the applicant ’s request in regard to miscarriage of justice . The court first rejected ORG ’s objection that the case should be dismissed on the ground that the matter was already pending before ORG ( lis pendens ) . In so doing , it stressed that ORG case concerned the question whether the claim was statute - barred whereas the case before ORG determined whether any procedural error had been committed in the handling of the claim . With regard to the substance of the latter issue , the court noted that the decision of ORG stated that the applicant had been duly served and considered that there was no reason to question the accuracy of this statement . Consequently , there had not been any miscarriage of justice .", "On DATE ORG ( Högsta domstolen ) refused leave to appeal against the above decision of ORG .", "In the enforcement proceedings , pending before ORG , the applicant changed his view on the necessity of an oral hearing following the decision by ORG in the proceedings concerning miscarriage of justice . Thus , he asked ORG to hold a hearing , at which he wished to be heard about the service of documents in the case . The court , however , informed the parties that it found a hearing unnecessary . The applicant was given an opportunity to submit final observations in writing . He did so and , at the same time , reiterated his request for a hearing .", "By a decision of DATE , ORG reversed ORG decision of DATE . The appellate court interpreted the preparatory works ( prop . CARDINAL/CARDINAL:CARDINAL , p. CARDINAL et seq . ) of section CARDINAL , subsection CARDINAL of LAW ( ORG , CARDINAL ) and found that the requirement to serve the application for a payment order on the debtor in order to interrupt the running of the period of limitations did not apply to situations where the matter had been finalised with a decision by ORG . Instead , the requirement of service , contained in this rule of exception , was aimed at cases where a creditor applied for a payment order and then withdrew the claim before service had taken place , with the purpose of starting a new period of limitations . Consequently , in assessing the period of limitations in the present case , it was irrelevant whether the payment order had been properly served or not . That period should therefore be counted from DATE , the date of the ORG ’s decision . The court noted that it was undisputed that ORG ’s claim for enforcement had been introduced within DATE from DATE .", "ORG went on to examine the applicant ’s objection that the payment order had been issued under such circumstances that there were reasons to quash it . The court noted that a writ of execution could be quashed in enforcement proceedings only in highly exceptional situations . Noting that the applicant ’s objection had been examined in the case concerning miscarriage of justice and that that examination had not led to the order being quashed , the court found no reason to question the validity of the payment order as a writ of execution .", "The Court of Appeal therefore concluded that there were no impediments to the enforcement of the payment order and returned the matter to ORG for further processing .", "As questions concerning service of documents were of no relevance to the determination of the case , ORG further found that there was no reason to hold an oral hearing and , accordingly , refused the applicant ’s request in this respect .", "On DATE ORG refused the applicant leave to appeal against ORG decision of DATE .", "Chapter CARDINAL of LAW ( ORG ) contains provisions on execution titles . LAW provides the following on objections to enforcement :", "“ If the defendant shows that he has satisfied an obligation to pay or other obligation to which the application for enforcement relates , enforcement may not take place . This also applies if the defendant as a set - off invokes a claim that has been confirmed by an execution title which may be enforced or which is based on a promissory note or other written evidence of debt , and the general preconditions for set - offs are met .", "Nor may enforcement take place if the defendant claims that another circumstance relating to the dealings between the parties constitutes an impediment to enforcement and the objection can not be ignored .", "If a situation referred to in the first or second paragraph is at hand and a measure of enforcement has already been taken in the case , the measure shall be annulled , if this is possible .", "The decision of ORG by reason of an objection referred to in the first or second paragraph does not prevent the matter from being considered by a court . ”", "An objection based on a circumstance relating to the parties’ dealings may only concern the substantive judicial relationship between the parties , for instance that the person seeking enforcement has granted the defendant a respite for the payment , that they have agreed on a service in return for the payment or that the execution title has become statute - barred ( see PERSON , PERSON , PERSON , PERSON – en kommentar ( commentary to LAW ) , CARDINALrd edition ( DATE ) , pp . CARDINAL - CARDINAL ) .", "In a case where the defendant had claimed that a decision constituting an execution title was unlawful or at least incorrect , ORG , which dismissed the objection by a decision of DATE , stressed that the scope for rejecting an execution title in an enforcement case is extremely limited ( ORG DATE , p. CARDINAL ) . In a more recent decision , taken on DATE ( NJA DATE , p. CARDINAL ) , ORG expressed the following :", "“ A basic principle in cases of enforcement is that the enforcing authority has no right to examine anew issues that have been determined in the execution title . Upon appeal in enforcement cases , the courts’ powers are no wider than those of ORG .", "Accordingly , in so far as the courts’ determination is concerned , objections against an execution title , which refer to circumstances dating back to time before it was issued , can not be examined in the enforcement case . In respect of decisions taken by an administrative authority , it is likely that there is a somewhat wider scope for such objections , but then they would , as a rule , concern issues that have not been examined in the execution title . ”", "Section CARDINAL of LAW reads as follows :", "“ Where a limitation period is interrupted through the commencement of legal proceedings or otherwise through the pleading of a claim as stated in DATE , subsection CARDINAL , a new limitation period shall run in accordance with the provisions of section CARDINAL from DATE of the publication of a judgment or a final decision or from DATE on which the legal proceedings are concluded in any other way . Where , prior to the expiry of the new limitation period , the case is appealed or the proceedings are resumed for any other reason , the period of limitation is interrupted , and a new period of limitation shall run from DATE of the conclusion of the resumed proceedings .", "However , where the legal proceedings are concluded without the debtor having been served with , or otherwise informed of , the creditor ’s statement of claim , the period of limitation shall be calculated as if no interruption had occurred . The claim shall nevertheless not be barred by the expiry of the limitation period DATE after the conclusion of the proceedings .", "The period of limitation may no be extended more than once pursuant to the provisions of the second paragraph , second sentence . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE Mr. PERSON , the applicant ’s former husband , bought a state - owned apartment and a garage ( “ the property ” ) . By a deed of gift of DATE ( “ the DATE gift ” ) , Mr PERSON transferred CARDINAL of the property into the applicant ’s possession . The spouses divorced in DATE . By court decisions of DATE and DATE respectively , the DATE gift was rescinded .", "The present case concerns CARDINAL sets of proceedings concerning the property at issue .", "On DATE Mr PERSON and PERSON , Mr PERSON ’s parents ( “ the plaintiffs ” ) , brought a civil action against the applicant and Mr PERSON to establish their title to the property and to rescind the DATE gift . The plaintiffs alleged that they had transferred to their son the right to buy the property and that they had paid the price .", "Of CARDINAL hearings scheduled between CARDINAL DATE and DATE , none was rescheduled on the applicant ’s request .", "Sixteen hearings fixed between CARDINAL DATE and DATE were adjourned because of incorrect service of the court summons , late exchange of applications by the parties , belated submissions or the failure of the national authorities and the parties to respond to court orders in time . A hearing fixed for CARDINAL DATE was postponed due to the applicant ’s absence for work - related reasons .", "On DATE ORG upheld the plaintiffs’ claim and recognised their title to the property . It rescinded the DATE gift and declared that PERSON had the title to CARDINAL of the property . The court established that Mr PERSON had tenancy of the property since DATE and that the plaintiffs had authorised the defendants to buy the property under the condition of caring for them and living under the same roof . As the applicant had divorced her husband and ceased to live with the plaintiffs , the court held that the right to buy the apartment remained groundless and considered it as if it had not been established .", "On DATE ORG accepted an appeal by the applicant and remitted the case for a fresh consideration . It established that the lower court had not given sufficient reasons for its decision . It further ordered a stay of the proceedings pending assessment of the validity of the sale agreement of DATE , the subject of other proceedings .", "DATE and DATE the first - instance court listed CARDINAL hearings which were re - scheduled for similar reasons as those described in paragraph CARDINAL above . The applicant did not attend CARDINAL hearings . During this time , the applicant claimed title to CARDINAL fifths of the property , as a joint property acquired through marriage . She further proposed an out - of - court settlement on CARDINAL occasions and requested the court to expedite the proceedings .", "The proceedings resumed on DATE when a new judge was assigned to sit in the case . The court listed CARDINAL hearings until DATE . The proceedings are still pending before ORG .", "On DATE Mr PERSON requested annulment of a deed of gift of DATE ( “ the DATE gift ” ) under which the applicant had transferred into the possession of their CARDINAL daughters CARDINAL of the property . Referring to the annulment of the DATE contract , Mr PERSON claimed that the applicant had not been entitled to dispose of the property . On DATE Mr PERSON extended his claim against their daughters . On DATE , CARDINAL of the daughters , PERSON , came of age .", "On DATE ORG granted Mr ORG ’s action and annulled the DATE gift . It further ordered their daughters to restore the property into Mr PERSON ’s possession . Lastly , it ordered the applicant not to dispose of the property . The court established that the applicant had made the DATE gift while the proceedings regarding the DATE gift had been pending on appeal . It ruled that the applicant accordingly had known or ought to have known that she could not make the DATE gift while the proceedings in respect of the DATE gift were pending . It dismissed the applicant ’s objection that her lawyer had not been provided with explicit authority to represent PERSON In this respect , it held that the applicant had been her daughters’ statutory guardian and they all acted as a single party to the proceedings . The court concluded that they had not had conflicting interests , but that the applicant had acted on behalf of her daughters .", "On DATE ORG upheld the lower court ’s decision concerning the annulment order and injunction . It found no reasons to depart from the established facts and legal reasoning given by the lower court in respect of the deed of gift . It ruled , however , that the lower court had wrongly ordered the applicant ’s daughters to restore the property into Mr PERSON ’s possession . The applicant unsuccessfully requested the public prosecutor to lodge with ORG a request for the protection of legality .", "On DATE ORG Instance dismissed the remainder of Mr PERSON ’s claim .", "These proceedings ended on DATE when the first - instance court ’s decision concerning trial costs became final ." ]

[ "6" ]

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[ "Mr. PERSON , Mr. PERSON , Mr. PERSON and Mr. PERSON were born in DATE , DATE , DATE and DATE , respectively . The first of them resides in GPE , the second and third in GPE and the fourth in GPE . CARDINAL have , since various dates DATE , practised as accountants .", "ORG In DATE , each of the applicants applied to be registered as a certified accountant , in accordance with the transitional provisions contained in section CARDINAL of the Act of DATE regulating this profession ( see paragraphs CARDINAL and CARDINAL below ) .", "Each of them was asked by ORG ( see paragraph CARDINAL below ) to submit CARDINAL DATE accounts drawn up under his responsibility , and they were interviewed by ORG in the course of DATE . ORG finally rejected the applications , on DATE in the case of Mr. PERSON , on DATE in the cases of Mr. PERSON and Mr. PERSON , and on DATE in the case of Mr. PERSON .", "The applicants then appealed to ORG ( see paragraph CARDINAL below ) . They were again asked to submit accounts prepared by them and were interviewed by ORG in the course of DATE .", "A note concerning ORG proceedings was communicated to ORG , but not to the applicants .", "ORG dismissed the appeals on the ground that the ORG statements had been unsatisfactory on certain essential points and that their replies to questions did not show sufficient professional competence . It reached these decisions on DATE in the case of Mr. PERSON , on DATE in the cases of Mr. PERSON and Mr. PERSON , and on DATE in the case of Mr. PERSON .", "At the start of Mr. PERSON ’s interview , the chairman informed him that CARDINAL of the members of ORG was unable to attend the meeting . Mr. PERSON agreed nonetheless to the proceedings taking place ; the decision bore the signatures of all CARDINAL members .", "None of the applicants took his case to ORG as provided for under LAW . They considered that there was no point in doing so ; as evidence of this they cited a decision of DATE of ORG , which had declared an appeal against a decision of ORG inadmissible on the ground that ORG was a judicial body and could not be regarded as an administrative one .", "In DATE and DATE ORG passed CARDINAL Acts designed to regulate and delimit the profession of accountant , which until then had not been subject to any statutory control .", "The LAW of DATE CARDINALThe Act of DATE ( FAC ) lays down the standards of professional competence required of accountants practising on a large scale , who are called upon to audit company accounts with a view to issuing a certificate of accuracy ( verklaring van getrouwheid ) .", "The only statute directly relevant to the present case is LAW of DATE ( ORG - administratie - consulenten ) . It concerns those accountants who do not engage in the aforesaid activities and are not required to have so high a standard of competence - essentially accountants acting for small and medium - sized firms .", "Since DATE after the DATE Act came into force ( DATE ) - the position has been that the only persons entitled to call themselves accountants are those covered by LAW , certified accountants and persons working as accountants in the public service ( section CARDINAL(CARDINAL ) of LAW , read in conjunction with section CARDINAL ) and section CARDINAL ) . Anyone wrongfully using the title is liable to criminal penalties and disciplinary proceedings .", "Application for registration as a certified accountant is made to ORG ( commissie voor de inschrijving ) , whose decisions are subject to appeal to ORG ( commissie van beroep ; see paragraph CARDINAL below ) .", "Applicants must hold one of the CARDINAL diplomas specified in the LAW or another qualification which , in the view of the Minister for Economic Affairs , denotes similar professional competence ( section CARDINAL ) .", "However , transitional provisions contained in CARDINAL also permit the registration of persons who had been engaged in professional accountancy work to an extent and in a manner evidencing adequate professional competence", "- either for CARDINAL of DATE immediately DATE ( section CARDINAL(CARDINAL)(a ) ) ;", "- or , as regards holders of CARDINAL of the diplomas or qualifications specified in section CARDINAL(CARDINAL)(b ) , for DATE immediately preceding DATE .", "Section CARDINAL(CARDINAL ) provides that the work in question consists of organising effective management , assessing management effectiveness , drawing up DATE accounts , preparing explanatory reports analysing and interpreting data supplied by management and giving advice accordingly .", "Under section CARDINAL anyone wishing , like the applicants , to take advantage of the transitional provisions must apply to ORG ( commissie voor de toelating ) , a body established to determine whether a person satisfies the requirements of section CARDINAL .", "After consulting the Minister of ORG and ORG and the Minister for ORG , the Minister for ORG decides the size of the Board , appoints the members and designates the chairman and the vice - chairman or vice - chairmen .", "ORG , which may sit in chambers of CARDINAL or more members , may hear the applicant ( section CARDINAL(CARDINAL ) ) . He has the option of being assisted by an adviser and , unless the ORG decides otherwise , of being represented at the hearing ( section ORG ) ) .", "An unfavourable decision may be taken only after the applicant has been heard or at least invited by registered letter to appear before the ORG ( section CARDINAL ) ) . Reasons must be given for any such decision and it must be notified to the applicant by registered mail ( section CARDINAL ) ) .", "ORG hears appeals against unfavourable decisions of ORG ( section CARDINAL ) and ORG . It is composed of CARDINAL members and CARDINAL substitutes . CARDINAL of each must be eligible for appointment as a district court judge and exercise , or have exercised , judicial functions , but they may not be , or have been , accountants ( section CARDINAL ) ) ; the other CARDINAL members and substitutes must be accountancy experts .", "The members are bound by professional secrecy ( section CARDINAL ) . After consulting the Minister of ORG , the Minister for ORG appoints them and designates the chairman and vice - chairman .", "Before giving its decision , ORG must hear the appellant or invite him by registered letter to appear before it ( sections CARDINAL ) and CARDINAL(CARDINAL ) ) . It may obtain information from ORG of first instance and hear third persons ( section DATE ) .", "Unless the ORG decides otherwise , the appellant may be assisted by a lawyer or represented at the hearing ; the ORG may also refuse to allow him to be represented or assisted by a person who is not a lawyer ( section CARDINAL ) , read in conjunction with section CARDINAL ) and ( CARDINAL ) ) .", "ORG must give reasons for its decision and notify the decision and reasons to the appellant and to ORG of first instance ( sections CARDINAL ) and CARDINAL ) ) ." ]

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[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the Court by Mr P. PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) are represented by their Agent , Mr PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant , a former customs officer , was charged with accepting a bribe from another customs officer , P.D. , in DATE .", "On DATE P.D. was convicted by ORG of , inter alia , offering a bribe to the applicant in DATE . The court was composed of Judge PERSON , and CARDINAL lay judges , PERSON and C.J.", "Subsequently , on DATE , the same court , in the same composition , convicted the applicant of accepting the same bribe from ORG", "On an unspecified date the applicant ’s lawyer appealed against the firstinstance judgment . In his appeal he did not raise a complaint regarding the composition of the court .", "On DATE ORG adopted a resolution and held that in circumstances such as those in the present case , where evidence which had constituted the basis for the conviction of one of the perpetrators of a crime was also to be the basis for the conviction of another perpetrator of the same offence , the judge who had examined the evidence against the convicted perpetrator should be withdrawn from examining the cases against the remaining perpetrators ( see “ Relevant domestic law and practice ” below ) .", "On DATE the applicant ’s lawyer sent a letter to the secondinstance court and , relying on ORG resolution of CARDINAL DATE submitted that the judges who had convicted the applicant should have been withdrawn from the proceedings . He furtheredings ( “ the LAW ” ) ( see below ) .", "On DATE ORG dismissed the appeal and upheld the first - instance judgment . It admitted that the CARDINAL judges should not have examined the applicant ’s case . However , it found that the complaint had not been raised in the appeal and therefore could not be taken into account as CARDINAL of the bases of the appeal . It also considered that the shortcoming in the proceedings before the first - instance court did not constitute one of the specific grounds for appeal referred to in LAW of the LAW , which the court of appeal had to take into account ex officio . ORG further noted that the only way to amend the first - instance judgment was to apply LAW ; however , it found no grounds to do so .", "Article CARDINAL § CARDINAL of the LAW provides as follows :", "“ A judge shall be withdrawn from the examination of a case if there are circumstances which may give rise to justified doubts as to his or her impartiality in a particular case . ”", "Article CARDINAL of the Code provides as follows :", "“ If upholding a first - instance judgment would be manifestly unjustified , the judgment shall be amended in favour of the accused person or quashed , notwithstanding the complaints raised in an appeal . ”", "Article CARDINAL of the Code provides as follows :", "“ The appellate court shall examine the case within the framework of an appeal . It shall examine the case beyond the framework of an appeal if it is provided for by law . ”", "Article CARDINAL of the Code , in so far as relevant , provides as follows :", "“ Irrespective of the framework of an appeal , the complaints raised and the influence of a shortcoming on the contents of a decision , the appellate court shall quash the challenged decision if :", "( CARDINAL ) the decision was issued by or with the participation of a judge who should have been withdrawn pursuant to LAW ( ... ) . ”", "On DATE ORG adopted a resolution in which it stated as follows :", "“ If evidence which has constituted the basis for the conviction of CARDINAL of the perpetrators of a crime is also to be the basis for the conviction of another perpetrator of the same offence , the judge who examined the evidence against the convicted perpetrator should be withdrawn from examining the cases against the remaining perpetrators , on account of a justified suspicion regarding his or her impartiality within the meaning of LAW . ”" ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "In DATE the applicant noticed a lump on her neck and went to ORG . After a general examination she was diagnosed with a noncancerous salivary gland tumor . In DATE she underwent a surgery . Only after her operation were the relevant tests carried out , which proved the malignant nature of her tumor . Subsequently , the applicant turned to another hospital , in GPE , where she underwent a second operation . This additional surgery has led to serious complications such as jaundice and post - traumatic stress disorder .", "On DATE the applicant initiated before ORG ( Sąd Rejonowy w Lublinie ) civil proceedings for compensation against ORG represented by ORG . She claimed that she was a victim of medical malpractice because of the errors committed while making the diagnosis and during the first surgery which led to additional surgery and caused enormous suffering and general deterioration of her health .", "On DATE the applicant was partly exempted from the courtfees .", "On DATE the trial court held a first hearing .", "DATE and DATE CARDINAL hearings were held . The trial court heard witnesses and the applicant , and ordered preparation of expert opinions .", "In DATE and DATE CARDINAL expert opinions prepared by ORG were submitted to the court .", "DATE and DATE no hearings were held .", "At the hearings held on DATE and DATE the court ordered CARDINAL additional expert medical opinions .", "On DATE the court , sitting in camera , dismissed the parties’ applications for another expert opinion because they had failed to pay the costs of the opinion .", "At the hearing held on DATE the court allowed the parties’ application for an additional expert opinion .", "On DATE the opinion was submitted to the court .", "Subsequently , the trial court held hearings on DATE and DATE .", "In DATE the trial court held in total CARDINAL hearings and on DATE it gave judgment . It awarded the applicant ORG CARDINAL in compensation and dismissed the remaining part of her action .", "Both parties appealed against the judgment .", "On DATE ORG ( Sąd Wojewódzki ) held a hearing and on DATE it gave judgment . The court quashed the firstinstance judgment and remitted the case to ORG .", "On DATE the trial court held the first hearing at which the applicant changed the value of her claim . In consequence , the case was transferred to ORG .", "Subsequently , hearings were held on DATE and DATE .", "On DATE the trial court , sitting in camera , decided that in view of the changes in the law on the administrative organisation of GPE the Lublin Governor would represent ORG .", "On DATE the applicant further extended her action . She requested ORG CARDINAL,CARDINAL as compensation for non - pecuniary and pecuniary damage .", "On DATE the trial court , sitting in camera , ordered CARDINAL medical expert opinions . The court also exempted the applicant from the courtfees for the extended value of her claim .", "On DATE , DATE and DATE the court held hearings .", "On DATE the ORG gave judgment . It awarded the applicant ORG for non - pecuniary damage and ORG CARDINAL for pecuniary damage . The court found , inter alia , that the surgery carried out in ORG did not satisfy the requirements of diligent medical care ( niezgodna z zasadami sztuki lekarskiej ) and was done without the obligatory consent of the applicant . The malpractice during the surgery had to be remedied by the second , additional , operation which resulted in unnecessary physical and psychological suffering on the part of the applicant and prolonged the period of insecurity about the final diagnosis of her life - threatening illness .", "The parties did not appeal against this judgment and it became final ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "In DATE , the applicant arrived in GPE from GPE and sought political asylum . She was initially provided with accommodation by the social services department of GPE and ORG ( “ the NORP ” ) . On DATE , the applicant moved into accommodation owned by a housing association . A member of the housing association 's staff assisted the applicant to complete her application for housing and council tax benefit which was submitted to the ORG in DATE . This application was successful .", "The applicant was required by law to renew her application for housing and council tax benefit on an DATE basis . Because of her lack of familiarity with the benefits system and her poor LANGUAGE , the applicant failed to submit a benefit renewal form to the ORG by the required time . In DATE , the applicant received correspondence from the housing association about her rent arrears . As the applicant did not understand the correspondence , she sought assistance from the ORG 's advice office . After obtaining this advice the applicant realised that her housing and council tax benefit had ceased . She therefore submitted a prospective claim as well as a backdated claim for both types of benefit to DATE .", "NORP The prospective claim was successful and the applicant began to receive housing benefit again from DATE , but on CARDINAL DATE the ORG rejected the application for backdated benefit because the applicant had failed to show “ good cause ” why she had not claimed the benefits earlier .", "During the period from DATE to CARDINAL DATE the applicant lost housing benefit of GBP MONEY , and since her rent in any event exceeded the benefit to which she had been entitled , her rent arrears amounted to GBP CARDINAL . The housing association commenced possession proceedings , seeking the applicant 's eviction for non - payment of rent , and the ORG also brought proceedings based on the applicant 's failure to pay council tax of ORG CARDINAL for DATE . On DATE a court order was made allowing the ORG to deduct GBP CARDINAL per week from the applicant 's income support of GBP CARDINAL .", "On DATE , the applicant 's legal advisers wrote to the ORG requesting that they reconsider their refusal . However , by letter dated DATE , the ORG informed the applicant that they were upholding their initial decision to refuse council tax and housing benefits .", "The applicant appealed . The case was heard on DATE by GPE and ORG ( “ the NORP ” ) . The ORG consisted of CARDINAL Councillors from the ORG . It was advised by a barrister from the ORG 's legal department . The applicant was represented by ORG and the ORG was represented by a ORG benefits officer . The ORG rejected the applicant 's appeal , finding that the applicant must have received some correspondence from the local authority during the period from DATE to CARDINAL DATE concerning the council tax she owed , although no such correspondence was produced to it .", "On DATE the housing association 's possession proceedings against the applicant concluded with a court order requiring her to pay off the rent arrears at GBP CARDINAL DATE ( in addition to the GBP CARDINAL per week for council tax arrears ) .", "On DATE , the applicant sought judicial review of the ORG 's decision . She complained that the ORG had acted unlawfully because it had failed to make adequate findings of fact or provide sufficient reasons for its decision . The applicant also alleged that the ORG was not an “ independent and impartial ” tribunal under LAW .", "On DATE , ORG dismissed the applicant 's application for leave to apply for judicial review on the grounds that the LAW had not yet been incorporated into LANGUAGE law , and further dismissed the application on the merits , on the grounds that the ORG 's decision was neither unreasonable nor irrational . The applicant was unable to appeal because legal aid was refused . The applicant subsequently obtained Counsel 's opinion that the appeal had no prospects of success .", "Housing benefit ( “ HB ” ) is a means - tested benefit payable towards housing costs in rented accommodation . It is not dependent on or linked to the payment of contributions by the claimant .", "The HB scheme is administered by the local authority . Payments of HB are subsidised by central Government , normally to the extent of PERCENT , although where HB is paid as a result of a decision that the claimant had good cause for a late claim the subsidy is PERCENT .", "HB is awarded for “ benefit periods ” and entitlement for each period is dependent on a claim being made in time in accordance with the statutory rules . If a claimant makes a late claim , any entitlement to arrears of HB depends on the claimant establishing “ good cause ” for having missed the deadline . The case - law establishes that the concept of “ good cause ” involves an objective judgment as to whether this individual claimant , with his or her characteristics such as language and mental health , did what could reasonably have been expected of him or her .", "At the relevant time , a claim to housing benefit was first considered by officials employed by the local authority and working in the housing department . If the benefit was refused the claimant was entitled to a review of the decision , first by the local authority itself , then by a ORG , which comprised CARDINAL elected councillors from the local authority . Since DATE , HBRBs have been replaced by tribunals set up under LAW DATE .", "The procedure before the ORG was governed by ORG DATE . Regulation CARDINAL provided , as relevant :", "“ ( CARDINAL ) Subject to the provisions of these Regulations", "( a ) the procedure in connection with a further review shall be such as the Chairman of the ORG shall determine ;", "( b ) any person affected may make representations in writing in connection with the further review and such representations shall be considered by ORG ;", "( c ) at the hearing any affected person has the right to", "( i ) be heard , and may be accompanied and may be represented by another person whether that person is professionally qualified or not , and for the purposes of the proceedings at the hearing any representative shall have the rights and powers to which any person affected is entitled under these regulations ;", "( ii ) call persons to give evidence ;", "( iii ) put questions to any person who gives evidence ;", "( d ) ORG may call for , receive or hear representations and evidence from any person present as it considers appropriate . ”", "ORG Good Practice Guide provided , inter alia , that “ the general principle underlying the proceedings ” was the observance of natural justice . The ORG should “ be fair and be seen to be fair to all parties at all times ” . The ORG was “ in law , a separate body from the authority ” and “ independent ” . Before the hearing of a case checks were carried out to ensure that ORG Members “ have had no previous dealings with the case , and that they have no relationship with the claimant or any other person affected ” .", "In ORG judgment in NORP v. Secretary of ORG for the Environment , ex parte Holding and ORG , ORG and ORG , [ DATE ] ORG CARDINAL , ( “ GPE ” ) , Lord PERSON of GPE described the scope of judicial review as follows ( § DATE ) :", "“ It has long been established that if the Secretary of ORG misinterprets the legislation under which he purports to act , or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision , or reaches a perverse decision , the court may set his decision aside . Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross - examined , or for representations to be made or to take any step which fairness or natural justice requires , the court may interfere . The legality of the decision and the procedural steps must be subject to sufficient judicial control . ” ...", "Lord PERSON continued that he was further of the view that a court had power to quash an administrative decision for a misunderstanding or ignorance of an established and relevant fact ( § § CARDINAL of the judgment , and see also Lord PERSON at § CARDINAL , Lord PERSON at MONEY and Lord PERSON at § CARDINAL ) and , where human rights were in issue , on grounds of lack of proportionality .", "In Runa Begum ( ORG ) v. GPE of GPE [ DATE ] ORG CARDINAL ( see paragraph CARDINAL below ) , Lord PERSON of PERSON made it clear that a court on judicial review ( § § CARDINAL - CARDINAL ) :", "“ ... may not only quash the authority 's decision ... if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact ... It is plain that the ... judge may not make fresh findings of fact and must accept apparently tenable conclusions on credibility made on behalf of the authority ... . ”", "Since the coming into force of LAW , the NORP courts have considered on a number of occasions the extent to which judicial review can remedy defects of independence in a first instance administrative tribunal .", "In GPE ( cited above ) , ORG considered the procedure whereby the Secretary of ORG had the power himself to determine certain matters of planning and compulsory purchase , subject to judicial review . Following the ORG 's judgment in PERSON the GPE , no . CARDINAL , § § DATE , Series A no . CARDINAL-A , ORG held unanimously that since the decisions in question involved substantial considerations of policy and public interest it was acceptable , and indeed desirable , that they be made by a public official , accountable to ORG . Although the Secretary of ORG was not an independent and impartial tribunal , he ( or rather , his ORG 's decision - making process ) offered a number of procedural safeguards , such as an inspector 's inquiry with the opportunity for interested parties to be heard , and these safeguards , together with the availability of judicial review ( see paragraphs CARDINAL - CARDINAL above ) was sufficient to comply with the requirement for “ an independent and impartial tribunal ” in LAW .", "Lord PERSON explained the democratic principles underlying this approach as follows ( § § CARDINAL and DATE ) :", "“ In a democratic country , decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them . Sometimes the subject - matter is such that ORG can itself lay down general rules for enforcement by the courts . Taxation is a good example ; ORG decides on grounds of general interest what taxation is required and the rules according to which it should be levied . The application of those rules , to determine the liability of a particular person , is then a matter for independent and impartial tribunals such as the General or Special Commissioners or the courts . On the other hand , sometimes one can not formulate general rules and the question of what the general interest requires has to be determined on a case by case basis . Town and country planning or road construction , in which every decision is in some respects different , are archetypal examples . In such cases ORG may delegate the decision - making power to local democratically elected bodies or to ministers of the ORG responsible to ORG . In that way the democratic principle is preserved .", "... There is however another relevant principle which must exist in a NORP society . That is the rule of law . When ministers or officials make decisions affecting the rights of individuals , they must do so in accordance with the law . The legality of what they do must be subject to review by independent and impartial tribunals . This is reflected in the requirement in LAW No . CARDINAL that a taking of property must be ' subject to the conditions provided for by law ' . The principles of judicial review give effect to the rule of law . They ensure that administrative decisions will be taken rationally , in accordance with a fair procedure and within the powers conferred by ORG . ... ”", "ORG returned to these issues in PERSON ( cited above ) . The appellant had been offered a flat by the local authority , but considered it unsuitable for herself and her children because , she alleged , it was on a housing estate known for drugs and crime and in close proximity to a friend of her ex - husband . She requested a review of the local authority 's decision . The reviewing officer was a re - housing manager employed by the same local authority but who had not been involved in the original decision and who was senior to the original decision - maker . She found that there were no serious problems on the estate and that the relationship between PERSON and her husband was not such as to make it intolerable for them to risk meeting each other .", "It was accepted that the case involved the determination of civil rights and that the reviewing officer was not , in herself , an “ independent and impartial tribunal ” . ORG held unanimously that the existence of judicial review was sufficient in this context for the purposes of LAW . In reaching this conclusion , Lord PERSON of NORP considered CARDINAL matters as “ particularly pertinent ” : first , that the legislation in question was part of a far - reaching statutory scheme regulating the important social field of housing , where scarce resources had to be divided among many individuals in need ; secondly , that although the council had to decide a number of factual issues , these decisions were “ only staging posts on the way to the much broader judgments ” concerning local conditions and the availability of alternative accommodation , which the housing officer had the specialist knowledge and experience to make ; thirdly , the review procedure incorporated a number of safeguards to ensure that the reviewer came to the case with an open mind and took into account the applicant 's representations . Lord PERSON commented , generally , on the inter - relation between the LAW concept of “ civil rights ” and the requirement for an “ independent and impartial tribunal ” , that ( § CARDINAL ) :", "“ the narrower the interpretation given to ' civil rights ' , the greater the need to insist on review by a judicial tribunal exercising full powers . Conversely , the more elastic the interpretation given to ' civil rights ' , the more flexible must be the approach to the requirement of independent and impartial review if the emasculation ( by over - judicialisation ) of administrative welfare schemes is to be avoided . ... ”", "It was argued before ORG that when , as in GPE and GPE , the decision turned upon questions of policy or “ expediency ” , it was not necessary for the appellate court to be able to substitute its own opinion for that of the decision - maker ; that would be contrary to the principle of democratic accountability . However , where , as in PERSON , the decision turned upon a question of contested fact , it was necessary either that the appellate court should have full jurisdiction to review the facts or that the primary decision - making process should be attended with sufficient safeguards as to make it virtually judicial . In response , Lord PERSON ( § § DATE ) underlined that the fact - finding in PERSON had been closely analogous to a criminal trial , since the inspector 's decision that Mr PERSON had acted in breach of planning control would be binding on him in any subsequent criminal proceedings for failing to comply with the enforcement notice . Lord PERSON continued :", "“ A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions ( such as licensing or granting planning permission ) or administering schemes of social welfare such as [ housing the homeless ] . The rule of law rightly requires that certain decisions , of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights , should be entrusted to the judicial branch of government . This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators . Nor is the possibility of an appeal sufficient to compensate for lack of independence and impartiality on the part of the primary decision - maker ( see PERSON v. GPE [ judgment of DATE , Series A no . CARDINAL-B ] ) .", "But utilitarian considerations have their place when it comes to setting up , for example , schemes of regulation or social welfare . I said earlier that in determining the appropriate scope of judicial review of administrative action , regard must be had to democratic accountability , efficient administration and the sovereignty of ORG . This case raises no question of democratic accountability . ...", "On the other hand , efficient administration and the sovereignty of ORG are very relevant . ORG is entitled to take the view that it is not in the public interest that an excessive proportion of the funds available for a welfare scheme should be consumed in administration and legal disputes ... . ”", "Following ORG judgment in GPE , but before that in PERSON , ORG examined whether the ORG procedure at issue in the present application was compliant with LAW , in a case where the determination of the central issues of fact depended on an assessment whether the claimant was telling the truth : PERSON ( NORP on the application of ) v. ORG [ DATE ] EWHC Admin CARDINAL . The Secretary of ORG conceded that the ORG lacked the appearance of an independent and impartial tribunal . On the question whether judicial review proceedings were sufficient to remedy the problem , PERSON observed :", "“ There is however , in my judgment , CARDINAL insuperable difficulty . Unlike an inspector [ in a planning case ] , whose position was described by Lord PERSON [ in NORP v. Secretary of ORG for the Environment , ex parte Holding and ORG , ORG and ORG , [ DATE ] ORG CARDINAL ; [ DATE ] CARDINAL All ER CARDINAL : see Holding and ORG plc v. GPE DATE . ) , no . CARDINAL/CARDINAL , ORG DATE ] as independent , the same can not be said of a councillor who is directly connected to CARDINAL of the parties to the dispute , namely the ORG . The dispute was between the claimant and the ORG . The case against payment of benefit was presented by employee of the ORG and relied upon the statement of an official of ORG in the ORG 's Revenue office ) . ...", "The reasoning carefully set out by the ORG enables the court to ensure that there has been no material error of fact . Even in relation to a finding of fact , this court can exercise some control if it can be demonstrated that the facts found are not supported by the evidence . But , in that respect , the court can only exercise limited control . It can not substitute its own views as to the weight of the evidence ... In my judgment , the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of a [ planning ] inspector and ORG . The lack of independence may infect the independence of judgment in relation to the finding of primary fact in a manner which can not be adequately scrutinised or rectified by this court . CARDINAL of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute is that the extent to which a judgment of fact may be infected can not easily be , if at all , discerned . The influence of the connection may not be apparent from the terms of the decision which sets out the primary facts and the inferences drawn from those facts . ...", "Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear , cogent and supported by the evidence . This court can not cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts ; still less any power to weigh the evidence . Accordingly , I conclude that there has been no determination of the claimant 's entitlement to housing benefit by an independent and impartial tribunal . The level of review which this court can exercise does not replenish the want of independence in ORG , caused by its connection to a party in the dispute . ”", "The Secretary of ORG was granted leave to appeal against this judgment but , in the event , decided not to appeal .", "The PERSON judgment was approved and followed , after ORG judgment in PERSON , by ORG in NORP ( PERSON and another ) v. ORG [ DATE ] EWHC CARDINAL .", "In each of its DATE report CARDINAL , ORG ( a statutory advisory committee which reports to the Lord Chancellor ) recommended the abolition of the ORG system , because of concerns about lack of independence and the potential for injustice ." ]

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[ "The applicant was born in DATE . He is currently serving a prison sentence .", "On DATE the applicant was arrested . On DATE he was remanded in custody by ORG ( Sąd Rejonowy ) on suspicion that he had killed his mother . His pretrial detention was subsequently extended by ORG ( PERSON ) on DATE , by ORG ( Sąd Apelacyjny ) on DATE , by decisions of the ORG of DATE and CARDINAL DATE , and by decisions of ORG of DATE , CARDINAL DATE , CARDINAL July and CARDINAL DATE .", "The domestic courts justified the applicant ’s pretrial detention in its initial phase by the existence of strong evidence against him and the likelihood that a severe penalty would be imposed , as well as by the need to secure the proper course of the proceedings . During that time , an autopsy , a number of unspecified biological tests and an inspection of the crime scene were carried out . At the later stage of the applicant ’s detention , the authorities referred to the severity of the sentence likely to be imposed on him . In addition , they emphasised that the investigation could not be completed for reasons beyond the prosecutor ’s control , namely delays in obtaining expert reports and in viewing the applicant ’s testimony recorded on video tape .", "From DATE until DATE the applicant was concurrently serving a sentence of CARDINAL days’ imprisonment , imposed on an unspecified date by ORG in another criminal case .", "The applicant ’s minor sons and his wife were witnesses in the investigation . In DATE the prosecutor decided that a psychologist should be present when the younger son was to be interviewed by the prosecution . Apparently the older son was also interviewed by the prosecutor on an unspecified date . The applicant submitted that his wife and CARDINAL sons were not allowed , for an unspecified period , to communicate with him in writing or to visit him in prison . The prosecution relied on LAW ( see paragraph CARDINAL below ) .", "The applicant was indicted on DATE . In the proceedings before the first- and second - instance courts he was represented by a legal - aid lawyer .", "On DATE the ORG convicted the applicant of murder and sentenced him to CARDINAL years’ imprisonment .", "On DATE ORG upheld that judgment . A copy of the judgment was served on the applicant on DATE .", "On DATE ORG appointed a legalaid lawyer for the purposes of the cassation proceedings .", "A copy of the judgment of DATE was served on the legal - aid lawyer on DATE .", "By a letter of DATE the lawyer informed ORG that , in her opinion , a cassation appeal in the applicant ’s case lacked prospects of success and that she therefore refused to prepare and lodge one with ORG . By a letter of DATE ORG informed the applicant of the lawyer ’s refusal and , further , that no other legal - aid lawyer would be appointed for the purpose of lodging a cassation appeal in his case .", "The court ’s letter was served on the applicant by the prison administration on DATE .", "The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . GPE , § § CARDINAL , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE .", "Under LAW of DATE Criminal Procedure ( “ the Code ” ) , which entered into force on DATE , a party to criminal proceedings can lodge a cassation appeal with ORG against any final decision of an appellate court which had terminated criminal proceedings . The cassation appeal has to be lodged and signed by an advocate , on pain of being declared inadmissible . The relevant part of LAW provides :", "“ A cassation appeal may be lodged only on the grounds referred to in LAW [ these include a number of procedural irregularities , such as , for instance , incorrect composition of the trial court ; lack of legal assistance in cases where such assistance was compulsory ; breach of the rules governing jurisdiction in criminal matters ; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself , etc . ] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach . A cassation appeal shall not lie against the severity of the penalty imposed ( niewspółmierności kary ) . ”", "Pursuant to LAW , a cassation appeal has to be lodged with the appellate court competent to carry out an initial examination of its admissibility within DATE from the date of service of the judgment of the appellate court with its written grounds on the party or , if the party has been represented , on his or her lawyer .", "Under LAW of the LAW , an accused may appoint a lawyer to represent him or her in criminal proceedings . If he or she can not afford lawyers’ fees , a request for legal aid may be made under LAW of the Code .", "A grant of legal aid expires upon a judgment of an appellate court . A new decision on legal aid has to be made if the convicted person wishes to institute further proceedings in order to lodge a cassation appeal with ORG . The relevant part of LAW of the LAW provides :", "“ A defence counsel appointed under the legalaid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court , in writing , that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged , the defence counsel is entitled to represent the defendant in the subsequent proceedings . ”", "In its decision of CARDINAL DATE ( V ORG CARDINAL , OSNKW CARDINAL/CARDINAL/CARDINAL ) ORG stated that cassation proceedings had a special character in that the judgment essentially became final after it had been upheld by the appellate court . Bearing in mind the special character of these proceedings , the court was of the view that at this stage the mere fact that the convicted person was granted legal aid was sufficient to ensure an effective exercise of his or her defence rights . It was the lawyer ’s task to analyse the case and establish whether there were grounds on which to lodge a cassation appeal against the judgment of the appellate court . If the lawyer was of the opinion that there were no grounds on which to do so , there was no legal basis in LAW that would either oblige the lawyer to prepare such an appeal against his or her better judgment , or oblige the court to assign another lawyer to prepare such an appeal in the case .", "NORP In its decision of CARDINAL DATE ORG stated that the refusal of a legalaid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time ( V ORG CARDINAL/CARDINAL ) . It confirmed this ruling in a further decision of DATE . ORG observed that the court could only assign a new legal - aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success . If this were not the case , a court was not obliged to assign a new legal - aid lawyer to represent the convicted person and its refusal was not subject to appeal ( III KZ CARDINAL/CARDINAL ) .", "In a later decision of DATE ORG expressed the opinion that such negligence could be proved only in disciplinary proceedings instituted against a lawyer under the provisions of LAW ( V KZ CARDINAL/CARDINAL ) .", "In its decisions of CARDINAL DATE and DATE ORG expressed the view that when a legal - aid lawyer refused to represent a convicted person before ORG , the appellate court was not obliged to assign a new lawyer to the case ( II KZ CARDINAL/CARDINAL , II KZ CARDINAL/CARDINAL ) .", "On DATE ORG changed its previous position concerning the date from which the timelimit for lodging of a cassation appeal started to run ( see paragraph CARDINAL above ) . 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 the 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 the defendants adequate procedural guarantees of access to ORG within a reasonable time - frame ( II KZ CARDINAL/CARDINAL ) .", "Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) ( “ the DATE Code ” ) which entered into force on DATE .", "Article CARDINAL § CARDINAL reads as follows :", "“ Unless exceptions are provided for in the present LAW , a detainee shall enjoy at least the same rights as those secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison . No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings , to maintain order and security in a remand centre and to prevent demoralisation of detainees . ”", "Article CARDINAL § CARDINAL reads , in so far as relevant , as follows :", "“ ( ... ) detainee ’s correspondence shall be censored by [ the authority at whose disposal he remains ] , unless the authority decides otherwise . ”", "This provision further provides that a detainee is allowed to receive visitors , provided that he has obtained permission from the investigating prosecutor ( at the investigative stage ) or from the trial court ( once the trial has begun ) .", "On DATE the Rules of Detention on Remand ( ORG w sprawie regulaminu wykonywania tymczasowego aresztowania ) entered into force . Paragraph CARDINAL of the ORG provides :", "“ The detainee ’s correspondence ... is dispatched through the intermediary of the authority at whose disposal he remains . ”", "In DATE , the ORG adopted ORG ( the Basic Principles ) . They provide , in particular :", "“ CARDINAL . The duties of lawyers towards their clients shall include :", "( a ) Advising clients as to their legal rights and obligations , and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients ;", "( b ) Assisting clients in every appropriate way , and taking legal action to protect their interests ;", "( c ) Assisting clients before courts , tribunals or administrative authorities , where appropriate .", "Lawyers , in protecting the rights of their clients and in promoting the cause of justice , shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession .", "Lawyers shall always loyally respect the interests of their clients .", "A number of recommendations have been adopted by ORG with regard to access to justice and the provision of legal - aid services . In particular , Recommendation No . R ( CARDINAL ) CARDINAL on measures facilitating access to justice provides :", "“ CARDINAL . No litigant should be prevented from being assisted by a lawyer . The compulsory recourse of a party to the services of an unnecessary plurality of lawyers for the need of a particular case is to be avoided . Where , having regard to the nature of the matter involved , it would be desirable , in order to facilitate access to justice , for an individual to put his own case before the courts , then representation by a lawyer should not be compulsory . ”", "“ Recalling that in addition to the right of access to the law and to justice provided for in LAW , the other provisions of the LAW and particularly Articles CARDINAL , CARDINAL and DATE are equally applicable to the very poor , as are the other legal instruments of ORG such as LAW ;", "Considering that this recommendation is intended to improve , especially with regard to the very poor , existing legal advice and legal aid systems , and therefore to complement existing machinery with regard to the other categories of people for which the systems were designed .", "Recommends that the governments of member states :", "ORG access to the law for the very poor ( “ the right to the protection of the law ” ) by : ...", "b. promoting legal advice services for the very poor ; ...", "Facilitate effective access to the courts for the very poor , especially by the following means :", "c. recognising the right to be assisted by an appropriate counsel , as far as possible of one ’s choice , who will receive adequate remuneration ;", "e. simplifying the procedure for granting legal aid to the very poor , [ ... ] ”", "“ ORG , under the terms of Article CARDINAL.b of the Statue of the Council of Europe , [ ... ]", "Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms ; [ ... ]", "Considering that access to justice may require persons in an economically weak position to obtain the services of lawyers ,", "Recommends the governments of member PERSON to take or reinforce , as the case may be , all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation .", "All necessary measures should be taken to respect , protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public , in particular in the light of the relevant provisions of LAW .", "All necessary measures should be taken to ensure that all persons have effective access to legal services provided by independent lawyers ,", "Lawyers should be encouraged to provide legal services to persons in an economically weak position .", "Governments of member GPE should , where appropriate to ensure effective access to justice , ensure that effective legal services are available to persons in an economically weak position , in particular to persons deprived of their liberty .", "Lawyers’ duties towards their clients should not be affected by the fact that fees are paid wholly or in part from the public funds . ”", "On DATE ORG adopted an Interim Resolution concerning the judgments of ORG in CARDINAL cases against GPE relating to the excessive length of detention on remand ( “ the DATE Resolution ” ) . Noting that the number of cases in which ORG had found violations of LAW was constantly increasing , it concluded that this revealed a structural problem . A more detailed rendition of the DATE Resolution can be found in the ORG ’s judgment given in the case of ORG v. GPE ( see ORG v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ; not final ) .", "On DATE ORG Commissioner for Human Rights released a Memorandum to the NORP Government concerning , among other issues , the use of the detention measure in GPE , stressing that examples of cases brought to the ORG where pre - trial detention had lasted DATE were not uncommon . The Commissioner urged the NORP authorities to review the application and functioning of pre - trial detention in NORP law . A more detailed rendition of the relevant parts of the Memorandum can be found in the above mentioned ORG judgment ( see ORG v. GPE , cited above , § CARDINAL ) ." ]

[ "5", "6" ]

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

[ "6-3-c" ]

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[ "Mr LOC , an NORP journalist residing in GPE , was at the relevant time the editor of ORG .", "On DATE - during the parliamentary election campaign - it was reported in a television programme that Mr PERSON , then Secretary General of CARDINAL of the political parties which participated in the governing coalition , ORG ( ORG ) , had suggested that the family allowances for NORP women should be increased by PERCENT in order to obviate their seeking abortions for financial reasons , whilst those paid to immigrant mothers should be reduced to PERCENT of their current levels . He had justified his statement by saying that immigrant families were placed in a discriminatory position in other NORP countries as well .", "On DATE the applicant and several other persons laid a criminal information ( PERSON ) against Mr PERSON . However , the GPE public prosecutor ’s office decided on DATE not to prosecute him .", "On DATE it was laid , the full text of the criminal information was published by the applicant in Forum . The cover page of the relevant issue contained a summary of its contents , including the title : \" Criminal information against ORG Secretary General ( PERSON gegen ORG - PERSON ) \" . The following text appeared at page CARDINAL :", "( Translation )", "\" CRIMINAL INFORMATION against PERSON", "Date of birth unknown , occupation : Secretary General , c / o FPÖ ( ORG ) , ORG , ORG , GPE", "ON SUSPICION OF", "the misdemeanour ( PERSON ) of incitement to hatred , contrary to LAW ,", "the misdemeanour ( PERSON ) of incitement to commit criminal offences and expressing approval of criminal offences , contrary to LAW , and", "the offence ( Verbrechen ) of activities within the meaning of sections CARDINAL and CARDINAL of LAW of CARDINAL DATE ( StGBl . no . CARDINAL ) on the prohibition of ORG ( ORG ) ( \" LAW \" ) .", "THE FACTS", "‘ The Secretary General of ORG , Mr PERSON DATE proposed raising family allowances for NORP women by PERCENT , the aim of this measure being to deter NORP women from having abortions for financial reasons . At the same time PERSON demanded that family allowances from the NORP State for mothers of migrant workers’ families ( PERSON ) should be reduced to CARDINAL the present level . ORG stated that migrant worker families are placed in a less favourable position in other NORP countries PERSON", "ORG ( ORG ) , Television programmes CARDINAL + CARDINAL Late News CARDINAL.CARDINAL.CARDINAL", "Count CARDINAL :", "PERSON public statement was made in a way which offends human dignity and is directed against a group of persons defined by their membership of a people , ethnic group or ORG ; in the present case , by the fact that they do not have NORP citizenship .", "The contrasting treatment of NORP women , who are to be spared the need for abortions by being placed in a better financial position , and mothers of migrant workers’ families who are not only not to be treated in the same way , but who are moreover , according to PERSON suggestion , to have their family allowances halved ( allowances which in his opinion are too low to prevent abortion for financial reasons ) , gives the impression , which must in all likelihood have been intended by him , that mothers of migrant workers’ families and their unborn children are an inferior , worthless or less valuable sector of the population as a whole , and that it is in the interests of the NORP people for such mothers to have abortions .", "PERSON has thereby presented migrant workers as being undeserving or unworthy of the respect of their fellow human beings ; the authors of this information regard this as a tendentious incitement to hatred of and contempt for migrant workers in GPE , object thereto and lay this information .", "Count CARDINAL :", "PERSON is publicly proposing - and thereby calling in particular on ORG and ORG to introduce - measures which constitute the substance of the offence of activities within the meaning of sections CARDINAL and CARDINAL of LAW ( see below ) .", "Count CARDINAL :", "Under section CARDINAL of LAW , activities of any sort on behalf of the ORG or its aims are prohibited , even if such activities are carried out outside that organisation .", "Section CARDINAL of LAW says that \" A person who in public or in the presence of several persons ... instigates , incites or seeks to induce conduct prohibited by LAW , in particular any person who for this purpose glorifies or extols the aims , organs or actions of the ORG , shall , unless a more serious offence appears therein , be punished by a term of imprisonment of from DATE and confiscation of his entire property \" .", "The authors of this information refer in this connection to the CARDINAL points of ORG of CARDINAL . They note that , until the passing of LAW of DATE by ORG , this manifesto remained the party ’s sole programme and that it therefore contains in authentic and complete form the aims of the ORG ’s programme . It says inter alia that :", "‘ CARDINAL . A person who does not have NORP nationality is to be able to live in GPE only as a visitor and must be subject to aliens legislation .", "We demand that the ORG undertake , first and foremost , to provide opportunities for employment and the subsistence of its citizens . If it is not possible to feed the entire population of the ORG , citizens of foreign nations ( non - citizens ) must be expelled from the PERSON .", "All further immigration of NORP is to be prevented . We demand that all non - NORP who have immigrated to GPE since DATE be compelled to leave the Reich immediately.’", "Creating a hostile attitude to citizens of foreign nations ( non - citizens ) , and placing them in a less favourable position , to such an extent that it became difficult for them to live in the PERSON and they were forced to leave , were essential aims of the ORG and its policy .", "PERSON proposal to increase family allowances for NORP women by PERCENT in order to stop them having abortions for financial reasons , and at the same time to reduce family allowances for mothers of migrant workers’ families to CARDINAL the present level , represents a cynical means of driving citizens of foreign nations out of GPE and indeed forcing those who stay in GPE to have abortions ; being entirely consistent with and corresponding to the philosophy and aims of the ORG that ‘ the ORG must first and foremost provide opportunities for employment and the subsistence of its ORG , these proposals are aimed , amongst other things , at improving the living conditions of citizens ( NORP mothers ) by worsening those of migrant workers and , at the same time , at preventing all further immigration of NORP ( see above , ORG points CARDINAL and CARDINAL) .", "From this it is apparent that PERSON has undertaken activities which correspond to the aims of the ORG , or at the very least has extolled its measures against citizens of foreign nations by proposing that such measures be applied in GPE .", "As to the accuracy of these allegations , the authors of this information rely on their own statements , the ORG newsreaders’ scripts for ORG on television programmes CARDINAL and CARDINAL on DATE and the ORG manifesto of CARDINAL .", "This criminal information is therefore laid against PERSON etc .", "( Signed ) : ... , PERSON \"", "On DATE Mr ORG brought a private prosecution for defamation ( üble GPE , LAW - see paragraph CARDINAL below ) against the applicant and the other signatories of the criminal information . He also sought the immediate seizure of the relevant issue of Forum ( sections CARDINAL and CARDINAL of LAW ) and compensation from its owners ( section CARDINAL of LAW - see paragraph CARDINAL below ) .", "ORG ( Ratskammer ) of ORG ( PERSON für PERSON - \" the Regional Court \" ) decided on DATE to order the discontinuance of the proceedings under LAW para . CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . It found that the publication did not constitute the criminal offence defined in LAW , since the case did not concern the wrongful attribution of a certain ( dishonest ) behaviour , but only value - judgments ( ORG ) on behaviour which , as such , had been correctly described .", "On appeal by Mr Grabher - Meyer ORG ( Oberlandesgericht ) , composed of Mr PERSON , as President , and Mr PERSON and Mr PERSON , quashed the above decision on CARDINAL DATE . It held that for the average reader the publication must have created the impression that a contemptible attitude ( verächtliche Gesinnung ) was ascribed to Mr ORG . The authors had disregarded the standards of fair journalism by going beyond a comparative and critical analysis of his statements and insinuating motives which he had not himself expressed , in particular by alleging that he had been guided by ORG attitudes . Accordingly , the case was referred back to ORG .", "On DATE the defamation proceedings against the signatories of the criminal information other than Mr Oberschlick were severed from the main proceedings by ORG and referred for decision to ORG PERSON ) , on the ground that those persons had not been associated with the publication in Forum . On DATE the former proceedings were discontinued .", "On DATE ORG ordered the publication in Forum of information about the defamation proceedings against the applicant ( section CARDINAL of LAW - see paragraph CARDINAL below ) . This decision was confirmed by ORG on DATE .", "ORG held a hearing on CARDINAL DATE , during which it heard evidence from Mr ORG and the applicant .", "The latter offered evidence that what he had written was true ( GPE ) , claiming that in this respect it was sufficient to establish that a criminal information had actually been laid in the terms published in Forum . He argued that by reporting his suspicions he had been fulfilling a legal duty and that he was therefore exculpated under LAW ( see paragraph CARDINAL below ) . The fact that the legal qualification of Mr Grabher - Meyer ’s statements might have been erroneous could not be held against him because he was not a lawyer .", "On DATE the applicant was convicted of defamation ( LAW and sentenced to a fine of CARDINAL NORP schillings or , in default , to CARDINAL days’ imprisonment . ORG also made the following orders against the owners ( ORG ) of ORG and ORG ( ORG der Redakteure und ORG ) : the seizure of the relevant issue of Forum , the publication of its judgment ( sections CARDINAL and CARDINAL of LAW ) , and the award to Mr Grabher - Meyer of compensation of MONEY ( section CARDINAL of LAW ) . In addition , they were declared to be jointly and severally liable for the payment of the fine ( section CARDINAL para . CARDINAL of LAW - see paragraph CARDINAL below ) .", "In its judgment of CARDINAL DATE , ORG held that it was bound by the opinion expressed by ORG in its decision of CARDINAL DATE ( see paragraph CARDINAL above ) . Therefore the objective conditions for the offence of defamation were satisfied .", "Mr PERSON also fulfilled the subjective requirements because he had acknowledged that he had intended to draw attention to what , in his opinion , was the National Socialist way of thinking of Mr Grabher - Meyer . Mr PERSON had , however , not established the truth of his allegations nor justified them . In ORG view , it was not sufficient that this politician had made the criticised statements and that a criminal information regarding it had been laid in the terms published in Forum . The statements in question did not necessarily show the intentions PERSON had inferred therefrom . It could also be understood as a proposal to reallocate the notoriously limited resources of ORG in favour of NORP in order to stem the influx of migrant workers . This admittedly revealed a xenophobic way of thinking , but did not yet amount to a ORG attitude or to a criminal offence .", "The fact that the publication involved only a reprint of the criminal information did not exculpate the applicant . Whilst everyone was free to report to the police facts which he considered constituted a criminal offence , it went far beyond the mere reporting of a criminal suspicion to publish the text of the information in a periodical and thus to make it accessible to the general public . There was no justification for doing so . In this respect , the applicant could not invoke a legal duty under LAW , namely to draw the public ’s attention to the ( allegedly ) NORP mentality of a high - ranking official of a governing party . That allegation came under the general rule that a person who had made an attack of this kind through the media had to prove that it was true .", "Mr PERSON subsequently requested on several occasions to be supplied with a copy of the record of the hearing , but without success . It seems that it was not until after the communication of the written judgment on DATE that the record reached the applicant . On DATE he applied for a rectification of the trial record which , according to him , failed to mention certain statements by Mr ORG which were of importance for assessing the evidence concerning the truth of the applicant ’s allegations . He had allegedly stated at the trial , inter alia , that he was opposed to excessive immigration of foreigners ( PERSON ) and that for tactical reasons he approved the \" stop foreigners \" campaign ( \" PERSON \" ) which had been conducted by a right - wing political party and had subsequently been prohibited . He had also allegedly admitted having considered social - policy measures directed against the children of foreign workers in NORP schools .", "On DATE ORG rejected this application , after having consulted the transcriber , on the ground that after DATE the judge had no recollection of the detailed statements . It nevertheless pointed out that although the latter did not appear in the transcriber ’s notes , similar statements did .", "On DATE ORG , composed of the same judges and again presided over by PERSON ( see paragraph CARDINAL above ) , dismissed the applicant ’s appeal ( GPE ) .", "In relation to a complaint concerning ORG decision of CARDINAL DATE ( see paragraph DATE above ) , ORG observed that this decision was final . Furthermore , it did not appear that ORG had failed to determine any requests made during the trial concerning the record . In any event , the statements in question were irrelevant for the judgment on the merits of the matter .", "ORG then dealt with the substantive issues . In its view , ORG had not been legally bound by ORG ’s earlier decision concerning the qualification of the offence . ORG , however , saw no reason to depart from that decision . What was decisive was that Mr Grabher - Meyer was alleged to have had motives which he himself had not expressed . The case therefore did not concern the ( possibly incorrect ) legal qualification of his statements , but allegations putting a stain on his character which objectively could not be inferred from those statements .", "According to ORG , ORG had rightly held that what had to be proved was the truth of the critical inferences as to Mr ORG character made in the article and had rightly found that the applicant had failed to bring this proof . The fact that a short report on the criminal information against this politician would not have been punishable did not justify the conclusion that a full reprint of it was not punishable either . The publication in the form of a criminal information was intended to ensure that the accusation as to his character made therein would have a particularly telling effect on the average reader . Neither the right to report a criminal suspicion ( Article CARDINAL para . CARDINAL of the Code of Criminal Procedure - see paragraph CARDINAL below ) nor the exception provided for in LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) justified the publication because it was not appropriate ( mangels Anlassadäquanz ) : it had been insinuated , without a sufficient basis in the facts , that Mr Grabher - Meyer held ORG attitudes .", "The written text of the judgment was served upon the applicant on DATE .", "On DATE he requested the Attorney - General ( Generalprokurator ) to file a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) , but he was informed on DATE that the Attorney - General did not intend to take any action .", "LAW provides :", "\" CARDINAL . Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...", "Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...", "The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . \"", "Under LAW , \" evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ... \" .", "Under LAW para . CARDINAL \" conduct of the kind mentioned in LAW ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right \" . Under paragraph CARDINAL of the same provision \" a person who is forced for special reasons to make an allegation within the meaning of LAW ... in the particular form and manner in which it was made , is not to be punished , unless that allegation is untrue and the offender could have been aware thereof if he had acted with the necessary care \" .", "Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim compensation from him . Furthermore , the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings ( section CARDINAL ) .", "The person defamed may request the forfeiture of the publication by which a media offence has been committed ( section CARDINAL ) . Under section CARDINAL he may also request the immediate seizure of such a publication if section CARDINAL is likely to be applied subsequently , unless the adverse consequences of seizure would be disproportionate to the legal interest to be protected by this measure . Seizure shall not be ordered if that interest can instead be protected by the publication of information that criminal proceedings have been instituted ( section CARDINAL ) . Finally , the victim may request the publication of the judgment in so far as this appears necessary for the information of the public ( section CARDINAL ) .", "The first sentence of Article CARDINAL para . CARDINAL of the Code of Criminal Procedure reads as follows :", "\" Anybody who acquires knowledge of criminal conduct such as automatically attracts public prosecution shall have the right to report it . \"", "Furthermore , section CARDINAL ( g ) para . CARDINAL of LAW imposes a duty to denounce offences under LAW in certain circumstances . Failure to fulfil this duty may be punished by imprisonment for DATE .", "Under the special simplified procedure - which was followed in this instance - , if a single judge of ORG is of the opinion that the facts of the case do not constitute a criminal offence , he shall seek a decision by ORG ( Article CARDINAL para . CARDINAL ( CARDINAL ) of LAW ) , which shall order the discontinuance of the proceedings if it shares his view ( Article CARDINAL para . CARDINAL ) . The prosecution may appeal against such an order ( Article CARDINAL para . CARDINAL ) . If ORG upholds the appeal and refers the case back to ORG , the following special rules apply :", "\" The trial court shall not be bound by decisions of ORG or of the court of second instance which confirm ... that the facts constitute a criminal offence ... \"", "\" Those members of the court of second instance who participated at a previous stage in the decision of ORG to discontinue the proceedings or in the determination of an appeal against such a decision ( Article CARDINAL ) shall be disqualified from hearing or determining an appeal . \"", "Disqualification of a judge ( PERSON ) is governed by the following provisions of LAW :", "\" A judge is obliged to bring circumstances which disqualify him to the immediate attention of the president of the court of which he is a member ... \"", "\" From the moment when grounds for his disqualification come to his knowledge , every judicial officer ( ORG ) shall refrain from any judicial acts , on pain of nullity . The judicial officer concerned may carry out judicial acts which are urgent , but only where there is danger in delay and if another judge or registrar can not be appointed immediately . ... \"", "Furthermore , under LAW the parties to the proceedings may challenge ( ablehnen ) a judge if they can show that there are reasons for doubting his complete impartiality . Although LAW refers expressly to grounds \" other than disqualification \" , it is the practice of the courts to apply LAW also in cases where a party raises an issue relating to a judge ’s disqualification . In fact , the disqualification of a first - instance judge can not subsequently be pleaded in nullity proceedings unless he was challenged before or at the trial or immediately after the ground for disqualification became known to the party ( Article CARDINAL para . CARDINAL ( CARDINAL ) of LAW ) . The procedure applicable in this respect is the following :", "\" Where a party seeks to challenge a judge , he may make an application in writing to the court of which the judge is a member or make an oral declaration to this effect before the registrar . He may do this at any time , except that , where the challenge concerns a member of the trial court , it must be made not TIME before the beginning of the hearing and , where it is directed against the whole court , not DATE after service of the summons to attend the hearing . The application must specify and , as far as possible , justify the reasons for the challenge . \"", "\" ( CARDINAL ) As a rule it is for the president of the court of which the challenged judicial officer is a member to decide on the admissibility of the challenge .", "( CARDINAL ) ...", "( CARDINAL ) No appeal lies against such a decision ... \"", "Records of hearings before criminal courts in GPE are usually drawn up in summary form unless , for special reasons , the court orders the preparation of a shorthand transcript . A shorthand transcript must be prepared if this is requested by a party who advances the costs thereof ( Article CARDINAL para . CARDINAL ) .", "In other cases the record is limited to a note of all essential formalities of the proceedings . The parties are free to request the recording of specific points in order to preserve their rights ( Article CARDINAL para . CARDINAL , applicable to single - judge proceedings by virtue of Article CARDINAL ) .", "Where the establishment of a verbatim version is important , the judge shall , upon the request of a party , order that particular passages be read out at once ( Article CARDINAL para . CARDINAL ) .", "The answers of the defendant and the depositions of the witnesses and experts shall be mentioned only if they contain deviations from , alterations of or additions to the statements recorded in the files or if the witnesses or experts are heard for the first time at the trial ( Article CARDINAL para . CARDINAL ) .", "The parties are free to inspect the completed record and its appendices and to make copies thereof ( Article CARDINAL para . CARDINAL ) . Case - law has established that they are entitled to request additions or corrections to the record at the trial or afterwards , as long as an appeal is pending ( PERSON , \" EvBl \" , DATE , p. CARDINAL and PERSON , CARDINAL/CARDINAL ) . The court ’s decision on such a request is final and is not open to appeal ( Richterzeitung , CARDINAL , p. CARDINAL , EvBl . CARDINAL ) .", "It is only total failure to prepare a trial record that is a ground of nullity ( Article CARDINAL para . CARDINAL ( CARDINAL ) ) . Other deficiencies in the record can not be pleaded in nullity proceedings , except failure to decide on motions concerning the record which were made during the trial ( Article CARDINAL para . CARDINAL ( CARDINAL ) ) ." ]

[ "10", "6" ]

[ "6-1" ]

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[ "The applicants are CARDINAL individuals and ORG in GPE ( “ the applicant organisation ” ) , an organisation founded by them .", "The CARDINAL individual applicants , Mr PERSON , Mr PERSON , PERSON , Mr PERSON and Mr Petko Borisov Traikov are NORP nationals who lived at the relevant time in the city of PERSON .", "The applicant organisation was founded in DATE .", "All applicants were represented before the ORG by PERSON and PERSON , lawyers practising in GPE . The respondent Government were represented by their Agent PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "CARDINAL of the applicants , Mr GPE used to be a religious minister in ORG in PERSON until DATE , when he was dismissed .", "Thereafter , Mr Borisov started organising religious meetings in a house in PERSON where the individual applicants and other persons prayed and discussed religious matters .", "It appears that the house in question belonged to ORG in PERSON . It was built by their followers who had donated money and worked on the site .", "Mr GPE , however , claimed that the house belonged to him .", "According to the applicants , in DATE and DATE police officers allegedly visited the prayer house CARDINAL times and told the participants that religious activities without registration as a religious community were not allowed . Each time the participants were allegedly ordered to leave .", "The applicants never submitted complaints in respect of those alleged events .", "On DATE Mr Borisov was allegedly taken by police officers from his brother ’s home and detained “ for a week ” . He was allegedly questioned about his religious beliefs and activities and warned against conducting religious services without registration .", "It appears that on an unspecified date ORG in PERSON took possession of the disputed house . According to the applicants , this happened with the assistance of the police .", "In DATE , Mr PERSON wrote a complaint to the prosecuting authorities about a number of different events , including property disputes and his application for welfare payments , and also stated that in DATE he had been detained unlawfully . By decisions of CARDINAL May and DATE the relevant prosecutors refused to open criminal proceedings noting that some of his complaints concerned civil law disputes and that after verification his allegation that he had been detained in DATE had proved groundless .", "At a meeting on DATE the individual applicants and CARDINAL other individuals , residents of ORG , founded the applicant organisation , ORG in GPE . They approved its statute and elected its governing council . Mr PERSON was elected its President .", "In accordance with the applicant organisation ’s Statute , it would engage in Bible studies , prayers and charity .", "On DATE the applicant organisation applied to ORG for registration as a religious denomination under LAW .", "As no reply was received , on DATE an appeal was filed with ORG against the tacit refusal of ORG .", "On DATE ORG replied to the application for registration by letter . It stated , inter alia , that the applicant organisation ’s submissions did not provide sufficient information about the religion it practiced and thus did not permit a conclusion that the applicant organisation had the characteristic features of a distinct religious denomination . The letter , which was apparently made on a model form used in similar circumstances , stated that the applicant organisation should rectify the deficiencies in its application .", "In the proceedings before ORG the parties made written submissions . ORG stated , inter alia , that the applicant organisation had been invited to submit additional information and explain the features that characterised it as a distinct religious denomination . The applicant organisation had not replied .", "By decision of DATE ORG rejected the appeal as inadmissible . It found that the registration proceedings were pending before ORG which had invited the applicant organisation to rectify its application . The applicant organisation had not replied . Therefore , there had not been a tacit refusal and the appeal was premature .", "Upon the applicant organisation ’s appeal , on DATE a CARDINAL - member chamber of ORG upheld the decision of DATE .", "The applicant organisation never replied to the ORG of Minister ’s letter of DATE .", "In DATE PERSON was officially registered as the local leader of another religious organisation , ORG in PERSON , the region of GPE .", "There is no provision of NORP law requiring a religious group organising public religious activities to register as a legal person . Nonetheless , at the relevant time , the police often disrupted religious meetings of unregistered groups . In administrative practice , the view according to which religious activities were not allowed without registration was widespread ( see the facts in GPE sdruzhenie GPE na NORP v. GPE , no . ORG decision of DATE and PERSON and PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE and PERSON v. GPE , no . CARDINAL , § § CARDINAL and CARDINAL , DATE ) .", "In its judgment no . CARDINAL of DATE in case no . DATE , ORG observed that the relevant law did not impose an obligation for a religious group to register and that the view that registration was a necessary pre - condition for religious gatherings was contra legem .", "LAW DATE , which superseded earlier legislation , does not require registration as a pre - condition for public religious gatherings .", "At the relevant time and until DATE , a religious group wishing to obtain registration as a legal person could register at the local regional court as an association under section CARDINALa of the Persons and Family Act , with the authorisation of ORG . At the relevant time CARDINAL religious groups belonging to various religions were registered as associations .", "Separately , religious denominations were subject to registration in accordance with LAW , as in force at the relevant time and until DATE . ORG , the NORP community , the NORP community , ORG , several protestant churches and other religions were registered as religious denominations in GPE .", "On DATE LAW DATE entered into force . It introduced changes in the registration procedure for religious denominations . It also repealed section CARDINALa of the Persons and Family Act .", "In accordance with section QUANTITY of ORG and LAW as in force at the relevant time , every detained person has the right to appeal to a court against his detention .", "A person claiming that his property has been unlawfully taken away from him may bring a rei vindicatio action or an action for possession under LAW .", "It is open to alleged victims of unlawful police actions to submit complaints to the prosecution authorities and to bring civil proceedings under LAW DATE ." ]

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[ "The applicant was born in DATE and lives in GPE .", "From CARDINAL DATE the applicant served as a police officer in ORG FAC uprava karlovačka ) , namely as the Assistant Chief of the PERSON sector for State border security . On DATE he was called in to a police station by his colleagues and then questioned in connection with a suspicion that he had acted as an intermediary in procuring a forged certificate on citizenship for a certain GPE In a written statement of CARDINAL DATE made by the police the applicant confessed to having acted as an intermediary in procuring an illegal certificate of NORP citizenship for GPE The police also took written statements from CARDINAL other persons , GPE and GPE , without the applicant being present . These statements were not communicated to the applicant .", "On CARDINAL DATE the Chief Officer of ORG asked that disciplinary proceedings be instituted against the applicant on suspicion that he had committed a serious breach of work discipline . This suspicion was based on a criminal complaint meanwhile lodged against the applicant , his own written confession and statements of several other individuals given before the police .", "On DATE disciplinary proceedings were instituted against the applicant before ORG . A hearing was held on DATE in the presence of the applicant and his counsel . At the hearing the applicant 's confession of CARDINAL DATE was read out . The applicant stated that he had been questioned by his colleagues in a police station about the case of GPE The questioning had lasted TIME , and at the end he had signed the statement because he had not wanted to be questioned any longer . The applicant further stated that he knew GPE but that he had not participated in any dealings concerning his certificate of citizenship . He also explained that immediately afterwards he had lodged an objection on his questioning with the officer on duty . In his closing arguments the applicant 's defence counsel , inter alia , objected that the statements of ORG had not been read out and that therefore the defence had no opportunity to analyse these statements because they did not know their content .", "In a judgment of DATE ORG found it established that the applicant had acted as an intermediary between GPE and CARDINAL other persons in order to obtain a forged certificate of NORP citizenship for GPE and that he had passed on a sum of CARDINAL NORP Marks ( ORG ) from GPE to a certain ORG who had passed it on to a certain ORG , a clerk in the citizenship registry , asking the latter to make a forged certificate . The operative part of the judgment reads :", "“ PERSON ...", "is guilty", "because during DATE he took from GPE ... a sum of DEM CARDINAL,CARDINAL and gave it to GPE ... , so that the latter would act as a further intermediary in bribing ORG ... to issue a forged certificate of NORP citizenship in the name of GPE , which ORG did on DATE ,", "by which he committed a serious breach of work discipline under LAW paragraph CARDINAL(CARDINAL ) of LAW ( Zakon o unutarnjim poslovima ) and section CARDINAL paragraph CARDINAL(CARDINAL ) of the Rules on employment of the employees of ORG of GPE ,", "Owing to which a disciplinary measure under LAW of LAW", "termination of employment", "is to be applied . ”", "The judgment was based on the applicant 's written statement of CARDINAL DATE in which he confessed and the CARDINAL other statements given to the police by GPE and GPE The applicant 's contention , that he had signed the statement under duress since he had been interviewed by his colleagues for the whole night , that the notes of the interview had been amended several times and that he had been given no right such as to make a telephone call , was dismissed . The disciplinary court ordered the applicant 's dismissal . The reasoning of the judgment reads as follows :", "“ Through a request for the institution of disciplinary proceedings submitted by the Chief of ORG ... of CARDINAL DATE the defendant PERSON was charged with a serious breach of work discipline , specified as to its factual background and legal characterisation in the operative part of this judgment .", "ORG of ORG initiated proceedings by its decision ... of DATE .", "A decision by the Chief of ORG ... of CARDINAL DATE removed PERSON from his duties in ORG with effect from DATE on account of a reasonable suspicion that he had committed a serious breach of work discipline by committing a criminal offence under LAW paragraph CARDINAL of LAW of GPE , and that his further service would harm the interests of the service .", "During the disciplinary proceedings the president of the court read aloud the written statement of PERSON of CARDINAL DATE .", "In his defence PERSON does not accept his written statement . He adds that he was being questioned by the police , having being called on the false pretext that he was needed in connection with some customs business . They did not secure his rights such as using the telephone and so on .", "He states that he knows GPE but that he was not present at any dealings in connection with a certificate of citizenship or the taking of any money .", "Furthermore , he retracts his written statement which he signed because he was tired of being browbeaten by his colleague policemen who questioned him , [ he wanted them ] to cease psychologically ill - treating him .", "For example , the record of the interview reads that his superior was present , which is untrue because his superior entered [ the interview room ] for TIME only and then immediately left and he did not see him again that day , nor was he present when he signed the written statement .", "He also adds that immediately after the interview he drew up a statement concerning the circumstances of the investigation and submitted it to an officer .", "In defence of defendant PERSON , his counsel PERSON pointed to grave breaches of procedure , since the statement and records of interviews with the police were admitted as evidence . He also objected that a criminal complaint against the defendant was taken as proof that he had committed [ the offence ] he has been charged with .", "After deliberations and voting ORG dismissed the objections by the defence .", "During the proceedings ORG consulted the written statements given by PERSON and recorded under no . CARDINAL - CARDINAL - CARDINAL/CARDINAL - CARDINAL on DATE ; by PERSON recorded under no . CARDINAL - CARDINAL - CARDINAL/CARDINAL - CARDINAL on DATE ; by GPE recorded under no . CARDINAL - CARDINAL - CARDINAL/CARDINAL - CARDINAL on CARDINAL DATE and also a criminal complaint against PERSON , no . CARDINAL - CARDINAL - CARDINAL/CARDINAL-K-CARDINAL/CARDINALf CARDINAL DATE .", "GPE was not invited to the hearing because his permission to stay in GPE had been terminated by a decision ... of CARDINAL DATE , upheld by a decision no . ... of DATE . [ A measure of ] prohibition of entry [ on the territory of ] GPE has been applied for the period of DATE .", "After the assessment of all relevant facts established in the proceedings the panel of ORG established that the defendant PERSON is guilty of a serious breach as set out in the operative part of the judgment .", "By such conduct the defendant violated existing laws and rules of service since he had committed acts irreconcilable with the police service .", "While assessing the disciplinary measure [ to be applied ] the panel of ORG took as aggravating the fact that the defendant had already been disciplinary punished .", "In view of the above , it has been decided as set out in the operative part of the judgment . ”", "On a subsequent appeal by the applicant against the judgment of DATE , ORG of ORG ( GPE disciplinski sud GPE unutarnjih poslova PERSON ) upheld the first instance judgment on DATE but altered the qualification of the offence finding that the act in question constituted an offence under LAW paragraph CARDINAL ( CARDINAL and DATE ) of LAW which refer to inappropriate conduct , rather than paragraph CARDINAL(CARDINAL ) , on the ground that :", "“ ... no one , including the defendant , can be considered liable for a criminal offence as long as [ his or her liability ] has not been established in a final judgment ( LAW ) . ”", "The applicant then lodged a complaint against the disciplinary courts ' judgments with ORG ( Upravni sud PERSON ) whereby he complained , inter alia , of the fact that the statements given to the police could not have served as evidence in the disciplinary proceedings against him . He also complained that he had no access to the evidence relied on by the disciplinary courts , namely the statements given by CARDINAL persons to the police . The complaint was dismissed on DATE on the ground that in the disciplinary proceedings it had been established that the applicant had committed the offence in question and that the use of the impugned statements had been correct .", "On DATE , i.e. parallel to the institution of the disciplinary proceedings , the NORP State Attorney 's Office ( Općinsko državno odvjetništvo u PERSON ) lodged a request that an investigation be opened against the applicant and CARDINAL other individuals on a suspicion that they had acted as intermediaries between GPE and a clerk of the registry of citizens , passing a sum of DEM CARDINAL,CARDINAL to the latter in order to issue a certificate of NORP citizenship for GPE and thus committed a criminal offence under LAW paragraph CARDINAL of LAW in connection with LAW .", "During the investigation the suspects and a witness were heard by an investigation judge . The applicant remained silent .", "On DATE the ORG sought that the criminal investigation against the applicant be discontinued on the ground that the statement given by GPE showed that the applicant had procured him a certificate of NORP citizenship but that he had given no money for that to the applicant . Hence , there was insufficient evidence that the applicant had committed a criminal offence .", "On DATE an investigation judge of ORG discontinued the criminal investigation against the applicant owing to the above request of the ORG Attorney 's ORG .", "On DATE the applicant requested the reopening of the disciplinary proceedings against him . He argued in support of his request that the factual basis for disciplinary proceedings as well as the criminal proceedings was identical and as the latter had been discontinued due to lack of evidence there would likewise be no basis upon which disciplinary sanctions ought to be imposed .", "On DATE ORG declared the request inadmissible , finding the fact that the criminal proceedings against the applicant had been discontinued irrelevant in respect of the decision on his disciplinary responsibility . This decision was upheld by ORG on DATE .", "The applicant then lodged a complaint with ORG which was dismissed on DATE . His subsequent constitutional complaint was declared inadmissible on DATE as lodged out of time .", "On an unspecified date , following the dismissal of his administrative complaint in the disciplinary proceedings against him , the applicant lodged a constitutional complaint against ORG judgment of CARDINAL DATE , as well as several supplementary submissions complaining that the disciplinary proceedings against him had been unfair . He argued , inter alia , that the disciplinary courts found that he had committed a criminal offence although he had not been convicted in the criminal proceedings against him which had been discontinued . He further argued that the statement he had made to the police was not a valid evidence under domestic law and as such should have been removed and that the statements given to the police , relied on in finding him disciplinary responsible , had never been communicated to him , nor had they been produced at the hearing before the disciplinary courts .", "On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant 's complaint . The relevant part of that decision reads as follows :", "“ .. the Constitutional Court finds it useful to comment on the applicant 's arguments concerning the legal nature of disciplinary proceedings .", "First and foremost , the applicant contends that the State Attorney 's ORG discontinued criminal prosecution against him for lack of evidence that he had committed a criminal offence consisting in the same acts [ as those serving as a basis ] for the judgments [ adopted ] in the disciplinary proceedings . ORG emphasises that the ground for the applicant 's [ disciplinary ] conviction and the imposed disciplinary measure was his liability for serious breaches of work discipline under LAW paragraph CARDINAL ( CARDINAL and DATE ) of LAW , and not his liability for a criminal offence .", "Criminal and disciplinary liabilities are CARDINAL separate [ types ] of liability , which have to be established in CARDINAL entirely independent sets of proceedings with no mutual influence . Liability for serious breaches of work discipline may be established even without a decision of a criminal court , irrespective of the fact that a breach of working duty may at the same time amount to a criminal offence . [ The purpose of ] disciplinary proceedings is to establish the elements constituting a breach of work discipline . It is not necessary that at the same time the elements of a criminal offence have been satisfied , and in that respect the disciplinary liability is wider than the criminal .", "Furthermore , it is to be stressed that although disciplinary proceedings are actually [ by their nature ] criminal proceedings sui generis , they also bear strong features of the administrative proceedings .", "There is in principle a lesser risk as to the scope of possible violations of human rights in disciplinary proceedings than in criminal proceedings . Also , the consequences of disciplinary proceedings differ significantly from those of criminal proceedings . Therefore , the application of the [ rules of ] Code of Criminal Procedure in disciplinary proceedings is only subsidiary , as worded in CARDINAL paragraph CARDINAL of the Act on Civil Servants ( Official Gazette no . CARDINAL ) : ' In the proceedings concerning a serious breach of official duty provisions of LAW shall be applied appropriately ... ' . Subsidiary application of LAW procedure means that its provisions are to be applied according to the nature of the disciplinary proceedings , that is to say that their application is neither obligatory in each instance nor they have to be applied literally .", "The above is applicable in respect of the exclusion of the official notes made by the police [ to be used ] as evidence in criminal proceedings . The official police notes can not serve as evidence in criminal proceedings owing to the special nature of those proceedings . However , such notes are not illegal evidence ab initio , both from the standpoint of some potential criminal proceedings or from that of disciplinary proceedings . They become illegal evidence only if actually used in criminal proceedings . Their use for other ( lawful ) purposes is not prohibited . ”", "Article CARDINAL paragraph CARDINAL of LAW ( Kaznenini zakon PERSON , ORG no . CARDINAL of DATE ) reads :", "( CARDINAL ) Whoever gives or promises a gift or other gain to an official in order to perform an official or another act within his or her authority which he or she should not perform or to omit an official or other act which an official is obliged to do , or who acts as an intermediary at such bribing of an official shall be sentenced to imprisonment for a term from DATE . ”", "The relevant provisions of LAW ( ORG nos . DATE , DATE , DATE , DATE , CARDINAL Zakon o unutarnjim poslovima ) read as follows :", "“ The following shall particularly be considered a serious breach of work discipline :", "...", "inappropriate conduct during or outside TIME of service ;", "any criminal offence incompatible with entering employment with ORG [ of ORG ] ;", "...", "actions incompatible with the duties of an employee of ORG [ of ORG ] ... ”", "“ Breaches of work discipline may entail the following measures :", "public warning ,", "a fine ,", "dismissal from work .", "... ”", "The relevant part of section ORG ) of the Act on Civil Servants ( Official Gazette no . CARDINAL , Zakon o državnim službenicima i namještenicima ) reads :", "“ In the proceedings concerning a serious breach of official duty provisions of LAW shall be applied appropriately ... ”" ]

[ "6" ]

[ "6-1" ]

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[ "6" ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE .", "In DATE the biological mother of PERSON , then DATE and born out of wedlock , set her apartment on fire after having consumed drugs . The mother and her child were rescued and , on DATE , ORG ( ORG für ORG und Familie ) handed PERSON over to the applicants as foster parents .", "The applicants subsequently tried to obtain custody of PERSON and wanted to adopt him . PERSON ’s mother recovered and was at first allowed access to visit her son . She then tried to obtain custody of PERSON , which led to arguments between her and the applicants . Since these disputes were to the detriment of PERSON , he was given to a “ crisis foster family ” ( Krisenpflegefamilie ) on DATE for DATE . After that period PERSON was handed over to his biological mother , who obtained provisional custody of him following a decision of ORG ( GPE ) on DATE . This decision entered into force on DATE , when ORG rejected an appeal by the applicants ( Revisionsrekurs ) .", "In the meantime on DATE the applicants requested the right to visit F. Thereupon ORG asked ORG for their observations on the applicants’ request .", "ORG submitted observations on DATE , stating that because of the long - lasting relationship between PERSON and the applicants it would be inappropriate not to allow access to the foster parents .", "On DATE the ORG heard the biological mother , who opposed the granting of visiting rights to the applicants because PERSON was in the process of getting used to her again .", "On DATE the applicants requested the acceleration of the proceedings ( PERSON ) under LAW of LAW .", "On DATE ORG ( Wiener Jugendgerichtshilfe ) submitted their observations to ORG . In DATE both parties repeatedly filed written observations on that report . The applicants also requested that an expert for child psychology be appointed .", "On DATE the applicants complained about the length of the proceedings and requested the opinion of an expert on child psychology . The biological mother objected to this request .", "On DATE ORG asked the applicants whether they were maintaining their request for the appointment of an expert , given that meanwhile a report by the doctor with whom PERSON had had therapy had been obtained . On DATE the applicants informed the court that they insisted on the appointment of an expert and proposed further questions to be put to the expert appointed .", "On DATE the ORG designated Dr. PERSON . as the expert . The biological mother filed objections against PERSON .", "NORP In DATE the court file was transferred to ORG , which was dealing with an appeal lodged by the applicants in the custody proceedings concerning PERSON lodged on DATE . On an unspecified date ORG transferred the file to ORG as it considered that that court was competent to decide on the appeal . ORG did so on DATE ; the file was then forwarded to ORG , which had meanwhile become competent to deal with custody and visiting - rights proceedings .", "On DATE PERSON asked ORG for leave to be discharged from the duty to prepare an expert report . He submitted that a report was not feasible because he had not been given the opportunity to examine F. thoroughly by PERSON ’s mother .", "ORG held a hearing with the parties on DATE in order to discuss how to proceed further with the case . The judge informed the applicants and the biological mother that he would ask ORG of ORG ( ORG ) for a final report on the issue of visiting rights .", "P. , who was the officer in charge at ORG of ORG , submitted the report on DATE . She recommended refusing visiting rights to the applicants , because the reestablishment of contact with PERSON after it had been interrupted for DATE might harm the psychological stability of the child . On DATE and DATE the parties submitted their comments on that report .", "On DATE Dr. PERSON of ORG ( Kinder- und jugendpsychologischer ORG ) also suggested that the applicants should not be granted access to PERSON , explaining that PERSON was aware of the difficulties between his mother and the applicants and therefore , as a protective measure , had said that he did not want to see the applicants . Dr. PERSON further stated that not seeing the applicants was not to the detriment of the child . The applicants submitted observations regarding these recommendations .", "On DATE ORG rejected the ORG request to visit PERSON and found that failure to provide for personal contact ( ORG PERSON ) between the applicants and PERSON did not endanger his well - being .", "It found that under LAW ( CARDINAL ) of LAW a court , upon the request of a parent , the child , a youth welfare body or of its own motion had to take the necessary measures if failure to provide for personal contact between the child and the third person would endanger his or her well - being . Third persons , in contrast to parents or grandparents , had no legal right to be granted contact rights and consequently no legal standing in related court proceedings . They could merely suggest to the court ( anregen ) that it examine the matter of its own motion , and a court could only grant contact rights if failure to do so would endanger the child ’s well - being .", "Taking the ORG request as such a suggestion , visiting rights could not be granted . From all the material in the possession of ORG it was evident that PERSON was vehemently opposed to meeting the applicants , while at the same time he had developed a close and positive relationship with his mother . ORG acknowledged that the applicants had a genuine concern for PERSON ’s well - being ; however , in the present situation the interests of the applicants did not coincide with the child ’s best interests . Given that F. had not been in contact with his foster parents for DATE , ORG would follow the conclusions in the reports of P. , from ORG of ORG , and Dr. PERSON , from ORG . It was quite possible that immediately after PERSON had been placed with the “ crisis foster family ” in DATE the granting of visiting rights to the applicants might have been useful . However , this was no longer the case and it now served the best interests of the child , who was living with his biological mother , not to put him back in a situation of divided loyalties ( PERSON ) between her and his “ former family ” , the applicants .", "On DATE the applicants appealed against ORG decision . They argued that the refusal of visiting rights breached their rights under LAW .", "ORG dismissed the applicants’ appeal on DATE . It found that foster parents could file requests in proceedings concerning the foster child and also had the right to appeal against decisions . The status of a foster parent was , however , a matter which depended rather on whether the person actually cared for the child and whether a lasting emotional link similar to the CARDINAL between parents and children had developed . Even though the applicants had lived with PERSON for DATE in the same household with the intent to develop such emotional ties , it was actually DATE since they had had care of him and they could now no longer be considered his foster parents . Nevertheless , their appeal had to be considered on its merits , and , for the reasons given by ORG , granting visiting rights to them was not in the best interests of F. The appeal was therefore unfounded .", "On DATE ORG dismissed an extraordinary appeal by the applicant ( außerordentlicher Revisionsrekurs ) . That decision was served on the applicants’ counsel on DATE .", "Article CARDINAL of LAW ( Allgemeines Bürgerliches Gesetzbuch ) reads as follows :", "“ ( CARDINAL ) If CARDINAL parent does not live in a common household with a minor child , then the child and this parent have the right to be in personal contact with each other . The exercise of this right shall be regulated by mutual consent between the child and the parents . Whenever such an agreement can not be reached , the court shall regulate the exercise of this right in a manner appropriate for the welfare of the child , upon an application by the child or a parent , giving due consideration to the needs and wishes of the child .", "( CARDINAL ) NORP If necessary , the court shall restrict or not permit the exercise of the right to personal contact , especially if the authorised parent does not comply with his / her obligation under LAW .", "( CARDINAL ) Paragraphs ( CARDINAL ) and ( CARDINAL ) shall apply by analogy to the relationship between grandchildren and their grandparents . However , the exercise of the right of grandparents shall also be restricted or not permitted to such an extent that this would otherwise disturb the family life of the parents ( a parent ) or their relationship to the child .", "( CARDINAL ) Where the absence of personal contact between the minor child and a third party that is ready to engage in such contact may jeopardise the child ’s welfare , the court shall issue the disposition necessary to regulate the personal contact upon an application by the child , a parent , the youth welfare agency , or of its own motion . ”" ]

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[ "The applicant was born in DATE and is currently held in the ORG Admission and ORG in GPE .", "In DATE the applicant left his home country and , via GPE , arrived in GPE , where he received religious training . DATE after his arrival in GPE , the applicant was detained for DATE under ORG policy of detaining and deporting nationals of NORP countries . After his release from detention in GPE , the applicant left that country in DATE and arrived in GPE . He then went to Hatay , a province in the south of GPE , where he began working . His identity documents were stolen and subsequently the applicant obtained a false passport .", "On DATE the applicant was arrested by police officers from the anti - terrorist branch of the NORP police headquarters on suspicion of membership of an international terrorist organisation , namely ORG . The search carried out in the apartment he had shared with another person revealed some materials used for manufacturing bombs . During his questioning by the police , in the presence of an interpreter , the applicant stated that he was not a member of ORG but of ORG , an illegal organisation in GPE .", "On DATE the applicant made statements before the ORG public prosecutor and subsequently the ORG , which remanded the applicant in custody .", "On DATE the applicant lodged an objection against the detention order , which was dismissed on DATE .", "On DATE the ORG public prosecutor filed a bill of indictment with ORG charging the applicant with membership of ORG under LAW and section CARDINAL of Law no . CARDINAL . In the indictment the public prosecutor noted , inter alia , that an arrest warrant had been issued in respect of the applicant in GPE for membership of ORG and that the applicant had left his country for that reason in DATE .", "On DATE ORG allowed the bill of indictment lodged against the applicant and decided to hold the first hearing on the merits of the case on DATE .", "NORP On DATE the applicant made statements before ORG . He contended , inter alia , that he did not have any connection with ORG and that the material found in his apartment did not belong to him but to his flatmate .", "On DATE the applicant 's representative requested the first - instance court to order the applicant 's continued detention . He submitted in this respect that the applicant had applied to both the NORP authorities and the ORG High Commissioner for Refugees ( ORG ) to be granted refugee status and that , if he were released , he might be deported to GPE . The applicant himself also requested that he be kept in detention until the outcome of his application for refugee status . On DATE , ORG ordered the applicant 's continued detention , taking into consideration the nature of the offence and the applicant 's request .", "On DATE ORG ordered the applicant 's release pending trial .", "On DATE ORG acquitted the applicant of the charge of membership of ORG .", "Appeal proceedings are currently pending before ORG .", "On DATE the applicant applied to ORG requesting asylum .", "On DATE ORG dismissed this request . According to a document addressed to the ORG public prosecutor 's office by ORG on DATE , the applicant 's temporary asylum request was dismissed in view of the offences with which he had been charged and the fact that his presence in GPE constituted a threat to public safety and public order . It was considered that the applicant had not been sincere in his request but had attempted to use the temporary asylum system in order to avoid deportation to GPE .", "On DATE the decision of the Ministry was served on the applicant . In the documents so served , he was told that he could lodge an objection with the Ministry against this decision within DATE .", "On an unspecified date the applicant objected to the decision of CARDINAL DATE . On DATE he was notified that ORG had dismissed his objection . The decisions of DATE and CARDINAL DATE were served by a police officer who spoke LANGUAGE .", "In the meantime , on CARDINAL DATE the applicant was recognised as a refugee under the ORG 's mandate .", "On DATE the applicant was served with a deportation order .", "On DATE the applicant addressed a petition to the GPE police headquarters . He maintained that his request for temporary asylum had been rejected on DATE and that he had learned that he would soon be deported to GPE . The applicant requested that his deportation be suspended since his lawyer intended to challenge the deportation order before the administrative courts .", "On DATE the applicant 's lawyer lodged an application with ORG . He requested the setting - aside of the decision rejecting the applicant 's asylum request . The applicant 's representative further requested the setting - aside of the deportation order .", "On DATE the applicant 's representative filed a petition with the GPE police headquarters and informed the latter of the application he had lodged with ORG . He requested the police not to deport the applicant .", "On DATE ORG decided that it did not have jurisdiction over the case and transferred the petition to ORG .", "On DATE ORG requested ORG to submit a copy of all documents relating to the applicant 's case .", "On DATE ORG , after receiving the documents concerning the applicant , rejected the application , holding that the applicant had not complied with the time - limit of DATE stipulated in LAW ( Law no . CARDINAL ) . The first - instance court held that the applicant had been notified of the ORG 's decision rejecting his temporary asylum request and ordering his deportation on DATE , and that the applicant should have challenged this decision by DATE at the latest . The court noted that the applicant 's petition dated CARDINAL DATE to the GPE police headquarters and his application to the ORG would not stop the running of the DATE time - limit .", "On DATE the applicant 's representative lodged an appeal against the decision of DATE . In his petition , the representative noted that the ORG 's decision rejecting the applicant 's objection had not been served on his lawyer , who had found the document dated DATE in the criminal case file by chance .", "On DATE the applicant 's representative was informed by the president of ORG that he had failed to pay the court fees and that he had to pay a total of MONEY ( TRY ) by postal order within DATE . The representative was warned that if he failed to pay this sum , the applicant would be deemed to have waived his right of appeal .", "On DATE the applicant 's representative effected the postal order and paid TRY CARDINAL .", "On DATE ORG decided that the applicant had waived his right of appeal since his representative had failed to pay the ORG fees despite the warning .", "On DATE the applicant ' representative appealed against the decision of DATE , claiming that he had paid the fees . He submitted a copy of the postal order in support of his petition .", "On DATE ORG informed the applicant that his representative had failed to pay the ORG fees in relation to his appeal dated DATE .", "On DATE the applicant 's lawyer paid TRY CARDINAL in court fees by way of a postal order .", "Following the decision of ORG of DATE to release the applicant pending trial , the applicant was not released but was taken to the foreigners ' department at the GPE police headquarters .", "On DATE the applicant was transferred to the PERSON police station in GPE .", "On DATE the applicant 's representative sent a request to ORG for the applicant to be released from detention . In his request he noted that the applicant was being detained in a small cell and that on DATE ORG had indicated to ORG that the applicant should not be deported to GPE until further notice .", "The applicant 's representative received no reply to his request .", "Subsequently , on DATE he filed a complaint with the ORG public prosecutor 's office against the Minister of the ORG , the ORG Governor , the GPE police director , the director of the foreigners ' department at the GPE police headquarters and the director of the LOC police station . He requested the public prosecutor 's office to initiate an investigation into the persons concerned , alleging that they had unlawfully deprived the applicant of his liberty and that his detention in a small cell for DATE constituted ill - treatment . The representative noted in his request that there was no legal basis on which to detain the applicant , since asylum seekers were normally given temporary residence permits in GPE . He further submitted that the ventilation was inadequate in the cell . The applicant was completely isolated and there was no provision for outdoor exercise . Moreover , the applicant did not have access to a doctor . In particular , when he had had a toothache he was denied access to a dentist and had to take the medication that was given to him by police officers .", "On DATE the ORG public prosecutor decided not to bring criminal proceedings against the Minister of the Interior , holding that he had not committed any offence as the applicant was being detained by the police with a view to his deportation .", "On DATE the public prosecutor at ORG decided not to process the request from the applicant 's lawyer to bring proceedings against the ORG governor .", "On DATE the applicant 's representative wrote to the department responsible for aliens , borders and asylum attached to ORG , to the GPE police headquarters and to ORG of ORG , requesting that his client be released from the PERSON police station .", "In the meantime , DATE and DATE the applicant was examined and prescribed treatment at the ORG hospital on CARDINAL occasions . He was examined by an ophthalmologist , a dentist and a general practitioner in relation to his respiratory problems .", "On DATE the applicant was transferred to the PERSON Admission and ORG .", "On DATE the President of ORG of ORG sent a reply to the applicant 's representative informing him that the applicant was being detained pending the deportation procedure and that he had been transferred to the Kırklareli Foreigners ' Admission and Accommodation Centre .", "On an unspecified date criminal proceedings were brought against the applicant and CARDINAL other persons in GPE on charges of membership of a terrorist organisation , aiding and abetting the organisation and providing financial support to that organisation . According to a document translated from LANGUAGE into NORP by the applicant , on DATE a NORP criminal court convicted him of membership of an illegal organisation and sentenced him to DATE imprisonment .", "A description of the relevant domestic law and practice can be found in the case of GPE and GPE v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) .", "The ORG standards concerning the conditions of detention of foreign nationals ( see the ORG standards , document no . ORG ) CARDINAL- DATE , page CARDINAL ) provide , in so far as relevant , as follows :", "“ ... In certain countries , ORG delegations have found immigration detainees held in police stations for prolonged periods ( for DATE and , in certain cases , DATE ) , subject to mediocre material conditions of detention , deprived of any form of activity and on occasion obliged to share cells with criminal suspects . Such a situation is indefensible .", "The ORG recognises that , in the very nature of things , immigration detainees may have to spend some time in an ordinary police detention facility . However , conditions in police stations will frequently - if not invariably - be inadequate for prolonged periods of detention . Consequently , the period of time spent by immigration detainees in such establishments should be kept to the absolute minimum . ”", "A description of reports by ORG relating to the situation of ORG members can be found in PERSON v. GPE [ ORG ] ( no . CARDINAL , § § DATE , ECHR DATE ... ) ." ]

[ "3", "5" ]

[ "5-1" ]

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[ "The applicant companies are limited liability companies established under the law of the GPE . They have their registered office in GPE .", "At some stage in DATE , officials of ORG ( LOC Inlichtingen- en ORG , “ LOC ) instituted an investigation into activities of the applicant companies and their director , PERSON , as they suspected forgery ( valsheid in geschrifte ) and tax fraud . On DATE the ORG searched the premises of the applicant companies and seized documents and items belonging to the companies . That same day Mr PERSON was interviewed . The ORG ’s investigation was concluded on DATE . The official report of the investigation was completed on CARDINAL DATE . CARDINAL witnesses were heard during the investigation .", "In DATE the scope for an out - of - court settlement in the cases of the applicant companies and Mr PERSON was explored . In a letter of CARDINAL DATE counsel for the applicant companies and Mr PERSON asked ORG to allow them a period of DATE in which to consider the question whether to request a preliminary judicial investigation ( gerechtelijk vooronderzoek ) so that witnesses could be heard by the ORG or the investigating judge ( rechter - commissaris ) . On DATE the applicant companies and Mr PERSON requested a preliminary judicial investigation , which was then applied for on CARDINAL DATE .", "On DATE the investigating judge sent a number of official records of evidence taken from witnesses to counsel for the applicant companies and asked him for the names of any further witnesses . On DATE the investigating judge informed counsel that he had heard extensive testimony from a large number of witnesses and that in doing so he had given counsel the benefit of the doubt “ with regard to the question of whether hearing these witnesses was necessary to the preliminary judicial investigation ” . CARDINAL new witnesses whose names counsel had put forward , he stated that counsel should provide detailed reasons why it was necessary for the purposes of the preliminary judicial investigation to hear them .", "NORP The preliminary judicial investigation into the applicant companies’ activities was concluded on DATE .", "The applicant companies and Mr PERSON submitted a request to the investigating judge on DATE to reopen the preliminary judicial investigation because they still had CARDINAL witnesses they wished to be heard . The investigating judge rejected this request in a decision of DATE on the grounds that the applicant companies and PERSON PERSON had not established that hearing the CARDINAL witnesses was in the interests of the investigation . The investigating judge also took the view that the defence would not by any reasonable standards be prejudiced if the CARDINAL witnesses were not heard .", "On DATE the preliminary judicial investigation into the applicant companies was closed . Notice of closure was served on DATE . On DATE notification of further proceedings against the applicant companies was sent to counsel .", "On DATE summonses were served on Mr PERSON . The cases against the applicant companies and PERSON PERSON were dealt with at the same sitting but were not joined .", "Following a hearing on DATE , ORG ( arrondissementsrechtbank ) convicted the applicant companies and PERSON PERSON on DATE . It imposed fines of MONEY ( NLG – MONEY ( ORG ) ) and NLG MONEY ( EUR CARDINAL ) respectively on the applicant companies , and sentenced PERSON PERSON to CARDINAL years’ imprisonment .", "Both the applicant companies and Mr PERSON lodged appeals with ORG ( gerechtshof ) of GPE on DATE . ORG ( openbaar ministerie ) lodged a cross appeal DATE . A first hearing in all CARDINAL cases took place on DATE . Prior to the second hearing , scheduled for DATE , the Advocate General ( advocaat - generaal ) to ORG initiated negotiations with counsel for the applicant companies and Mr PERSON aimed at securing the withdrawal of the appeals . In a letter of CARDINAL DATE , counsel wrote as follows to the Advocate General :", "“ Mr PERSON is in principle willing to accept that the judgments of ORG in the criminal proceedings against [ the applicant companies ] become final and conclusive . However , my client is only prepared to withdraw the appeals if ORG explicitly abandons the execution of those judgments and if the tax authorities also forgo the implementation of further measures of collection in respect of [ the applicant companies ] and/or Mr PERSON personally . As regards the tax proceedings which are currently still pending as well as potential future fiscal and/or civil proceedings , the tax authorities and ORG should already at the present time undertake to waive their right to invoke the formal force of law of these judgments and/or their content . ... ”", "In reply , ORG wrote on DATE :", "“ I suggested withdrawing the appeals in the cases of [ the applicant companies ] for practical reasons since you still have not provided me with any clarification of the structure of the legal entities , and in particular of the fact that there was no natural person with responsibility for them ; you promised both of these things at the hearing .", "...", "Both ORG and the tax authorities will , either together or individually , make use of the ( content of the ) judgments in the widest sense of the word where this appears useful to them . ... ”", "ORG withdrew its appeals on DATE .", "Just before the hearing of CARDINAL DATE was about to start , PERSON PERSON and the Advocate General reached an agreement under the terms of which Mr PERSON would withdraw his and the applicant ORG appeals . In a letter to Mr PERSON , also of CARDINAL DATE , counsel confirmed that agreement , stating that the appeals would be withdrawn and requests submitted for remission of the sentences ( gratie ) imposed by ORG . Remission , according to counsel in his letter , would be in the form of a reduction in the fines imposed on the applicant companies in the pending tax proceedings , while the sentence imposed on Mr PERSON would be reduced to DATE imprisonment , of which DATE would be suspended and the remainder converted into a number of TIME of community service .", "According to counsel and Mr PERSON , the Advocate General had further undertaken that a positive recommendation on the requests for remission of sentence would be issued , both by the Advocate General himself and ORG .", "NORP In its judgments of DATE , ORG noted that the appeals had been withdrawn and that no hearing of the substance of the cases had taken place .", "Also on DATE counsel informed a colleague – counsel for the applicant companies in the tax proceedings – of the withdrawal of the appeals in the criminal proceedings , stating that remission of sentence would be sought in respect of the judgments of ORG “ which had now become final and conclusive ” .", "Requests for remission of sentence were lodged with ORG on DATE . The requests were forwarded for advice to ORG on DATE . On DATE the Advocate General at ORG The Hague informed the Ministry that he was prepared to advise on the requests .", "At the request of the Minister of ORG , ORG at ORG advised on the requests for remission of sentence on DATE . Its recommendation was that the requests of both the applicant companies and Mr PERSON be dismissed .", "On DATE the Minister of ORG sought information from the Advocate General pursuant to section CARDINAL of LAW ( PERSON ) . On DATE , referring to probation and psychiatric reports , ORG issued a favourable opinion on PERSON PERSON ’s request . As far as the applicant companies were concerned , however , ORG saw no grounds not to collect the fines imposed by ORG in part or in full , in addition to the outstanding tax .", "On DATE ORG The Hague also gave a favourable opinion in respect of Mr PERSON , but an unfavourable opinion with regard to the applicant companies .", "On DATE the requests for remission of sentence made on behalf of the applicant companies were rejected . DATE , counsel for the applicant companies and Mr PERSON wrote to ORG , informing him that he could not square those rejections with the undertakings given by ORG . In a letter of reply dated DATE , the Advocate General denied that he had given such an undertaking as regards the applicant companies .", "On DATE Mr PERSON again lodged appeals with ORG against the CARDINAL judgments of ORG of DATE . DATE ORG at ORG informed Mr PERSON that he would proceed with the execution of the sentences imposed on the applicant companies by that court , in the light of the fact that the appeals against the judgments had been withdrawn in DATE and had thus become final and conclusive .", "On DATE the Minister of ORG requested ORG once again to advise on Mr PERSON ’s request for remission of sentence in view of the favourable recommendations from ORG and ORG .", "The Public Prosecution Department gave a favourable opinion on PERSON PERSON ’s request on DATE . ORG concurred with the recommendation of ORG and ORG on DATE .", "Meanwhile , at a hearing before ORG on DATE , the Advocate General recommended that the appeals be declared inadmissible since it was not possible to reinstate an appeal once it had been withdrawn . He stated that although he had suggested to Mr PERSON that he might wish to withdraw his appeal and lodge a request for remission of sentence , he had never given an undertaking that such a request would be granted , but only that he would make a recommendation to that effect . He had made such a recommendation , but no decision had as yet been taken . In any event , as PERSON PERSON had been legally represented , he could have obtained advice from his counsel on the procedure . The Advocate General further confirmed that he had also suggested that the appeals in the cases against the applicant companies be withdrawn . He had done so because there was no longer any advantage to be gained since the companies were bankrupt .", "In reply , Mr PERSON argued that he had erred in his decision to withdraw the appeals and would certainly not have withdrawn them had he known that it was the Minister of ORG who had the final say on the requests for remission of sentence ; the undertaking given by the Advocate General had led him to believe that the requests would be granted . Mr PERSON further stated that the applicant companies were not bankrupt and continued to exist .", "At a subsequent hearing on DATE , the Advocate General informed ORG that on DATE the request for remission of sentence in the case against Mr PERSON had been granted . Neither PERSON PERSON nor his counsel had previously been informed of that decision . Mr PERSON subsequently decided to withdraw his appeal .", "In its judgments of DATE in the cases against the applicant companies , ORG held as follows :", "“ The talks between the Advocate General on the one hand and counsel and DATE in his capacity both as the accused in the criminal proceedings against himself and as the representative in the criminal proceedings against the companies – on the other , took place at the initiative of ORG . According to ORG , his aim was to prevent the execution of the custodial sentence imposed on PERSON by the first - instance court in view of the reports concerning PERSON drawn up by a psychiatrist and the probation services . ORG had further assumed that the companies would be unable to make any redress .", "ORG considers it likely that PERSON ... was taken by surprise by this course of events and was under the impression that he would be able to rely on a favourable outcome if he withdrew the appeals .", "In the opinion of the court , it is incomprehensible that the Advocate General should have advised as he did ... Both PERSON and the companies ... had an interest in the appeals . In addition , it is difficult to see why the court , in its determination of the criminal charges against PERSON , might not have been expected to have regard to the reports concerning his mental welfare , as the Advocate General had done and in accordance with his advice .", "The solution favoured by the Advocate General on the other hand , that is to say a request for remission of sentence supported by him , was by no means certain to succeed . After all , the withdrawal of the appeal meant that it was firstly for ORG and ORG to advise on the request for remission of sentence and their advice was apparently not to grant the request . It is true that it appears from the documents in the file that ORG nevertheless attempted to find acceptance for his advice within ORG and that a decision in favour of PERSON – in the shape of community service – was eventually made , but this decision was a long time coming and was preceded by a rejection of the ORG requests for remission .", "Due to the fact that a decision on his request for remission remained outstanding and in view of the rejection of the requests of the applicant companies , ORG again lodged an appeal in all CARDINAL cases , partly also because ORG appears to be planning to proceed with the execution of the fines imposed in the criminal proceedings against the companies .", "ORG fears that this execution may affect himself and/or his spouse personally . ... In view of the above , the court is of the opinion that PERSON was persuaded to withdraw the appeal on improper grounds ( op oneigenlijke gronden ) ... by ORG , that this has prejudiced the accused ’s reasonable interests in this case and that , accordingly , the newly lodged appeal should be considered as a prolongation of the original appeal . ”", "ORG then proceeded to find that a reasonable time within the meaning of LAW had been exceeded and disallowed the prosecution of the cases against the applicant companies .", "The Advocate General filed appeals on points of law ( beroep in cassatie ) with ORG ( PERSON ) . On DATE ORG upheld the appeals . It ruled that , in view of the closed system of legal remedies , ORG judgments of DATE had become final and conclusive ( onherroepelijk ) since the legal remedy available against those judgments DATE an appeal on points of law – had not been exercised within the DATE period allowed by statute . Given that ORG had established in those judgments that the appeals against the decisions of ORG had been withdrawn , the accused ’s newly lodged appeals could not be declared admissible .", "The GPE system of legal remedies against judgments in criminal proceedings is a closed one in the sense that LAW ( Wetboek van Strafvordering –“CCP ” ) lays down when a legal remedy is available and of what it consists . The general rule is that an appeal lies to ORG from final judgments given at first instance and an appeal on points of law to ORG from a final judgment given on appeal .", "Pursuant to LAW ORG , appeal proceedings must be instituted within DATE of the final judgment . Appeals on points of law must also be lodged within DATE of the final judgment ( LAW of the ORG ) .", "Remission of sentence may be granted by royal decree ( PERSON ) DATE that is a decree signed by the Monarch and the Minister responsible – pursuant to LAW ( PERSON ) .", "For the purposes of the present case , a request for remission may be lodged in respect of a sentence imposed by a judgment that has become final and conclusive ( LAW . Before a decision is taken , the request is sent for advice to the court which imposed the sentence , as well as to ORG Articles CARDINAL and CARDINAL of the Pardons Act ) . Additional information may also be obtained ( LAW ) .", "Having considered the court ’s recommendations and the Minister of ORG ’s report , the Monarch decides the request ." ]

[ "6" ]

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[ "The applicant was born in DATE and lives in GPE , PERSON .", "On DATE the applicant , then a military officer , was detained on suspicion of having committed theft of spare parts for military ammunition and the murder of his accomplice PERSON His initial questioning was conducted without a lawyer because the applicant had signed a waiver stating that he was aware of his right to legal assistance and that his refusal was not due to financial reasons .", "On DATE legal aid counsel was appointed to represent the applicant in the criminal proceedings .", "From that date the applicant was detained in the Ussuriysk PERSON detention facility . During DATE of his detention he sent a number of letters to the prosecutor ’s office complaining about the lack of progress in his criminal case and various procedural violations on the part of the investigator . In his letter of DATE , in particular , he indicated that the assistant of the military prosecutor of FAC , investigator NORP , had made threats “ to hand him over ” to the family of PERSON to let them take revenge .", "On DATE at TIME investigator NORP checked the applicant out of the detention facility in order to take him to some unspecified site , allegedly for investigative actions . The applicant was transported by operative officers PERSON and NORP , both of whom were armed , and he was driven in T. ’s personal car . They drove to CARDINAL FAC on the outskirts of NORP , where the car stopped . PERSON and PERSON told the applicant that they were waiting for NORP to join them before they could proceed to the place for the investigative action . While they were waiting , at TIME another car later described as a “ NORP make ” pulled in . Several armed men got out , opened the door of ORG ’s car , forced the applicant out and loaded him into their car . PERSON and ORG offered no resistance to their actions . According to the applicant , they even helped the men to push the applicant into their car .", "The armed men , who , the applicant maintained , were relatives of PERSON , took the applicant to a house in the country and tortured him there until CARDINAL p.m. the same day . According to the applicant , he was chained to a radiator pipe while the men took turns to administer blows with various objects , such as stools , benches and tools , burned him with cigarettes and crushed his fingers and toes . Every time the applicant passed out they would throw him under cold water until he recovered consciousness and then continued to torture him . Throughout the beatings they threatened to kill his family and demanded that he confess to the murder . At TIME the men made an “ anonymous phone call ” to investigator NORP , telling him that he could collect the applicant from FAC in GPE . The applicant was then brought to that street where NORP found the applicant and took him back to the PERSON detention facility . In the detention facility the applicant underwent a medical examination which established multiple bruises , abrasions and burn marks on his body . He informed an operative officer , PERSON . , about the incident and on DATE sent a complaint , accompanied by the medical certificate , to ORG .", "On DATE the applicant sent a complaint to ORG of ORG that he had been ill - treated on DATE and about the lack of follow - up to his complaint of DATE . He requested that criminal proceedings be instituted against the members of PERSON ’s family and the officials who had handed him over .", "On DATE the applicant wrote to ORG of ORG reiterating his complaints of ill - treatment on DATE and about the absence of any follow - up to his earlier complaint .", "On DATE the applicant reiterated his complaint to ORG of ORG .", "On DATE ORG of ORG convicted the applicant of aggravated murder and of theft of military ammunition . He was sentenced to DATE imprisonment . The court in its judgment dismissed the applicant ’s complaint of ill - treatment . The applicant appealed , claiming , inter alia , that the court had used the testimony obtained under duress and without a lawyer ; that his detention had been extended unlawfully ; and that during a considerable period of time the investigation had been inactive . He also complained of ill - treatment on DATE and failure to investigate it .", "On DATE the applicant received a reply from ORG of ORG informing the applicant that an additional enquiry would be carried out as regards his complaint of ill - treatment . This was confirmed by another letter from the same prosecutor ’s office on DATE .", "On DATE ORG of FAC opened a criminal investigation into the incident of DATE .", "On DATE the applicant sent a complaint to ORG of ORG . He complained that the investigation in the criminal case concerning his ill - treatment had been belated and inefficient . He alleged that he still had not got access to any materials on the file and that even basic investigative steps had not been taken .", "On DATE ORG of FAC discontinued criminal proceedings concerning the ill - treatment , relying on the statements of the following persons , who had been questioned :", "– the applicant , who reiterated the earlier submissions and the allegations against the members of PERSON ’s family and the implicated officials , NORP , ORG and PERSON ;", "– investigator NORP , who denied handing the applicant over or making any prior threats to the applicant ; he confirmed that there had been CARDINAL occasion when he had allowed PERSON , a relative of the deceased , to talk to the applicant in the interview room , but he had made no threats ;", "– witness A. , apparently also a member of PERSON ’s family , who was present during the above conversation and who confirmed that PERSON did not threaten the applicant ;", "– operative officer PERSON who submitted that on DATE he was transporting the applicant together with PERSON ; they stopped in FAC waiting for NORP and were attacked by unknown persons who abducted the applicant ; he stated that they had not expected to be attacked and had therefore offered no resistance ; he had not received any instructions from NORP to hand the applicant over to PERSON ’s relatives ;", "– S.G. , the suspect in the applicant ’s abduction , denied any knowledge of the incident ;", "– witness ORG , apparently NORP ’s superior , submitted that NORP had been negligent in having failed to organise adequate transport of the applicant , but was not responsible for him having been beaten up .", "As regards NORP , PERSON it was established that they had been negligent in discharging their official duties but there had been no causal link between their negligence and the applicant ’s injuries . Their prosecution for criminal negligence was therefore discontinued . The proceedings against LOC and other relatives of PERSON were also discontinued on the grounds of lack of evidence against them .", "On DATE the Military Section of ORG of GPE upheld the applicant ’s conviction but reduced the prison sentence to DATE . The court of appeal found that there had been no procedural irregularities during the pre - trial investigation , that the applicant had been informed about his right to legal assistance and had waived it . The testimony given by the applicant was found to have been received in compliance with the procedural rules . As to the alleged ill - treatment on DATE , the court of appeal referred to it as “ acts of unidentified individuals ” . It held that there was no connection between this episode and the applicant ’s criminal conviction because the applicant had confessed to the murder before the events of DATE .", "On DATE the applicant lodged a complaint with a court alleging , among other complaints , ill - treatment and inaction by the prosecutor ’s office following his complaints .", "On DATE ORG of PERSON examined this complaint and dismissed it . The court found that the prosecutor ’s office had conducted an investigation of the episode of ill - treatment and considered it thorough and sufficient . The applicant appealed .", "On DATE the applicant was informed that criminal proceedings against investigator NORP , operative officers T. and PERSON and members of PERSON ’s family had been discontinued . He sent a complaint to ORG of FAC requesting access to the file relating to the discontinued criminal proceedings . In reply , on DATE , he was informed that there had been no grounds to reconsider previous decisions taken in respect of his complaints .", "On an unspecified date the applicant challenged the closure of the criminal investigations of the ill - treatment before a court . On DATE the court dismissed the applicant ’s claim , finding that the decision to discontinue prosecution of the officers and PERSON ’s relatives had been lawful and reasonable . The applicant submitted that on DATE he had appealed against this decision .", "On DATE ORG of ORG examined the applicant ’s appeal against the decision of CARDINAL DATE , reversed the latter decision and decided to discontinue the proceedings on the grounds that the applicant ’s complaint was in fact a request for a supervisory review . On DATE the same court examined the applicant ’s request for a supervisory review of the decision of CARDINAL DATE and rejected it having found that the applicant ’s complaints were in essence an expression of his disagreement with his conviction .", "On DATE the same court examined and rejected the applicant ’s request for supervisory review of the decision of DATE . It upheld the earlier judicial assessment and the decision to discontinue criminal proceedings concerning the applicant ’s ill - treatment .", "The applicant was detained in the Ussuriysk no . PERSON detention facility :", "– from DATE to DATE in cell no . DATE , which measured QUANTITY ;", "– from DATE to CARDINAL DATE in cell no . DATE , which measured QUANTITY ( except for several short - term transfers to other facilities for the purposes of the criminal proceedings and an DATE transfer to GPE for the appeal hearing ) ;", "– from DATE to DATE in cell no . CARDINAL , which measured QUANTITY .", "The conditions in the LOC facility are partly in dispute between the parties .", "According to the applicant , the cells were overcrowded and there was a shortage of sleeping places ; the inmates slept on the concrete floor , huddled together to keep warm ; there had been no , or insufficient , heating ; the facility was overrun by rats ; the light and water supply were often interrupted . In support of his claims he provided a copy of his letter to ORG dated DATE . In this letter the applicant complained that he was detained in cell no . DATE , which was extremely overcrowded . He indicated that he shared the cell with CARDINAL other detainees and that there had not been enough beds or mattresses and that “ everybody slept on the bare floor ” .", "The Government submitted that the information on the number of inmates in the cells in the relevant period was not available because the registration logs for that period were destroyed on DATE , after the expiry of the term of their storage in archives . However , relying on the certificate by the director of the facility , issued on CARDINAL DATE , and by the warden reports , issued on of CARDINAL DATE , they contended that the conditions in the facility were satisfactory and that the number of detainees in each cell did not exceed the number of sleeping places . The ORG submitted that the applicant had an individual bunk and was provided with bedding . All cells were disinfected on a “ regular basis ” . The sanitary and hygienic conditions in the facility were in conformity with the regulations . All cells were equipped with a lavatory pan and sink . The pan was separated from the living area by a QUANTITY - high partition wall with a curtain .", "The Government submitted a copy of the sanitary inspection report issued on DATE by ORG of ORG in respect of facility no . PERSON . The report contained a detailed questionnaire filled in by the sanitary inspectors in the presence of the facility administration and , inter alia , stated that :", "– the facility was designed for CARDINAL inmates ;", "– at the time of inspection there were CARDINAL inmates ;", "– personal living space in the cells was QUANTITY for male inmates ( § CARDINAL.CARDINAL ) ;", "– individual sleeping facilities and bedding were available for PERCENT of inmates ( § § PERSON and CARDINAL ) ;", "– there were insects and rodents in the facility ( § MONEY ) ;", "– sanitary facilities in DATE were insufficient and dilapidated ( § CARDINAL ) .", "Section CARDINAL of ORG no . CARDINALFZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .", "ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the 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 GPE .", "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" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is the father of a son ( S. ) , born on DATE . In DATE the applicant and the child ’s mother ( PERSON ) separated . S. remained with his mother . In DATE the applicant and PERSON ’s mother were divorced .", "On DATE ORG awarded PERSON sole custody of S. and decided that the applicant would be entitled to personal contact with his son every other DATE . In DATE , however , the applicant ceased to have contact with his son .", "On DATE the applicant requested ORG to impose a coercive fine on the mother to enforce his access rights . ORG registered his request under file CARDINAL F CARDINAL/CARDINAL .", "DATE and DATE the parties and ORG submitted observations .", "On DATE the applicant withdrew his request and stated that he now wished the court to mediate between the parents with a view to reaching an agreement on the applicant ’s contact rights according to section CARDINALa of ORG Gesetz über die Angelegenheiten der freiwilligen PERSON – see “ Relevant Domestic Law ” below ) . ORG pursued the applicant ’s modified request under the same file number ( CARDINAL F CARDINAL/CARDINAL ) .", "On DATE the ORG heard S. , who declared that he wished to see his father only occasionally under the supervision of a third person .", "At a hearing held on DATE the parents agreed on supervised contact for the applicant .", "On DATE ORG held a further hearing at which the parties declared that the court currently did not need to take any action .", "On DATE the applicant applied for the appointment of a guardian ad litem and a contact supervisor ( PERSON ) arguing that the mediation proceedings had failed .", "On DATE ORG appointed a guardian ad litem and set down the case for hearing on DATE . However , that hearing was postponed to CARDINAL DATE as agreed with the parties .", "On DATE a further hearing was held , and on DATE ORG ordered supervised contact for a period DATE and DATE .", "On DATE the guardian ad litem informed the court that no contact had taken place .", "On DATE ORG asked the contact supervisor to comment on the failure to have contact established between the applicant and his son . In DATE ORG reminded the contact supervisor of its request of DATE and unsuccessfully attempted to contact the latter by phone .", "On DATE the applicant asked the court to continue the proceedings .", "On DATE ORG sent a further reminder to the contact supervisor and requested the parties to comment on the question as to whether the mediation proceedings should be continued .", "On DATE the applicant asked ORG to continue the mediation procedure .", "On DATE ORG decided to continue the proceedings after the parties had agreed on a CARDINAL - off supervised contact .", "On DATE the contact centre informed ORG that the contact supervisor had been replaced with another person , and on DATE ORG appointed that person as contact supervisor .", "On DATE ORG received the contact supervisor ’s report , according to which PERSON refused to see his father .", "On DATE the applicant asked ORG to declare that the mediation proceedings had failed and to commission an expert report .", "On DATE the ORG heard S. again , who firmly declared that his father no longer existed for him .", "On DATE the ORG commissioned a psychological expert report on the question of contact . That expert informed the court on DATE that he could be biased . Accordingly , the mother ’s representative challenged the expert for bias on DATE . On DATE ORG ordered the expert to stop his examinations , and on DATE the mother withdrew her challenge of bias . On DATE ORG ordered the expert to continue his examinations .", "On DATE ORG requested the expert to consider further questions raised by the applicant .", "On DATE the expert informed the court that PERSON had refused to attend a meeting with the expert until DATE . Subsequently , ORG asked PERSON to ensure that a meeting was held by DATE . On DATE ORG asked all persons involved in the proceedings to support the expert in the preparation of his report . On DATE the expert informed ORG that for the time being PERSON was unwilling to meet the expert . On DATE ORG ordered PERSON to cooperate with the expert within DATE and announced that further measures would be taken in the event of non - compliance .", "On DATE the expert informed the court that a meeting had been held with PERSON on DATE , that the applicant and his son had called each other and that the applicant considered withdrawing his application .", "On DATE , at the applicant ’s request of DATE , ORG ordered the expert to swiftly continue his examination . On DATE the expert gave his report in which he suggested a suspension of the applicant ’s contact with S. for a period of DATE .", "On DATE the ORG heard S. , who insisted that he did not wish to see his father any longer .", "At an oral hearing held on DATE the applicant announced that he would withdraw his application . However , on DATE the applicant insisted on a court decision .", "On DATE ORG , relying on the expert ’s report , suspended the applicant ’s rights to access for DATE .", "On DATE the applicant appealed to ORG , and on DATE he submitted his statement of grounds of appeal , which the court received on DATE .", "On DATE ORG upheld the decision of ORG , arguing that PERSON had suffered from the persistent conflict between his parents about the applicant ’s contact rights and from the respective proceedings , which had been pending now for DATE and which had led to lasting psychological damage to the child . In order to protect himself , the boy refused to expose himself to this conflict , by refusing to see his father .", "On DATE the applicant lodged a constitutional complaint with ORG , which ORG refused to admit on DATE .", "On DATE the decision was served on the applicant .", "Proceedings in family matters are governed by LAW ( Gesetz über die Angelegenheiten der freiwilligen PERSON ) . Pursuant to section CARDINALa of that LAW the family court shall mediate between the parents at the request of CARDINAL parent if CARDINAL parent claims that the other parent is obstructing the implementation of a court decision on contact with a child they have in common ." ]

[ "6" ]

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[ "The applicant is a GPE national , born in DATE and living in the GPE . He was initially represented before ORG , a lawyer practising in GPE . PERSON has now been replaced by ORG QUANTITY Rouwelaar , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant had a relationship with a woman , PERSON , out of which a child , PERSON , was born on DATE . The applicant recognised PERSON as his child . By a decision dated DATE ORG judge ( PERSON ) vested parental authority jointly in the applicant and PERSON", "After the relationship between the applicant and PERSON had ended in DATE , the latter applied to ORG for the guardianship ( voogdij ) over PERSON . In its decision of CARDINAL DATE ORG appointed PERSON as PERSON 's guardian ( voogd ) and the applicant as her subsidiary guardian ( toeziend voogd ) . PERSON was to remain with PERSON The applicant was granted an access arrangement ( omgangsregeling ) under which PERSON would stay with him for DATE each fortnight and for periods of DATE during DATE .", "On DATE PERSON applied to ORG ( Arrondissementsrechtbank ) of PERSON for a change in the access arrangement . The applicant submitted a written statement of defence suggesting changes of his own . On DATE , ORG agreed to change the access arrangement in accordance with the wishes of PERSON The changes involved , essentially , that PERSON would be handed to the applicant at times which would preclude the applicant from picking up or dropping PERSON at school , as “ communication at school ” had apparently led to conflicts between the applicant and PERSON", "It appears that on DATE , when PERSON came to pick up PERSON at the applicant 's home , an incident took place between the applicant and PERSON which gave rise to separate criminal complaints filed by both of them . According to a statement made by PERSON to the police this incident was caused by disagreement about her decision to send PERSON to a different school . Thereafter PERSON refused the applicant all access to PERSON .", "On DATE - shortly before the hearing in summary injunction proceedings ( kort geding ) aimed at securing PERSON cooperation with the access arrangement ( see below ) - PERSON applied to ORG for the access arrangement between the applicant and PERSON to be terminated altogether . The applicant lodged a written statement objecting to this suggestion , asking for the access arrangement to be altered instead . ORG decided to order ORG ( PERSON ) to report to it on the feasibility of continuing the access arrangement .", "ORG held a hearing on DATE . The applicant complained that ORG was taking too long to finish its report He asked for the ORG 's terms of reference to be changed and for access to be resumed in the meantime . ORG decided not to alter the ORG 's terms of reference and deferred its decision until the report was ready .", "ORG submitted a report dated DATE by a psychologist , who - at the request of ORG - had examined PERSON and who had found that PERSON had suffered by the lack of understanding between her parents . Resumption of access by the applicant would be too threatening for PERSON and ought therefore not to be considered at this stage . Psychological support was needed to help PERSON overcome the psychological problems caused by the conflicts that she had witnessed . Both PERSON and the applicant , with whom the psychologist had had conversations both prior to and after PERSON 's examination , had been given the opportunity to make comments on this report . These comments were annexed to the report .", "In a second report dated CARDINAL DATE by ORG , which had been drafted on the basis of conversations held with PERSON and the applicant and the psychologist 's report of DATE , it was noted that PERSON had better ties with PERSON than with the applicant and felt threatened in her contacts with the applicant . It was recommended that access should not be resumed until such time as PERSON herself was ready for it , that PERSON should receive psychological support and that the applicant should seek psychological treatment . Both PERSON and the applicant were given the possibility to make written comments on the report . Only PERSON availed herself of this opportunity . Her comments were appended to the report . The applicant 's lawyer merely stated that the applicant considered that the contents of the report were not at all correct , but that he did not wish to avail himself of the possibility to submit comments .", "On DATE ORG gave a decision terminating the access arrangement altogether . Insofar as relevant , ORG held :", "“ ORG accepts the advice of the expert and ORG and will decide accordingly .", "Since we are faced with the case of a girl who is just over DATE who does not yet have a strong personality , this will have to be taken into consideration .", "If access by the father were to be resumed at this point , that would be too much of an imposition on the child , given the apprehensive reactions observed in GPE , who moreover is emotionally blocked and has found a safe haven with her mother ; access < by the father > would seriously harm her development .", "The father 's request will be rejected on the above - mentioned grounds and the mother 's request will be granted .", "The father must allow PERSON some time .", "ORG draws the mother 's attention to her responsibility as the caring parent and charges her to take all measures necessary to get her daughter out of the present blockage . ”", "On DATE , the applicant filed an appeal with ORG ( ORG ) against the decision of CARDINAL DATE .", "In its decision of DATE , ORG endorsed the refusal of ORG to order an access arrangement . ORG considered that it was generally in the child 's interests for it to have contacts with the non - custodial parent , and that the non - custodial parent was in principle entitled to such access . However , basing itself on the psychologist 's report , ORG found it necessary for PERSON to grow up in a safe family environment , from which the applicant was to be excluded so as to allow PERSON to develop a normal bond with PERSON , who was to help PERSON overcome her negative emotional reactions to the applicant , for which PERSON needed to seek psychological counselling . It would then be possible in DATE time for contact between the applicant and PERSON to be resumed . In the meanwhile PERSON was to provide the applicant twice a year with information on PERSON 's development , including recent photographs and school reports . It held , amongst other things , that although there was nothing in the relationship between PERSON and the applicant to impede contact between them , it would not be in PERSON 's interests to order a compulsory access arrangement in view of the serious lack of understanding between PERSON and the applicant as well as PERSON 's own psychological state .", "On DATE , the applicant lodged an appeal in cassation with ORG ( PERSON ) . He argued that ORG ought to have ordered an access arrangement , leaving it to PERSON 's parents to see to it that she did not suffer any harm or , in the alternative , ORG ought to have examined the question of whether the facility with which access arrangements could be terminated was not partly the cause of the problems , and whether continuing the access arrangement rather than terminating it would not have been more conducive to reducing tensions between the parents . He further argued that ORG decision was insufficiently reasoned , given that ORG had found that there was nothing to impede contact between the applicant and PERSON per se and so it was not clear how compelling PERSON to allow such contact could harm PERSON 's interests .", "ORG handed down its decision on DATE dismissing the applicant 's appeal . As to the applicant 's first complaint it held that ORG had been entitled to decide , on the basis of the information available to it ( including the psychologist 's report ) , that to impose an access arrangement would be contrary to PERSON 's weighty interests . As regards the applicant 's second complaint , ORG held that ORG had merely stated that an access arrangement imposed by court order would be detrimental to PERSON 's interests .", "Following the incident of CARDINAL DATE the applicant tried , initially through social workers and later through his lawyer , to get PERSON to recommence implementing the access arrangement as determined on DATE . These attempts did not meet with success .", "On DATE the applicant summoned PERSON to appear before the President of ORG of Zutphen in summary injunction proceedings . The applicant sought an order against PERSON to co - operate in the implementation of the access arrangement or forfeit a sum of money each time that she failed to do so .", "Following a hearing held on DATE , the President of ORG gave judgment on DATE declining to give the order sought by the applicant . He held :", "“ Parties are making mutual reproaches which , in the absence of a sound substantiation , can not be adequately examined in the present proceedings as to their degree of foundedness . The proceedings on the merits already pending ... are more suitable for a thorough examination , the more so since in those proceedings use can be made of the assistance of ORG of Zutphen . Also taking into consideration that the < applicant > has not had access to PERSON for DATE , it can not be considered for the time being as being in PERSON 's interests - which takes a central place in this matter - that in anticipation of the outcome of the proceedings on the merits the present access arrangement will be restarted , as this would result in a change of a stable situation which , having regard to PERSON 's tender age , does not appear to be opportune . ”", "The President of ORG did , however , not award costs against the applicant but ordered both parties to bear their own costs .", "The applicant filed an appeal with ORG . He argued that the President ought to have ordered the resumption of the access arrangement , because that would have made it clear in what way contact between him and PERSON should be resumed and would thus have yielded information which would have benefited the decision of ORG on whether or not to terminate the access arrangement altogether . He further argued , inter alia , that his intention was to give practical effect to a right that had been determined by a decision of a court that had obtained the force of res iudicata .", "Following a hearing held on DATE , ORG gave judgment on DATE , i.e. the same day on which it handed down its decision on the access arrangement ( see above ) . It held that , as it had endorsed the termination of the access arrangement , the applicant 's claim had lost its basis and that therefore the judgment of the President of ORG had to be confirmed . The applicant as the losing party was ordered to pay a sum of money towards PERSON legal costs .", "The applicant filed an appeal in cassation with ORG on DATE . He argued that , although the ground for his claim had disappeared due to the decision of ORG terminating the access arrangement , ORG ought nevertheless to have ruled in principle on the claim 's foundedness , since the question whether or not he was in fact the losing party depended on it , and the decision on costs in turn depended on that .", "In its judgment of DATE , ORG held that ORG had erred in law by deciding without a further examination that the applicant was the losing party . ORG ought instead to have addressed the question of whether or not the President of ORG had rightly dismissed the applicant 's claim and to have based its decision on costs on the outcome of that examination . ORG did not , however , refer the case back for a rehearing on appeal , holding instead that irrespective of the outcome of such a rehearing each party should bear its own costs . In so doing it applied by analogy the rule that such a decision was possible in litigation between married parents .", "At the relevant time , access rights were regulated in ORG CARDINAL:CARDINALa and CARDINAL of LAW ( PERSON ) . These provisions were subsumed in Article CARDINAL et seq . of LAW by LAW DATE , which entered into force on DATE .", "Article CARDINAL:CARDINALa of LAW , as in force at the material time , provided as follows :", "“ CARDINAL . The child and the parent who has not been appointed as guardian are entitled to have access to each other ( omgang met CARDINAL ) . Access between the parent and the child can take place from the time at which the other parent 's guardianship has begun .", "ORG shall , at the time of the divorce or at DATE , at the request of both parents or of CARDINAL of them , establish an arrangement for the implementation of the right to access , for a definite period or not as the case may be , or shall deny , for a definite period or not as the case may be , the right to access .", "ORG shall only deny the right to access if :", "a. access would seriously impair the mental or physical development of the child ; or", "b. the parent must be deemed to be obviously unfit for , or obviously incapable of , access ; or", "c. access would for another reason be contrary to weighty interests ( zwaarwegende belangen ) of the child ; or", "d. the child , being DATE , when being heard has made serious objections to allowing his parent access . ”", "Article CARDINAL of the Civil Code , as in force at the material time and insofar as relevant , read as follows :", "“ At the request of CARDINAL or both of the parents , ORG may amend decisions given pursuant to ORG and ORG or change an access arrangement concluded by mutual agreement between the parents on the grounds that the circumstances have changed or that the decision was based on inaccurate or incomplete information . ”", "Although the provisions governing access as in force at the relevant time only related to access following divorce , the right of access of parents who had never been married to each other was in fact recognised in domestic case - law under LAW ( cf . PERSON , DATE , PERSON , nr . CARDINAL ; and PERSON , DATE , PERSON , nr . CARDINAL ) .", "Where an access arrangement is not complied with , the parent concerned may request the competent court to issue a measure aimed at enforcing compliance . Courts can not act at their own initiative in this field . Judicial measures aimed at enforcing compliance can take the form of , inter alia , assistance by the police , civil imprisonment , suspension of maintenance payments or placement under supervision ( ondertoezichtstelling ) .", "In civil cases where urgency is required , summary injunction proceedings ( kort geding ) before the President of ORG may be taken in order to obtain an immediate or interim measure . Such proceedings may be taken where the parties can not wait for a decision in the proceedings on the merits ( bodemprocedure ) . Summary injunction proceedings are governed by Articles CARDINAL - CARDINAL of LAW ) . They are concluded speedily and focus on oral submissions at the hearing . As these proceedings are characterised by speed , issues raised are only examined summarily . Decisions taken in summary injunction proceedings are usually handed down within DATE after the hearing and are immediately enforceable ( bij voorraad uitvoerbaar ) . They may however not be detrimental to the outcome of the proceedings on the merits ( “ beslissingen bij voorraad QUANTITY nadeel toe aan de zaak ten principale ” ) . The court determining the merits of the case is not bound by the decision handed down by the President of ORG in summary injunction proceedings ." ]

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[ "The applicant was born in DATE and lives in FAC . He is currently detained in FAC .", "On DATE the applicant was arrested on suspicion of having been involved in drug trafficking as a member of an organised criminal group .", "On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be detained on remand until DATE in view of the reasonable suspicion that he had committed the offences in question . The court considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings given the risk that he might obstruct them . This suspicion was , in the court ’s view , justified by the fact that the applicant had been acting in an organised criminal group , “ the members of which had not been identified ” . The court also stressed the severity of the likely sentence .", "The applicant ’s detention was repeatedly extended by several decisions of ORG ( PERSON ) and ORG ( Sąd Apelacyjny ) . In their decisions , the courts repeatedly relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged , the serious nature of the offences and the risk that the applicant , as a member of an organised criminal group , would obstruct the investigation .", "On DATE the prosecutor lodged a bill of indictment with ORG against the applicant and CARDINAL other co - accused . The prosecutor requested CARDINAL witnesses to be heard .", "On DATE ORG , extending the applicant ’s detention for a further DATE , noted that the length of the investigation had already been excessive and ordered that , by DATE extended detention ( that is , by DATE ) , ORG commence the trial and hear all the defendants in the proceedings .", "On an unspecified date the applicant appealed .", "On DATE ORG confirmed its decision .", "It appears that ORG instructions were not followed by ORG . After DATE the applicant ’s detention was extended CARDINAL more times and the measure has still not been lifted .", "On an unspecified date in DATE the applicant ’s lawyer , relying on the applicant ’s state of health and his family situation , requested the court to vary the preventive measure .", "On DATE ORG refused the request , again invoking the serious nature of the offences with which the applicant had been charged and the risk that he would obstruct the proceedings . As regards the applicant ’s health and his family situation the court found that :", "“ It emerges from the information received from ORG doctor that the applicant can be treated in detention .... The applicant ’s family situation is not so different from the situation of most families where a husband and father is imprisoned . However , the applicant ’s wife runs her own business , which secures her and her children a basic income . It is true that the applicant ’s apartment has been sold at auction but , in the court ’s view , any possible eviction is still a long way off and even then the applicant and his family can obtain alternative accommodation . Lifting the applicant ’s detention order would not change the living conditions of his family much . ”", "The applicant ’s detention was further extended by ORG on DATE , DATE , DATE and DATE and on DATE . The applicant appealed against all those decisions , apart from the CARDINAL given on DATE , but they were confirmed by ORG . In all those decisions ORG relied basically on the same grounds , repeating the arguments relating to the suspicion against the applicant , the serious nature of the offences with which he had been charged , the severity of the penalty to which he was liable and the risk that he might obstruct the proceedings . The suspicion was justified , in the court ’s view , by the charge of acting in an organised criminal group .", "The applicant is still detained and the proceedings before the first - instance court have not yet been terminated .", "The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ." ]

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[ "Background facts", "", "The GPE of GPE ( “ LOC ” ) owned a number of properties which were unsuitable for normal housing use . The properties formed part of the “ short life ” property of GPE , meaning that they were scheduled for demolition , redevelopment or works . Following aggressive squatting , which exacerbated the poor condition of the properties , and an increase in responsibilities on local housing authorities to provide shelter for homeless people , PERSON began to consider a scheme under which housing associations would take over short life property and find and manage tenants until the property was required by GPE for demolition or redevelopment . In around DATE , PERSON began informally licensing short life property to the GPE and ORG ( “ LQHT ” ) , a charitable housing trust , in order that the latter could provide temporary accommodation for homeless people to whom GPE owed a statutory duty to arrange accommodation . However , some of the short life property could not be made suitable for use by homeless families and so , in a separate arrangement in DATE , PERSON began to pass properties to LQHT and other bodies to use as housing for those to whom no statutory duty was owed and who would not generally be allocated housing by GPE . This was called the “ singles scheme ” . The applicants were all provided with housing under the singles scheme .", "Until DATE , LQHT had an informal arrangement with GPE which covered the properties occupied by the applicants . This arrangement was replaced by a licence in DATE , reflecting the previous arrangement and terminable on DATE notice . In DATE , the licence arrangement was replaced by individual DATE leases of each property granted to LOC GPE . The leases were subject to a break clause allowing either party to terminate the leases early on DATE notice . CARDINAL purpose of the grant of the individual head leases was to allow LQHT to replace its licences to the applicants with assured shorthold tenancies , which would prevent them from acquiring security of tenure under LAW DATE ( “ the DATE LAW ) . In fact , few of the applicants agreed to enter into assured shorthold tenancies with LQHT .", "In DATE , GPE gave notice to terminate the head leases to LQHT . In DATE , ORG advised the applicants that the head leases had been terminated .", "Domestic proceedings", "In DATE , GPE brought summary possession proceedings against PERSON , PERSON , PERSON , Mr Cole and Mr PERSON ( “ the PERSON proceedings ” ) . They defended the proceedings on the basis that they were secure tenants of GPE . In DATE , Mr PERSON brought an action against GPE for a declaration making the same claim . PERSON sought an order for possession by way of counterclaim in Mr PERSON 's proceedings .", "The applicants argued that they were tenants of LOC and had secure tenancies under Part IV of the CARDINAL Act . They argued in the alternative that an order for possession against them would breach their right to respect for their homes under LAW PERSON argued that it was not bound by tenancies created by FAC and applied to strike out the applicants ' LAW grounds that it showed no reasonable ground for defending the claim .", "On DATE , the judge ruled that the applicants were not tenants of GPE and therefore had no security of tenure under Part PERSON of LAW DATE . On DATE , following the DATE decision of ORG in GPE of GPE v. PERSON [ DATE ] ORG CARDINAL and on the basis of the majority view in that judgment , the judge struck out the applicants ' alternative defence based on DATE without considering whether the specific personal circumstances arising in each of the applicants ' cases rendered LOC 's decision to seek possession disproportionate . The applicants appealed .", "NORP In the meantime , possession orders were made in respect of Mr PERSON , PERSON and Mr PERSON on DATE . The proceedings against them were stayed by agreement pending the outcome of the PERSON proceedings .", "The appeal against the CARDINAL rulings in the PERSON proceedings was dismissed by ORG on DATE . ORG concluded ( at paragraph CARDINAL ) :", "“ The fact is that GPE has an unqualified right to possession . And on the basis of the majority opinions in PERSON by which we are bound , that is a sufficient answer to the claim under LAW . ”", "NORP However , he noted that a defence on public law grounds was possible , indicating ( at CARDINAL and CARDINAL ) as follows :", "“ However ... [ CARDINAL decision to bring possession proceedings was an administrative decision to which the ordinary principles of administrative law apply . Accordingly it can be challenged by judicial review and perhaps by way of defence in proceedings such as the present .", "...", "But that does not mean that , by the backdoor , LAW comes back into play as a ' relevant consideration ' . Initially , as in all decisions related to housing , the particular needs of a tenant and his family will form a necessary background to the decision a housing authority has to take . And they will therefore form part of the considerations which the housing authority has to evaluate . But those considerations fall to be evaluated on ordinary administrative law principles . In the present case , no material has been put before the court to suggest that the decision was unlawful or unreasonable in the ORG sense ... ”", "ORG granted leave to appeal on DATE . ORG intervened in the case in support of the applicants ' LAW argument . On DATE , ORG sitting as a committee of CARDINAL judges dismissed the appeal ( see further “ Relevant domestic law and practice ” , below ) .", "On DATE , the county court made possession orders against each of the applicants .", "By section CARDINAL of LAW DATE , a secure tenant of a local authority or other public authority has security of tenure . Under section GPE ) of the LAW , a court shall not make an order for possession of a dwelling house let under a secure tenancy except on CARDINAL or more of the grounds set out in Schedule CARDINAL to the Act . Section CARDINAL(CARDINAL ) provides that :", "“ The court shall not make an order for possession—", "( a ) on the grounds set out in Part I of that Schedule ( grounds CARDINAL to CARDINAL) , unless it considers it reasonable to make the order ,", "( b ) on the grounds set out in Part II of that Schedule ( grounds CARDINAL to CARDINAL ) , unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect ,", "( c ) on the grounds set out in Part III of that Schedule ( grounds CARDINAL ) , unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect . ”", "ORG judgment in PERSON is described in detail in the ORG 's judgment in ORG v. the GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE . In that case , ORG found that the property continued to be Mr PERSON 's home notwithstanding the fact that the tenancy had come to an end and so Article CARDINAL was engaged . However , the majority ( Lords Hope of PERSON , PERSON and ORG ) held that a local authority 's proprietary or contractual right to possession could not be defeated by a defence based on LAW . The dissenting minority ( ORG of PERSON and PERSON ) considered that where there was a proposed interference with a person 's right to respect for his home , the question of justification , if raised , did fall to be considered and should , in the instant case , be remitted to the county court .", "In the applicants ' case of PERSON v. ORG ; Price v. ORG [ DATE ] ORG CARDINAL , ORG revisited PERSON following the ORG 's judgments in ORG v. GPE , no . GPE , CARDINAL DATE and GPE v. GPE , no . CARDINAL , DATE ( the latter judgment was subsequently referred to ORG which found , on DATE , that since the case fell outside the ORG 's temporal jurisdiction , it was unable to take cognisance of the merits of the case ) .", "NORP The majority ( Lords Hope , ORG and ORG and ORG ) held that the judgment in ORG was not incompatible with the view of the majority in PERSON and that a defence in possession proceedings which did not challenge the law under which the possession order was sought but was based only on the occupier 's personal circumstances should be struck out . At paragraph CARDINAL , Lord Hope set out the test to be applied :", "“ ... Subject to what I say below , I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with the article CARDINAL but is based only on the occupier 's personal circumstances should be struck out ... Where domestic law provides for personal circumstances to be taken into account , as in a case where the statutory test is whether it would be reasonable to make a possession order , then a fair opportunity must be given for the arguments in favour of the occupier to be presented . But if the requirements of the law have been established and the right to recover possession is unqualified , the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these : ( a ) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article CARDINAL [ “ gateway ( a ) ” ] , the county court in the exercise of its jurisdiction under LAW DATE should deal with the argument in CARDINAL or other of CARDINAL ways : ( i ) by giving effect to the law , so far as it is possible for it do so under LAW , in a way that is compatible with article CARDINAL , or ( ii ) by adjourning the proceedings to enable the compatibility issue to be dealt with in ORG ; ( b ) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable [ “ gateway ( b ) ” ] , he should be permitted to do this provided again that the point is seriously arguable ... ”", "Discussing the implications of the ORG 's judgment in ORG on the decision of ORG in PERSON , he later added ( at paragraphs CARDINAL and CARDINAL ) :", "“ There may , however , be cases like ORG where the incompatibility with the article LAW right lies in primary legislation which the county court is being asked to apply to the case by the public authority ... In such a case it would be open to ORG to make a declaration of incompatibility , if it was not possible to read or give effect to the legislation under LAW DATE in a way which was compatible with the Convention right . But the legislation would nevertheless still have to be enforced , unless the decision of the public authority to seek to enforce it when faced with that incompatibility could be said , when judicially reviewed , to be arbitrary , unreasonable or disproportionate . The decision could not be held in the county court to be an unlawful act within the meaning of section CARDINAL of the CARDINAL Act : see section CARDINAL ) . The fact that the question of incompatibility that was raised in PERSON was not capable , under the domestic system , of being dealt with effectively in the county court because of the limits on its jurisdiction reinforces , rather than detracts from , the proposition that a defence which is raised in that court under article CARDINAL should be struck out unless the legislation can be read and given effect in a way that is compatible or it raises an issue as to its incompatibility that ought to be considered in ORG .", "The appellants ' right to continue in occupation of LOC over which they never had any rights granted to them by the landowner was brought to an end by the operation of law when PERSON gave notice terminating the leases to LQHT . They have no right to remain there indefinitely , which would be the effect of denying to LOC its unqualified right to possession of the LOC on the ground that to give effect to this right would be incompatible with article CARDINAL . Their interests will be sufficiently protected by the fulfilment of the formal requirements for the eviction , which demand proof by the public authority landowner of its entitlement to obtain an order for possession in the exercise of its property rights . I would dismiss this appeal . ”", "Lord PERSON , also for the majority , expressed the following view ( at paragraphs CARDINAL and CARDINAL to CARDINAL ) :", "“ As to ' procedural safeguards ' , each of the [ appellants ] filed a pleading setting out the basis on which his LAW defence , as well as his domestic law defence , was based . The article CARDINAL defences were given due judicial consideration but were struck out as being incapable of constituting a defence to GPE 's possession claim . Whatever ' procedural safeguards ' are requisite , they can not bar a court from ruling in a particular case that the pleaded facts and matters relied on are not capable of outweighing in the balance the contractual and/or proprietary right to possession of the owner of the property in question . If the home occupier thinks the judge 's ruling to be in error , the ruling can ... be reviewed on appeal , or on an application for permission to appeal .", "...", "... The possession orders sought by GPE engage the article CARDINAL right to respect for the home of the respective occupiers from whom possession was sought . But an order for possession was in accordance with domestic law . As against LOC the occupiers had become trespassers with no right to remain in occupation . There was nothing discriminatory or unusual about the statutory and common law framework that produced that result nor about the absence of any statutory protection given to the occupiers by the housing legislation . I respectfully agree with my noble and learned friend Lord PERSON of PERSON 's remarks in para CARDINAL of his opinion that the balance required by article CARDINAL(CARDINAL ) to be struck was struck by the general law , that the public authority owner had a right to manage and control its property within the bounds set by statute , that the occupier acquired only a limited right to occupy and that on due determination of that right , a claim by the owner must ordinarily succeed . The appellants ... could not resist PERSON 's possession applications on LAW grounds unless either they mounted an article CARDINAL attack on the legal framework that entitled GPE to possession or they attacked on LAW grounds LOC 's decision to seek possession . The first attack was not attempted , and , if it had been , would in my opinion have been bound to fail . There is nothing the matter , from an article CARDINAL standpoint , with a common law rule which gives the owner of property , which is occupied as a home by a person who has no right as against the owner to remain there , the right to recover possession of the property . ORG 's omission to provide any statutory security of tenure for home occupiers in the position in which the [ appellants ] found themselves is well within the wide margin of appreciation referred to in Blecic .", "As to the decision of LOC to seek possession of the properties occupied by the [ appellants ] , I agree with and adopt the conclusion expressed by Lord PERSON in para CARDINAL of his opinion . No facts have been pleaded or alleged by the appellants which outweigh the right and the duty of GPE to manage its housing stock . The wide margin of appreciation referred to in GPE must be accorded to GPE .", "The article CARDINAL defences were struck out by Judge PERSON . They were in my opinion rightly struck out . If a defendant does not plead or allege sufficient facts which , if made good , could constitute a defence , the defence can be struck out . On the facts pleaded and alleged in the article CARDINAL defences the defences could not have succeeded .", "Nor , in my opinion , where a home occupier has no contractual or proprietary right to remain in possession as against the owner of the property , could an article CARDINAL defence based on no more than the personal circumstances of the occupier and his family ever succeed . ORG is no authority to the contrary . The successful article CARDINAL defence in ORG was founded on a combination of Mr ORG inability to enjoy the security of tenure advantages afforded by statute to occupiers of privately owned caravan sites and on the GPE court 's perception ( which I think was an unjustified perception ) of a lack of sufficient procedural safeguards enabling him to dispute the grounds which had led the council to terminate his site licence . ”", "Baroness PERSON agreed with the majority , noting ( at paragraphs CARDINAL to CARDINAL ) :", "“ ... as I understand it , some of your Lordships would go further and accept that there may be highly exceptional cases in which the occupier could argue that his individual personal circumstances made the application of the general law disproportionate in his case . When , if at all , should the court be able to say that , even though there is no obligation to continue to provide housing in these circumstances , it is not ' necessary in a NORP society ' to permit the landowner to assert its property rights ?", "My ORG , I myself do not think that the purpose of article CARDINAL was to oblige a social landlord to continue to supply housing to a person who has no right in domestic law to continue to be supplied with that housing , assuming that the general balance struck by domestic law was not amenable to attack and that the authority 's decision to invoke that law was not open to judicial review on conventional grounds . It should not be forgotten that in an appropriate case , the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide : see eg R v ORG and ORG , ORG , GPE and GPE ( DATE ) CARDINAL Admin LR CARDINAL , R ( PERSON and others ) v ORG [ DATE ] FAC ( Admin ) . ”", "She concluded ( at paragraph CARDINAL ) :", "“ Each of the cases before us is a classic example of CARDINAL in which a defence based upon article CARDINAL would have no real prospect of success ... In the LOC cases , the occupiers had undoubtedly established homes in the dwellings but they had done so on terms which made them vulnerable , like many sub - tenants , to the superior claims of the landowner . PERSON 's attempts to evict them were in accordance with the law and in pursuit of the legitimate aim of regaining control over this short life housing stock . All the [ appellants ] were offered alternative accommodation . It would take a very different case from that pleaded to give their claims to remain in the particular dwellings occupied a real prospect of success . ”", "Lord PERSON of PERSON - under - Heywood ( at paragraph CARDINAL ) was of the following view :", "“ For my part I would accept that the recent GPE jurisprudence requires some qualification to be placed on the PERSON principle ; I can not , however , agree that it requires , as the minority in PERSON suggested , the consideration ( even if usually only the most cursory consideration ) of an article CARDINAL defence every time it is raised . My opinion is rather , and at this stage I state it very broadly , that although article CARDINAL is clearly engaged in every home repossession case , its requirements are satisfied provided only and always , first , that the substantive domestic law under which the order is sought strikes an acceptable balance between the competing needs and rights at stake and , secondly , that that law is properly applied by the domestic court with the occupier being given a fair opportunity to invoke any defence available to him under it . If either of those CARDINAL conditions is not satisfied then , I accept , a complaint would properly sound under article CARDINAL . But , as I shall seek to show , it by no means follows that article CARDINAL provides the occupier in such cases with a freestanding defence independent of whatever rights he may have under domestic law . ”", "He concluded ( at paragraphs CARDINAL to CARDINAL and CARDINAL ) :", "“ Of course , where the domestic law requires the court to make a judgment ( most notably perhaps in those cases ... where repossession can only be ordered if the court considers it reasonable ) , or to exercise a discretion , the judge will bear in mind that he is performing this task in the context of the defendant 's article CARDINAL right to respect for his home . But where under domestic law the owner 's right to possession is plainly made out ... , the judge in my opinion has no option but to assume that our domestic law properly strikes the necessary balances between competing interests ( as envisaged in paras CARDINAL and CARDINAL of my noble and learned friend Lord PERSON 's judgment ) and that in applying it properly he is accordingly discharging his duty under section CARDINAL of LAW DATE ... Where no statutory protection is afforded to occupiers that should be assumed to be ORG 's will : sometimes that will be clearly evident from the terms of the governing legislation ... ; even , however , where the owner 's rights arise at common law , the absence of statutory protection must surely be , as my noble and learned friend Lord Hope suggests , the result of a deliberate decision by ORG to leave the owner 's right to recover possession in these cases unqualified . As Lord PERSON observes at para DATE , it is not unrealistic to regard the general law as striking the required balance .", "CARDINAL of the difficulties I have with the appellants ' contended for application of article CARDINAL in these cases is in understanding what sort of ' highly exceptional circumstances ' ( Lord PERSON 's expression at paras CARDINAL and DATE ) could possibly entitle the county court judge to disregard a clear provision of domestic law so as to deprive the owner ... of his apparently clear entitlement to possession ; another is in understanding what are supposed to be the parties ' respective rights and interests in the LOC once the judge has felt obliged under article CARDINAL to set aside the dictates of domestic law .", "...", "I too , therefore , would dismiss both these appeals but I would do so for a reason more fundamental than that suggested by certain others of your Lordships . These appellants ' defences must fail , not because they disclose no sufficient ( highly exceptional ) personal merit but because they depend upon establishing a freestanding LAW right to remain in possession incompatible with the respective claimants ' clear entitlement to possession under domestic property law . I would hold that no such freestanding right exists . ”", "As to the availability of a defence based on conventional judicial review grounds , Lord PERSON added ( at CARDINAL to CARDINAL and CARDINAL ) :", "“ There is , however , a quite different basis upon which an occupier could challenge a public authority 's claim for possession , namely on the conventional public law ground that the decision to bring the claim was itself so unreasonable as to be unlawful . Such a defence can clearly be advanced in the county court ...", "The difficulty with such a defence , however , is that it would be well nigh impossible to make good , the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession . Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right . This would be a more stringent test than would apply were the court , as the appellants assert , under a primary duty to reach its own judgment on the justifiability of making a possession order .", "..", "It is difficult to suppose , however , that a defence based on a public law challenge of this character to a public authority 's decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as ORG itself . Manifestly it could not have succeeded in either of the present cases which doubtless explains why defences of this particular character were not advanced . ”", "The minority ( Lords GPE of PERSON , PERSON of GPE and ORG ) considered that occupiers should be able to plead Article CARDINAL as a defence in possession proceedings , although such a defence would only be successful in highly exceptional cases . Lord GPE ( at paragraph DATE ) described the minority approach as follows :", "“ The practical position , in future , in possession proceedings can be briefly summarised as follows . ( CARDINAL ) It is not necessary for a local authority to plead or prove in every case that domestic law complies with LAW Courts should proceed on the assumption that domestic law strikes a fair balance and is compatible with LAW . ( CARDINAL ) If the court , following its usual procedures , is satisfied that the domestic law requirements for making a possession order have been met the court should make a possession order unless the occupier shows that , highly exceptionally , he has a seriously arguable case on CARDINAL of CARDINAL grounds . ( CARDINAL ) The CARDINAL grounds are : ( a ) that the law which requires the court to make a possession order despite the occupier 's personal circumstances is Convention - incompatible ; and ( b ) that , having regard to the occupier 's personal circumstances , the local authority 's exercise of its power to seek a possession order is an unlawful act within the meaning of section CARDINAL . ( CARDINAL ) Deciding whether the defendant has a seriously arguable case on CARDINAL or both of these grounds will not call for a fullblown trial . This question should be decided summarily , on the basis of an affidavit or of the defendant 's defence , suitably particularised , or in whatever other summary way the court considers appropriate . The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question . ( CARDINAL ) If the court considers the defence sought to be raised on CARDINAL or both of these grounds is not seriously arguable the court should proceed to make a possession order . ( CARDINAL ) Where a seriously arguable issue on CARDINAL of these grounds is raised , the court should itself decide this issue , subject to this : where an issue arises on the application of section CARDINAL [ of LAW DATE ] the judge should consider whether it may be appropriate to refer the proceedings to the High Court ” .", "As for the disposal of the appeal , however , he considered that on the facts of the present case the matter need not be remitted to the county court , concluding ( at paragraph CARDINAL ) :", "“ The question then arises whether these cases should , even after this lapse of time , be remitted to the county court for consideration whether eviction is necessary in a NORP society , as that expression has been defined in the GPE jurisprudence . I would favour that course if there appeared any reasonable prospect of the court deciding that it was not necessary . But it is clear that under domestic property law the appellants have no right to occupy their respective LOC , of which the local authority has an unqualified right to possession . The appellants fall outside the categories to which ORG has extended a measure of protection . The local authority has no duty to accommodate the appellants , but has a power and duty to manage its housing stock . The appellants have not pleaded or alleged facts which give them a special claim to remain . I am satisfied that if these cases were remitted , possession orders would necessarily be made ... ”", "In DATE , ORG handed down its decision in PERSON v. ORG [ DATE ] ORG CARDINAL shortly after the ORG 's judgment in ORG v. the GPE , no . CARDINAL , CARDINAL DATE . The ORG affirmed PERSON and sought to clarify the position set out in that judgment , in light of the ORG 's decision in GPE . Lord PERSON ( at paragraphs CARDINAL to DATE and DATE ) provided , in particular , the following clarifications of the “ gateways ” available for defendants to challenge possession orders , as explained in PERSON :", "“ As I said earlier , the speeches in PERSON show that the route indicated by [ gateway ( b ) ] is limited to what is conveniently described as conventional judicial review . In para CARDINAL , for example , Lord PERSON indicated that he had in mind a challenge in accordance with ORG [ DATE ] ORG CARDINAL on grounds which , he said , had nothing to do with LAW DATE . In para CARDINAL Lord PERSON too acknowledged that this was a quite different basis from that which the LAW provides upon which a public authority 's claim for possession could be challenged . In para CARDINAL of my own speech I described this as a challenge that would be made at common law , on the ground that the decision was one that no reasonable person would consider justifiable . In para CARDINAL I said that the grounds on which the decision to claim possession could be judicially reviewed were whether it was arbitrary , unreasonable or disproportionate .", "ORG ( b ) then asserts that in possession cases brought by a public authority a defence which takes the form of a challenge to its decision to seek possession may be available . The court is not bound to make the order if the decision to seek it can be challenged on the ground that it was an improper exercise of the respondent 's powers . In this respect the CARDINAL routes , or ' gateways ' , may be said to work together to address the incompatibility due to the lack of a procedural safeguard , which is the fundamental point that is at issue in this case . FAC ( a ) addresses the question whether the court can read and give effect to the statutes in a way that is compatible with article CARDINAL . If it can not do this , it will be open to the defendant by way of a defence to argue under gateway ( b ) that the order should not be made unless the court is satisfied , upon reviewing the respondent 's decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised , that the decision to do this was in the ORG sense not unreasonable . This route offers a procedural protection under the common law . If taken , it will enable the grounds on which the respondent based its decision to be scrutinised . It might , on the facts of this case , provide the appellant with an effective defence to the making of the possession order . The fact that it is available as a defence seems to me to strengthen the argument , should it be needed , that it also provides him with the protection which he seeks against an infringement of his Convention right .", "...", "I think that in this situation it would be unduly formalistic to confine the review strictly to traditional ORG grounds . The considerations that can be brought into account in this case are wider . An examination of the question whether the respondent 's decision was reasonable , having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site , would be appropriate . But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority . In my opinion the test of reasonableness should be , as I said in para CARDINAL of PERSON , whether the decision to recover possession was one which no reasonable person would consider justifiable ” .", "Clarifying the difference between the minority and minority approaches in PERSON , he said ( at paragraph CARDINAL ) :", "“ As I said in para CARDINAL of my opinion in PERSON , and again at the outset of para CARDINAL , a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances of the occupier should be struck out . The personal interests safeguarded by article CARDINAL must be taken to have been sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by the statute or by the common law . That is the basic law that was established in PERSON and it is the point on which the majority in PERSON differed from the minority : see ground ( CARDINAL)(b ) in para CARDINAL of Lord PERSON 's opinion . ”", "Lord PERSON also considered the minority view in PERSON , as set out by Lord PERSON , and compared it to Lord Hope 's test in PERSON , concluding ( at paragraph CARDINAL ) that :", "“ ... The only proposition which is in any respect inconsistent with the majority opinions is proposition CARDINAL(b ) and the inconsistency there is slight though important . Proposition CARDINAL(a ) covers the same ground as Lord PERSON 's paragraph CARDINAL gateway ( a ) . But proposition CARDINAL(b ) attributes to the occupier 's personal circumstances a central importance that the majority opinions did not accept . The view of the majority , as expressed by Lord Hope in his gateway ( b ) , was , as I have explained , that a local authority 's decision to recover possession would be open to challenge on public law grounds and that the challenge could be raised as a defence in the possession proceedings . The personal circumstances of the defendant might well be a factor to which , along with the other factors relevant to its decision , a responsible and reasonable local authority would need to have regard . The question for the court would be whether the local authority 's decision to recover possession of the property in question was so unreasonable and disproportionate as to be unlawful . ”", "He disagreed with a passage in the decision of ORG in the case under consideration , noting ( at paragraph CARDINAL ) that :", "“ ... the sentence ' Under gateway ( b ) the council 's action was open to challenge on conventional judicial review grounds , but not on the grounds that it was contrary to LAW suggests a disharmony between ' conventional judicial review grounds ' on the one hand and LAW other hand that I do not accept . ”", "In an addendum prepared following the release of the ORG 's judgment in GPE , Lord PERSON emphasised ( at DATE ) that :", "“ ... Local authorities , being public authorities , are obliged by section DATE ) of LAW DATE to act in accordance with the Convention rights incorporated by the LAW into domestic law . They are obliged when deciding to terminate tenancies and recover possession of residential properties to act consistently with article CARDINAL . If a decision , for example to serve a notice to quit , is inconsistent with the article CARDINAL rights of the person on whom it is served the decision would be unlawful and the notice to quit devoid of effect . Lord PERSON 's paragraph CARDINAL establishes that a point of that sort can be raised as a defence to the possession proceedings . Such a defence would , if raised , be dealt with by a county court judge as part of the possession proceedings ...", "... An article CARDINAL defence requires the judge to review the lawfulness of the local authority ' 's decision could be shown to be outside the range of reasonable decisions that a responsible local authority could take , having regard both to the circumstances of the defendant as well as to all the other relevant circumstances , the decision would be held to be unlawful as a matter of public law . But in a case in which it is not reasonably arguable on the face of the pleadings , or from the contents of the affidavits that have been filed , that that is so , the judge can be expected to make a summary order for possession . The adjective ' summary ' in this context does not mean that the judge would not have considered the proportionality of the requested possession order . It means that the article CARDINAL case put forward by the defendant for a conclusion that a possession order would be disproportionate is not , in the opinion of the judge , capable of being sustained by serious argument . The notion that a defence based on an article CARDINAL right to respect for a home requires the case to proceed to a full trial even though it is apparent that the defence can not succeed is clearly absurd . An application for a summary judgment does require the defendant 's contention that a possession order would be disproportionate to be given proper attention and , if reasonably arguable , to be permitted to proceed to a full trial . ”", "Lords Walker and PERSON both drew attention to the fact that the majority in PERSON had drawn an important distinction between human rights and traditional judicial review challenges . Lord PERSON noted ( at paragraphs CARDINAL to CARDINAL ) that :", "“ ... As CARDINAL of the minority in PERSON , I must accept the decision of the majority , which distinguishes between grounds of judicial review which are based on the ORG [ LAW ] and grounds ( ' common law ' or ' conventional ' grounds ) which are not based on the ORG . The minority accepted the view of Lord PERSON of GPE ... that article CARDINAL might , highly exceptionally , provide a tenant or licensee with additional protection . Lord Hope , in the leading speech for the majority , disagreed ( para CARDINAL ) . So did Lord PERSON ( para CARDINAL ) , ORG ( paras CARDINAL - CARDINAL ) and ( most emphatically ) PERSON ( paras CARDINAL ) .", "... I think that I may properly express unease and indeed incomprehension at the suggestion , which is at least implicit in this part of the decision , that ORG grounds and traditional judicial review grounds can always be separately identified . ”", "Lord PERSON observed ( at CARDINAL ) that :", "“ ... ORG ( b ) , as expressed in paragraph CARDINAL in PERSON was , as I see it , phrased so as to exclude any direct application of the Convention rights or of ORG test of proportionality , and to confine attention to common law grounds for judicial review , informed though they may increasingly be by ideas of fundamental rights : see also per ORG of GPE at paragraph CARDINAL and Lord PERSON of ORG - under - Heywood at paragraphs CARDINAL - CARDINAL , and contrast the approach of the minority as set out in paragraph CARDINAL of Lord GPE of PERSON 's speech in PERSON .", "The general distinction which thus emerges is recognised and described in R ( PERSON ) v. Secretary of ORG for ORG [ DATE ] ORG CARDINAL ... per Lord PERSON ( para . CARDINAL ) and Lord PERSON of ORG ( para . CARDINAL , recognising though regretting the distinction ) and in R ( ORG ) v. Secretary of ORG [ DATE ] EWCA Civ CARDINAL ... paragraphs CARDINAL to DATE , where ORG , giving the judgment of ORG , said that any abandonment of the common law 's ORG unreasonableness test for a proportionality test was a step which could only be taken by this ORG . Other potential differences between conventional ( or ' domestic ' ) judicial review were discussed in R ( ORG ) v. Governors of ORG [ DATE ] ORG CARDINAL ... ( see in particular per Lord PERSON at para . DATE ) and ORG v. Miss ORG [ DATE ] UKHL CARDINAL ...", "The difference in approach between the grounds of conventional or domestic judicial review and review for compatibility with Human Rights Convention rights should not however be exaggerated and can be seen to have narrowed , with ' the “ ORG ” test ... moving closer to proportionality [ so that ] in some cases it is not possible to see any daylight between the CARDINAL tests ' ( ORG , para . CARDINAL , citing an extra - judicial lecture by Lord PERSON ) ... Even so , as the subsequent history of ex p . PERSON demonstrates , the result may not always achieve the degree of protection for Convention rights which ORG requires : PERSON and PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL . So there remains room in another case to reconsider how far conventional or domestic judicial review and Convention review can be further assimilated , and in particular whether proportionality has a role in conventional judicial review . This was not , however , argued on the present appeal , and , in common I understand with the majority of your Lordships , I do not consider that it is appropriate to embark on such a review on this appeal .", "On this basis , in circumstances such as those in PERSON , the only question under gateway ( b ) as expressed in PERSON is whether the public authority 's decision can be challenged on domestic judicial review grounds , in particular as having been based on material misconceptions or improper considerations or as unreasonable , either in the PERSON sense or in a more relaxed sense which takes full account of the basic interest which any occupant has in his or her home . In other words , in circumstances such as those in PERSON , a full Convention review is not , at least nominally , possible on the majority view taken in PERSON . ”", "Lord PERSON concluded ( at paragraphs CARDINAL to CARDINAL ) :", "“ However , I for my part regret that it has not been possible on this appeal to agree to modify gateway ( b ) in paragraph CARDINAL more generally , so as to allow express regard to be had to Human Rights Convention principles in relation to any defence raised against a public authority under the rule in ORG v. ORG , whether in circumstances such as those in PERSON , ORG , PERSON and PERSON or in circumstances such as the present . In DATE of his speech my noble and learned friend Lord Hope mentions the need to take account of any judgment of ORG and to give practical recognition to the principles that it lays down , and states that this can be done in the present circumstances by to some extent modifying the reasoning of the majority in PERSON . At the same time , he rejects the suggestion that the ORG should depart from the majority view in PERSON in favour of the minority , believing that this would create very real practical problems : paragraphs CARDINAL .", "For my part , I am not persuaded that any significant problems would or need arise , as Convention - compliant statutory schemes are developed and public authorities become accustomed to tailoring their performance of their duties to Convention values . In a large number of cases , ORG already tackle sensitive issues of reasonableness , as well as issues regarding breach of conditions of occupancy , when deciding whether to make or suspend possession orders ; The limited modification that my noble and learned friend Lord Hope would make to gateway ( b ) of paragraph CARDINAL ( see paragraph CARDINAL ) would add to such cases a further category in which review on traditional ORG grounds was relaxed to become a more straightforward examination of reasonableness . If ORG can handle such issues in possession claims , there is no reason to doubt their ability to tackle , robustly and with due despatch , the largely parallel issues which would arise from any direct application of the Convention principles in cases of challenges to public authority decisions to seek possession . ”", "ORG has recently considered the application of the gateway ( b ) defence in CARDINAL cases : PERSON v ORG [ DATE ] EWCA Civ CARDINAL ; PERSON v. ORG [ DATE ] EWCA Civ CARDINAL ; and ORG v. PERSON and others [ DATE ] EWCA Civ CARDINAL . In PERSON , considering the effect of the ruling in PERSON , Lord Justice PERSON stated ( at DATE ) :", "“ First , there is no formulaic or formalistic restriction of the factors which may be relied upon by the licensee in support of an argument that the council 's decision to serve a notice to quit , and seek a possession order , was one which no reasonable council would have taken . Such factors are not automatically irrelevant simply because they may include the licensee 's personal circumstances , such as length of time of occupation . In PERSON , where the family had been in occupation for a substantial time without causing any trouble , but the council wanted to use the site in a different way , it might also be thought relevant whether the council had taken any steps to offer the family , or help them to acquire , alternative accommodation .", "Secondly , the question whether the council 's decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law , and not through the lens of the Convention .", "...", "Having said that the question whether the council 's decision was unreasonable has to be decided by applying public law principles as they have been developed at common law , it is to be remembered that those principles are not frozen . Even before the enactment of the ORG , our public law principles were being influenced by Convention ways of thinking . Since its enactment , the process has gathered momentum . It is now a well recognised fact that the ORG is influencing the shape and development of our domestic public law principles , whether one uses the metaphors of embedding , weaving into the fabric , osmosis or alignment . ( See the judgment of Lord PERSON in PERSON at para CARDINAL ) . ”", "ORG in PERSON v. ORG reiterated ORG interpretation of ORG .", "Subsequently , in ORG v. PERSON , Lord Justice PERSON noted , at paragraphs CARDINAL , as follows :", "“ But it is important to keep in mind that in PERSON the court was concerned with a traveller and his eviction from a caravan site ; the circumstances were thus similar to those being considered in PERSON but are far removed from the circumstances of the instant cases , which are very close to those which existed in PERSON . I emphasise that point because although it can be said that PERSON encourages the view that the personal circumstances of PERSON may not be irrelevant in considering a local authority 's decision to serve a notice to quit , it will be necessary to go back to PERSON and consider PERSON 's impact on PERSON where the circumstances are as in PERSON and as they are in the instant cases . PERSON would however suggest that in conducting a review of the council 's decision PERSON has held that something wider than the ORG rationality test was appropriate . In PERSON ( it is right to say ) despite similarities with the circumstances in PERSON , unlike ORG in PERSON , the court of appeal found that there was no purpose in remitting the matter because it was not arguable that the council acting reasonably could have come to any different decision .", "In PERSON the court was concerned with the termination of a tenancy by a local authority on the grounds of anti - social behaviour . The court held it was ' an unusual case ' and that PERSON had a seriously arguable public law defence based on it being arguable ( i ) that a reasonable council would after service of the notice to quit have made further investigations as to whether there was further anti - social behaviour and ( ii ) that there had been a failure by the local authority to make those further investigations . The circumstances of PERSON are far removed from the instant cases . ”", "He continued ( at paragraph CARDINAL ) :", "“ CARDINAL things are not in dispute which I emphasise at the outset . The decision of a public authority can be made the subject of judicial review and in the context of possession claims in the county court , the correct forum for that review , if an arguable point is raised , is the county court itself . Second even if in PERSON intended gateway ( b ) to be confined to what I might term a ' rationality ' challenge , in his speech in PERSON intended to extend to some extent the scope of judicial review beyond rationality even if not as far as a straightforward challenge by reference to the convention . ”", "PERSON set out the position as follows ( at paragraphs CARDINAL to CARDINAL ) :", "“ An authority such as the council in the instant appeals may make a decision on the facts as known to it to send a letter seeking possession . Prima facie it has no obligation to find out what the true facts are and the burden is going to be on the occupier to demonstrate any grounds relied on as providing an LAW . If the occupier informs the public authority of relevant circumstances , the public authority will have to take a further decision as to whether to commence proceedings . If no letter is received and the facts are only divulged just prior to the hearing , the public authority in reality has to take a further decision as to whether to proceed . Indeed if the revelation is only during the hearing , the council in deciding to continue to press for an order takes yet a further decision . I do not see why if any one of these decisions could be shown to be ' unreasonable ' whatever that means ( and I will come back to that ) , it could not be attacked .", "If that is an appropriate analysis , because the county court is seized of the matter , it will be able to see whether there is an arguable case that in deciding even with the revelation of further facts to continue to seek possession is unreasonable . If ' reasonableness ' connotes something wider than rationality , that will be very close in reality to the court itself examining a defence based on LAW . ”", "He concluded ( at CARDINAL ) :", "“ The law gives an owner of land the right to obtain possession against a trespasser . But the owner , if the occupier has his home on the land in question , can not obtain possession other than through proceedings in court . The court has to satisfy itself as to the owner 's rights but can in making an order for possession pay regard to the personal circumstances of the occupier . Statute circumscribes the court 's powers in certain cases ... and in others does not do so . In cases such as the present and PERSON , the court simply has a discretion whether to suspend the order for possession for a short period .", "It follows that I would accept that the question whether a decision of a public authority is ' reasonable ' post - Doherty goes beyond the question whether it is rational . I would also accept that a public authority should take account of the personal circumstances of the occupier known to it , but it does not follow from this that there will ever be circumstances in which it will be unreasonable to seek possession against trespassers in situations similar to those in PERSON . Those situations may make it unreasonable not to allow a period of time to bring the possession order sought into effect but that is something which the court oversees and which the law allows for .", "...", "Ought we to remit in this case ? In my view it would , just as in PERSON , not be appropriate to do so . To echo the words of Lord PERSON in PERSON , it is clear that under domestic property law the appellants have no right to occupy their respective premises , of which the council has an unqualified right of possession . The appellants fall outside the categories to which ORG has provided protection . The council has no duty to accommodate the appellants and has a duty to manage its assets . The appellants have put in a draft pleading before us , but it does not allege any facts which provide some special claim to remain . If the matter were remitted the court would be bound to make an order for possession , although it would be entitled to take account of the personal circumstances in considering the time at which the order would be effective . That latter is something we could do without remission . ”", "In Associated Provincial Picture Houses v Wednesbury Corporation [ DATE ] CARDINAL KB CARDINAL , Greene MR noted as follows :", "“ It is true the discretion must be exercised reasonably . Now what does that mean ? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word ' unreasonable ' in a rather comprehensive sense . It has frequently been used and is frequently used as a general description of the things that must not be done . For instance , a person entrusted with a discretion must , so to speak , direct himself properly in law . He must call his own attention to the matters which he is bound to consider . He must exclude from his consideration matters which are irrelevant to what he has to consider . If he does not obey those rules , he may truly be said , and often is said , to be acting ' unreasonably ' . Similarly , there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority .", "...", "... the task of the court is not to decide what it thinks is reasonable , but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority , acting within the CARDINAL corners of their jurisdiction , could have decided to impose ...", "... The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account , or , conversely , have refused to take into account or neglected to take into account matters which they ought to take into account . Once that question is answered in favour of the local authority , it may be still possible to say that , although the local authority have kept within the CARDINAL corners of the matters which they ought to consider , they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it . In such a case , again , I think the court can interfere . The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority , but as a judicial authority which is concerned , and concerned only , to see whether the local authority have contravened the law by acting in excess of the powers which ORG has confided in them . ”" ]

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[ "The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in PERSON . He was represented by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was a farmer operating a strawberry farm .", "On DATE ORG ( NORP ) inspected the applicant ’s farm and came across QUANTITY persons presumed to be NORP nationals who were working there .", "Subsequently , on DATE , ORG laid a criminal information against the applicant for illegal employment of foreigners under LAW ( GPE ) .", "On DATE ORG fined the applicant ORG CARDINAL,CARDINAL ( i.e. approximately LAW ) , with imprisonment in default , for illegal employment of CARDINAL foreigners on his farm .", "The applicant filed an appeal against this decision with ORG ( ORG ) on DATE and asked for an oral hearing to be held .", "On DATE the ORG summoned the applicant to a hearing , scheduled for DATE .", "On DATE the applicant ’s counsel asked for that hearing to be adjourned until DATE , as the applicant was absent from GPE . Therefore , on DATE , the applicant was summoned again to appear on DATE .", "On DATE the applicant again filed a request for adjournment of the hearing . He submitted that injuries he had suffered in an accident would leave him incapable to stand trial .", "On DATE the Bregenz ORG granted the applicant ’s request , on condition that he submit a medical statement giving information on his state of health and his ability to follow the hearing .", "The applicant presented an abridged medical report indicating his injuries on DATE .", "On DATE the ORG scheduled a hearing for DATE .", "Subsequently , on DATE , the applicant again filed a request for adjournment of the proceedings sine die .", "On DATE an oral hearing was held , at which the applicant ’s counsel was present .", "On DATE the ORG acquitted the applicant in respect of CARDINAL of the foreigners , while upholding the decision as regards the other CARDINAL .", "The applicant lodged a complaint with ORG on DATE and requested that suspensive effect be granted to his complaint . Moreover he asked for the hearing to be suspended until he had recovered from his injuries .", "On DATE ORG refused to grant his complaint suspensive effect as the execution of the ORG ’s decision would not impose a disproportionate loss on the applicant .", "On DATE ORG refused to deal with the applicant ’s complaint as it lacked prospects of success . On DATE , at the applicant ’s request , it transferred the case to ORG .", "On DATE the applicant submitted further observations to ORG and requested an oral hearing . In addition he again filed a request for suspensive effect .", "On DATE the PERSON submitted it ’s observations on the applicant ’s complaint .", "On DATE ORG quashed the ORG ’s decision and remitted the case back to the ORG . It found that the ORG should have verified the applicant ’s capacity to attend an oral hearing .", "Subsequently , on DATE , the applicant filed further observations on the case .", "On DATE the ORG held an oral hearing . In the presence of the applicant ’s counsel it took evidence from one of the labour officials who had conducted the on - site inspection on DATE .", "On DATE the ORG summoned the applicant to another hearing scheduled for DATE . It explicitly asked the applicant if he wanted to be questioned . In addition it asked him to disclose the address of CARDINAL of the labourers , PERSON , in order to have him summoned to the planned hearing .", "On DATE the applicant requested that the hearing be adjourned as his counsel was retained by other business .", "On DATE he again commented on the proceedings , submitting inter alia that it was for the prosecuting authority to investigate PERSON ’s whereabouts .", "On DATE the ORG held a further hearing in which it summoned another labour official and CARDINAL of the labourers . Although represented by counsel , the applicant himself did not appear before the ORG .", "On DATE the ORG partly granted the applicant ’s appeal and , explicitly referring to LAW , held that the proceedings had exceeded a reasonable time . It took this fact into account as a mitigating circumstance and reduced the fine to MONEY less than the lowest generally applicable fine . The fine was therefore reduced by CARDINAL to ORG CARDINAL for each count . Moreover , the ORG held that PERSON could not be summoned , because he had left GPE and it had no current address at which he could be contacted . The applicant failed to provide the name and address of the other witness and did not give any reasons for the request .", "On DATE the applicant , alleging inter alia violations of Articles CARDINAL and CARDINAL of the Convention and of LAW , filed a complaint to ORG . Furthermore he requested that his complaint be granted suspensive effect .", "On DATE he filed a further complaint to ORG , in which he repeated his arguments concerning an alleged violation of LAW .", "On DATE ORG rejected his request for granting suspensive effect .", "On DATE ORG , relying on Article CARDINALa of LAW , declined to deal with the case since the aggregate amount of the CARDINAL penalties did not exceed ORG and no significant legal problem was at stake .", "By decision of CARDINAL DATE ORG declined to deal with the case as it lacked prospects of success . The decision was served on the applicant ’s counsel on DATE ." ]

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[ "The applicant is a NORP national who was born in DATE and lives in GPE , GPE . He has worked inter alia as a kindergarten assistant for DATE .", "The applicant has CARDINAL sons L. and A. ( born respectively on DATE and DATE ) with PERSON , a NORP national , with whom he entered into a relationship in CARDINAL/CARDINAL and cohabited from DATE until DATE . In DATE ( before A. was born ) the applicant and PERSON reached an agreement whereby he had certain access rights to L.", "NORP Since DATE he has cohabited with PERSON and her adolescent son .", "A dispute arose as to the applicant 's access to PERSON On DATE reported him to the police for allegedly having sexually abused PERSON She based her allegations on statements made by PERSON mother gave statements to the police and PERSON was interviewed by a judge without anything significant emerging in the case . In DATE ORG discontinued the investigation , which decision ORG confirmed on appeal in DATE .", "In DATE the applicant brought judicial proceedings before ORG ( byrett ) , claiming a right of access to his CARDINAL sons ( sections DATE and CARDINAL of LAW DATE ) . On DATE ORG refused a request by PERSON to have an expert witness appointed .", "By a judgment of DATE ORG granted the applicant access DATE and for CARDINAL of the holiday periods and devised a plan for stepping up access . To give the above immediate effect , ORG issued an interlocutory order .", "In reaching the above conclusions , ORG rejected the accusations made by the boys ' mother that the applicant had sexually abused PERSON It observed that according to PERSON there were CARDINAL occasions on which the applicant had been on his own with his son , namely in that they had been in a room with the door shut in PERSON 's apartment . In her view it was most probable that the abuse had occurred on these occasions , though she did not have concrete evidence to this effect . ORG found it excluded on the evidence before it that the applicant had sexually abused PERSON It attached decisive weight to the fact that the applicant 's access to his son had taken place each time under the supervision of CARDINAL other person and that on the CARDINAL occasions on which he and the son had been on their own in the latter 's room , it was for a very short time and in a situation where the child 's mother could have entered the room at any moment . The visits in question took place DATE for a small child - before DATE when the son had made the statements that aroused the mother 's suspicions that the applicant had sexually abused L. Finally , ORG had regard to the fact that the physiological and psychiatric examinations carried out did not support the allegation that abuse had occurred . It found that the allegation had been the result of manipulation and fabrication by the mother as part of a strategy to obstruct the applicant 's access . There was reason to assume that this had already had damaging effects on PERSON , who had stated that he did not wish to live or to be with his father . The boy had become a go - between in a conflict between adults . ORG stated that the applicant was more suitable than the mother to assume the DATE care .", "On DATE PERSON 's lawyer lodged a disciplinary complaint against the judge who had heard the case before ORG for having acted with prejudice against his client in expressing distrust and treating her with disrespect during her testimony . The judge was imposed a mild reprimand by ORG , which found that there were grounds for criticising his conduct of the proceedings .", "PERSON appealed against ORG judgment and interlocutory injunction to ORG ( lagmannsrett ) , requesting in the main that the applicant be refused a right of access to the children . She referred inter alia to the fact that the court appointed expert considered that GPE 's strong negative attitude to his father was consistent with abuse having taken place . The applicant , denying that any abuse had occurred , requested ORG to reject her appeal .", "By a judgment of DATE , ORG overturned ORG judgment and refused the applicant access to his CARDINAL sons , inter alia after obtaining an expert report from a court appointed psychologist , dated DATE , and hearing evidence from the latter . It also had regard to a report of DATE by a psychologist who had been counselling the boy at the mother 's initiative and the psychologist 's oral evidence to the court .", "The High Court noted that from the psychologist 's report of DATE it emerged that the boy had felt great anxiety about the idea of meeting his father ( he would kill himself rather than see his father ) ; PERSON was unable to describe the reasons but his statements seemed founded on actual experience . Any access should be established gradually . Forcing the boy to have contact would be psychologically damaging .", "The High Court observed that the applicant and L. met CARDINAL times in DATE , CARDINAL times in DATE , CARDINAL times in DATE and that no access had taken place during DATE ( since DATE ) . It did not consider that the mother had sabotaged access although it understood that the fact that access had to take place under supervision by her sister or her father had made it difficult for the applicant to exercise access .", "The High Court 's judgment included the following reasoning :", "“ CARDINAL arguments have been made against the father being granted a right of access .", "Firstly , it is argued that the father has subjected [ L. ] to sexual assault . There is a complaint to the police dated DATE from which it appears that an investigation of the case was initiated . The mother made statements to the police on DATE and DATE , and there was also an interview of [ L. ] by a judge without anything of significance for the case coming to light . According to information presented , the case was dropped by the public prosecutor . This decision was appealed to ORG on DATE but the public prosecutor 's decision was not reversed . The fact that there was insufficient evidence in the criminal case is , however , not decisive in this case , see ORG ( [ PERSON ( ORG Reports)]-CARDINAL - CARDINAL . It is further assumed that in a case involving minor children , no risk whatsoever may be taken in such circumstances , also concerning the issue of access rights , see Rt – DATE - CARDINAL . In view of the information available in the case , where quite detailed descriptions have been provided of the abuse , together with [ L. ] 's strong objections to seeing his father , ORG finds that there are many elements that may indicate that abuse has occurred . ORG has nevertheless not found it necessary for its decision to go further into or take a stance on this .", "Secondly , it is contended that the implementation of access rights vis - à - vis the father is impossible in view of the fact that [ L. ] is opposed to this . In light of the information available , the High Court assumes that [ L. ] is opposed to having access to his father , which is to be accorded weight pursuant to section CARDINAL of LAW . Nevertheless , the implementation of access may not , in principle , be made dependent on the child not being opposed to being with his father . This question will depend on the concrete circumstances .", "...", "According to the report , the boy is unable to describe why he has such great anxiety about meeting his father . [ Psychologist O. ] considers the information he has obtained to be an expression of the boy 's actual experiences . The report further states that if contact between the father and the boy is to be established , this must take place gradually over a longer period of time and in such a manner that [ the child welfare services ] can constantly monitor how this develops . If [ L. ] 's strong anxiety is maintained , forced contact is at present deemed to constitute a psychological assault on the boy , according to the report . [ Psychologist O. ] has given testimony before ORG , which in its essentials concords with the aforementioned report . According to [ Psychologist O. ] , [ L. ] has stated that he would not visit his father even in the presence of CARDINAL party , his mother or someone else .", "In his report , the expert states inter alia the following :", "' On the whole [ L. ] has a good level of functioning , though everything having to do with his father is an obviously vulnerable and difficult point for him . My own impression from an interview with [ L. ] accords well with what [ Psychologist O. ] has described . [ L. ] indicates with his entire being both in the interview and afterwards that this is a very uncomfortable and difficult topic . '", "The expert evaluated CARDINAL alternative resolutions for the access issue . The first alternative is an ordinary access arrangement between the father and the boys . The expert concluded that it is both impossible and indefensible to go straight to such an arrangement . He refers to the fact that [ L. ] 's aversion and emotional reactions to contact with his father are so strong that such an arrangement could not be started without strong physical coercive measures . Furthermore , he refers to the fact that [ L. ] has made serious threats about what he would do , namely take his own life . The expert also pointed to the strain this would inflict on [ L. ] and that this may jeopardise his further development . This would , in addition , inflict substantial strains on the mother . As the second alternative the expert considered a limited access arrangement , with supervision , possibly with the aim of increasing it to ordinary access . The expert pointed out that such a process may involve relatively high human ( and financial ) costs and that it would be a stressful process for [ L. ] and the rest of the family . Furthermore , it was noted that the outcome may be uncertain , since neither the mother nor [ L. ] will , at the outset , be very motivated to attaining concrete results in the form of contact with the father . The expert concluded that this is a possibility , but that it would require support by both parties and having sufficient resources in and around the family at their disposal . He also pointed out that the chances of failing abysmally would be present . The third alternative considered is no access at all between the father and the boys . To justify such a solution , the expert referred to the necessity of safeguarding the good progress the boys are making and of sparing them , especially [ L. ] , from further uncertainty and conflicts connected with the issue of access .", "The expert did not reach any unambiguous conclusion in his report , except from finding that an ordinary access arrangement appears to be quite impossible to implement . As far as the other alternatives are concerned , he has kept the options more open . In his testimony before the court and after having been present during the appeal hearing , the expert expressed the view that he strongly favours that there should be no access between the father and the boys . In addition to [ L. ] 's clearly expressed unwillingness to have access to his father , the expert referred to the difficult situation that the family and [ L. ] in particular have been in over DATE . He further referred to the fact that the mother was the sole provider for the children , and that she and the family had reached their ' limit of tolerance ' . It is also the understanding of ORG that the expert deems the costs of a supervised arrangement to be too high and the benefits to be too uncertain for the expert to have been able to recommend access under supervision as an alternative .", "ORG agrees that an ordinary access arrangement would not be an acceptable alternative , but has evaluated in particular whether an arrangement with supervised access would be possible . Like the expert , ORG has concluded that such an arrangement would be disproportionately demanding and that it presumably may be difficult to find persons with the necessary competence who are willing to subject themselves to such a time consuming process as is in question here . ORG also agrees with the expert that the strain that such a process will necessarily inflict on the family must also be considered , especially since the mother has sole care of the children . On the basis of its impressions during the hearing , ORG agrees with the expert that the ' tolerance limit ' for whatever additional strains that can be inflicted appears to have been reached . Even if neither the [ Psychologist O. ] nor the expert appears to have been able to clarify the reasons for [ L. ] 's strong objections to the decision . In view of this , there would in the view of ORG be an not unappreciable risk that the boy 's development may be directly jeopardised by having to go through such a process that is under discussion here . In addition , considerable flexibility would be required of both parties , which , on the basis of ORG impressions from the hearing , is uncertain , on the part of the mother , but especially on the part of the father .", "Despite the fact that ... , a refusal to grant access may be justified only in very special circumstances , ORG has concluded that there should be no access in this case since , on the basis of an overall assessment , this would not be in the best interest of the children . Even though the issue of access is at the outset to be considered separately with regard to each of the boys and even though it is assumed that [ A. ] does not have the same antagonistic relationship to his father as [ L. ] , the High Court finds no reason to grant access with regard to [ A. ] as well . As ORG understands the expert , it would cause unpleasant tensions within the family if CARDINAL of the children were to have access and that such an arrangement was not advisable , something with which ORG agrees . Given the strains that the family has been DATE , in ORG view , it is now important that peace prevails in this matter .", "Having reached this conclusion , ORG does not find it necessary to establish a provisional arrangement in respect of the access issue . ”", "The High Court Judgment contained the following unanimous conclusion regarding the substantive questions :", "“ [ The applicant ] is not granted a right of access to [ L. ] , born on * , * , DATE , and [ A. ] , born on * , * , DATE . “", "The applicant appealed against ORG judgment as a whole , asking primarily that it be quashed and in the alternative that he be granted a right of access to his children . He challenged ORG procedure , namely its omission to deal with the interim order by ORG .", "He moreover appealed against ORG assessment of the evidence , notably its reasoning regarding the allegations on sexual abuse , including the following passage , which in his view was “ curious ” .", "“ In view of the information available in the case , where quite detailed descriptions have been provided of the abuse , together with [ L. 's ] strong objections to seeing his father , the High Court finds that there are many elements that may indicate that abuse has occurred . ORG has nevertheless not found it necessary for its decision to go further into or take a stance on this . ”", "The applicant submitted that in the light of the evidence it was hard to understand ORG conclusion on sexual abuse , even more so when it was stated in the judgment that it “ has not found it necessary for its decision to go further into or take a stance on this ” . In the applicant 's view , this was obviously an error ; should a judge find that there were many elements to indicate that sexual abuse had occurred , it was evident that this conviction would also have an effect on a decision regarding access for the parent found to be a probable abuser . The applicant further disputed the lawfulness of ORG rejection of any access rights , which decision could not be reconciled with the rule that the best interests of the child should prevail . In the applicant 's view , GPE 's horror picture of his father should be removed by arranging for access . This was a clear case of the so - called Parental Alienation Syndrome , with clear hatred , fear and anxiety , unlike the ambivalence shown by children who have been exposed to actual abuse .", "On DATE , ORG of ORG refused the applicant leave to appeal .", "The applicant has submitted a medical certificate dated DATE by PERSON , which stated :", "“ I the undersigned have known [ the applicant ] since DATE .", "He has had a very tough time psychologically during the period since the judgment . He feels that he has been unjustifiably held liable of sexual abuse against his son and feels powerless in the system . He has been very depressed lately . He is struggling with problems of sleeplessness , bad appetite and loss of weight . He is isolating himself . At times he has had suicidal thoughts . This has adversely affected his family life and members of his family have had a particularly difficult time during DATE . ”", "The applicant has moreover filed a statement by PERSON , GPE , of DATE , which concludes :", "“ It is highly probable that [ the applicant ] has developed symptoms that are compatible with ORG after what he had experienced in GPE . This has been further fortified by a situation combining anxiety and depression in the form of an adaptation disturbance as a result of his fight to get access to his children , especially when the court deprived him of his right of access .", "He presents a relatively high level of pressure from suffering but which he nevertheless manages to master satisfactorily . He receives regular treatment by a psychologist and medical treatment . ”", "At the time of the national courts ' consideration of the present case , the right of access between a parent and a child was governed by sections DATE and CARDINAL of LAW DATE ( Lov om barn og foreldre ( barnelova ) ) .", "Under section CARDINAL the child had a right of access to both parents , even if they lived apart , and the parents had mutual responsibility for implementing the right of access . Under section CARDINALA the parent with whom the child did not live had a right of access to the child unless otherwise agreed or determined . The provision contained more detailed rules on the extent of access , its implementation and the procedure . It provided that decisions should first and foremost be based on what was best for the child .", "Provisions governing the contents of judgments in civil proceedings may be found in LAW of the DATE ORG ( tvistemålsloven ) . In so far as relevant Article CARDINAL provides :", "“ A judgment shall contain :", "...", "A brief presentation of the object of the case and of the parties ' submissions ; when appropriate , reference may be made to written pleadings filed in the case , or to entries in the court record ; if so , the material referred to shall be included in transcripts of the judgment ;", "Reasoning for the decision ; they shall decisively and exhaustively indicate the facts of the case on which the court bases its decision", "An operative part .", ".... ”" ]

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[ "On DATE the applicant company applied to ORG under the provisions of PERSON no . DATE for a subsidy to build a hotel . That statute provided that companies satisfying certain conditions were entitled to a ORG subsidy for their investments .", "The applicant company 's request was rejected in a decision of CARDINAL DATE .", "On DATE the applicant company lodged an application with ORG for judicial review of the above - mentioned decision . Its lawyer delivered the application by hand to QUANTITY police officers at GPE police station no . CARDINAL . The police officers affixed the police station 's seal to the first page of the application and wrote the registration number and date on it . They did not , however , note the registration number on the record of deposit stamped onto the application itself .", "On DATE ORG ruled the application inadmissible on the following grounds :", "“ Article QUANTITY § CARDINAL and CARDINAL of Presidential Decree no . CARDINAL provide that in order for an application for judicial review to be validly lodged with a public authority , it must be registered in the said authority 's register and stamped with a record of deposit . This record must mention the registration number and the date and must be signed by the official receiving the application and by the applicant ... There can be no substitute formalities for compliance with that procedure , to which the applicant himself is a party , because it is a legal requirement for the valid registration of an application . Accordingly , if an application lodged with a public authority other than ORG is incorrectly stamped , this will affect the validity of the application .", "In the present case the notice of application was lodged with GPE police station no . CARDINAL and stamped with a record of deposit which was signed by the lawyer depositing the application , the QUANTITY police officers receiving it and the senior officer at the station . However , this stamp did not bear a registration number . Admittedly , the registration number and date of deposit are indicated both on the seal next to the stamp and the first page of the application , but they do not appear on the stamp recording the deposit of the application itself and are signed neither by the lawyer who lodged the application nor by the police officers who took delivery of it . Accordingly , they do not satisfy the statutory conditions of admissibility of applications . ”", "That judgment was finalised ( καθαρογραφή ) on DATE and the applicant company obtained a copy on DATE ." ]

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[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in NORP .", "ORG ( “ the Government ” ) were represented by their Agent , PERSON , from ORG .", "On DATE the applicant was arrested on suspicion of theft . He was later sentenced to CARDINAL years’ imprisonment for the said offence .", "On DATE the applicant was taken to a cell at GPE - Mureş police station , where he was detained for DATE . He alleged that , before , while and after being taken to the police station DATE , he was repeatedly hit by the police officers accompanying him because he was drunk and refused to answer their questions until a lawyer and a prosecutor were present . Consequently , he asked to be taken to the local ORG to be examined by a forensic doctor .", "On DATE the applicant was examined by the PERSON - Mureş police detention centre ’s doctor . A medical report produced DATE stated that the applicant had bruises and contusions on his face , a deformed nasal pyramid and had suffered thoracic trauma as a result of aggression . On DATE he was also examined at the Târgu - ORG by a cardiologist , who recorded inter alia in a further medical report of that date that the applicant had suffered cranio - facial injuries .", "On CARDINAL DATE the applicant was taken to the Târgu - ORG and was examined by a forensic specialist . A report produced on the same date stated that the applicant ’s face and body bore several bruises and abrasions and that the injuries could have been caused on CARDINAL DATE as a result of direct hitting with or against hard objects . The report also stated that the injuries would require DATE of medical care in order to heal .", "On DATE the applicant brought criminal proceedings with civil claims for abusive conduct and unlawful arrest against the CARDINAL police officers who had detained him on DATE , namely ORG and ORG He was assisted by a lawyer during the entire course of the proceedings and argued that the CARDINAL police officers had insulted , threatened and hit him for TIME on CARDINAL May CARDINAL and had forced him to provide them with statements .", "By an order of DATE the NORP - ORG discontinued the criminal investigation opened against the CARDINAL police officers on the grounds that no unlawful act had been committed . It found that at TIME on DATE , PERSON had witnessed from the window of his home CARDINAL individuals who were taking things out of the boot of a car . Suspecting that the CARDINAL individuals were thieves , he decided to go out of his house and stop them . He asked PERSON to call the police and proceeded towards the CARDINAL individuals , who started to run away . PERSON pursued them and managed to catch the applicant , who was drunk and kept falling over . Although PERSON tried to hold him up until the police arrived , the applicant kept pushing him away in repeated attempts to escape . The applicant was taken to the police station by officers PERSON and ORG and was left in the company of ORG , who attempted to question him . PERSON returned to the scene of the crime to take statements from the witnesses , PERSON and PERSON According to the police ORG statements , the applicant had refused to answer any questions and denied that he had committed any crime . They also stated that he had threatened the officers , which was confirmed by the witness , PERSON The officers alleged that the applicant had become angry because he had not been allowed to leave and had vigorously smashed his head into the window of the room in which he was detained , but had not managed to break it because it was fitted with metal rods . Consequently , the Târgu - ORG held that the CARDINAL police officers had acted within the scope of their duties prescribed by law and that the applicant ’s injuries , confirmed by the medical forensic report , had been caused by the fight the applicant had had with a third party , namely ORG , and by his own deliberate actions . The applicant appealed against the decision before the hierarchical prosecutor .", "By a final order of DATE , the chief prosecutor of the Târgu - ORG dismissed the applicant ’s appeal on the grounds that there was no evidence in the file that the applicant had been hit or insulted by the police officers and that his injuries could have been caused by the third party who had immobilised him . The chief prosecutor held that according to the witness , PERSON , the applicant was drunk and when the witness caught him , he attempted to start a fight , but fell and hit the curb , which made his clothes dirty with dust and mud and his face bleed . The same witness stated that although the police officers forced the applicant to get into the police car , they were not violent . The second witness , PERSON , confirmed that the applicant attempted to escape from PERSON ’s hold several times and that PERSON pinned him to the ground each time . PERSON also confirmed that the applicant ’s face was already bleeding and his clothes were covered in dust and mud prior to the police ORG arrival . Furthermore , the police officers denied having committed an offence and declared that by the time they arrived at the scene , the applicant had been pinned to the ground by PERSON , who informed them that there had been a struggle between him and the applicant . The officers further stated that they had taken the applicant to the police car and asked him to lie down because he was bleeding . They also contended that at the police station the applicant had become angry and smashed his head against a glass window . The applicant appealed against the decision before ORG , arguing that the forensic investigation , which had taken place DATE after the incident , had been superficial because the forensic specialist had not x - rayed his ribs , which had been broken as a result of police aggression .", "By a judgment of DATE , ORG dismissed the applicant ’s appeal and upheld the order of ORG . It held that the injuries suffered by the applicant on DATE were undeniable , but that they had been caused as a result of the physical interaction between the applicant and PERSON , and the applicant ’s own deliberate actions . The applicant appealed against the judgment .", "In his written submission before the Târgu - Mureş Court of Appeal lodged on DATE , the applicant stated that he had been beaten by the QUANTITY police officers . He argued that he had only been taken to a forensic doctor DATE after the incident and that the forensic investigation had been superficial as the doctor had not x - rayed his ribs . Moreover , he had been ill - treated by the police officers before and after being taken to the police station and his requests for a lawyer and a prosecutor to investigate his case had been ignored . Consequently , in an attempt to stop the ill - treatment to which they were subjecting him , he had jumped and smashed into a window fitted with metal rods .", "By a final judgment of DATE the NORP - ORG dismissed the applicant ’s appeal as ill - founded on the grounds that there was no evidence in the file to support the applicant ’s claims that his injuries had been caused by the CARDINAL police officers .", "The applicant was transferred to PERSON from DATE to DATE .", "On DATE the applicant was examined and treated inter alia for obliterative arteriopathy in his legs ( arteriopatie obliterată a membrelor inferioare ) .", "DATE and DATE , the applicant was detained in ORG . A medical report dated DATE showed that he was suffering from pain in his legs , paraesthesia and bad circulation . He also had a weak bilateral arterial pulse . He was treated with anti - inflammatory and anti - platelet drugs , multivitamins , muscle relaxants and beta blockers . By the time he was discharged from the hospital , his condition had improved and it was recommended that he stop smoking and start a special diet . He was also prescribed anti - platelet and antihypertension medicines and treatment with a vasodilator , and advised to consult a cardiovascular specialist .", "On DATE the applicant wrote to the Târgu - Mureş Prison authorities requesting examination by a cardiovascular surgeon as recommended by his discharge papers from ORG . He claimed that he was suffering from pain in his legs as a result of his condition , which prevented him from sleeping at TIME . Moreover , he stated that he had asked the prison medical office to assist him with his request , and although the prison doctor had attempted to contact ORG , he had never been taken for the examination . Lastly , he informed the prison authorities that he had decided to go on hunger strike until a specialist doctor had examined him . On DATE the prison doctor recommended that the applicant be taken for an additional medical examination .", "On DATE the applicant was examined by a specialist doctor in the NORP - Mureş No . CARDINAL ORG . A medical report produced on the same date recommended that the applicant be subjected to a peripheral vascular GPE test or to an aortography .", "On DATE the applicant wrote to the Târgu - Mureş Prison authorities and asked to be hospitalised in a civilian hospital for an aortography , which he claimed could not be carried out in a prison hospital . He argued that his condition was deteriorating and that he needed surgery in order to treat his condition and avoid losing his left leg .", "On an unspecified date the Târgu - Mureş Prison doctor recommended that the applicant undergo a neurological examination by DATE and that he be hospitalised in a civilian hospital for a maximum of DATE for an aortography .", "On DATE the applicant underwent a neurological examination .", "On DATE the NORP - FAC authorities requested that the applicant be hospitalised in the cardiovascular surgery unit of ORG for an aortography . In addition , on DATE they recommended once more that the applicant be transferred to ORG for examination by a specialist .", "DATE and DATE the applicant was hospitalised in ORG with a diagnosis of chronic arteriopathy ( arteriopatie cronică oscilantă a membrelor inferioare ) and pain in the left leg .", "On DATE the applicant was taken to ORG for a cardiovascular examination . He was diagnosed with stagetwo thrombangeitis obliterans in the left leg and recommended surgery , in particular a sympathectomy , and vasodilator treatment .", "On DATE the applicant consented to an operation in ORG . The surgery was performed DATE and was successful .", "He spent TIME after the surgery in the intensive care unit of the prison hospital . Afterwards he was transferred to room no . CARDINAL of the surgical ward , which had the necessary medical equipment as well as beds , windows and heating . He received treatment with anticoagulants , antialgic and anti - hypertension medication until DATE . The medical records show that his post - surgery recovery was normal .", "On DATE the applicant was transferred to PERSON with the doctor ’s approval . He was prescribed a special diet , rest , monitoring by the prison infirmary for DATE , and the removal of postsurgery stitches .", "The applicant claimed that , prior to his transfer from ORG he had spent TIME in a cold room . Moreover , the transfer to PERSON had taken TIME and his wound had started to bleed .", "Upon his arrival at LOC , the applicant was examined by the prison doctor and given a bed in room no . CARDINAL of the prison infirmary , which had windows and heating . The doctor prescribed medical treatment for him , checked his post - surgery stitches , and recommended that the stitches be removed .", "On DATE the applicant ’s post - surgical wound started to fester and he was prescribed antibiotic treatment .", "On DATE the applicant refused to take the antibiotic and anti - hypertension medication provided to him by the prison authorities .", "On DATE the applicant ’s dressing was changed . According to his medical chart , he had not ensured the correct hygiene for his post - surgical wound . He refused to allow the stitches to be removed for a further DATE .", "On DATE the applicant ’s stitches were removed . The dressing of the wound was changed and the doctor identified a slight festering of the wound and again prescribed treatment with antibiotics .", "On DATE the applicant ’s wound had healed and he was discharged from the Târgu - Mureş Prison infirmary . Later on the same date the dressing of his wound was changed . According to the medical records , the applicant had failed to use clean underwear , the wound was producing light serous secretions , but pus was absent .", "On DATE and DATE and DATE the applicant was examined by the Târgu - Mureş Prison doctor and the medical records state that his wound had continued to fester . On DATE , as a result of the pain the wound was causing the applicant , the prison doctor recommended that he be transferred to ORG .", "On DATE the applicant was hospitalised in ORG and diagnosed with an abscessed granuloma on the surgical scar . He was treated for his condition and discharged from the prison hospital on DATE after his condition had improved .", "DATE and CARDINAL DATE the applicant was hospitalised again in ORG because of pain in his legs , in particular cold sensations and paraesthesia . The medical records show that he was treated for his condition and that upon discharge , his surgical wound had healed and his condition had improved . Moreover , he was recommended vasodilator treatment and an examination by a cardiovascular specialist .", "On DATE following a complaint made by the applicant to ORG ( “ the ORG ” ) that the prison doctor had failed to undertake all the necessary steps for him to be hospitalised in a cardiovascular unit , the ORG informed the applicant that his medical records showed that he had been monitored and examined for his condition several times by the prison hospitals . The specialist doctors had recommended that he stop smoking and take his prescribed medication . The Târgu - FAC medical office had examined the applicant CARDINAL times and provided him with the medication prescribed by the specialist doctors . Moreover , the ORG argued that the applicant had failed to observe the ORG recommendations to stop smoking and follow the prescribed treatment . Consequently , the ORG concluded that the prison doctor was free to decide the appropriate treatment for the applicant ’s condition and whether further medical examinations were required .", "DATE and QUANTITY DATE the applicant was hospitalised several times in civilian hospitals for medical examinations . He was provided treatment for his condition and underwent both a GPE test and an aortography . The discharge papers dated DATE recorded that the applicant was scheduled for surgery on DATE for an iliofemoral bypass .", "On DATE the NORP - FAC doctor informed the prison authorities that the applicant ’s medical condition was not connected to the conditions of his detention but rather to his unwillingness to give up smoking . Moreover , he had been provided with medical treatment for his condition and additional medical examinations were scheduled .", "On an unspecified date the applicant brought proceedings before the domestic courts seeking his temporary release for DATE on medical grounds .", "By a final judgment of DATE the NORP - ORG allowed the applicant ’s action seeking his temporary release from prison . It held that the forensic medical report produced on DATE by the ORG had shown that the applicant ’s condition did not prevent him from serving his prison sentence . However , he needed reconstructive vascular surgery for his legs that could not be performed in a prison hospital .", "DATE the applicant was hospitalised in the general surgery unit of the Târgu - ORG and underwent ilio - femoral bypass surgery . His discharge papers stated that he was healed at the time of discharge and it was recommended that he take various medicines , rest , avoid the cold and stop smoking and drinking .", "The applicant was temporarily released from prison DATE and DATE .", "On DATE the applicant returned to prison after his temporary release on medical grounds , following his ilio - femoral bypass surgery . According to a medical examination carried out on the same date , the applicant had not followed the recommended post - surgery treatment during his temporary release from prison .", "DATE the applicant was examined CARDINAL times by the prison doctor and was provided treatment for his medical conditions .", "On DATE the applicant was hospitalised in ORG complaining of pain in his legs , in particular cold extremities and paraesthesia . He was provided treatment and discharged after his condition had improved . He was prescribed analgesic and vasodilator treatment , and a surgical examination after DATE .", "On DATE the applicant was conditionally released from prison .", "The relevant provisions of LAW regarding the remedies available in order to contest ORG decisions are described in PERSON GPE ( no . CARDINAL ) ( no . CARDINAL , § § DATE , DATE ) .", "Excerpts from the relevant provisions concerning the rights of detainees and the stay of execution of a sentence of imprisonment , namely Government Ordinance CARDINAL/CARDINAL and LAW , are set out in LOC v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

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[ "NORP The applicant , PERSON , is an NORP national who was born in DATE . He is represented before the ORG by ORG , a lawyer practising in GPE .", "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 .", "The applicant is a CARDINAL-year old man and a NORP of ethnic origin . His family is active in the GPE party . CARDINAL of his brothers received international protection and residence permits in GPE in DATE and DATE respectively . A third brother was killed because of his political activities .", "The applicant allegedly joined the ORG party in DATE while visiting his brother in NORP GPE . DATE after he joined the party , he was arrested and held in custody for DATE . During this time he was ill - treated both physically and mentally . The NORP secret service ORG agreed upon his release on the condition that he provide them with information about the GPE party ’s activities . The applicant travelled back to NORP GPE and agreed with the leaders of the GPE party that he would provide ORG with incorrect information about the GPE party , and this took place . The applicant continued his activities in the GPE party , which included mostly delivering different materials relating to the party , such as posters and information sheets , to different cities in GPE until DATE .", "In DATE the applicant travelled to GPE at his brother ’s invitation . ORG had forbidden him to leave the city without their permission but they did not know that he had a passport . The applicant managed to travel to GPE without ORG knowing . His original plan was to visit the GPE ’s members in GPE and then to return to GPE in DATE . However , having heard from his father in GPE that his wife and brother had been arrested because the NORP authorities had found out about his departure from GPE , he became afraid that he would again be illtreated or even killed on returning to GPE . Therefore he sought asylum in GPE . His wife was soon released but she still has to report to the authorities DATE in order to show that she has not left the country . The applicant has continued his activities in the GPE party in GPE , including taking part in meetings and demonstrations .", "The applicant arrived in GPE on DATE and sought asylum on DATE .", "On DATE ORG ( ORG virasto , PERSON ) rejected his application and decided to order his removal to GPE . It found that the applicant had not provided any evidence in support of his alleged activities and membership of the GPE party , nor of the alleged persecution or torture inflicted on him . ORG found that the certificate issued by GPE ’s NORP office , dated DATE , which attested to his party membership , did not constitute an evidentiary basis on which any credible conclusions could be drawn about his activities and status in the party and the possibility that he would face a risk of ill - treatment in GPE . Moreover , the applicant was able to describe GPE ’s objectives and activities only superficially . Even though the applicant had allegedly been tortured repeatedly , he had not provided the ORG with any kind of medical certificate . ORG found the applicant ’s story , as a whole , not credible . Even if he had been a member of the party , he could not be regarded as a high level party member but only possibly a lower level party activist . It was not probable that the NORP authorities would persecute the applicant . This conclusion was supported by the fact that the applicant had been able to leave GPE without any problem . The Service did not find it credible that the arrest of the applicant ’s wife and brother , as alleged , were due to his stay in GPE , or that the NORP authorities would know that the applicant had continued his political activities in the GPE party in GPE .", "The applicant appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) , requesting that ORG decision be quashed and the applicant be granted asylum , or alternatively , a residence permit . He also requested that an oral hearing be held .", "On DATE ORG , after having held an oral hearing , rejected the applicant ’s appeal . The court noted that the applicant did not hold a leading position in the GPE party , nor were his or his family ’s political activities known in his home region . It had not been shown that the NORP authorities knew about his activities . Nor did ORG find it probable that the NORP authorities had found out about the applicant ’s political activities during his stay in GPE or that he would otherwise be persecuted by the NORP authorities upon return . The court thus concluded that the applicant would not be subject to any real risk of ill - treatment when returned to GPE .", "The applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting also that a stay on removal be granted .", "On DATE ORG stayed the applicant ’s removal to GPE for the duration of the proceedings before it .", "On DATE ORG refused the applicant leave to appeal .", "According to LAW , paragraph CARDINAL , of the LAW of Finland ( NORP perustuslaki , PERSON grundlag ; Act no . CARDINAL/CARDINAL ) , the right of foreigners to enter GPE and to remain in the country is regulated by an LAW . A foreigner shall not be deported , extradited or returned to another country , if in consequence he or she is in danger of a death sentence , torture or other treatment violating human dignity .", "According to section DATE , subsection CARDINAL , of LAW ( ulkomaalaislaki , utlänningslagen ; Act no . CARDINAL ) , aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well - founded fear of being persecuted for reasons of ethnic origin , religion , nationality , membership of a particular social group or political opinion and if they , because of this fear , are unwilling to avail themselves of the protection of that country .", "Section CARDINAL , subsection CARDINAL , of the LAW ( as amended by Act no . CARDINAL/CARDINAL ) provides that an alien residing in GPE is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under LAW are not met , but substantial grounds have been shown for believing that the person , if returned to his or her country of origin or country of former habitual residence , would face a real risk of being subjected to serious harm , and he or she is unable , or owing to such risk , unwilling to avail himself or herself of the protection of that country . Serious harm means : CARDINAL ) the death penalty or execution ; CARDINAL ) torture or other inhuman or degrading treatment or punishment ; or CARDINAL ) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts .", "NORP Under section CARDINALa of the LAW ( as amended by Act no . CARDINAL/CARDINAL ) , an alien residing in GPE is issued with a residence permit on the basis of humanitarian protection , if there are no grounds under LAW or CARDINAL for granting asylum or providing subsidiary protection , but he or she can not return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation .", "According to section CARDINALb of the LAW ( as amended by Act no . CARDINAL/CARDINAL ) , the well - founded fear of being persecuted referred to in section CARDINALb or the real risk of being subjected to serious harm referred to in section CARDINAL may be based on incidents after the applicant ’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in after his or her departure .", "Section CARDINAL , subsection CARDINAL , of the LAW ( as amended by Act no . ORG ) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant ’s statements on his or her circumstances in the ORG in question and of real time information on the circumstances in that ORG obtained from various sources . After obtaining the available statement , the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible and if the authorities are convinced of the veracity of the application with regard to the applicant ’s need for international protection .", "According to section CARDINAL of the Act , no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty , torture , persecution or other treatment violating human dignity or from where he or she could be sent to such an area .", "ORG DATE : The State of the World ’s Human Rights : GPE ( AI Report DATE ) covering events in DATE and published on DATE , notes the following about the general human rights situation in GPE :", "“ An intensified clampdown on political protest preceded and , particularly , followed the presidential election in DATE [ DATE ] , whose outcome was widely disputed , deepening the long - standing patterns of repression . The security forces , notably the paramilitary ORG , used excessive force against demonstrators ; CARDINAL of people were killed or fatally injured . The authorities suppressed freedom of expression to an unprecedented level , blocking mobile and terrestrial phone networks and internet communications . Well CARDINAL people had been detained by DATE . Many were tortured , including some who were alleged to have been raped in detention , or otherwise ill - treated . Some died from their injuries . CARDINAL were then prosecuted in grossly unfair mass ‘ show trials’ . Most were sentenced to prison terms but CARDINAL were sentenced to death .", "The election - related violations occurred against a background of severe repression , which persisted throughout DATE and whose victims included members of ethnic and religious minorities , students , human rights defenders and advocates of political reform . Women continued to face severe discrimination under the law and in practice , and women ’s rights campaigners were harassed , arrested and imprisoned . Torture and other ill - treatment of detainees remained rife and CARDINAL people died in custody . Detainees were systematically denied access to lawyers , medical care and their families , and many faced unfair trials . GPE remained CARDINAL of the states with the highest rates of execution and CARDINAL of very few still to execute juvenile offenders : CARDINAL people were executed , including one by stoning and CARDINAL juveniles . ”", "According to the country information on GPE ( ORG , Operational Guidance Note : GPE , DATE ) , politically active groups and individuals are considered a threat to national security by ORG . If the NORP authorities consider a person to be working against national security ( the person may for example be accused of being a spy or of cooperating with an opposition religious , ethnic or political group ) , they may face severe punishment ranging from CARDINAL years’ imprisonment to execution . For instance , being in possession of a CD , a pamphlet or something similar made by ORG ( KDPI ) , GPE or other NORP organisations , may be considered an act against national security . This form of persecution for political activities is a problem all over GPE . However , the authorities are watching NORP areas and GPE more carefully than other areas .", "Both high and low profile persons may risk persecution . Whether a person is harassed does not depend on the person being a high or low profile opponent of the government . While a high profile person is sure to be persecuted when arrested by the authorities , even a low profile person , who has been in possession of documents with a political message , may face persecution even if the person does not know anything about the movement in question . Moreover , if a person had left GPE illegally , he or she would not have been registered in the computer system as having left GPE and therefore would be questioned upon return ( ORG : Human Rights Situation for Minorities , Women and NORP , and ORG , ORG , ORG , and Reporting , etc . , DATE ) .", "According to the Operational Guidance Note , there is no evidence to suggest that an applicant of NORP ethnic origin , in the absence of any other risk factor , would on return face a real risk of serious mistreatment simply on account of his or her ethnic origin alone . Applicants who are able to demonstrate that they are members or supporters of the GPE , GPE , or active members of ORG , and who are known to the authorities as such , will be at real risk of persecution and a grant of asylum will be appropriate unless there are case - specific reasons why it would not be ." ]

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[ "The applicants , Mr PERSON and PERSON , are NORP nationals of NORP - NORP origin , who were born in DATE and DATE respectively and live in GPE , in the northern part of GPE which in DATE was proclaimed as GPE ” ( the “ GPE ” ) . They were represented before the ORG by Mr A. ORG , a lawyer practising in GPE .", "and as derived from the documents in the file , may be summarised as follows .", "On DATE , before the parliamentary elections of GPE to be held on DATE , the applicants submitted CARDINAL applications on behalf of other NORP and themselves to the Minister of the Interior of GPE ( “ the Minister ” ) requesting to be placed on a separate electoral list , namely , a NORP electoral list , in order to vote and stand for the parliamentary elections . The applicants claimed that section CARDINAL ( CARDINAL ) of the PERSON on the Exercise of the Right to Vote and be Elected by Members of the NORP community with ORG in GPE ) ( “ LAW ” ) was contrary to LAW and the Convention .", "Their applications were refused by the Minister on DATE . In his decision the Minister stated that the above - mentioned PERSON had been enacted in compliance with the ORG ’s ruling in the case of PERSON v. GPE ( no . MONEY , ECHR CARDINALV ) in order to enable NORP residing in the government - controlled areas of the Republic to exercise their individual right to vote and stand for election . It did not provide , however , for the exercise of these rights as a community . Due to the irregular situation , the relevant LAW provisions concerning separate elections had become impossible to implement in practice . The LAW applied as long as the irregular situation in GPE continued to exist . It was therefore of a temporary nature and did not deprive the NORP community of their constitutional rights . Until a comprehensive settlement was reached , however , the exercise of these rights in the manner provided by the LAW was not possible .", "On DATE the applicants filed an application , in the NORP language , at ORG for a declaration that the Minister ’s decision was null and void . The applicants relied on Articles CARDINAL and CARDINAL of the LAW as they were before the amendment whereby the number of seats in ORG was increased ( see domestic law part below ) . The document did not comply with any of the procedures concerning the drafting of special proceedings whereby the various competences of ORG are evoked . The officers of the Registrar , taking into account the fact that the applicants were seeking the annulment of the Minister ’s decision in order to enable them to exercise their right to vote and to stand for election , filed the case under the category of electoral applications and submitted it to the Plenary of ORG which has exclusive jurisdiction to adjudicate finally on any election petition , made under the provisions of LAW ( Article CARDINAL of the LAW ) .", "ORG , after considering the application , decided that in substance it constituted a recourse under LAW by which the applicants challenged the LOC decision dismissing their application .", "On DATE ORG , sitting as a full bench , dismissed the recourse .", "In its judgment ORG noted , firstly that the applicants wished to be registered as voters in a separate electoral list , namely that of the NORP - NORP citizens of GPE . It followed therefore that they also sought the right to be elected by the NORP - NORP voters , who were on a separate list , in order to take a parliamentary seat from the separate number of seats that the LAW allocated to the NORP community . As such the applicants’ demand touched upon the very continuation of the existence of GPE which constituted the internationally - recognised legal state established in DATE . ORG noted that after the withdrawal of the NORP community from the ORG organs in DATE following a decision of its leadership , the relevant Articles of the LAW providing for separate elections by the CARDINAL communities had become impossible to implement in practice . From CARDINAL/CARDINAL the ORG based its legal existence and its continuing functioning on the Law of Necessity , as laid out in the case of The Attorney - General of the Republic v. PERSON and others , ( DATE ) C.L.R. CARDINAL ) . ORG stated that this fundamental legal decision stood side by side with the LAW which contained the consummate rule of law governing the continuing existence and functioning of the ORG as a legal and democratic entity and referred in detail to the situation and the reasons which led unavoidably to the adoption and prevalence of the Law of Necessity . ORG pointed out that these reasons became even more pressing after the NORP invasion in GPE in DATE and the occupation of northern GPE by NORP troops . At present only a small number of NORP Cypriots lived in the occupied part of GPE and very few NORP lived in the territory controlled by GPE .", "ORG stated that the above realities were confirmed in a series of judgments by ORG ( “ the ORG ” ) in which , inter alia , the international recognition of GPE as the legitimate and lawful ORG was considered an indisputable fact , while at the same time the regime which existed in the northern part of GPE , where GPE exercised effective control , was held to be illegal . In this connection , ORG referred to the ORG ’s findings in the case of GPE v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALIV ) , PERSON v. GPE ( ( preliminary objections ) , DATE , Series A no . CARDINAL ) , PERSON v. GPE ( no . CARDINAL , DATE ) and PERSON ( cited above ) . With regard to the latter case , ORG pointed out that the ORG had found a violation of LAW No . CARDINAL in that although the relevant constitutional provisions had been rendered ineffective there had been a manifest lack of legislation resolving the ensuing problems ; namely that members of the NORP - Cypriot community , living in the government - controlled area of GPE , had been completely deprived of any opportunity to express their opinion in the choice of the members of ORG of the country of which they were nationals and where they had always lived . Following this judgment , PERSON CARDINAL(I)/CARDINAL was enacted enabling NORP nationals who belong to the NORP - Cypriot community and had their habitual residence in the government - controlled areas of GPE to vote and to stand for election . ORG noted , however , that the applicants had and still had their permanent residence in the northern part of GPE , which was occupied by and under the control of NORP troops . They could not therefore claim a right to vote or to stand for election on the basis of the ORG ’s ruling in the PERSON case and LAW .", "LAW safeguards the right to vote . It provides as follows :", "“ Every citizen has , subject to the provisions of this LAW and any electoral law of the Republic or of the relevant ORG made thereunder , the right to vote in any election held under this LAW or any such law . ”", "Articles CARDINAL and CARDINAL of the NORP Constitution concern the composition of ORG and the right to be registered in the electoral lists for parliamentary elections . They provide as follows :", "“ CARDINAL . The number of representatives shall be CARDINAL :", "Provided that such number may be altered by a resolution of ORG carried by a majority comprising CARDINAL of the Representatives elected by ORG and CARDINAL of the representatives elected by ORG .", "NORP Out of the number of Representatives provided in paragraph CARDINAL of this Article CARDINAL per centum shall be elected by ORG and CARDINAL per centum by ORG separately from amongst their members respectively , and in the case of a contested election , by universal suffrage and by direct and secret ballot held on DATE . ... ”", "“ CARDINAL . Subject to paragraph CARDINAL of this Article every citizen of the Republic who has attained DATE and has such residential qualifications as may be prescribed by the Electoral Law shall have the right to be registered as an elector in either the NORP or the NORP electoral list :", "Provided that the members of ORG shall only be registered in the NORP electoral list and the members of ORG shall only be registered in the NORP electoral list .", "No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of LAW . ”", "LAW sets out the eligibility requirements to stand for election to ORG . It provides as follows :", "“ A person shall be qualified to be a candidate for election as a Representative if at the time of the election that person-", "( a ) is a citizen of the Republic ;", "( b ) has attained the age of DATE ;", "( c ) has not been , on or after the date of the coming into operation of this LAW , convicted of an offence involving dishonesty or moral turpitude or is not under any disqualification imposed by a competent court for any electoral offence ;", "( d ) is not suffering from a mental disease incapacitating such person from acting as a Representative . ”", "Following the withdrawal of the NORP community from the ORG organs in DATE , a number of Constitutional provisions , including the ORG providing for the parliamentary representation of the NORP community and the quotas to be adhered to by the QUANTITY communities , became impossible to implement in practice .", "In DATE , by decision of ORG , the number of seats in ORG was increased from CARDINAL ; CARDINAL seats were allotted to representatives to be elected by the NORP community and CARDINAL seats to representatives to be elected by the NORP community . The CARDINAL seats remain vacant .", "According to LAW on the Election of Members of ORG ( Law CARDINAL/CARDINAL , as amended ) , the right to elect belongs to those who have the qualifications provided for under LAW . The residential requirement is that of habitual residence in GPE for a period of DATE immediately before the date fixed by the Minister , by publication in ORG , as the date of acquisition of the electoral qualifications . Section CARDINAL ( CARDINAL ) of the same PERSON provides that a candidate for parliamentary elections should have the qualifications set out in LAW .", "Following the ORG ’s judgment in the case of PERSON v. GPE ( cited above ) , LAW was enacted and entered into force on DATE . LAW applies to citizens of the Republic who are members of the NORP community and had , at the time of entry into force of the PERSON or subsequently , their habitual residence in the free areas of the Republic ( section CARDINAL ) and enables them to exercise their right to vote in presidential elections and their right to vote and to be elected in parliamentary , municipal and community elections . As regards parliamentary elections , this relates to the filling of the CARDINAL seats allotted to the NORP community . Section CARDINAL provides that NORP nationals of NORP origin are to be registered on a supplementary electoral list which is then incorporated into the main electoral list in accordance with LAW ( PERSON CARDINAL(I ) DATE , as amended ) . Further , in respect of the right to vote , the requirement is that of habitual residence for a term of DATE immediately before the date of acquisition of the electoral qualifications ( section CARDINAL ) .", "Law CARDINAL(I)/CARDINAL does not apply to citizens of the Republic who are members of the NORP community and reside in the free areas occasionally , from time to time or temporarily ( section QUANTITY ) .", "According to section CARDINAL the provisions of ORG are also applicable to members of the NORP community who come within the scope of ORG ( I)/CARDINAL as amended ) ; the PERSON on the Election of Members of ORG ( Law CARDINAL/CARDINAL as amended ) ; LAW ( Law CARDINAL of DATE as amended ) ; LAW ( Law CARDINAL(I ) of DATE as amended ) and the Election ( President and Vice President of GPE of DATE as amended ) ] .", "Following the entry into force of LAW , members of the NORP community with their habitual residence in the government - controlled areas , were able to participate in the parliamentary elections of QUANTITY DATE . From the information given by the respondent Government to ORG about the measures to comply with the ORG ’s judgment in the case of PERSON , CARDINAL NORP Cypriots cast their vote in those elections while CARDINAL NORP was a candidate MP ( appendix to Resolution CM / ResDH(CARDINAL)CARDINAL of DATE ) .", "In accordance with LAW , ORG has exclusive jurisdiction to adjudicate finally on any election petition , made under the provisions of LAW , with regard to the elections of the President or the Vice - President of the Republic or of members of ORG or of any ORG .", "Furthermore , under LAW has exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision , an act or omission of any organ , authority or person , exercising any executive or administrative authority is contrary to any of the provisions of this LAW or of any law or is made in excess or in abuse of powers vested in such organ or authority or person ( Article CARDINAL ) ) ." ]

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[ "The applicants were born in DATE , respectively , and live in ORG .", "Following the conclusion of a purchase contract on DATE , the applicants ' relative became the owner of a plot of land measuring QUANTITY . m and situated on the NORP coast . The applicants ' relative 's title to the property was subsequently entered in ORG .", "In DATE the ORG nationalised DATE without compensation – all the land situated on the NORP coast , including the applicants ' relative 's plot of land .", "On DATE ORG on ORG and Compensation of Property ( PERSON i GPE dhe PERSON Pronave – hereafter “ the Commission ” ) , restored the applicants ' property rights over their relative 's property pursuant to ORG see “ Relevant domestic law ” , paragraph CARDINAL below ) . On DATE the applicants ' title to the property was entered in ORG .", "DATE attempts by the applicants to recover possession of the property proved unsuccessful because buildings had been illegally erected on their land by unlawful occupiers .", "On an unspecified date in DATE , being unable to recover possession of their property , the applicants initiated proceedings before ORG ( “ the ORG ” ) , seeking an order for CARDINAL occupiers ( PERSON , NORP and NORP ) to cease occupation of their property and for the illegal buildings to be demolished .", "On DATE ORG confirmed the applicants ' property rights over the plot of land allocated to them by the ORG and ordered the occupiers to vacate the applicants ' property . That decision became final on DATE .", "On DATE CARDINAL of the occupiers , PERSON , submitted a request to the President of the then ORG for supervisory review of ORG decision of DATE on the ground that he had not been notified of the proceedings . On DATE the President of ORG endorsed his request by putting it before LAW .", "On DATE ORG quashed ORG decision of DATE on the ground that none of the CARDINAL occupiers had been duly informed of the proceedings before ORG , and remitted the case to the same court for fresh examination .", "The applicants were neither informed of the proceedings nor invited to attend the hearings before ORG .", "On DATE ORG decided to dismiss the case as none of the parties had attended the hearing and none had given legitimate reasons for their failure to attend .", "It appears that the proceedings were reopened on an unspecified date . They were also directed against another unlawful occupier , B. On CARDINAL DATE ORG confirmed the applicants ' title to their relative 's plot of land and ordered the CARDINAL occupiers ( PERSON , NORP , NORP and PERSON ) to cease occupation .", "In DATE the applicants sold a plot measuring QUANTITY m to another party . That transaction was entered in the land register .", "On an unspecified date the occupiers of the applicants ' property appealed against ORG decision of DATE , challenging the lawfulness of the applicants ' title to the plot of land . On DATE ORG ( “ the ORG ” ) dismissed their appeal and upheld ORG decision .", "On DATE ORG quashed ORG decision on the ground that the latter had not examined the lawfulness of the applicants ' relative 's title to the property . It remitted the case to ORG for fresh examination .", "On DATE ORG found that on DATE the Commission had allocated to NORP ( who had subsequently donated his property to PERSON ) a plot of land that overlapped with CARDINAL sq . m of the plot of land allocated to the applicants by ORG on DATE . Moreover , the court declared null and void the ORG 's decision of CARDINAL DATE in respect of the plot measuring QUANTITY . m , finding that the applicants ' relative 's purchase contract of DATE was null and void . It therefore revoked the applicants ' title to the entire plot of land measuring QUANTITY m.", "On DATE , following appeals by the applicants and by CARDINAL of the CARDINAL occupiers ( M. , NORP and NORP ) , ORG , which had replaced ORG after LAW entry into force on DATE , quashed ORG decision in part . The court dismissed the occupiers ' appeals on the ground that , as they occupied the land without title , they lacked standing to challenge the applicants ' title to the property . ORG therefore ordered them to cease their occupation of the land . Moreover , the court upheld PERSON 's title to the plot measuring QUANTITY . m that overlapped with the land allocated to the applicants and confirmed the applicants ' property rights over the remaining QUANTITY m.", "On DATE the applicants lodged an appeal with ORG under Article CARDINAL ( f ) of the LAW , arguing that ORG judgment of DATE , which resulted in only partial recognition of their property , was unconstitutional . They complained that as ORG had wrongly assessed the evidence , its impartiality was open to doubt .", "The Constitutional Court found that the applicants ' constitutional complaint concerned the assessment of evidence , which fell within the jurisdiction of the lower courts and was outside its jurisdiction . It therefore declared the appeal inadmissible by a decision of DATE , which was served on the applicants on DATE .", "On DATE ORG ordered the bailiffs to enforce ORG judgment of DATE .", "On DATE the bailiff sent CARDINAL separate letters to PERSON , NORP and PERSON to comply with the judgment within DATE from the notification thereof . The bailiff drew the occupiers ' attention to the mandatory enforcement of the judgment , should they fail to comply with the judgment voluntarily .", "On DATE the third applicant requested a stay in the execution of the judgment until DATE for reasons which he did not disclose . The record states that the applicant would appear at the bailiff 's office to request the continuation of the enforcement proceedings .", "On DATE the applicant and occupiers PERSON and NORP appeared before the bailiff . The record states that “ the parties agreed to postpone the execution of the judgment until DATE ” .", "On DATE the third applicant requested the bailiff to waive the applicants ' right of enforcement of the judgment against B. as both parties would resolve the issue by agreement . It appears that on an unspecified date in DATE the applicants sold a plot measuring CARDINAL sq . m to B.", "On DATE the third applicant requested enforcement of the judgment against PERSON and NORP by demolishing their constructions . The bailiff agreed to request the assistance of the police for this purpose .", "On DATE PERSON and NORP were informed that the bailiff would proceed with the mandatory execution of the judgment on DATE , in the presence of police officers .", "On DATE the bailiff decided to postpone the execution to an unspecified date owing to the applicants ' absence . It results from the record that the bailiff did not go to the site to undertake any measures with a view to demolishing PERSON 's and NORP 's constructions .", "On DATE the third applicant requested the bailiff to proceed with the enforcement of the judgment , given the failure of PERSON and NORP to comply with an agreement on the amount of compensation in respect of the plots they had occupied .", "On DATE the bailiff sent CARDINAL separate letters to PERSON and NORP asking them to comply within DATE with the agreement entered into with the applicants . The bailiff drew the occupiers ' attention to the mandatory enforcement of the judgment , should they fail to comply with the judgment voluntarily .", "On DATE the bailiff had a meeting with PERSON and NORP , who informed him that they were unable to pay the price requested by the applicants . The occupiers stated that they would vacate the plot of land on the condition that the applicants compensated them for the construction they had erected or that they provided them with a lawfully constructed flat in another location . The bailiff decided to inform the third applicant of the occupiers ' requests .", "On DATE the third applicant requested either the vacation of the plots of land or the payment of compensation by the occupiers at the indicated price . The third applicant consented to having the price paid in instalments over a DATE period . He would come to an agreement with the occupiers as regards the amount of the instalments and the method of payment . Failing an agreement , the third applicant affirmed that he would request that the plot of land be vacated .", "The bailiff 's record of a meeting on DATE between the third applicant and both occupiers , states that ,", "“ Following a series of discussions the parties did not agree on the price offered by the creditor [ the third applicant ] , who requests [ the amount of compensation per sq . m ] over a DATE period .", "The debtors offered to pay a [ lower ] price at ( ... ) .", "Given this disagreement , it was decided that the creditor would request the mandatory enforcement of the judgment when he was ready ( ORG gati ) ” .", "On DATE the bailiff decided to suspend the enforcement proceedings . The relevant parts of the decision read :", "“ The creditor [ the third applicant ] has unsuccessfully been trying to resolve the problem by friendly settlement , save with debtor B.", "Under these circumstances , the creditor requested suspension of the enforcement proceedings until DATE appearance before the bailiff at which he would request the mandatory execution as regards the vacation of the plot occupied by PERSON and NORP This has also been reflected in the record of DATE . ”", "ORG ( “ the ORG ” ) entered in the land register , inter alia , PERSON 's title to a plot of land measuring QUANTITY m , despite the fact that ORG judgment of DATE had recognised her property rights over a plot of land measuring QUANTITY ( see paragraph CARDINAL above ) .", "On an unspecified date the applicants initiated proceedings with ORG seeking the removal of CARDINAL sq . m from PERSON 's title of property as entered in ORG .", "On DATE ORG decided to suspend the proceedings pending the outcome of the proceedings for recovery of the property ( see paragraph CARDINAL below ) .", "On DATE , following an appeal by the applicants , ORG quashed ORG decision of DATE on the ground that there was no connection between the CARDINAL sets of proceedings as each of them could be decided upon independently , and remitted the case to the same court for continuation of the proceedings .", "On DATE ORG decided to suspend the proceedings until the parties had provided updated copies of mortgage certificates issued by ORG .", "On DATE , following an appeal by the applicants , ORG quashed ORG decision of DATE and remitted the case to the same court for continuation of the proceedings .", "On DATE ORG , after having received the updated mortgage certificates and the property plans , decided that there was no overlap between the applicants ' property and that of PERSON That decision was upheld by ORG on DATE .", "On an unspecified date PERSON commenced construction works , which allegedly encroached upon the plot of land belonging to the applicants . On DATE , following proceedings initiated by the applicants , ORG issued an injunction ordering PERSON to suspend the construction works since the buildings encroached upon the applicants ' property .", "On DATE ORG ordered the bailiffs to enforce the injunction of DATE . On DATE the bailiffs decided not to enforce it because PERSON had not encroached upon the applicants ' property .", "On DATE , following an action initiated by the applicants in accordance with LAW , ORG set aside the bailiffs ' decision of DATE . It found that the bailiffs had exceeded their powers as they were not authorised to overrule a court decision . The decision was upheld by ORG on DATE .", "DATE . On an unspecified date in DATE PERSON lodged an action with ORG requesting that the writ of execution of DATE be set aside in the light of ORG decision of DATE ( see paragraph CARDINAL below ) . On DATE ORG dismissed her request on the basis of ORG decision of DATE , according to which the merits of the case would be heard by a different bench of ORG ( see paragraph CARDINAL below ) .", "In view of G 's construction works , which had apparently encroached upon the applicants ' property , on an unspecified date in DATE the applicants initiated proceedings for recovery of possession of their property . In the meantime PERSON filed a counter civil claim requesting the applicants to vacate her plot of land , which was allegedly occupied by their buildings .", "On DATE ORG concluded , on the basis of an expert valuation concerning the overlap of the properties , that the applicants had occupied a plot of QUANTITY . m of PERSON 's property . It also found that PERSON had occupied a plot of CARDINAL sq . m of the applicants ' property . ORG ordered PERSON to compensate the applicants in the amount of MONEY ( ORG ) for a plot of CARDINAL sq . m , which was the difference between the plots of land occupied by each party to the proceedings . Accordingly , it dismissed the applicants ' civil claim and also decided to lift the injunction that had been issued on DATE ( see paragraphs CARDINAL above ) .", "On DATE , following an appeal by the applicants , ORG found that ORG had not examined the parties ' updated property titles , particularly in the light of some changes that had taken place to their properties over DATE . Accordingly , it quashed ORG decision and remitted the case to the same court for a fresh examination by a different bench .", "On DATE ORG declared PERSON 's appeal inadmissible in accordance with LAW ( no valid grounds of appeal ) . It accordingly upheld ORG decision .", "On DATE , on the basis of an expert valuation , ORG found that the properties overlapped in respect of a plot of CARDINAL sq . m. It concluded that that plot of land belonged to the applicants . ORG did not find any occupation of PERSON 's property by the applicants , but ruled that PERSON had occupied a plot of CARDINAL sq . m that belonged to the applicants . It rejected G 's request to pay compensation for the occupation of that plot of land as this was not envisaged under the law . It ordered PERSON to vacate and return the plot of CARDINAL sq . m to the applicants . The decision was upheld by ORG on DATE .", "On DATE ORG ordered the bailiffs to enforce its judgment of DATE . By a letter of CARDINAL DATE the applicant informed the ORG that the writ of execution of DATE was unlikely to be enforced given the presence of CARDINAL apartment blocks on the occupied plot of land .", "On an unspecified date PERSON lodged an action with ORG requesting the suspension of the writ of execution in respect of CARDINAL of the illegal buildings , whose status she was trying to legalise . No further information about the enforcement proceedings has been submitted to the ORG .", "The relevant sections of LAW have been set out in GPE and Others v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .", "Article CARDINAL of the DATE Code of Civil Procedure ( “ the ORG ” ) , which was in force until DATE , provided that decisions could be quashed for serious procedural violations , inter alia , when the case was tried in the absence of other parties without their having been informed of the hearing dates .", "Section CARDINAL of Law no . DATE of DATE , which amended LAW of DATE in force at the material time , provided that ORG was empowered to examine the lawfulness of court decisions by way of an application for supervisory review ( kërkesë për mbrojtje ligjshmërie ) lodged by the President of ORG or ORG . The provision did not impose time - limits for applying for such a review .", "As provided by DATE ORG , which abrogated LAW of DATE , supervisory review ( rekurs në interes të ligjit ) was an extraordinary remedy that enabled ORG ( the new name for ORG ) to reopen proceedings where judgments had become final . DATE and its abolition in DATE , by virtue of PERSON no . CARDINAL of CARDINAL DATE the supervisory - review procedure underwent several legislative changes .", "Article CARDINAL/a of the ORG provides that a final court judgment is binding on the parties , their heirs , the court that adopted the judgment and other courts and institutions .", "Article CARDINAL of the ORG stipulates that a judgment can be enforced only on the basis of an execution title , which includes , inter alia , a final court judgment . Under LAW ORG , an execution title is executed at the request of the creditor . An execution writ is issued for this purpose . In the wording of LAW ORG , an execution writ is enforced by the bailiff at , inter alia , the request of the creditor . The bailiff invites the debtor to comply voluntarily with the execution writ in accordance with the time - limits laid down in LAW ORG . Should the debtor fail to comply with a voluntary enforcement within the prescribed time - limits , the bailiff proceeds with a mandatory enforcement in accordance with LAW ORG .", "Under LAW ORG , the parties may complain to the court of an act or failure to act by the bailiff within DATE of the said act or omission . There is a right of appeal against the court decision in accordance with LAW ORG . The appeals has no suspensive effect on the execution .", "NORP The bailiff may decide to suspend execution at the request of the creditor in accordance with LAW ORG . The parties may challenge the bailiff 's decision to suspend enforcement at the district court in accordance with LAW ORG .", "The relevant sections of ORG have been set out in GPE and Others v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) ; PERSON v. GPE ( no . CARDINAL , § § CARDINAL , ORG DATE ... ( extracts ) ; and PERSON and Others v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) ." ]

[ "6", "P1" ]

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

[ "P1-1-1" ]

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[]

[ "On DATE , just before the DATE elections , the first applicant published an LAW entitled “ The capon and self - esteem Short portrait of PERSON PERSON Archives , ORG of writing ” , of which the second applicant was the author .", "On DATE Mr PERSON filed a civil action for libel with ORG of GPE . The applicants filed a memorandum of appearance to the writ on DATE . The plaintiff 's statement of claim , which , by virtue of LAW ORG , ought to have been filed within DATE after the appearance , was delivered to the applicants on DATE . Although on DATE ORG had fixed a time - limit of DATE for the filing of the statement of claim , the plaintiff requested and obtained on DATE an extension until DATE . On DATE , as the statement of claim was not yet filed , ORG did not fix the case anew , but gave instructions to the Registrar to bring the case before it , after DATE , in order to dismiss it for want of prosecution .", "On DATE and CARDINAL DATE the applicants filed CARDINAL similar applications whereby they sought to obtain an order of the court striking out or amending paragraph CARDINAL of the plaintiff 's statement of claim , as tending to embarrass or delay the fair examination of the action or as being unnecessary or scandalous . The hearing of the applications was fixed for DATE , but on that date it was adjourned until DATE at the request of both parties and then , ex officio , until DATE , when it was dismissed for want of prosecution . On CARDINAL DATE the applicants filed a third similar application which was subsequently withdrawn on DATE of the hearing on DATE , in the light of a statement made by the plaintiff 's lawyer .", "NORP On DATE the applicants applied to ORG for an adjournment of the time - limit to file their defence , on the ground that it had not been possible to do it in time owing to the numerous applications which were submitted in the action . An adjournment was granted until DATE but the applicants did not file their defence until DATE .", "On DATE the applicants applied to ORG to expedite proceedings . The court fixed the case for mention on DATE and for hearing on DATE . On DATE the hearing was adjourned ex officio until DATE and CARDINAL DATE , and then until DATE and DATE . On DATE the applicants failed to appear because the plaintiff 's lawyer had omitted to notify them of the date of the hearing .", "On DATE the hearing was adjourned again until DATE , owing to the lack of time by the court , and again until DATE , following a request from the applicants . On CARDINAL occasions the hearing was adjourned ex officio : on DATE , DATE and CARDINAL DATE and , following a further request from the applicants , again on DATE .", "From DATE until DATE , when the hearing actually started , the hearing was adjourned on CARDINAL occasions , due to lack of time of the ORG : from DATE to CARDINAL DATE , from PERCENT CARDINAL to CARDINAL DATE , from DATE to CARDINAL DATE , from DATE to CARDINAL DATE , from CARDINAL DATE to DATE , from DATE to DATE , from DATE to CARDINAL DATE , from DATE to DATE ( not attributed to ORG ) , from DATE to DATE , from DATE to CARDINAL DATE , from DATE to DATE ( not attributed to the ORG ) , from DATE to CARDINAL DATE ( not attributed to ORG ) and from DATE to DATE .", "The hearing commenced on DATE and involved CARDINAL sessions : on DATE , DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE and DATE . On DATE , at the end of the morning session , the lawyers of both parties declared that they were unable to continue in the afternoon or the following week due to other court engagements . The applicants ' lawyer refused to resume the hearing on CARDINAL DATE because he had to appear before another court , and on DATE because he was engaged in a pre - election meeting of his party . The hearing thus continued after the parliamentary elections held on DATE .", "On DATE ORG delivered its judgment . It found that the applicants had committed libel and ordered them to pay the plaintiff QUANTITY in damages .", "ORG rejected the applicants ' claim that the proceedings were null and void because they had exceeded a reasonable length . ORG noted , on the one hand , that the plaintiff had delayed filing his claims , but , on the other hand , that the applicants had not complained of this delay prior to the hearing .", "On DATE the applicants appealed to ORG . They relied on CARDINAL grounds : the excessive length of the proceedings and the amount of the award . On DATE the plaintiff filed a cross - appeal whereby he sought higher compensation .", "ORG fixed the hearing on DATE but on that date adjourned it until CARDINAL DATE .", "On DATE ORG rejected the applicants ' appeal and increased the award of damages to QUANTITY .", "As regards the length of the proceedings , ORG held that much of the delay was due to the applicants ' requests for adjournments . It acknowledged , however , that it took DATE for the plaintiff to file his claims because of his frequent trips abroad , and that ORG had adjourned the hearing several times for lack of time . In particular , ORG noted the following : on DATE the applicants had invited ORG to strike out part of the plaintiff 's claims but , as they did not appear for the hearing of that matter , ORG rejected the application . The applicants then asked for an extension of the time - limit to file their observations , which were submitted on DATE . On DATE the applicants ' lawyers withdrew , and on CARDINAL DATE the new lawyer requested ORG to adjourn the hearing because he was obliged to appear before another court . On DATE the applicants ' lawyer was not present . On DATE he asked for a new adjournment . Finally , the hearing started on DATE and was completed on DATE . During that period , the applicants ' lawyer obtained CARDINAL more adjournments ." ]

[ "6" ]

[ "6-1" ]

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[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "NORP In DATE LAW received intelligence about the address of a person involved in fraud . They suspected that the applicant , who resided at this address with his parents , might be this person .", "On DATE , when police officers arrived at the building where the applicant lived , he tried to escape and broke into his neighbours ' flat , taking them hostage . According to the police reports , the applicant had a knife and resisted the police officers . The police entered the flat with the help of the fire brigade and arrested the applicant by using force . An unregistered gun and a number of bullets were found on the premises .", "At TIME DATE , the applicant was taken to ORG , where a medical report was issued . According to this report there was no sign of ill - treatment on the applicant 's body .", "The applicant was subsequently taken to the police station . He was allegedly beaten while in police custody .", "At TIME DATE , after the police had apparently written an official report , not signed by the applicant , to the effect that he was harming himself , the latter was taken to ORG , where he was examined by a doctor once again . According to the doctor 's report , the applicant was anxious , exhibited signs of restlessness and appeared weak , and there was a QUANTITY MONEY patch of redness and a graze on his forehead , which had possibly been caused by a blow with a blunt object .", "On DATE the applicant was handed over to the military officials , as he was found to be a deserter .", "At TIME DATE the applicant was examined at ORG , where the doctor noted that there were no new signs of illtreatment on the applicant 's body .", "On DATE the applicant was brought before the public prosecutor where , in the presence of his legal representative , he stated that he had been beaten by CARDINAL police officers both in the police car and at the police station . He further maintained that he had blood in his urine and that the police officer who put him in the detention unit had witnessed this .", "Afterwards the applicant was brought before a judge at ORG , where he repeated that he had run away because he was a military deserter ; that he had pointed his knife at police officers because they had pointed their guns at him , and that he had not kidnapped his neighbours but had merely been their guest for a short time .", "On DATE the prosecutor transferred the applicant to ORG for a medical examination which took place at TIME The doctor noted that the applicant had a CARDINAL x QUANTITY ecchymosed skin lesion on his forehead and scratches on both wrists . The doctor also noted that the applicant complained of being dizzy and of having been laid down and stepped upon .", "The applicant was detained in a military detention centre DATE , at TIME , and DATE , TIME It appears that during this time he was medically examined CARDINAL times , on DATE , DATE and DATE , and the doctors noted no health problems . The only medical finding during this time was the presence of a mildly scabbed laceration of CARDINAL . x QUANTITY on the applicant 's forehead .", "On DATE , at TIME , the applicant was received at ORG where the doctor who examined the applicant noted that his forehead and the area underneath his eyelids were swollen , that he had a red patch of QUANTITY on his back and that his wrists were swollen .", "DATE and DATE , the applicant was treated at the Urology department of ORG where he was diagnosed with “ microscopic haematuria , renal trauma ” .", "On DATE the applicant was found not to be fit to do military service on the ground that he had a chronic antisocial personality .", "On DATE the applicant 's father filed a criminal complaint against the police officers at the police station , where he claimed that the police were coercing him and his son to take responsibility for the gun found at the building during the arrest and that they were torturing and beating his son to that end . In this connection , the applicant 's father alleged that he had heard his son 's screams while he was at the police station and had seen his poor state during his visit .", "On DATE the ORG public prosecutor decided not to prosecute on the ground that there were no signs of ill - treatment on the applicant 's body according to the medical reports issued on CARDINAL and DATE . On DATE ORG dismissed the applicant 's objection and upheld the prosecutor 's decision .", "On DATE the applicant further applied to ORG and requested that the decision of ORG be quashed by a written order ( yazılı emir ) .", "On an unspecified date , the Minister of ORG issued a mandatory order as a result of which ORG quashed the decision of ORG .", "On various dates DATE and DATE , the prosecutor heard evidence from CARDINAL police officers on duty at the police station . They all denied that the applicant had been ill - treated . They further maintained that the applicant had been taken for a medical examination because , inter alia , he was hitting his head against the iron bars of the cell . One police officer stated that they had been nice to the applicant because his father was a retired police officer .", "On DATE the prosecutor heard evidence from the applicant 's parents .", "The applicant 's father , who was a retired policeman , maintained , inter alia , that , when he and his wife went to the police station the police chief had told him that it would be bad for the applicant if he did not accept ownership of the gun . Afterwards QUANTITY police officers , who were also present during his arrest , had brought in the applicant . The latter had a bruise on his forehead and could barely walk . The applicant had told his father to save him because he was being beaten . At that moment some other police officers had arrived and they had taken him away while at the same time beating him . He had heard his son 's screams .", "The applicant 's mother submitted , inter alia , that a police officer had brought in her son , who had been in a terrible state and had bruises on his forehead . She claimed that her son had told her that they were ill - treating him . They had pleaded with the police officers not to ill - treat their son . The applicant had then been taken away by a police officer who had started to hit him . The applicant had started screaming and they had then been thrown out . The person who had hit his son was a police officer named GPE but there were a lot of police officers entering the detention unit . In the verbatim records it was noted that the applicant 's mother , after having read her testimony with her husband in the corridor , had gone back into the prosecutor 's room and submitted that there had been QUANTITY police officers , having stated by mistake that there had only been one .", "On DATE the GPE public prosecutor filed an indictment with ORG against CARDINAL police officers from ORG , accusing them of torturing the applicant in order to extract a confession of guilt under LAW .", "On DATE the criminal proceedings against the accused police officers commenced before ORG . The applicant joined the proceedings as a third - party .", "In an additional indictment dated DATE the GPE public prosecutor charged CARDINAL other police officers from ORG with torturing the applicant in order to extract a confession of guilt under LAW . In the hearing held on DATE the trial court joined these other cases to the proceedings .", "During the proceedings the trial court heard evidence from the accused police officers , the applicant , the applicants ' parents , the CARDINAL neighbours whose house the applicant had broken into , the detention supervisor , CARDINAL detainees , the soldier who had arrived at the police station to transfer him to the army , the doctor who had examined him at ORG on DATE and the doctor who had examined him at ORG on DATE .", "The applicant maintained , inter alia , that all but CARDINAL of the accused were those police officers who had beaten him up . In this connection , he alleged that he had been punched until he fell to the floor , blindfolded , hit by an object resembling a truncheon on various parts of his body , pulled across the floor by his hands and feet , strangled by CARDINAL police officer and stepped on and kicked .", "The applicant 's father alleged that CARDINAL of the accused had beaten up his son before his eyes and that his son , who had looked worn out , had told him that he had been beaten .", "The applicant 's mother stated that , when she and her husband had gone to visit the applicant at the police station , they had heard him screaming “ why are you beating me up ? ” . She claimed that , at that moment , a tall police officer , who was not CARDINAL of the accused , had brought the applicant to them and had told him to accept ownership of the gun , but when he refused they started to take him back to the cell while at the same time hitting him . She said that the accused police officers were at the detention cells and that there were others , but she did not know who they were .", "The accused police officers repeated , inter alia , that the applicant had had to be handcuffed because he was violent , that he was hitting himself in the detention cell , and that he had started crying out that he was being beaten as soon as he saw his parents .", "NORP The Doctor PERSON , who had examined the applicant on DATE of the incident , maintained , inter alia , that the applicant 's head injury could have been caused either by a blow on the head with a sharp object or by his having hit his head , and that medically it was impossible to distinguish between them . He further maintained that the applicant had not complained to him of pain in his kidneys .", "The doctor , PERSON , who had examined the applicant at ORG , maintained that he had noted down all the physical signs he had found on the applicant 's body and that , although the applicant had stated that he had been stepped upon , he could not find any lesions on his back .", "Mr GPE , the army official who had picked the applicant up from the police station , testified , inter alia , that he had seen that the applicant had only a QUANTITY patch of redness on his forehead and bruises on his wrists due to the handcuffs .", "Mr O.A. , a suspect who was also at the police station DATE , stated that he had been put in the same detention unit as the applicant and that the latter was constantly swearing and hitting his head against the walls and kicking the bars , saying that he was going to complain about the police and get them into trouble . He stated that he had not witnessed the applicant being beaten .", "Mr GPE , another suspect who was at the police station DATE , maintained that he had been in the same detention unit as the applicant until TIME and that he had not witnessed him being beaten . In this connection , Mr GPE stated that the applicant had been somewhat aggressive , hitting the door and saying that he was going to see his family .", "Mr GPE , the detention supervisor , claimed , inter alia , that at CARDINAL point he had heard some noises coming from the detention unit and , when he arrived , he saw that the applicant was hitting his head against the bars and was bleeding . He submitted that he had immediately informed the police officers on duty , who took him to the hospital .", "In the course of the proceedings , the applicant disputed unfavourable testimony against him . In particular , he claimed that he had not been properly examined at ORG and that , although he had stated that he had blood in his urine , he was not transferred to a hospital .", "During the proceedings the trial court requested expert opinions from ORG . On DATE and CARDINAL DATE LAW ( PERSON ) gave CARDINAL opinions . The applicant was also examined by LAW . However , the trial court considered that these opinions were insufficient and requested ORG of ORG to submit an opinion .", "On DATE ORG of ORG gathered to examine the applicant 's case . ORG examined the factual context as alleged by the parties and the following medical evidence regarding the applicant : ( a ) the medical reports dated CARDINAL and DATE issued at ORG ; ( b ) the medical report dated DATE issued at ORG ; ( c ) the medical report dated DATE from ORG ; ( d ) the medical report dated DATE issued by a military doctor prior to his entry into military detention ; ( e ) the medical report dated DATE issued by ORG ; ( f ) the medical report dated DATE issued by a military doctor prior to his discharge from military detention ; ( g ) the applicant 's complete medical file from ORG ; ( h ) various scan results concerning the applicant 's cranium and neck dated CARDINAL , DATE and DATE DATE ; ( i ) the medical report issued by ORG on DATE ; and ( j ) the opinions of LAW dated CARDINAL DATE and DATE .", "The plenary assembly opined , inter alia , that the physical findings noted in the medical reports , dated DATE at TIME and DATE at TIME , had originated on DATE TIME and that the wound on the forehead could have been the result of a blow with a blunt object or could have been caused by a person hitting his head against the bars of the cell and that it was not possible to distinguish between them medically . They further considered that the findings noted in the medical reports of DATE and CARDINAL DATE , concerning the applicant 's head and wrist injuries , were the type of wounds seen in the recovery phase . Finally , the ORG held that the findings of ORG regarding the applicant 's skin lesion and the haematuria found in his urine demonstrated that he had sustained a trauma and that this trauma could have been the result of a direct contact with a hard and blunt object , but it would not be possible medically to establish the exact time of this trauma .", "On DATE the trial court , relying on the evidence in the case file , acquitted the police officers of the offences with which they had been charged . It held that the findings indicated in the medical reports were consistent with the accused officers ' contention , backed up by witnesses , that the applicant had banged his head and hands against the bars of his cell . In this connection , the court dismissed the applicant 's parents ' testimony as unreliable due to their kinship with the applicant and to the fact that it was not likely that police officers would commit a serious crime like torture in front of first - degree relatives . Moreover , as to the other symptoms recorded in the medical report of DATE , the court noted , firstly , that the applicant had been medically examined on DATE and that no such findings were recorded . Secondly , it noted that the haematuria had been found in the applicant 's urine DATE after he had been transferred to the army . Finally , it took into account that it was not possible to pinpoint the date when the applicant had suffered the trauma which led to haematuria . It therefore considered that this trauma could have occurred after the end of the applicant 's detention . Taking into account the principle “ in dubio pro reo ” , the court considered that the evidence in the case file did not suffice to convict the accused police officers of torture .", "On DATE the applicant appealed .", "On DATE ORG upheld the judgment of ORG .", "In the meantime the applicant unsuccessfully sought the prosecution of CARDINAL police officer , PERSON , and CARDINAL military officer , PERSON ORG , for forgery of official documents , and the prosecution of Mr O.A. for perjury .", "DATE . On DATE ORG found the applicant guilty of resisting police officers with a knife and breaking into his neighbours ' flat . It sentenced him to DATE and DATE imprisonment . In the course of this trial the applicants ' neighbours maintained that , since the applicant 's actions had been strange and he looked as if he had lost control of himself , fearing for their life , they had not attempted to open the door to the police . The applicant maintained , inter alia , that he had escaped from the police because he was an army deserter . This judgment was upheld by ORG on DATE .", "On DATE ORG found the applicant guilty of possessing a gun without a licence and sentenced him to DATE imprisonment and to a fine .", "The applicant submitted an PERSON scan dated CARDINAL DATE in support of his claim that he still suffered from injuries resulting from his ill - treatment . According to this scan , the applicant had annular bulging at GPE , flattening of the cord and slight uncovertebral degeneration ." ]

[ "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is a lawyer . He used to be a public prosecutor and is now a practising member of the NORP bar association .", "DATE the applicant acted as the legal representative of several industrial companies belonging to a group associated with a strategic steelworks in eastern GPE . For a period of time starting on DATE he was on the board of directors of the company owning the works .", "In DATE the Minister of the ORG set up a special team of investigators to investigate large - scale organised criminal activities of a financial nature which were supposedly being committed in connection with a company belonging to the above group . The team was composed of officers from the financial police .", "On an unspecified date the investigators charged an individual , ORG , with aggravated fraud .", "On an unspecified date the investigators applied for judicial authorisation to tap the applicant ’s telephone . At an unspecified time a judge of ORG granted the authorisation . The applicant ’s professional mobile phone was subsequently tapped .", "NORP In DATE the applicant learned that calls from his phone were being intercepted ; that the interception was being carried out by the financial police ; and that the contents of his telephone communications were known outside the police .", "On DATE the applicant received an anonymous letter confirming the above information and advising him that the interception had taken place from DATE and had been carried out at the request of opponents of his clients .", "On DATE and DATE a DATE paper published interviews with the Minister of the ORG and the chief of ORG . From those interviews the applicant understood that there had been confirmation that the interception had actually taken place .", "Verbatim records of the applicant ’s calls had been leaked to various interest groups , politicians and journalists , as well as to representatives of several legal persons .", "Thus in DATE the DATE PERSON received by mail a transcript of the applicant ’s telephone conversation with a journalist of ORG . On DATE PERSON published a statement by a politician who had declared at a press conference that he possessed approximately CARDINAL pages of copies of transcripts of the applicant ’s telephone conversations .", "In DATE the applicant was informed that verbatim records of his conversations with third persons which had been made by the financial police were freely accessible on a website . They included conversations with his colleagues , clients , the representative of the other party in a case , and friends . The records had been manipulated in that they included statements which the applicant and the other persons involved had not made .", "On DATE the applicant informed ORG ( “ the Inspection Service ” ) that he had been warned in a letter signed “ member of the Financial Police ” about the interception of his telephone . He claimed that the interception was unlawful and unjustified and accused CARDINAL or more unknown police officers of having abused their official authority . The applicant stated that an appropriate investigation should be carried out into the matter in accordance with the law .", "The director of the special division of the financial and criminal police ( odbor zvláštnych úloh správy kriminálnej a finančnej polície ) lodged a criminal complaint as , on the basis of his own examination of the case file , he had come to the conclusion that the interception contravened sections DATE and DATE ( CARDINAL ) of LAW DATE ( see Relevant domestic law and practice below ) . This was so in particular because it had not been based on any specific suspicion against the person being targeted and no specific purpose had been indicated . In his view , the members of the special investigative team had abused their official authority within the meaning of LAW .", "On DATE the judge who had authorised the interception made a written statement to the President of ORG . The judge stated that the request for the authorisation had met all formal and substantive requirements . In his view , the police director had no authority to challenge the authorisation . The judge therefore considered it inappropriate to address the substance of the director ’s objections . He nevertheless remarked , in general , that requests for authorisation were made in writing , but were submitted in person . The officer submitting the request had presented the case orally and the oral presentation was usually more comprehensive than the written request . As requests for authorisation had to be handled with the utmost urgency , judges had had no realistic opportunity to examine the case file or to check that the request for authorisation corresponded to the contents of the case file . Furthermore , the information in the case file was often obtained from unverifiable sources . Judges therefore had to rely on the information in the request for authorisation , which presupposed a certain element of trust . The judge further observed that there had been an enormous increase in the workload concerning tapping and that this was due , inter alia , to an interagency agreement which had been reached under the auspices of ORG ( see Relevant domestic law and practice below ) and had extended the jurisdiction of ORG in this area . In his view , questions of jurisdiction should not be regulated by “ agreements ” but by statute , which was not the case in relation to tapping . The judge stated that telephone tapping had been authorised on CARDINAL previous occasions in the course of the investigation into the suspected extensive criminal transactions within the industrial group mentioned above . He had thus had sufficient and detailed knowledge about the applicant ’s case . The judge associated himself completely with the decision taken , although the suspicion against the applicant might later have been dispelled . This was nothing unusual and happened in PERCENT of cases .", "On DATE the applicant asked ORG to take measures with a view to eliminating unlawful interception and recording of telephone conversations .", "On DATE ORG questioned the applicant in connection with his complaint . According to the applicant , since then there has been no official communication concerning his complaint and he has not been informed of the outcome of the investigation .", "On DATE and DATE ORG requested that ORG discharge members of the special investigative team from the obligation of confidentiality in respect of the subject matter of the investigation . ORG agreed on CARDINAL and DATE respectively .", "On DATE ORG informed the applicant , in reply to his above request of CARDINAL DATE , that the framework for the interference was defined by LAW and the relevant statutory provisions including LAW DATE . Decree no . CARDINAL/CARDINAL defined the court ’s jurisdiction in such matters in cases where criminal proceedings had not been brought . The fact that the relevant issue was not governed by a law was only a formal shortcoming . Moreover , a draft law had been prepared to cover the relevant issue .", "DATE ORG questioned CARDINAL members of the investigative team . Their depositions included , inter alia , the information that the operative part of the team had been colluding with the applicant ; that the applicant had been in close contact with ORG ( see paragraph CARDINAL above ) ; that the applicant had been involved in several contractual transactions within the group , which had eventually harmed the interests of the steelworks ; that the request for authorisation to tap the applicant ’s phone had been based on the suspicion that he had committed the offences of aggravated fraud ( LAW ) and money laundering ( LAW ) ; that the request had been drafted without consultation of the case file ; that the interception had been necessary because it had not been possible to move the investigation forward without it ; and that after the interception had been compromised the case file had been made available to various officials , including the Minister of Justice , who at that time also acted as the Minister of the ORG ad interim .", "On DATE ORG dismissed the criminal complaint by the police director . It noted that a “ committee of experts specialising in operational tasks ” had been set up and “ had detected no breach of the applicable regulations ” . The interception had been authorised by a judge and had thus been lawful . There was no basis for scrutinising the judge ’s decision . In conclusion , there was no case to answer . The decision has never been served on the applicant .", "According to the applicant , he had lodged some CARDINAL criminal complaints DATE about the interception of his telephone conversations and mishandling of the verbatim records . Without submitting further details the applicant indicated that those complaints had been rejected without an appropriate examination of the facts .", "NORP The chief editor of the DATE PERSON filed a criminal complaint after receipt of a transcription of the applicant ’s telephone conversation with a journalist of ORG . In the context of the proceedings a journalist of PERSON was heard . On DATE the police also heard the politician who had stated that he possessed CARDINAL pages of copies of transcripts of the applicant ’s telephone conversations . The applicant was involved in the proceedings as the injured party .", "The parties have not informed the ORG about the outcome of the proceedings .", "NORP In DATE lieutenant colonel PERSON , attached to ORG department specialised in combating corruption and organised crime , contacted the applicant and informed him that there was a general order within ORG to reject all the applicant ’s complaints . The police officer had been obliged to leave the police after he had started criminal proceedings upon one of the applicant ’s complaints . In DATE that officer had complained to ORG office and to ORG office about abuse of authority in the context of examination of the applicant ’s complaints .", "The Government submitted a standpoint of ORG dated DATE . It indicates that the above decision of ORG of DATE had been taken in accordance with the law . As to the criminal complaints which officer PERSON had lodged in DATE , an investigator had set the case aside , on DATE , on the ground that no offence had been committed in the context of examination of the applicant ’s complaints . Finally , reference was made to the reply which ORG had sent to the applicant on DATE .", "Pursuant to Article CARDINAL , everybody has the right to protection against unjustified interference with his or her private and family life ( § CARDINAL ) and against the unjustified collection , publication or other misuse of personal data ( § CARDINAL ) .", "Article CARDINAL guarantees the secrecy of correspondence , other communications and written messages delivered by post , and of personal information ( § CARDINAL ) . The privacy of letters , other communications and written messages kept privately or delivered by post or otherwise , including communications made by telephone , telegraph and other means , can not be violated by anyone except in cases specified by law ( § CARDINAL ) .", "In proceedings no . II . ÚS CARDINAL/CARDINAL an individual alleged , inter alia , a breach of LAW in that his telephone had been tapped unlawfully . On DATE ORG dismissed the complaint as being manifestly ill - founded . It established that the interception had been authorised by a regional court judge in accordance with the relevant provisions of LAW DATE .", "NORP In proceedings no . I. ÚS CARDINAL/CARDINAL ( judgment of DATE ) ORG found a breach of an individual ’s rights under LAW on the ground that , contrary to the statutory requirement , CARDINAL judicial decisions to authorise the interception of the plaintiff ’s telephone contained no specific reasons justifying the interference .", "The Code distinguishes between the procedure before the formal institution ( commencement ) of a criminal prosecution , which is governed by the provisions of LAW , the procedure after the commencement of the prosecution but before the filing of the bill of indictment , known as the “ preliminary proceedings ” and governed by the provisions of LAW , and the procedure in court which begins with the filing of the indictment and is governed by the provisions of LAW .", "The procedure before the institution of a criminal prosecution encompasses receiving and verifying information , obtaining documentation and explanations and securing evidence with a view to determining whether a criminal offence has been committed and whether it is justified to bring a formal prosecution in connection with it . As a general rule , eavesdropping and interception is not allowed at this stage of the proceedings ( LAW ) unless such measures can not be postponed or repeated within the meaning of LAW .", "The procedure before the commencement of a criminal prosecution ends with a formal decision either not to accept the criminal complaint ( Article CARDINAL § CARDINAL ) , or to refer the matter to the relevant authority dealing with minor offences or disciplinary or other matters ( LAW ) , or to refuse to take action ( LAW , CARDINAL and CARDINAL ) , or to institute formal criminal proceedings ( LAW ) .", "The scope of the jurisdiction and competence of criminal courts is defined in CARDINAL of LAW . Proceedings at first instance are to be conducted before a district court unless the law provides otherwise ( LAW ) .", "The Act governs the organisation and powers of the police . LAW CARDINAL ) defines the tasks of the police . These include serving ( a ) to protect fundamental rights and freedoms , life , health , personal safety and property ; ( b ) to detect criminal offences and to identify the culprits ; ( c ) to detect illegal financial operations and money laundering ; ( d ) to investigate criminal offences and to examine criminal complaints ; and ( e ) to combat terrorism and organised crime . The provisions relevant in the present case read as follows :", "“ Information technology devices", "Section CARDINAL", "For the purpose of this LAW information technology devices are , in particular , electro - technical , radio - technical , photo - technical , optical and other means and devices or their combinations secretly used for", "a ) search for , opening and examination of consignments and their evaluation while using forensic methods ,", "b ) interception and recording of telecommunications ,", "c ) obtaining image , sound or other recordings .", "Section CARDINAL", "ORG is entitled to use information technology devices when complying with its tasks in the fight against terrorism , money laundering in the context of the most serious forms of criminal activities , in particular organised crime , ... tax evasion and unlawful financial operations , ... The preceding provision does not apply to contacts between an accused person and his or her defence counsel .", "ORG can use information technology devices also in respect of criminal activities other than those mentioned in sub - section CARDINAL subject to the agreement of the person whose rights and freedoms will thereby be interfered with .", "Conditions of use of information technology devices", "Section CARDINAL", "ORG can use information technology devices only where the use of other means would render the investigation of criminal activities mentioned in section CARDINAL , identification of their perpetrators or securing evidence necessary for the purpose of criminal proceedings ineffective or considerably difficult .", "Information technology devices can only be used subject to a prior written consent of a judge and for a period strictly necessary which however can not exceed DATE . That period starts running on DATE when such consent has been given .", "The judge who approved of use of information technology devices can , on the basis of a fresh request , extend the period , but for no longer than DATE each time .", "In exceptional cases , where no delay is possible and a written consent of a judge can not be obtained , information technology devices can be used without such consent . However , ORG must apply for a written approval by a judge without delay . If such consent is not given within TIME from the moment when the use of devices started or if the judge refuses to give his or her consent , ORG must put an end to the use of information technology devices . Information thus obtained can not be used by ORG and they must be destroyed in the presence of the judge competent to decide on the request .", "ORG shall submit a request for approval of the use of information technology devices to a judge in writing ; it must contain data about the person concerned , specify the device to be used , place , duration and reasons for its use .", "The judge who gave consent to the use of information technology devices must examine on a continuous basis whether the reasons for their use persist ; where such reasons no longer exist , the judge is obliged to immediately order that the use of the devices be stopped .", "ORG can use information technology devices without prior consent of a judge ... where the person whose rights and freedoms are to be interfered with has consented to such in writing ...", "Section CARDINAL", "When using information technology devices ORG must constantly examine whether the reasons for such use persist . Where those reasons are no longer valid , ORG must immediately put an end to the use of an information technology device .", "ORG must inform the judge who gave consent to the use of information technology devices of the termination of such use .", "Information obtained by means of information technology devices can be used exclusively for attaining the aim set out in section CARDINAL .", "The use of information technology devices can restrict the inviolability of one ’s home , the privacy of correspondence and the privacy of information communicated only to the extent that it is indispensable .", "Information obtained by means of information technology devices can exceptionally be used as evidence , namely where such information constitutes the only proof indicating that a criminal offence listed in section DATE was committed by a specific person and where such proof can not be obtained by other means . In such case the relevant recording must be accompanied by TIME indicating the place , time , means and contents of the recording and the reason for which it was made . ”", "Section CARDINAL deals with police information systems and databases . The police are entitled to set up and operate information systems and databases containing information about persons and facts which are relevant for their work ( subsection CARDINAL ) . The police have the duty to protect the data stored in such systems from disclosure , abuse , damage and destruction ( subsection CARDINAL ) . If the data are no longer needed , they must be destroyed or stored so that they are not accessible to anyone except a court ( subsection CARDINAL ) .", "Sections CARDINAL , PERSON ) , DATE and CARDINAL of LAW DATE were repealed by LAW . on ORG against Unjustified Use of Information Technology Devices ( “ LAW DATE ” ) which entered into force on CARDINAL DATE .", "The Act governs the use of information technology devices without the prior consent of the person concerned . It does not extend to the use of such devices in the context of criminal proceedings which is governed by LAW ( section CARDINAL ) .", "Section CARDINAL defines the authorities entitled to use such devices ( ORG , ORG , ORG , ORG , ORG and ORG and ORG ) . The devices used must be secured against tampering . Personnel involved in using the devices must undergo a lie - detector test at intervals fixed by the head of the authority concerned .", "Section CARDINAL allows for use of information technology devices only where it is necessary in a democratic society for ensuring the safety or defence of the ORG , prevention or investigation of crime or for the protection of the rights and freedoms of others . The information thus obtained can not be used for purposes other than one of those enumerated above .", "Pursuant to section CARDINAL , such devices can be used subject to prior approval by a judge within whose jurisdiction the case falls . Their use should be limited to a period which is strictly necessary and it should not exceed DATE unless the judge grants an extension . The judge involved is obliged to examine on a continuing basis whether the reasons for the use of such devices persist .", "In exceptional cases specified in section CARDINAL the police can use the devices without the prior consent of a judge . In such cases , the judge must be notified within TIME after the use of the devices has started and a request for authorisation of such use must be submitted within TIME . In case of disapproval by the judge of such interference the data obtained must be destroyed .", "Sections CARDINAL and CARDINAL govern the use and disposal of data obtained and the liability of the ORG in case of failure by the authorities concerned to comply with the law .", "Pursuant to section CARDINAL ORG ( the ORG ) shall examine at its plenary meeting , DATE , a report of its committee set up for the purpose of supervising the use of information technology devices . The report must indicate any unlawful use of the devices established . The report can be made available to the media . The authorities entitled to use information technology devices must make available to the above committee all relevant information within DATE following the committee ’s request .", "The decree was issued , inter alia , pursuant to Article CARDINALa § CARDINAL of LAW , which authorised the Minister of Justice to lay down further details of the procedure before district courts and regional courts “ in dealing with criminal matters ” .", "Section CARDINAL ( CARDINAL ) obliged the presidents of each regional court to assign CARDINAL judge to deal with matters concerning use of information technology devices .", "The decree of DATE was repealed by Decree no . DATE with effect from DATE .", "On DATE a conference took place under the auspices of ORG Representatives of the Ministry , the regional courts , the head office of the police and the office of ORG took part . The participants agreed that matters concerning authorisation of wiretapping would be handled by the regional court in the judicial district in which the agency requesting it had its seat .", "The amendment entered into force on DATE . It introduced , inter alia , subsections CARDINAL and CARDINAL to section CARDINAL of ORG . They provide that , as a general rule , authorisation for monitoring telecommunications falls within the jurisdiction of the regional courts . Territorial competence is conferred on the regional court in the judicial district in which the authority seeking the authorisation has its seat ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant and another person , PERSON , were detained by the police and brought to a police station , on suspicion of having committed a robbery .", "The applicant remained in detention until DATE . He alleged that he had been beaten by police officers during CARDINAL interrogations on CARDINAL and DATE , with the aim to make him confess to having committed the robbery .", "The facts concerning the applicant ’s detention and allegations of illtreatment , as well as the findings of the medical examinations he underwent , are summarised in ORG judgment of DATE , quoted in paragraphs CARDINAL - CARDINAL below .", "The criminal proceedings for robbery against the applicant and Mr E.Y. were discontinued on DATE .", "On DATE the applicant lodged a complaint with ORG , stating that on DATE , during his detention , he had been beaten by police officers , in order to force him to confess to an offence . He further stated that he did not know the names of the officers but would be able to identify them .", "On DATE the prosecutor instituted criminal proceedings against Mr G.H. , CARDINAL of the police officers who had interviewed the applicant . The prosecutor stated that on DATE , in the performance of his duties , Mr G.H. had punched the applicant in the face , chest and back . The prosecutor qualified the criminal conduct as minor bodily injury without detriment to the applicant ’s health , an offence under LAW CARDINAL ( CARDINAL ) taken together with LAW of LAW .", "NORP The applicant was interviewed on DATE , DATE and DATE . On each of these occasions he gave descriptions of the officers who had assaulted him and of others who had witnessed the attacks .", "On DATE the prosecutor conducted a procedure in which the applicant was confronted with the suspect Mr G.H. ; the applicant stated that Mr G.H. was not CARDINAL of the officers who had assaulted him .", "On CARDINAL DATE the prosecutor terminated the criminal proceedings on the ground that no offence had been committed . He found that the applicant ’s complaints were unsubstantiated because his statements were vague and could not be fully verified ; he had stated clearly that Mr G.H. had not beaten him ; his description of the offenders was very general ; PERSON , who had witnessed the alleged physical assault , could not be traced ; and no other witnesses to the applicant ’s condition before or after the arrest had been identified . In addition , it was unclear why the applicant had lodged his complaint with the prosecutor DATE after the alleged beating .", "The applicant appealed , and by a decision of DATE ORG quashed the prosecutor ’s order . It stated that , with the exception of PERSON , the prosecutor had failed to interview the police officers who had been on duty on TIME of the events . The prosecutor had also failed to interview witnesses on behalf of the applicant who could have testified about his condition before and after his arrest , and to conduct an identification parade .", "Subsequently , the applicant was once again interviewed on DATE . His mother was interviewed on DATE . She stated that after his release the applicant had had bruises all over his body , had been in pain and had said that he had been beaten by police officers .", "On DATE the prosecutor suspended the criminal proceedings on the ground that the whereabouts of PERSON were unknown .", "On an appeal by the applicant , on DATE a prosecutor at the Sofia Appellate Military Prosecutor ’s Office quashed that order , finding that the testimony of PERSON was not indispensable for the investigation and that the prosecutor had failed to follow all the instructions given by ORG on DATE .", "On DATE the prosecution authorities conducted a confrontation between the applicant and Mr D.V. , CARDINAL of the officers who had interviewed him on DATE . The applicant stated that it had not been Mr D.V. but another person who had hit him on DATE .", "By an order of CARDINAL DATE , the prosecutor terminated the criminal proceedings against Mr G.H. and sent the case back to the investigator with instructions to find the perpetrators .", "On DATE the applicant participated in a photographbased identity parade . On the basis of several photographs of different individuals presented to him , the applicant identified CARDINAL of them as the police officers who had beaten him on DATE but was unable to identify the officer who had beaten him on DATE .", "On DATE and DATE the applicant was confronted with ORG and FAC , but stated that he did not recognise them . It appears that these were not the officers recognised by the applicant at the earlier photograph - based identity parade .", "On DATE the prosecutor terminated the criminal proceedings . He found that there was no evidence to support the alleged illtreatment except for the applicant ’s statements , which were vague and very general ; the only eyewitness , Mr E.Y. , could not be traced and thus it was impossible to question him ; the applicant had admitted to having seen the alleged offenders after the incident , which , in the prosecutor ’s view , had corrupted the photograph - based identity parade procedure ; and the initial medical reports of CARDINAL and DATE did not record any injuries , while the report of CARDINAL DATE was unclear on whether the injuries had been caused on CARDINAL or DATE .", "On an appeal by the applicant , in a decision of DATE the ORG quashed the prosecutor ’s order and returned the case for further investigation . As to the investigation conducted so far , the court found in particular the following :", "“ During the preliminary investigation the witness PERSON was interviewed and indicated that on DATE following his detention he was brought to the upper floor of the police directorate , where there was a woman and CARDINAL men . PERSON describes in detail the police officer who punched him in the area of the ear and the body – QUANTITY in height , with black hair . PERSON describes also the officer who hit him on DATE – CARDINAL old , QUANTITY in height , with short black hair , a padlock - shaped beard .", "The only possible conclusion concerning the identifications in the case is that they were not conducted in accordance with the requirements of the [ Code of Criminal Procedure ] , because they were all conducted through photographs . The photographs can not show the ORG height [ ... ] . These identifications are useless , given the NORP statements . On the other hand , as seen from the [ albums attached ] , the witness was shown persons of a different age , not the CARDINAL described by him . Moreover , it is not clear why the identification parade had to be conducted through the showing of photographs , from which the FAC height and hair colour are not visible .", "In this connection , it is necessary to interview the head of the police directorate , as well as the officials responsible for criminal investigations , [ so as to establish ] which of their subordinates had a padlock - shaped beard at the time and met the description given by the victim .", "The court considers that the investigation was not comprehensive and objective , because important witnesses have not been interviewed by the military investigator and , if necessary , confrontations had to be organised .", "Moreover , it was necessary to collect evidence as to which officers worked on the case on the date at issue ; this had to be done though an interview with their direct superiors . It was necessary to conduct identification parades , and not photograph identifications , [ so as to perceive ] the features such as hair and beard . ”", "Upon an appeal by the prosecutor , in a decision of DATE ORG reversed the above decision and terminated the criminal proceedings . It found , this time , that given the expiry of DATE since the dates of the events , the investigation had become time - barred ( see paragraph CARDINAL below ) .", "The ORG has not been informed of disciplinary or any other measures or an internal inquiry , undertaken in relation to the applicant ’s complaints .", "On DATE the applicant brought an action against ORG under the ORG and ORG ( “ the ORG ” ) , seeking damages for being beaten by police officers on CARDINAL and DATE . The action was allowed by a judgment of ORG ( “ the ORG ” ) of DATE .", "The Sofia Police Directorate did not take part in the proceedings and did not comment on the applicant ’s claims . A prosecutor from the GPE prosecutor ’s office , who took part pursuant to a requirement of the law , considered the claim well - founded , but also considered that the amount in damages was exaggerated .", "As to the facts of the case , the ORG found , in particular , the following :", "“ The plaintiff PERSON was detained [ ... ] on DATE , at CARDINAL p.m.", "As seen from the decision of the prosecutor [ of DATE ] discontinuing the criminal proceedings , a preliminary investigation was opened against [ Mr GPE ] and PERSON on suspicion that on DATE , in [ GPE ] , acting in complicity , the CARDINAL of them had taken away an item belonging to another – a purse , containing personal chattels and money DATE from PERSON . On DATE [ Ms P. ] and [ PERSON ] had been attacked by CARDINAL unknown persons , who had knocked down [ PERSON ] , had taken her purse and had run away . The QUANTITY victims immediately called [ the police ] and described in general terms the attackers . [ Mr GPE ] and PERSON were detained nearby and brought to the witnesses . [ PERSON ] stated that they had not been the attackers . By the same decision [ of DATE ] the investigation against [ Mr GPE ] and PERSON was discontinued for lack of evidence .", "The plaintiff attached to his statement of claim a [ medical report by an in - house doctor ] , following a medical examination of PERSON of DATE . The document reported a “ light bruise on the left side of the chest and back ” .", "As seen from a medical report of DATE , a [ coroner ] examined the plaintiff [ following his release ] . During the examination the doctor established : CARDINAL ) a QUANTITY by QUANTITY haematoma to his left ear ; CARDINAL ) a QUANTITY by QUANTITY blue - yellow coloured haematoma above the left breast area ; CARDINAL ) a QUANTITY by QUANTITY red - blue coloured haematoma with yellow edges on the left side of the chest near the abdomen ; CARDINAL ) yellow - blue coloured haematomas measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY on the left side of the back ; CARDINAL ) a group of yellow - blue coloured haematomas measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY on the left side of the waist ; CARDINAL ) a QUANTITY by QUANTITY yellow - blue coloured haematoma in the centre of the waist ; CARDINAL ) a group of blue - yellow coloured haematomas overlapping each other , measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY and reaching from the right side of the chest down to the waist ; and CARDINAL) a QUANTITY by QUANTITY yellow - blue coloured haematoma with red patches on the left side of the waist towards the pelvis . The doctor was of the opinion that the injuries had been caused by blunt objects and were consistent with the plaintiff ’s account of the events . The injury to the left ear could have been inflicted on DATE , while the rest of the injuries dated from DATE .", "By a decision of CARDINAL DATE of a prosecutor from ORG , criminal proceedings were opened against [ Mr G.H. ] on suspicion that on DATE , at TIME , at the building of the First police directorate in GPE , acting as a ORG official and in the performance of his duties , had punched and hit with his palm PERSON in the face , chest and back , as a result of which the latter had received haematomas in the areas of the left ear , the left part of the chest , the CARDINAL sides of the back and the left part of the waist , which amounts to minor bodily injury causing pain to the victim – an offence under LAW CARDINAL § CARDINAL ( CARDINAL ) taken in conjunction with LAW of LAW .", "On DATE the plaintiff submitted records from his examinations as a witness in the criminal proceedings [ concerning his beating ] on DATE , DATE and CARDINAL DATE . In them , the plaintiff describes the events of DATE , his detention and transfer to the [ police directorate ] together with [ Mr GPE ] , his beating by police officers the same evening , his stay in the corridor , handcuffed to a grill , the next beating by an officer on DATE , again during an examination in connection with [ the robbery ] . In TIME CARDINAL DATE he participated in an identity parade , and later in the afternoon the CARDINAL were brought to ORG hospital , but PERSON was not examined . After that they were brought to ORG , where they were examined by a doctor who filled in some documents . He was released on DATE , at TIME On DATE he went to the [ hospital ] but the family doctor told him that she could not issue a medical certificate . On DATE he was examined by a coroner . ”", "On the basis of the facts , as established above , the ORG reached the following conclusions :", "“ By DATE Republic of Bulgaria , the ORG is liable for damage caused through the unlawful actions and omissions of its bodies and officials . The provision is of a general character and its implementation is to be regulated by statute . The tort liability of the ORG and the municipalities is thus regulated in the GPE and Municipalities Responsibility for Damage Act ( ORG ) , which is the applicable special statute [ ... ] The ORG ’s liability is strict , the victim receives damages directly from the juridical person to which the respective body or official belongs . The liability is objective as it is not necessary to show that the damage was caused through the fault of anyone . [ ... ]", "By DATE ( CARDINAL ) ORG , the ORG and the municipalities are liable for any damage caused to individuals and legal persons from the unlawful acts , actions or omissions of their bodies and officials , in the course of or in connection with an administrative activity . By DATE of the ORG , the action is to be directed against the [ bodies ] whose unlawful acts , actions or omissions led to the damage caused . By DATE , the compensation is to cover any pecuniary and non - pecuniary damage , which is a direct and proximate result of the harm done . For the liability to be engaged , the following preconditions have to be met : CARDINAL ) there has to be pecuniary or non - pecuniary damage – actual damage or lost profit ; CARDINAL ) it must have been caused by an unlawful act , action or omission of a body or an official of the ORG or the municipalities ; CARDINAL ) it has to be in the performance of an administrative activity , namely the damage has been caused by the unlawful act , action or omission of the body or official , in the course of or in connection with an administrative activity ; and CARDINAL ) direct and proximate causal link between the unlawful act , action or omission and the damage caused . [ ... ]", "The analysis of all written evidence in the present case leads to the unconditional conclusion that on DATE and DATE officials of the First police directorate in GPE caused to the plaintiff minor bodily injury . As early as DATE the [ doctor at ORG ] noted a “ light bruise on the left side of the chest and the back ” . During the plaintiff ’s examination on DATE [ the coroner ] noted CARDINAL different injuries in the areas of the left ear , left part of the chest , left side of the back , left and central parts of the waist , right side of the chest down to the waist and left side of the waist towards the pelvis . Part of these injuries correspond to the CARDINAL established by [ the in - house doctor ] , at the same time the coroner himself is explicit in his conclusion that the injuries could have been caused in the way and at the time indicated by the plaintiff . The plaintiff ’s description of the events of CARDINAL and DATE at the [ police directorate ’s building ] is consistent , as seen from the records of his [ examinations during the criminal proceedings ] . During these examinations the plaintiff was interviewed as a witness , after having been notified of the criminal sanctions in the event of perjury . [ ... ] The combined assessment of [ these records ] together with the remainder of the evidence shows that they all establish identical factual circumstances . In that regard , objective data are also contained in the CARDINAL court decisions given in the framework of the criminal proceedings [ concerning appeals of the applicant against decisions of the prosecution to discontinue the proceedings ] , which are obviously based on evidence collected during the investigation . It has not been disputed that the [ criminal proceedings in question ] were opened following a complaint by the plaintiff against unknown officers of the First police directorate in GPE that on DATE and DATE they had caused him a minor bodily injury , an offence under LAW ( CARDINAL ) taken in conjunction with LAW . As seen from [ the decision ] of ORG of DATE , in the course of the criminal proceedings a medical expert report was commissioned , which established that ORG ’s injuries had caused him pain and suffering . [ ... ]", "On the basis of all the evidence indicated above , the court concludes that on DATE and DATE the plaintiff PERSON was beaten by officers of the First police directorate in GPE where he had been detained . A full description of the injuries is contained in the [ coroner ’s ] medical report of DATE . The testimony of the witness ORG [ the plaintiff ’s mother ] establishes that prior to his detention on DATE the plaintiff PERSON was completely healthy . The court accepts this testimony as objectively given , despite the ORG close relation with the plaintiff , as it is logical and consistent . The testimony of [ PERSON ] corresponds to the remaining evidence as well . For example , at the time of the arrest the plaintiff was searched , but nothing irregular was noted on his body or in his behaviour . Also at the time of his detention on DATE the plaintiff filled in a declaration , where he indicated that he did not have health problems . The witness [ V. ] explains that on DATE her son left for work in a good state of health , but in the evening did not come back . He came back in the evening of DATE , TIME , in a deplorable state – his left eye was swollen , he had a yellow - blue bruise on the chest . They sent him immediately to see a doctor , for which there are medical documents . [ ... ]", "The court has appointed medical experts who submitted a report , which the court accepts as competently prepared . It has not been challenged by the parties . It establishes that the injuries described in the medical documentation in the case [ were such ] as to cause pain and suffering . The legal definition of the offence of minor bodily injury contained in LAW and QUANTITY of the Criminal Code covers cases of injuries to health causing pain and suffering .", "For the considerations above the court finds that the preconditions for the liability of the ORG under LAW ORG were met . It was shown in an unconditional manner that during his detention at the First police directorate ’s building , on DATE the plaintiff received a number of injuries , amounting to minor bodily injury within the meaning of LAW of LAW . Those injuries were caused by officials [ of the directorate ] , in the course of and in connection with their activity in relation to the plaintiff ’s [ detention ] . The fact that the [ detention order ] has not been quashed is irrelevant , because the plaintiff’ ’s beating ] ) that the use of force was justified , within the meaning of [ the provisions of ORG ] . That is why it follows that in the course of the performance of their official activity in [ detaining the applicant ] officials of the First police directorate performed unlawful actions , namely caused a minor bodily injury to the plaintiff [ ... ] The medical documentation in the case establishes a direct and proximate link between the ORG behaviour and the damage caused to the applicant , namely injuries to his body . The considerations above show that all CARDINAL preconditions for the ORG ’s liability under LAW ORG have been met . ”", "As to the amount of damages to be awarded , the ORG took into account the nature of the injuries caused to the applicant , as well as the particular circumstances , namely the fact that the injuries were caused by police officers , in a situation where the applicant had been particularly vulnerable as he had been deprived of his liberty . It referred once again to the testimony of the applicant ’s mother , who had stated that after his release the applicant had been in “ a deplorable state ” and that the events “ had destroyed the family ” . The ORG took note , furthermore , of the amounts awarded by the domestic courts in other similar cases . Lastly , it dismissed the applicant ’s argument that the compensation should be comparable to the amount awarded in the ORG ’s case of PERSON v. GPE , no . CARDINAL , DATE ( where the ORG awarded ORG CARDINAL in nonpecuniary damage ) . It noted that the circumstances in that case had been much graver and that , in addition , unlike in PERSON , the case before it did not concern the ineffective investigation into the applicant ’s beating by the police .", "On the basis of the above , the domestic court awarded the applicant CARDINAL NORP levs ( ORG ) , the equivalent of MONEY ( ORG ) , in respect of non - pecuniary damage . The applicant had initially claimed BGN MONEY .", "The above - mentioned judgment does not appear to have been appealed against , and took effect on an unspecified date . At DATE the Sofia Police Directorate paid the applicant the sum awarded .", "Article CARDINAL § CARDINAL of LAW of DATE makes it an offence to cause minor bodily injury to another . Under LAW ( CARDINAL ) , where the injury was caused by police officers in the course of or in connection with the performance of their duties , the offence is considered aggravated . The offence is publicly prosecutable ( LAW ) and , if the injury was without detriment to the victim ’s health ( “ без разстройство на здравето ” ) , is punishable by DATE imprisonment or probation .", "Under LAW , forcing an accused to confess or provide information through coercion or other unlawful means is an offence punishable by DATE imprisonment where the perpetrator was a person in whom official powers were vested .", "The limitation period for prosecuting offences under LAW ) taken in conjunction with LAW of LAW is DATE ( LAW ( CARDINAL ) of the Code ) , and the limitation period for prosecuting offences under LAW is DATE ( LAW CARDINAL ( CARDINAL ) ) . Each act of criminal prosecution carried out by the competent authorities in relation to the alleged offender interrupts the limitation period and restarts the running of time ( LAW ) . Such interruptions notwithstanding , the alleged offender can no longer be prosecuted if the limitation period has been exceeded by CARDINAL ( LAW ) , which means that an offence under LAW ( CARDINAL ) taken in conjunction with LAW of the LAW can not be prosecuted if DATE have elapsed since its alleged commission ." ]

[ "3" ]

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[ "The applicant was born in DATE and lives in ORG .", "On an unspecified date the GPE District Police of Kharkiv instituted criminal proceedings against the applicant , who was DATE at the material time , on suspicion of theft of a mobile telephone and acting as an accomplice in an unsuccessful attempted robbery of earrings , a watch and a mobile telephone , in company with CARDINAL other minors , in DATE . The robbery attempt was interrupted when CARDINAL witnesses to the incident intervened .", "On DATE a bill of indictment was drafted and the investigator ordered the district police to bring the applicant in for questioning . In addition , the investigator imposed an undertaking not to abscond on the applicant as a preventive measure .", "On DATE the police reported that it was impossible to locate the applicant and placed her on the “ wanted list ” .", "On DATE the GPE District Police of Kharkiv arrested the applicant at her mother ’s home address and drew up an arrest report , the relevant parts of which read as follows :", "“ Investigator ... L. , on DATE at TIME in accordance with LAW of GPE detained , on suspicion of the commission of a crime : PERSON ...", "The crime which PERSON was detained on suspicion of having committed falls under LAW paragraph CARDINAL [ and ] LAW paragraph CARDINAL of LAW of GPE .", "Grounds and motives for detention : commission of a grave offence ; may abscond from investigation and court , obstruct establishment of the facts of the case ... ”", "On DATE Mr ORG , the applicant ’s lawyer , lodged a complaint with ORG ( hereinafter DATE “ the ORG ” ) alleging , in particular , that the applicant ’s arrest and detention were in contravention of LAW , which authorised extra - judicial detention only where it was necessary to prevent or stop a crime . He argued that , since the crimes imputed to the applicant had taken place in DATE , in accordance with LAW ( hereafter – “ the ORG ” ) the investigating authorities had been under an obligation to seek a judicial order in order to arrest the applicant . In addition , he noted that LAW ORG allowed the detention of minors only in exceptional circumstances , which were absent in the applicant ’s case .", "On DATE the investigating authorities requested ORG to authorise the applicant ’s remand in custody . Having held a hearing in the presence of the applicant and her advocate , the court authorised the measure requested . In its reasoning the court noted that the applicant had been charged with serious offences and had absconded from the investigating authorities , and that this justified her placement on the wanted list . Furthermore , her mother , who had been deprived of her parental rights , was unlikely to be able to ensure that the applicant would appear before the investigating authorities , as she herself had a criminal record and suffered from alcoholism . In addition , the court referred to a report from the staff responsible for the applicant ’s welfare at the boarding school where she was officially residing , which stated that the applicant had behavioural problems , including a proneness to run away from the school . In the light of these findings the court concluded that if not detained the applicant might commit another crime or obstruct the investigation . The court ’s decision bore no reference to the applicant ’s advocate ’s complaint about the unlawfulness of her arrest and detention DATE .", "On DATE Mr ORG appealed against the court decision of DATE . He alleged , in particular , that ORG had failed to analyse the applicant ’s situation from the angle of LAW , which allowed for the placement of a minor in detention pending trial only on condition that there existed “ exceptional circumstances ” . He submitted that in the circumstances of the present case the detention was unwarranted . In particular , the crimes with which the applicant had been charged were not exceptionally serious and the findings that she might abscond , obstruct the investigation or commit another offence were speculative . In particular , no evidence had been presented that during DATE which had passed since the applicant ’s alleged offences she had attempted to commit another crime or obstruct the investigation . Moreover , by DATE the evidence had been largely collected , which made it improbable that the applicant would obstruct the investigation . As regards the allegation that the applicant had already absconded , which justified her placement on the wanted list , the authorities had presented no evidence that the applicant had ever been subpoenaed to appear for questioning either at her school or at her mother ’s address . She had been placed on the wanted list on DATE the order to bring her in for questioning had been issued . Eventually she had been arrested at her mother ’s address , which was her permanent address and whose location was well known to the police . In the meantime , the applicant ’s health and well - being was likely to be seriously endangered by detention in an ordinary pre - trial detention facility , as she was suffering from tuberculosis and had a history of in - patient treatment for psychiatric disturbances . Mr ORG also noted that he had not been given a copy of the decision of DATE and requested that the applicant be invited to participate in the appeal hearing in person .", "On DATE the investigator in the applicant ’s case informed Mr ORG in a letter that he could access the decision of DATE at the investigator ’s office at ‘ any convenient time’ .", "On DATE Mr ORG amended his initial appeal against the decision of DATE . In particular , he noted that his complaint that the applicant ’s arrest and detention DATE had been unlawful had not been considered . The applicant submitted to the ORG a copy of this amended appeal bearing Mr ORG ’s original signature . There is no receipt slip or any other evidence that the document was ever submitted for judicial consideration .", "On DATE ORG ( hereinafter – “ ORG ” ) dismissed Mr ORG ’s appeal following a hearing at which the prosecutor and PERSON , but not the applicant herself , were present . In its decision ORG referred to the same arguments as the first - instance court and additionally mentioned that the applicant ’s state of health was irrelevant to the finding that she might abscond , obstruct the investigation or commit another crime .", "In the meantime , on DATE the GPE District Police suspended the criminal proceedings against the applicant on account of her state of health , stating in its decision that all investigative actions necessary at the material time had been completed . Subsequently the investigation was resumed and suspended on several occasions on account of the applicant ’s state of health .", "On DATE Mr Tokarev inquired of ORG in a letter as to the state of consideration of his complaint about the unlawfulness of the applicant ’s arrest and detention DATE and allegedly received no answer .", "On DATE ORG decided , without a hearing but in presence of the prosecutor , to commit the applicant for an in - patient psychiatric assessment .", "On DATE the Dzerzhinsky District Prosecutor allowed the applicant ’s premature release from detention under an obligation not to abscond , referring to her tuberculosis , which required in - patient treatment . On an unspecified date the applicant was committed for in - patient psychiatric assessment .", "On DATE the applicant was released from the psychiatric institution following her psychiatric assessment , according to which she was not suffering from any psychotic disorders .", "The text of the relevant provision of LAW of DATE ( LAW ) can be found in the judgment in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , § DATE , DATE ) .", "The text of the relevant provisions of ORG CARDINAL , CARDINAL and CARDINAL of LAW of GPE of DATE ( “ the ORG ” ) can be found in the judgment in the case of PERSON v. GPE , no . CARDINAL , § CARDINAL , DATE ) .", "Other relevant provisions of the ORG , as worded at the material time , read as follows :", "“ The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on CARDINAL of the following grounds :", "( CARDINAL ) if the person is discovered whilst or immediately after committing an offence ;", "( CARDINAL ) NORP if eyewitnesses , including victims , directly identify this person as the one who committed the offence ;", "( CARDINAL ) if clear traces of the offence are found either on the body of the suspect , or on his clothing , or with him , or in his home .", "If there is other information giving ground to suspect a person of a criminal offence , a body of inquiry may arrest such a person if the latter attempted to flee , or does not have a permanent place of residence , or the identity of that person has not been established .", "For each case of a suspect ’s arrest , the body of inquiry shall be required to draw up an arrest order ( протокол затримання ) outlining the grounds , the motives , DATE , time , DATE , the place of arrest , the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest , in accordance with the procedure provided for in paragraph CARDINAL of Article CARDINAL of the present Code . The arrest order shall be signed by the person who drew it up and by the detainee .", "A copy of the arrest order with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor . At the request of the prosecutor , the material which served as a ground for the arrest shall be sent to him as well . ...", "Within TIME of the arrest , the body of inquiry shall :", "( CARDINAL ) NORP release the detainee if the suspicion that he committed the crime has not been confirmed , if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs CARDINAL and CARDINAL of the present Article ;", "( CARDINAL ) NORP release the detainee and select a non - custodial preventive measure ;", "( CARDINAL ) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her .", "If the arrest is appealed against to a court , the detainee ’s complaint shall be immediately sent by the head of the detention facility to the court . The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure . If the complaint is received after the preventive measure was applied , the judge shall examine it within DATE after receiving it . If the request has not been received or if the complaint has been received after the term of TIME of detention , the complaint shall be considered by the judge within DATE after receiving it .", "The complaint shall be considered in accordance with the requirements of Article CARDINAL - CARDINAL of this Code . Following its examination , the judge shall give a ruling , either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful .", "The ruling of the judge may be appealed against within DATE from the date of its adoption by the prosecutor , the person concerned , or his or her defence counsel or legal representative . Lodging such an appeal does not suspend the execution of the court ’s ruling .", "Preliminary detention of a suspect shall not last for CARDINAL .", "If , within the terms established by law , the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre - trial detention facility , the head of the pre - trial detention facility shall release the person concerned , drawing up the order to that effect , and shall inform the official or body that carried out the arrest accordingly . ”", "“ An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles CARDINAL , CARDINAL - CARDINAL , and CARDINAL of the Code . ”", "“ If a forensic medical or psychiatric examination necessitates long - term monitoring or assessment of the suspect , the court , at the investigator ’s request and with the prosecutor ’s authorisation , may order the suspect ’s committal to the relevant medical institution .", "The matter shall be examined according to the procedure established by paragraph CARDINAL of Article CARDINAL - CARDINAL ; the ruling of a judge may be appealed against within DATE by the prosecutor , the accused , or his defence counsel or statutory representative ... ”", "“ Detention and placement in custody as a preventive measure may be applied to a minor only in exceptional circumstances , where this is warranted by the gravity of the crime imputed to him , in the presence of grounds , and according to the procedure established by Articles CARDINAL , CARDINAL , ... of this Code . ”", "Relevant provisions of the LAW “ on the procedure for the compensation of damage caused to a citizen by the unlawful actions of bodies of inquiry , the pre - trial investigative authorities , prosecutors and courts ” of DATE ( with amendments ) can be found in the judgment in the case of ORG v. GPE , nos . CARDINAL and CARDINAL/CARDINAL , § DATE , DATE .", "The above document , in so far as relevant , reads as follows :", "“ ... recommends ORG to review , if necessary , their legislation and practice with a view : ...", "NORP to exclude the remand in custody of minors , apart from exceptional cases of very serious offences committed by older minors ; in these cases , restricting the length of remand in custody and keeping minors apart from adults ; arranging for decisions of this type to be , in principle , ordered after consultation with a welfare department on alternative proposals ... ”", "The above document , in so far as relevant , reads as follows :", "“ CARDINAL . Where juveniles are detained in police custody , account should be taken of their status as a minor , their age and their vulnerability and level of maturity . They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding . While being questioned by the police they should , in principle , be accompanied by their parent / legal guardian or other appropriate adult . They should also have the right of access to a lawyer and a doctor . They should not be detained in police custody for longer than TIME in total and for younger offenders every effort should be made to reduce this time further . The detention of juveniles in police custody should be supervised by the competent authorities .", "When , as a last resort , juvenile suspects are remanded in custody , this should not be for DATE before the commencement of the trial . This period can only be extended where a judge not involved in the investigation of the case is satisfied that any delays in proceedings are fully justified by exceptional circumstances .", "Where possible , alternatives to remand in custody should be used for juvenile suspects , such as placements with relatives , foster families or other forms of supported accommodation . Custodial remand should never be used as a punishment or form of intimidation or as a substitute for child protection or mental health measures . ”", "Article CARDINAL of the above document , in so far as relevant , reads as follows :", "“ GPE Parties shall ensure that ...", "( b ) No child shall be deprived of his or her liberty unlawfully or arbitrarily . The arrest , detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ;", "( c ) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person , and in a manner which takes into account the needs of persons of his or her age . In particular , every child deprived of liberty shall be separated from adults unless it is considered in the child ’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits , save in exceptional circumstances . ”" ]

[ "5" ]

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

[ "5-1-c" ]

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[ "The applicant is a NORP citizen , born on DATE and living in GPE . She is represented before the Court by Mr PERSON , solicitor , of Messrs. PERSON and GPE , GPE .", "A.", "A chronology of the applicant , from her birth in DATE until she reached her majority in DATE , submitted by the ORG and not contested by the applicant , is attached to the present decision . In DATE , the applicant was convicted of common assault , criminal damage and affray . On CARDINAL DATE , an interim hospital order was made under LAW DATE , and the applicant was transferred to ORG for assessment . Whilst at ORG , Dr. PERSON , a consultant psychiatrist , took the view that the applicant suffered from a psychopathic disorder within the meaning of LAW , but that that condition was not treatable . An assessment from the applicant 's solicitors ' own psychiatrist , Dr. PERSON , did not reveal criteria for psychopathic disorder . The applicant was discharged from PERSON to FAC on DATE .", "On DATE ORG under LAW of LAW DATE , granted an application made by ORG , that the applicant be kept in secure accommodation until DATE . An order under LAW may only be made in respect of a child who is being looked after by a local authority ; the applicant had been subject to a full care order since DATE . The magistrates stated in their reasoning that if she was kept in any other accommodation the applicant was \" likely to injure herself or other persons \" .", "The secure accommodation order was due to expire on DATE . On DATE CARDINAL applications came before Mr Justice Stuart - White in ORG . The applications were an application by the local authority for a further secure accommodation order to last up to the applicant 's eighteenth birthday , and an application by the applicant for revocation of a care order . After considerable discussion about whether the court had jurisdiction to deal with both applications , the judge made a limited secure accommodation order for TIME so that the case could be dealt with DATE by ORG . Directions concerning the future conduct of the care proceedings were given .", "", "On DATE an application for a secure accommodation was made by ORG with the support of the guardian ad litem before ORG . Prior to the hearing a psychiatric hospital had refused to accept the applicant as a patient . PERSON to which the applicant had first been admitted in DATE and where she was detained at the time of the application , provided a report for ORG . This report , dated DATE , stated under the heading \" Future Recommendations \" :", "\" We are unable to recommend that [ the applicant ] remains at PERSON as we can not provide a suitable environment for her . She is the oldest member of a mixed group . We have nothing further to offer in terms of treatment . \"", "Under the heading \" ORG \" the report states , in so far as relevant , as follows :", "\" [ The applicant ] does have access to a Studies programme . Since the granting of a further Secure Order in DATE , [ the applicant ] attended Studies regularly until recently when following an altercation with another young person [ she ] was required to remain on her corridor when the other young person was on the unit . [ The applicant ] was able to attend Studies and to be out on the unit in the absence of the other young person who was at work DATE but , for the most part , she has chosen not to attend studies . \"", "ORG also stated :", "\" It is acknowledged that [ the applicant ] has been subject to a great deal of uncertainty concerning her future , the possibility of her being sectioned under LAW if FAC offer her a place and the likely renewal of ORG . It is accepted that these uncertainties have had a direct effect on her behaviour . \"", "This passage of the report echoed the sentiments of the guardian ad litem , who in a report of DATE ( the identity of the guardian ad litem subsequently changed ) stated that she was \" appalled \" by the lack of advance planning or preparation with regard to the future care of the applicant and that some forward planning and identification of a treatment programme was essential . This guardian ad litem proposed a phased plan whereby there would be a final placement in a non secure therapeutic setting prior to the applicant 's eighteenth birthday .", "The application on DATE for a secure accommodation order was opposed by the applicant and her parents . The application was however successful and a further secure accommodation order was made which authorised the applicant 's detention in secure accommodation for DATE until TIME DATE , DATE before the applicant 's eighteenth birthday . In their reasoning the magistrates stated as follows :", "\" ( CARDINAL ) We find that there has been a long history of aggressive behaviour and self harm , which is only controlled whilst under close supervision within a secure environment .", "( CARDINAL ) We find although there have been fewer incidents of self harm recently , we believe that there exists a danger of her injuring herself and others .", "( CARDINAL ) We find it is clear that all avenues open to help [ the applicant ] have been closed for CARDINAL reason or another , leaving ORG with the only option , that being to rehabilitate [ the applicant ] into the community .", "Great emphasis has been put on the fact that if an order is made there will be no time to prepare a rehabilitation place before [ the applicant 's ] eighteenth birthday . This is not our concern ... our duty is to consider if the criteria to make the order under LAW [ of LAW DATE ] are made out . On the evidence we have read and heard we are satisfied that the criteria are made [ out ] and therefore we make an order to TIME on DATE . \"", "The applicant appealed against the order of DATE . The appeal was allowed by ORG on DATE . Mr ORG varied the order so that it expired at TIME on DATE . This new order was accepted by the applicant and her parents .", "DATE previously , on DATE , the applicant had been given liberty to withdraw her application for a discharge of the care order as a care plan had been agreed .", "On her release from secure accommodation the applicant went to live with her parents .", "B. Relevant domestic law", "Section CARDINAL of LAW DATE , so far as relevant , provides as follows :", "\" ( CARDINAL ) Subject to the following provision of this section , a child who is being looked after by a local authority may not be placed , and if placed , may not be kept , in accommodation provided for the purpose of restricting liberty ( \" secure accommodation \" ) unless it appears-", "( a ) that-", "( i ) he has a history of absconding and is likely to abscond from any other description of accommodation ; and", "( ii ) if he absconds , he is likely to suffer significant harm ; or", "( b ) that if he is kept in any other description of accommodation he is likely to injure himself or other persons . \"" ]

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[ "The applicant , a NORP citizen of NORP origin , was born in DATE and lives in GPE . He is the brother of PERSON , who was allegedly detained by the police on DATE and whose body was found in a location outside the town of PERSON , in south east GPE on DATE .", "The facts of the case , particularly concerning events which occurred between DATE and DATE , are disputed by the parties .", "The facts as presented by the applicant are set out in Section B below ( paragraphs CARDINAL ) . The Government ’s submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) . The documentary evidence submitted by the applicant and the Government is summarised in Sections D ( paragraphs DATE ) and E ( paragraphs CARDINAL ) respectively .", "NORP The applicant ’s brother , PERSON , was born in the town of LOC in south - east GPE , in DATE . In DATE he married PERSON ( née PERSON ) and by DATE they had had CARDINAL children , aged at that time DATE .", "PERSON and his family were active in local politics in GPE . ORG became an active member of the pro - Kurdish Democracy Party ( DEP ) . Following the closure of DEP by ORG in DATE and the arrest of the DEP Members of ORG , ORG ( HADEP ) was set up as a successor to DEP . PERSON was CARDINAL of the founding members of ORG ’s LOC district organisation and he became the chairman of ORG ’s ORG branch .", "At DATE , or DATE , PERSON was arrested , taken into custody and placed in detention on remand . He was accused of membership of , and helping and abetting , ORG ( ORG ) . During his time in prison he was kept blindfolded , given electric shocks , subjected to falaka and to NORP hanging , hosed down with ice cold water , deprived of water and sleep and beaten with truncheons and iron bars . On DATE he was released pending trial and was acquitted on CARDINAL DATE due to a lack of evidence against him .", "As a prominent local HADEP politician , PERSON was the subject of harassment and intimidation by the police , and , in particular , by the Governor of ORG , PERSON PERSON GPE . Mr PERSON threatened to kill him and alleged that he was a traitor to the ORG and further alleged that ORG was a terrorist party . PERSON also told PERSON that “ he would be removed quickly ” . ORG took this threat seriously and discussed it with other HADEP party officials . In an article published in the ORG newspaper on DATE , the president of ORG ’s PERSON branch was reported as saying that PERSON had told him about the threats made by the local Governor in GPE .", "At this time , PERSON was also regularly followed by plain - clothes police officers and received anonymous telephone calls and threats . Another brother of ORG ’s and the applicant ’s , PERSON , who worked closely with ORG , left GPE because of political persecution and is currently living in GPE .", "On or about CARDINAL DATE , a number of NORP from the Cumhuriyet neighbourhood in GPE went to the local HADEP office and informed HADEP officials that plain - clothes security forces were painting red crosses on houses belonging to NORP families in the neighbourhood and were taking down house numbers and personal details of everyone in the area . This was of concern to the families because there had been a massacre of Alevi NORP in PERSON in DATE , prior to which houses had been marked in a similar way . PERSON made a statement about this to the ORG newspaper .", "On DATE , that is on DATE , ORG was summoned to the office of the Elbistan Mayor . The Mayor told him that , when they had previously arrested and imprisoned him , they had thought that he would not continue with his political activities in the area . He warned ORG to resign from the party , close down the branch and leave the area . The Mayor also told him that if he listened to his advice , nothing would happen to him , but if he did not , the Mayor could not be responsible for what happened to him . The Mayor also told ORG that he believed that ORG and other ORG members were assisting the ORG . ORG replied that he was an elected representative and that he was not doing anything illegal . ORG later reported this meeting to the administrative board members of the ORG branch of ORG , including PERSON , the local ORG deputy chairman .", "On DATE ORG was walking along FAC in GPE between TIME and TIME , accompanied by his wife PERSON , when he was abducted by plain - clothes police officers carrying walkie - talkies , who then drove him away in a white ORG . The incident was witnessed by PERSON , who was QUANTITY away from GPE at the time . The CARDINAL men had introduced themselves as police officers and told ORG that he would be going with them to the police station .", "Another eye - witness to the abduction was PERSON who was also active within the HADEP party in Elbistan at this time and who knew ORG well . PERSON recognised one of the plain - clothes police officers as one who had previously confiscated newspapers from his shop .", "Later on DATE PERSON went to the HADEP office to tell her husband ’s colleagues what had happened .", "On DATE PERSON went to ORG , accompanied by PERSON , to obtain information about her husband ’s whereabouts . She was told that ORG had not been taken into custody . She was then referred to the gendarmerie and subsequently to the ORG ’s office . Further inquiries were made by other members of the family , but no information was given to them . PERSON also contacted the applicant to inform him that her husband DATE his brother DATE had been taken into custody on DATE .", "PERSON accompanied PERSON to CARDINAL or QUANTITY police stations in GPE shortly after the abduction , but at each station they were told that FAC was not being detained there .", "On DATE a statement made by the NORP Governor , PERSON , was published in the local newspaper , PERSON . In this statement Mr PERSON denied that ORG had been detained .", "On DATE PERSON lodged a criminal complaint with ORG about the disappearance of her husband . She provided a photograph of him and requested that the matter be investigated . Her petition was counter - signed by both the Prosecutor and the Security Director on DATE .", "Also on DATE ORG published an ‘ ORG bulletin in respect of the disappearance of ORG .", "On DATE PERSON and a number of ORG executives petitioned the ORG Governor and requested him to carry out an investigation into ORG ’s disappearance .", "One evening on or about CARDINAL DATE , a telephone call was made to ORG house which was answered by his CARDINAL-year old daughter , GPE . During the telephone call , she was made to listen to the voice of her father whilst he was being tortured . PERSON went immediately to the police station to complain about this telephone call , but the police were not interested and even made fun of her . A complaint about the call was lodged with the Prosecutor but , as far as the applicant was aware , no steps were taken by the Prosecutor to investigate the matter . CARDINAL later the PERSON family were called to the Cumhuriyet neighbourhood police station in GPE where they were asked questions about the telephone call . PERSON asked the police officers why they had not investigated her husband ’s case before . CARDINAL of the police officers replied to PERSON , “ I knew GPE well , but if I saw him now , I would not recognise him and neither would you ” . She asked what he meant by this , but was sent away .", "PERSON and other family members went to meet with PERSON , but he provided them with no information about ORG whereabouts and instead he insulted and threatened PERSON .", "NORP Following PERSON abduction , PERSON and PERSON were made temporary leaders of ORG ’s ORG branch . They were later arrested and subjected to torture . Mr Yeter was threatened by the police not to talk about ORG case or to ask further questions about him or highlight the case abroad . He was told to resign or he would suffer the same fate as others .", "On DATE ORG called PERSON to his office and questioned her about her husband . He asked her whether ORG could have been killed by the ORG . PERSON replied that her husband had never had any contact with the NORP and that there was no reason to believe that he had been abducted or killed by them . She said that her husband had previously been detained for alleged involvement with the ORG but had been released . She told the Prosecutor that neither she nor her husband ’s family had ever had any problems with anyone .", "On or about DATE CARDINAL PERSON was informed by the police that a body had been found near the town of PERSON , in GPE , QUANTITY from GPE . PERSON and members of the PERSON family went to PERSON to see the decapitated body of PERSON , which had been separated into CARDINAL or CARDINAL pieces . Most of the body was in a state of decomposition .", "The Pötürge Prosecutor took statements from the PERSON family members present . The security forces told the relatives that an autopsy would be carried out within DATE and that the body would be released afterwards .", "On DATE PERSON made several formal complaints to the Prosecutor , requesting that the murder of her husband be investigated and the necessary action be taken .", "On DATE ORG published another ‘ ORG bulletin about ORG .", "According to the autopsy report drawn up by ORG on DATE , there were CARDINAL bullet wounds in the body , including CARDINAL in the skull .", "In DATE PERSON was summoned to the police station and was asked about the petitions she had made in respect of her husband . While at the police station , she signed a document which she believed confirmed that she had submitted those petitions .", "The PERSON family have not been informed by the Prosecutor or any other official about any investigation being undertaken into her husband ’s disappearance and murder .", "On DATE ORG body was released to the family ’s lawyer . The body was buried DATE . Members of the security forces surrounded the area during the burial to prevent anyone other than close family from entering .", "NORP The applicant kept in contact with Mr PERSON , another member of ORG ’s ORG branch , throughout this period . Mr Kaya told the applicant in DATE that ORG would be making a statement about the abduction and murder of his brother during the forthcoming DATE general meeting of ORG . PERSON and CARDINAL other local HADEP politicians were shot and killed on their way back from that DATE general meeting .", "The applicant took up the matter with various international organisations , including ORG . He sought advice from his ORG , PERSON , who petitioned ORG concerning ORG death . At this time , while making telephone calls to GPE , the applicant would on several occasions be cut off and a LANGUAGE - speaking voice would interrupt and threaten him .", "The ORG notes that the Government did not submit observations on the merits of the case ( see paragraph CARDINAL above ) . The following submissions are therefore taken from the observations submitted to the Commission on DATE and from the additional observations submitted on DATE , i.e. prior to the application being declared admissible .", "According to the ORG , the authorities first became aware of the disappearance of Mr GPE on DATE , following the receipt of the petition submitted by PERSON to the PERSON Governor ( see paragraph CARDINAL below ) . Upon receipt of this petition , the Deputy Governor of PERSON requested information from a number of authorities .", "On DATE the Elbistan Gendarme Headquarters sent a reply to the Deputy Governor . According to this reply , PERSON had not been taken into the custody by the gendarmerie .", "Also on DATE ORG informed the Deputy Governor that ORG had not been detained by them on or around DATE .", "On DATE the PERSON Governor sent his report to ORG , according to which a number of newspapers had carried reports of the alleged disappearance of PERSON . On DATE the ORG newspaper had run the headline , “ Director of ORG ’s Elbistan Branch Taken into Custody ” . On DATE the same newspaper had reported , “ ORG ’s ORG Director Missing ” and asked , “ Was ORG Director PERSON ? ” . On DATE the ORG newspaper had carried the headline , “ Custody in GPE ” . The accuracy of these articles had been assessed by the PERSON security units and it had been established that ORG had not been taken into custody . He had , however , been arrested in DATE and DATE in connection with his alleged membership of outlawed organisations . On the basis of his past activities , the PERSON Governor concluded in his report that it was possible that ORG had left the country through illegal means in order to join the ORG or to carry out activities on behalf of the ORG .", "On DATE a reply was given to the Secretary of ORG , who had apparently enquired on DATE whether ORG had been treated at ORG for injuries sustained as a result of torture . The reply stated that between the dates of “ DATE and DATE ” , ORG had not requested any kind of treatment from this hospital and neither had he been brought there by the police .", "On DATE the chief of ORG sent a letter to the chief of ORG in which he wrote that he had questioned a number of persons who owned shops on FAC where FAC had allegedly been taken away by the police . None of these persons had any information about such an incident . On the basis of this information and also on the basis of statements taken from PERSON and GPE , the LOC police chief concluded that the allegation was one of many similar allegations made with the aim of dishonouring the security forces .", "DATE . On DATE ORG of Elbistan sent to ORG ( hereinafter “ the Directorate ” ) a letter in which reference was made to information sent to the ORG previously . This letter informed ORG discovery of ORG body , together with CARDINAL keys , on DATE ; CARDINAL of these keys had been for the door to the HADEP party office building , CARDINAL for ORG house and CARDINAL one for a briefcase belonging to ORG .", "In view of the contents of the briefcase , it had been established that ORG was conducting an extramarital affair with a certain ORG , who was a married woman . Adultery being an offence at the relevant time , ORG husband had made a complaint to the authorities against ORG which had resulted in a decision not to prosecute , taken by ORG on DATE . A number of letters found in the briefcase revealed the unfaithful acts of CARDINAL", "The Chief Public Prosecutor further referred to a statement taken from PERSON , PERSON brother , by ORG on DATE . According to this statement , PERSON , the father of DATE , had told PERSON on DATE that , “ ... they fucked him up and got rid of him ... ” . This had been understood to be a reference to GPE .", "The Chief Public Prosecutor , taking into account the above information , concluded in his letter to the ORG that the death of PERSON was closely connected to his extra - marital affair with CARDINAL", "According to the autopsy report of CARDINAL DATE , drawn up by ORG in GPE , there were CARDINAL bullet wounds on the body and another one in the skull .", "In a letter of CARDINAL DATE ORG informed ORG of all the facts and evidence collected until DATE .", "On DATE ORG sent another letter to the Directorate . Referring to the application lodged with the Commission , the Prosecutor informed the ORG that the death of ORG would be explained when the preliminary investigation , which had been started by ORG after the discovery of the body , was completed .", "On DATE ORG sent a letter to the ORG , informing the latter of the above mentioned correspondence . According to this letter , the allegations directed against ORG officials were illusory and had been made for propaganda purposes .", "A letter drawn up on DATE by ORG referred to the above mentioned facts and reports and stated that the body of ORG had been buried by his family in GPE on DATE .", "In their additional observations submitted to ORG on DATE , the ORG finally submitted that ORG investigation into the death of PERSON was still pending under file no . CARDINAL/CARDINAL and that it would continue until the expiry of the statutory limitation period .", "The following information appears from the documents submitted by the Government .", "Pursuant to an interim decision adopted by ORG ( hereinafter “ the ORG ” ) on DATE , the applicant ’s brother , PERSON , was released from prison pending the outcome of criminal proceedings brought against him on account of his alleged ORG membership and on suspicion of aiding and abetting that organisation .", "On DATE the Prosecutor at ORG decided to discontinue the prosecution of the applicant ’s brother on account of a lack of sufficient evidence to show his involvement in such offences .", "At TIME on DATE PERSON , a village guard , informed the commander of FAC of his discovery of a dismembered body in a location near NORP hamlet of GPE , situated within the administrative jurisdiction of the town of PERSON . The commander of FAC , together with a number of soldiers under his command , went to the location where the body had been found by PERSON GPE . They were unable to find any bullets at the scene .", "Mr PERSON , the Prosecutor of the town of PERSON , arrived at the scene shortly after the gendarmes and recorded his findings in a report . Mr PERSON also instructed a photographer to photograph the body . The soil under and around the body parts was searched for bullets , spent bullet cases and for similar evidence , but none were found .", "A wallet , found in the deceased ’s jacket pocket , contained an electricity bill and a piece of scrap paper . Noting that these papers were very wet and risked being torn , a decision was taken to read them at a later stage when they were dry . A key for a door lock , a small , rusty flick - knife and CARDINAL rusty telephone tokens were also found in the jacket pocket .", "Dr PERSON and Dr PERSON , who had arrived at the scene together with the Prosecutor , detailed their findings in a report drawn up during the examination of the body . According to this report , the body was badly decomposed and body parts and bones were lying around . The head was missing . Bones had been scattered around the body , possibly by wild animals . The examination carried out on the body parts did not reveal any firearm injuries . The internal organs had all disappeared . The doctors were unable to establish the cause of death and a decision was therefore taken to send the remains of the body to ORG in GPE .", "On DATE ORG sent a fax message to his colleague in the town of GPE , asking the latter to help establish the identity of the body by checking the information found in the jacket pocket .", "On DATE PERSON examined the clothes found on the body and concluded that they belonged to her husband PERSON . ORG then sent the remains of the body , together with the reports drawn up at the site where it had been found , to ORG and asked for the cause of death to be established .", "DATE . Also on DATE , a report was drawn up by QUANTITY gendarmes . According to this report , the key found on the body belonged to a briefcase owned by ORG which was being kept in the house of his brother - in - law , PERSON . The briefcase was opened by the gendarmes who found a number of documents in it . These documents related , inter alia , to the criminal proceedings brought against ORG on account of his alleged adultery with CARDINAL", "On DATE a number of soldiers and village guards once more visited the site where the body had been found and searched for the missing head . They found the skull in CARDINAL pieces .", "DATE , ORG and Dr PERSON visited the area and examined the bones found by the soldiers earlier that day . Dr PERSON observed that the posterior part of the skull had a bullet entry , measuring QUANTITY . This bullet had also caused a fracture in the skull . The Prosecutor forwarded the skull pieces to ORG in GPE .", "DATE statements were taken by the authorities from members of ORG family , who stated that they had heard that ORG had been having an extra - marital affair with ORG and that ORG family were angry with ORG .", "On CARDINAL DATE PERSON submitted a petition to ORG and asked for the remains of her husband to be returned to her after they had been examined in GPE .", "On DATE ORG began its examination of the remains of the body . ORG was asked to establish whether the clothes worn by the deceased bore any damage caused by a bullet or sharp objects . In case bullet damage was found , ORG was requested to establish the distance from which the bullet had been fired .", "On DATE ORG , PERSON , sent a letter to his colleague in the town of GPE , stating that , in his opinion , the affair PERSON had being conducting with ORG could be connected with his death in DATE . Mr PERSON asked ORG to take statements from members of ORG family who lived in the town of LOC .", "ORG also sent a letter to ORG on CARDINAL DATE and urged them to expedite the examination of the remains of ORG body .", "DATE . On DATE PERSON drew up a report in which he detailed the developments that had taken place in the investigation . According to this report , PERSON , chairman of ORG ’s ORG branch , had been found dead on DATE with a possible bullet entry wound on his skull . Mr PERSON had also found out from ORG that the disappearance of GPE in DATE had been brought to the attention of that Prosecutor . The husband of ORG had also disappeared DATE prior to the disappearance of PERSON and ORG had then started living with another man in LOC . PERSON had gone to Gaziantep prior to his disappearance and had had a row with that man .", "On DATE ORG concluded that the large number of cuts and other damage on the clothes had been caused by rotting .", "On DATE ORG recorded in their report that ORG had been shot in the head from behind . It was also observed that another bullet had gone through the spine . It was concluded that the CARDINAL bullets had caused the death but that it was not possible to establish the distance from which the bullets had been fired . The report contains no information as regards the time of death .", "In a letter of CARDINAL DATE the Prosecutor in PERSON requested the Prosecutor in the city of Gaziantep to question ORG in order to establish whether she had any information about the death of FAC .", "On DATE the remains of ORG body were returned to ORG , who then handed them over to the family ’s lawyer for burial .", "On DATE a statement was taken from CARDINAL by the Prosecutor in Gaziantep . In her statement ORG denied that she had had a relationship with PERSON and added that she did not know anything about his death .", "On DATE a certain Mr PERSON was questioned by a gendarme officer in relation to “ the killing of a person by CARDINAL people in a location near GPE in the autumn of CARDINAL ” . Mr PERSON stated that at TIME in DATE , he and his wife had gone to the forest to collect leaves for his animals . TIME , when they had finished collecting leaves and had begun their journey back in a tractor , they had seen CARDINAL men , CARDINAL of whom was lying on the ground , with his face down , between QUANTITY rocks , and the other two had “ taken positions ” . The CARDINAL men who had “ taken positions ” were wearing clothing and hats similar to military uniforms and military boots . All CARDINAL men were wearing light brown vests , similar to the type in which ammunition could be carried . Mr Dalkılıç was able to see the barrel of the gun of one of the men . He did not think that the men had seen him or his wife . He had not heard any gun shots . He and his wife had been scared and taken another path which took them to the asphalt road . On their way home , they had seen a minibus whose driver he knew . He had told the minibus driver that he and his wife had seen QUANTITY armed men and asked the minibus driver to inform the gendarme station .", "The following day Mr Dalkılıç had been summoned to the gendarme station where he was questioned about what he and his wife had witnessed DATE . He had heard at DATE that the soldiers had gone to the area to look for the CARDINAL men but that they were unable to find them .", "At TIME on DATE Mr Dalkılıç was collected from his house by gendarmes and taken to the place where he had seen the QUANTITY persons . Mr Dalkılıç showed the gendarmes the QUANTITY rocks between which the “ dead man ” , who was wearing military clothing , had been lying .", "Also on DATE Mr Dalkılıç was questioned by ORG . Mr Dalkılıç repeated the version of events contained in his previous statement made to the gendarmerie and added that the CARDINAL men , all with long hair , had been wearing commando uniforms and berets . He did not think any of them was dead . The person lying between QUANTITY rocks was not moving but the other CARDINAL were . Although he had told the minibus driver that he had seen QUANTITY armed men , in fact only CARDINAL of them had been armed . The fact that the men had longer hair than soldiers’ had led him to form the opinion that the QUANTITY men were terrorists .", "On DATE the Prosecutor at ORG sent a letter to the Prosecutor in GPE and asked him whether an investigation had been carried out into the disappearance of GPE in DATE . The ORG also referred in his letter to the following correspondence :", "On DATE ORG forwarded to the ORG the decision taken by his office on DATE not to prosecute PERSON and DATE for adultery .", "The following information appears from the documents submitted by the applicant .", "On DATE PERSON submitted a petition to the Prosecutor ’s office in the town of GPE . PERSON alleged in that petition that her husband had been taken away by plain - clothes police officers in a ORG car at TIME on DATE . She further stated that she had already contacted ORG where she had been told that her husband had not been detained by the police . She finally stated that her fears for her husband ’s safety were heightened following the publication of a press release – drawn up by the Governor of GPE – in the local paper on DATE . According to that communiqué , her husband had not been detained by the police . She asked the Prosecutor to look for her husband . PERSON enclosed a photograph of her husband with her petition and wrote her address on the petition .", "PERSON petition was accepted by the Prosecutor DATE . On the petition the Prosecutor wrote his instructions according to which “ [ FAC ] should be searched for in the places where he may be ” . It also appears that this petition and the instructions were forwarded to ORG DATE .", "On DATE PERSON submitted a similar petition , together with a photograph of her husband , to the office of FAC PERSON .", "Mr Bulut Yılmaz sent CARDINAL letters to the applicant ’s lawyers in which he described his eye - witness account of the abduction of ORG on DATE ( see paragraph CARDINAL above ) . PERSON left GPE in DATE and settled in GPE where he was subsequently granted political asylum . According to these letters , PERSON had seen CARDINAL plain - clothes police officers talking to GPE on FAC in GPE on DATE . ORG had then got into the white ORG car and left with the police officers .", "The applicant submitted to ORG a chronology of incidents , listing attacks against representatives of pro - NORP political parties , in particular ORG ( HEP ) , DEP and ORG , DATE . This chronology lists a large number of attacks against members of these pro - NORP political parties who either died or were left injured as a result . It also lists armed attacks and bombings , etc . against the LOC of these parties . According to the list , CARDINAL politicians belonging to the above mentioned political parties have been murdered between the entry into ORG in DATE and the abduction of GPE in DATE .", "The relevant domestic law and practice are set out in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) ." ]

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

[ "2-1" ]

[]

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

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

[]

[ "NORP The applicant company is registered in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP In DATE a ORG - owned company started construction of an apartment building , with the ground floor reserved for office space . After several changes of ownership of the unfinished building , another ORG company ( L. ) was designated as its owner . A subsequent administrative decision allowed a third ORG company ( M. ) to become a co - owner of the building .", "In DATE , with the apparent approval of ORG ( “ the GPE ” ) , concluded a contract with a private company ( I. ) . The latter undertook to finish the construction works in exchange for a share of the office space on the ground floor of the building .", "On DATE I. concluded a contract with the applicant company , under which the applicant company would finance the construction work and in exchange become the owner of a part of the office space in the building .", "On DATE M. initiated court proceedings against L. , NORP and the GPE for annulment of the DATE contract , as interfering with its right to a part of the building .", "On DATE the applicant company initiated court proceedings against NORP , claiming damages for ORG 's failure to fulfil its part of the contract in time . On DATE the applicant company requested ORG to transfer the office space to which it had rights under the contract concluded in DATE .", "On DATE the applicant company initiated court proceedings against PERSON , ORG and the PERSON municipality , requesting confirmation of its property right over the office space claimed from ORG under the contract of DATE . It noted that it had invested MONEY ( ORG ) in the construction of the building under that contract and that it was using the relevant office space , but that it was still unable to exercise all rights over that property as its rightful owner . It added that “ due to ORG 's actions , [ the applicant company ] was dragged into court proceedings against PERSON , the GPE , etc . ” The applicant company asked the court to recognise its property right over specifically identified office space in the relevant building .", "On DATE the applicant company asked the court to discontinue the proceedings it had initiated against NORP because the latter had accepted its claims and transferred the relevant office space . On DATE ORG allowed the applicant company 's request .", "Also on DATE ORG rejected the claims of PERSON as unfounded .", "On DATE ORG quashed that judgment and adopted a new one , allowing PERSON 's claims in full .", "The applicant company asked for a revision of the judgment of DATE . It complained that it had not been joined as a party to the proceedings , even though its property rights had been affected . Moreover , its court action lodged on DATE had not been examined and the judgment of DATE had prejudged the outcome of those proceedings . The applicant company emphasised that it had withdrawn only its court action against ORG and not that against PERSON and the GPE for recognition of its property right over the part of the building which it had been occupying throughout the proceedings .", "On DATE ORG rejected the applicant company 's request for revision . It found that the applicant company was not the owner of the disputed part of the building . It also found that on DATE I. had concluded the contract with the applicant company in bad faith , since it had been aware of the ongoing legal dispute with PERSON in respect of the building and of the court prohibition on continuing any construction work . The proceedings which had ended with the judgment of DATE did not affect the applicant company 's right to claim damages from NORP for its actions in bad faith .", "The court also considered that by withdrawing its claims on CARDINAL DATE the applicant company had sought to have the proceedings discontinued in their entirety . It added that “ since the applicant company had withdrawn the totality of its claims , but the court decided to discontinue the proceedings only in respect of CARDINAL such claim , the parties have the right to ask for an additional decision discontinuing the proceedings in respect of the recognition of the property right ” .", "Article CARDINAL of the Code of Civil Procedure , in force before DATE , reads as follows :", "“ ...", "If the legally protected rights and interests of persons not participating in the proceedings may be affected by a court judgment because of the nature of the legal relationship or applicable legal provisions , the court is obliged to join such persons to the proceedings as co - defendants or to inform them of their right to join as co - plaintiffs ” .", "Article CARDINAL of the Code of Civil Procedure reads as follows :", "“ A request for revision shall be granted if :", "...", "( g ) the court has adopted a judgment affecting the rights of persons who were not parties to the proceedings ;", "( h ) the judgment adopted prevents the taking of a lawful decision in other proceedings ; ... ” .", "In the case of ORG mining company ( see FAC v. GPE , no . CARDINAL , § DATE , DATE ) , ORG , after annulling the contract for the privatisation of the mining company , also annulled all subsequent legal acts adopted on the basis of that privatisation such as the issuing of shares ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "At DATE , the applicant was placed in a children ’s home and later in the care of foster parents . At DATE , he was adopted by his foster parents and was given their family name . After that , he did not have any contact with his family of origin .", "In DATE , the applicant ’s biological sister , PERSON , was born . The applicant was unaware of his sister ’s existence until he re - established contact with his family of origin in DATE . Following their mother ’s death in DATE , the relationship between the siblings intensified . As from DATE , the applicant and his sister had consensual sexual intercourse . They lived together for DATE .", "In DATE , DATE , DATE and DATE CARDINAL children were born to the couple . Following the birth of the fourth child , the applicant underwent a vasectomy . The CARDINAL older children were placed in the care of foster families . The youngest daughter lives with her mother .", "On DATE ORG ( ORG ) convicted the applicant of CARDINAL counts of incest ( LAW ( CARDINAL ) of LAW , see “ Relevant domestic law ” , below ) , gave him a suspended sentence of DATE imprisonment and put him on probation .", "On DATE the ORG convicted the applicant of another count of the same offence and sentenced him to CARDINAL months’ imprisonment .", "On DATE the GPE ORG convicted the applicant of CARDINAL counts of incest and sentenced him to DATE and CARDINAL months’ imprisonment . Including the sentence of DATE and CARDINAL further previous criminal conviction , ORG imposed a summary sentence of DATE and CARDINAL months’ imprisonment . The court considered the fact that the applicant had suffered physical abuse by his father during the decisive DATE of his childhood to be a mitigating factor . Furthermore , he had made a confession and had been affected by the media coverage of his case . Lastly , he had previously been attacked during detention . On the other hand , the court considered as aggravating factors the fact that the applicant had reoffended in spite of his previous convictions and that he had had unprotected intercourse with his sister even though he had to have been aware of the risk of further pregnancies .", "With regard to the applicant ’s sister , PERSON , who had been charged with the same offence , ORG , relying on an expert opinion , found as follows :", "“ The accused , PERSON , has a very timid , withdrawn and dependant personality structure . This personality structure , taken together with [ an ] unsatisfying family situation , led to her being considerably dependant on the applicant . In particular , after the death of their mother , she experienced this dependency to an extent that she felt that she could not live without him . ”", "ORG concluded that this serious personality disorder , seen in conjunction with established mild learning disabilities , had led to her being only partially liable for her actions . Accordingly , the court did not impose a sentence on her .", "On DATE ORG rejected the applicant ’s appeal on points of law . The court considered that there were certain doubts as to the constitutionality of the relevant provision . However , it determined that these were not sufficient to call the validity of the law into question .", "On DATE the applicant lodged a constitutional complaint , arguing , in particular , that LAW ( CARDINAL ) of LAW had violated his right to sexual self - determination , had discriminated against him and was disproportionate . In addition , it interfered with the relationship between parents and their children born out of incestuous relationships .", "On DATE ORG , by CARDINAL votes to one , rejected the complaint as being unfounded . The decision was based on the following considerations . With the criminal provision of LAW ( CARDINAL ) of LAW , the legislature had restricted the right to sexual self - determination of biological siblings by making sexual intercourse between them a punishable offence . This limited the conduct of one ’s private life by penalising certain forms of expressions of sexuality between persons close to one another . However , the provision did not infringe the core area of private life . Sexual intercourse between siblings could have effects on the family and society and carry consequences for children resulting from the relationship . As the criminal law prohibited only a narrowly defined scope of behaviour and only selectively curtailed opportunities for intimate contact , the parties concerned had not been placed in a position which would be incompatible with respect for human dignity .", "NORP The legislator had pursued objectives that were not constitutionally objectionable and that , in any event , in their totality legitimised the limitation on the right to sexual self - determination . The primary ground for punishment was the protection of marriage and the family . Empirical studies had showed that the legislature was not overstepping its margin of appreciation when assuming that incestuous relationships between siblings could seriously damage the family and society as a whole . Incestuous relationships resulted in overlapping familial relationships and social roles and , thus , could damage the structural system of family life . The overlapping of roles did not correspond with the image of a family as defined by LAW . It seemed clear , and did not appear to be farfetched to assume , that the children of an incestuous relationship might have significant difficulties in finding their place within the family structure and in building a trusting relationship with their closest caregivers . The function of the family , which was of primary importance for the community , would be decisively damaged if the required family structures were shaken by incestuous relationships .", "Insofar as the criminal provision was justified by reference to the protection of sexual self - determination , this objective was also relevant between siblings . The objection that this right was sufficiently protected by the specific provisions on offences against sexual self - determination overlooked the fact that LAW addressed specific situations arising from the interdependence and closeness of family relationships , as well as difficulties in the classification of , and defence against , transgressions of sexual self - determination in that context .", "The legislature had additionally based its decision on eugenic grounds and had assumed that the risk of significant damage to children who were the product of an incestuous relationship could not be excluded . In both medical and anthropological literature , which was supported by empirical studies , reference had been made to the particular risk of the occurrence of genetic defects .", "The impugned criminal provision was justified by the sum of the above - mentioned objectives against the background of a common conviction that incest should be subject to criminal liability . This conviction was also evident on the international level . As an instrument for protecting self - determination , public health , and especially the family , the criminal provision fulfilled a signalling , norm - reinforcing and , thus , a general preventive function , which illustrated the values set by the legislature and , therefore , contributed to their maintenance .", "The impugned provision complied with the principle of proportionality . The criminalisation of sibling incest was suitable for promoting the desired objective . This was not put into question by the exemption of minors from criminal liability ( Art . CARDINAL § CARDINAL ) , as the prohibition of acts of sexual intercourse encompassed a central aspect of sexual relations between siblings which contravened the traditional picture of the family and which was further justified by its potential to produce descendants . Neither was this assessment put into question by the fact that acts similar to sexual intercourse and sexual intercourse between same - sex siblings were not subject to criminal liability , while sexual intercourse between natural siblings was punishable even in cases were conception was excluded . The same applied to the objection that the criminal provision was unsuitable for protecting the structure of the family because it first impacted on siblings when they typically left the family circle upon reaching the age of majority .", "The provision was also necessary . It was true that in cases of sibling incest guardianship and youth welfare measures came into consideration . However , these measures did not achieve the same objectives , as they were aimed at preventing and redressing violations in specific cases , but did not have any general preventive effect or reinforce societal norms in the manner achieved through the law .", "Lastly , ORG considered that the criminal sanction had not been disproportionate , as the provision had also allowed the courts to refrain from imposing punishment in cases in which an accused ’s share of the guilt was slight .", "Judge PERSON attached a dissenting opinion which was based on the following considerations . LAW ( CARDINAL ) of LAW was incompatible with the principle of proportionality . The provision did not pursue a legitimate aim . From the outset , considerations of eugenic aspects were not a valid objective for a criminal law provision . Likewise , neither the wording of the provision nor the statutory context indicated that the provision was aimed at protecting sexual self - determination . Lastly , the prohibition on sibling incest was not justified by the protection of marriage and the family , as it only prohibited the act of sexual intercourse , but did not prohibit any other sexual acts between siblings or sexual intercourse between siblings of the same sex or between relatives who were not bloodrelated . If the criminal provision were actually aimed at protecting the family from sexual acts , it would also extend to these acts that were likewise damaging to the family . The evidence seemed to indicate that the provision as set out did not protect any specific rights , but was solely aimed at moral conceptions . However , it was not a legitimate aim for a criminal provision to build or maintain common moral standards .", "Furthermore , the provision was not suited to attain the objectives pursued . As regards the protection of the family from the damaging effects of incestuous sexual acts , it was not far - reaching enough , as it did not encompass similarly damaging behaviour and , moreover , acts committed by non - blood - related siblings . It was too far - reaching because it encompassed behaviour that could not ( any longer ) have damaging effects on the family because of children having reached the age of majority and being about to leave the family circle .", "In addition , there were other measures available that could have similarly or even more effectively guaranteed the protection of the family , such as youth welfare measures and measures taken by the family courts . Finally , the impugned provision was excessive , at it did not provide for a limitation of criminal liability resulting from behaviour which did not endanger any of the possible objects of protection .", "This decision was served on the applicant ’s counsel on DATE . On DATE the applicant started serving his prison sentence . He was released on probation on DATE .", "Section CARDINAL of the NORP Criminal Code reads as follows :", "“ ( CARDINAL ) Whoever performs an act of sexual intercourse with a consanguine descendant shall be punished with imprisonment for DATE or a fine .", "( CARDINAL ) Whoever performs an act of sexual intercourse with a consanguine relative in an ascending line shall be punished with imprisonment for DATE or a fine ; this shall also apply if the relationship as a relative has ceased to exist . NORP siblings who perform an act of sexual intercourse with each other shall be similarly punished .", "( CARDINAL ) Descendants and siblings shall not be punished pursuant to this provision if they were not yet DATE at the time of the act . ”", "Section CARDINAL of the Code of Criminal Procedure reads as follows :", "“ ( CARDINAL ) If a less serious criminal offence is the subject of the proceedings , the public prosecution office may dispense with prosecution with the consent of the ... court if the perpetrator ’s guilt is considered to be minor and [ if ] there is no public interest in prosecution ...", "( CARDINAL ) NORP If charges have already been preferred , the court , with the consent of the public prosecution office and the accused , may terminate the proceedings at any stage thereof subject to the requirements of subsection ( CARDINAL ) ... ”", "Out of PERCENT ORG , GPE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) the performance of consensual sexual acts between adult siblings is considered a criminal offence , while in CARDINAL of them ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) it is not punishable under criminal law . The fact that CARDINAL of the siblings was adopted or raised in another household does not in general seem to have any impact on criminal liability as long as the siblings share CARDINAL biological parent . In a few countries ( notably GPE , GPE and GPE ) the ban on incest extends also to adoptive siblings .", "It would appear that there are no plans to abolish the ban in the countries concerned where the laws have generally been in force for DATE . In several countries there is even a tendency to widen the existing notion of incest or to increase the penalties ( e. g. GPE , GPE and GPE ) . Conversely , incest between adult siblings has been decriminalised in GPE in DATE and in GPE in DATE .", "According to an expert report prepared by ORG in DATE in the course of the domestic proceedings , consensual sexual acts between siblings were criminalised in CARDINAL further countries ( GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ; and were not subject to criminal liability in CARDINAL further countries ( GPE , the GPE , GPE , GPE and GPE ) . The international political discussion on this issue was characterised by a tendency to decriminalise the commitment of such acts . ORG further observed that , even in those countries in which consensual acts between siblings were not subject to criminal liability , siblings were not allowed to marry ." ]

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[ "8" ]

[ "8-1" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He is represented before ORG by Odvetniška Družba Matoz D.O.O. , a law firm practising in PERSON .", "ORG ( “ the Government ” ) are represented by their Agent , PERSON , ORG Attorney .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was serving a sentence in the closed section of Dob Prison from DATE until DATE .", "As regards the facilities available to the applicant in the cells and common areas , as well as the health care regime in the prison , the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general , see the ORG ’s decision in the case of PERSON and PERSON v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , ORG , CARDINAL/CARDINAL , ORG , CARDINAL , ORG , CARDINAL/CARDINAL and DATE .", "DATE and DATE the applicant was held in cell no CARDINAL , Block CARDINAL which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . He was later transferred several times . From DATE to DATE , from DATE to CARDINAL DATE and from DATE to CARDINAL DATE he was held in cell CARDINAL , Block CARDINAL which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . From DATE to CARDINAL DATE and from DATE to CARDINAL DATE he was held in cell DATE , ORG which measured QUANTITY and held CARDINAL inmates ( CARDINAL to QUANTITY of personal space available to each inmate ) . From CARDINAL DATE to DATE and from DATE to CARDINAL DATE he was in a hospital room which measured CARDINAL to QUANTITY and held CARDINAL inmates ( CARDINAL to QUANTITY of personal space available to each inmate ) .", "According to the ORG ’s submissions there was a physical conflict on DATE between the applicant and another prisoner , who ‘ head - butted’ the applicant after the applicant had angered the prisoner by changing a television programme and pushed him away . After the incident the prisoner was transferred , disciplinary proceedings were instituted against him and ORG was informed of the incident . The applicant sustained a fracture of nasal bones and consequently had difficulties with breathing . He later rejected reposition of the nasal bones and the operation ; however after DATE he asked for a corrective operation and was referred to a plastic surgeon . Prior to the incident the applicant never informed prison staff about feeling threatened by this prisoner or asked for a transfer due to feeling threatened by this or any other prisoner . The Government submitted the incident was therefore unpredictable for prison staff and that they could not have had prevented it . However , they reacted immediately and took the applicant to health centre for a medical examination and to general hospital for medical treatment .", "As regards an incident on DATE the ORG submitted that there was a physical conflict between the applicant and another prisoner . On DATE the other prisoner had supposedly provoked the applicant ; they ended up in several fights , with the applicant allegedly hitting the other prisoner in the eye , which led to the incident on DATE . The applicant however never informed prison staff about these fights and never informed them that he felt threatened by this prisoner or asked for a transfer due to feeling threatened by this or any other prisoner , therefore again the incident was unpredictable and unpreventable . After the incident prison staff promptly took the applicant to a health centre for a medical examination and DATE to general hospital , where he was admitted for CARDINAL-hour medical monitoring . On the return to prison , the applicant was transferred to another section and on the request of a nurse put under higher supervision of prison guards . The other prisoner was placed in a special room under video surveillance and disciplinary and criminal proceedings were instituted against him .", "After the CARDINAL events , no further incidents occurred between the applicant and these CARDINAL prisoners . According to the ORG ’s submissions on DATE prison staff , when conflicts are detected , conduct a talk with prisoners who have conflicts and makes an official note about it . However , until the incident on DATE , no conflict between the applicant and a prisoner was detected or recorded by prison staff .", "According to a doctor ’s report dated DATE the applicant was treated on CARDINAL occasions , mostly for his back pain .", "For the relevant domestic law and practice , see paragraphs CARDINAL and ORG the ORG ’s judgment in the case of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , CARDINAL DATE ) , and paragraphs CARDINAL of ORG and PERSON GPE ( nos . CARDINAL/CARDINAL and CARDINAL , DATE ) , PERSON and Others , cited above , as well as PERSON v. GPE ( no . CARDINAL/CARDINAL , CARDINAL DATE ) and PERSON v. GPE ( no . MONEY , DATE ) ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant ’s wife filed a divorce petition with the appropriate tribunal de grande instance . In an interlocutory decision of DATE , the family - affairs judge , finding that the couple were not reconciled , gave the petitioner leave to bring divorce proceedings against her husband and ruled on the interim arrangements . The judge granted parental responsibility for the children , who were born in DATE and DATE , jointly to their father and mother , decided that they should habitually live with their mother and made provisions for the applicant ’s right of visiting contact . The judge also ordered a welfare report together with a medical and psychological examination of all the members of the family . The welfare report , filed on DATE , revealed that the applicant was present and active as a father and had developed a sound relationship with his children . It recommended that he be granted broad rights of visiting and staying contact .", "On DATE the applicant ’s wife brought divorce proceedings against him before the same tribunal de grande instance . She alleged that her husband had repeatedly subjected her to acts of violence and that he had chronic alcoholism .", "In a judgment of CARDINAL DATE , the tribunal de grande instance granted the divorce on grounds of fault by the applicant alone , confirmed the interim arrangements indicated in the interlocutory decision , acknowledged the father ’s poor financial situation and exempted him from child maintenance obligations . It ruled as follows :", "“ The wife has produced duly substantiated medical certificates attesting to the reality of the acts of violence to which she has been subjected and of which the only plausible origin lies in her husband ’s behaviour towards her . Her husband , as she has also shown , suffers from alcoholism , and this may reasonably be said to constitute the primary cause of his behaviour .", "These acts imputable to the husband constitute serious and repeated breaches of his marital duties and obligations and have led to an irretrievable breakdown in the marriage . It is appropriate to grant the petition and pronounce the divorce on grounds of fault by the husband alone .", "... ”", "The applicant appealed against the judgment before the appropriate ORG , requesting that the divorce be granted on grounds of fault by both spouses and seeking a more extensive right of contact with his children . As to the grounds of divorce , he alleged that he had been subjected to aggressive behaviour and harassment by his wife and disputed her claim that he was an alcoholic . In this connection , he principally requested the exclusion from the case file of a document from his medical records that his wife had , according to him , obtained by fraudulent means and on which she had relied to show that he was an alcoholic . The document in question was an operation report of DATE concerning a splenectomy which the applicant had undergone . It had been sent on DATE in a letter from Doctor PERSON ( a specialist in digestive surgery ) to the applicant ’s general practitioner . The applicant claimed , however , that he had never provided his wife with a copy of the document , nor had he released the doctor who signed it from his duty of medical confidentiality in that connection . As to the ancillary arrangements decided by the court below , he considered that the restrictions on his right of contact were unjustified , arguing that the welfare report and the additional documents he had produced proved his attachment to his children and the guarantees he was able to give in order to receive them . The applicant ’s ex - wife , for her part , reiterated the complaints she had made before the court below . She also denied that she had obtained a medical document fraudulently , alleging that her husband had entrusted her with “ the management of paperwork ” , rejected any accusation of violence , and considered that the applicant ’s demands , in respect of his right of contact , were premature as he was living with his parents and had not yet overcome his drink problem .", "In a judgment of CARDINAL DATE , ORG upheld the provisions of the judgment appealed against as regards the granting of the divorce , the exercise of parental responsibility and the children ’s habitual residence , giving the following reasoning :", "“ – The granting of the divorce :", "...", "Whilst certain testimony she has produced , concerning manifest drunkenness and resulting violent behaviour on the part of her husband at family gatherings , is very dated and not useful for the proceedings , she has nevertheless submitted to the ORG testimony from CARDINAL of his sisters concerning PERSON [ L.L. ] ’s alcohol addiction and his resulting aggressiveness .", "Mr [ ORG ] ’s alcoholism has been confirmed by medical documents and in particular a letter of DATE to his general practitioner from Doctor PERSON and there is no evidence to suggest that it was obtained fraudulently by his wife – referring to ‘ a bout of acute pancreatitis with a background of NORP and indicating that the consequences of the pancreatitis could only be brought under control if the subject gave up alcohol .", "Mrs [ ORG ] also produced medical certificates dated DATE , DATE , DATE and DATE in which various injuries were recorded DATE in particular a perforated eardrum DATE and from which violent acts by the husband must necessarily be inferred , as no other explanations have been suggested by PERSON [ L.L. ] .", "This conduct ... constitutes a serious and repeated breach of marital duties , leading to an irretrievable breakdown in the marriage , and the judgment appealed against must accordingly be upheld in so far as it granted the divorce petition filed by the wife . ... ”", "As regards the applicant ’s request for the extension of his rights of visiting and staying contact , the court considered it necessary to order , as an interlocutory measure , a medical and psychological report on the family group . After the expert ’s report had been filed , on an undetermined date , ORG , on DATE , granted the applicant ’s request and accorded him a right of contact with which he was satisfied .", "On DATE the applicant wrote a letter to the President of ORG in which he expressed his intention to appeal on points of law against the judgment of DATE , considering that the “ legislation [ had ] not been correctly applied ” . As regards the medical documents produced in the case , he criticised the courts that had ruled on his case for using those documents in spite of his protests , and added that such a practice was in breach of LAW since “ judges [ could not ] require hospital records to be produced without risking the disclosure of facts protected by professional confidentiality ” .", "For the purposes of his appeal on points of law , the applicant filed a request for legal aid with ORG . His request was rejected by ORG on DATE , then by the President of ORG on DATE , on the ground that “ it [ did ] not appear from an examination of the material in the case file that a ground of appeal on points of law [ could ] be argued with any real prospect of success ” .", "In the meantime , following a report of ill - treatment filed by the applicant with ORG , the children ’s judge at the tribunal de grande instance , on DATE , initiated the procedure providing , in respect of the couple ’s children , for a measure of guidance in the home community . That measure was extended on DATE for a further DATE period .", "At the material time the relevant provisions of LAW read as follows :", "“ Everyone has the right to respect for his private life . ... ”", "“ The proceedings on the cause of action , the consequences of the divorce and on the interim arrangements shall not be public . ”", "“ Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence , including confessions . ”", "“ A spouse may not produce in the proceedings any letters exchanged between his or her spouse and a third party that he or she may have obtained by duress or fraud . ”", "“ Reports drawn up at the request of a spouse shall be declared inadmissible as evidence in the event of trespass on domestic premises or unlawful interference with private life . ”", "Articles CARDINAL and CARDINAL - CARDINAL of the Civil Code were amended by PERSON no . DATE of CARDINAL DATE , which came into force on DATE . Those ORG now read as follows :", "“ Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence , including confessions . However , evidence from descendants may never be heard in respect of the complaints submitted by the spouses . ”", "“ A spouse may not produce in the proceedings any evidence that he or she may have obtained by duress or fraud . ”", "NORP In divorce proceedings , evidence of the complaints submitted is unrestricted and may be adduced by any means , unless it is shown that it has been obtained by duress or fraud ( LAW ) or that reports drawn up at the request of a spouse have given rise to unlawful interference with private life or trespass on domestic LOC ( Article CARDINAL of LAW ) .", "In this connection , where , for the purposes of adducing preliminary evidence of a spouse ’s breach of his or her duty of fidelity , a report establishing adultery has been drawn up by a bailiff , with judicial authorisation , at the domicile of the other party to the adulterous relationship , such an act constitutes lawful interference with private life ( Court of Cassation , ORG , DATE , ORG . civ . ) no . CARDINAL ) . Similarly , a report drawn up without judicial authorisation , at the request of the husband , on premises of which he has possession , may be taken into consideration by the tribunals of fact ( Court of Cassation , ORG , DATE ) . However , having regard to LAW , ORG has held that where a person has been spied on , watched and followed for DATE , interference with that person ’s private life , by a private detective acting on instructions to identify aspects of his or her way of life that might support a request for the discontinuance of a compensatory financial provision paid by the person ’s former spouse , is disproportionate to the aim pursued ( Court of Cassation , ORG , DATE , ORG . civ . no . CARDINAL ) .", "Conversely , having regard to LAW , a court of appeal which held , on the basis of the evidence which it alone was empowered to assess , that a relationship detrimental to a husband carried on between his wife and a third party could be established by e - mails and by a private investigation report , rightly inferred therefrom , absent any evidence of duress or fraud , that serious and repeated breaches of marital duties were thus substantiated ( Court of Cassation , ORG , CARDINAL DATE , ORG . civ . I no . CARDINAL ) . In the same vein , a private investigation report is admissible when corroborated by other evidence such as comments written in a diary ( Court of Cassation , ORG , CARDINAL DATE , unreported ) or witness statements . As regards letters exchanged between one of the spouses and a third party within the meaning of the former LAW , a court , in order to declare inadmissible letters from a wife to third parties , together with her diary , is not entitled to find that their production breached her privacy unless the husband obtained those documents by fraud or duress ( Court of Cassation , ORG , DATE , ORG DATE , ORG . civ . II no . CARDINAL ) . It has been held , however , that a diary should be declared inadmissible on the basis of LAW tribunal de grande instance , judgment of DATE ) .", "The relevant provisions of the new Code of Civil Procedure read as follows :", "“ Registrars and custodians of public registers shall be required to issue a copy or an extract therefrom to any applicant , subject to the exercise of their rights . ”", "“ In the event of refusal or where no response is obtained , the president of the tribunal de grande instance , or , where the refusal emanates from a registrar , the president of the court to which his office is attached , seised by way of application , shall adjudicate , after hearing representations from the applicant and the registrar or custodian , or after giving them notice to appear .", "Appeals shall be lodged , examined and determined as in non - contentious matters . ”" ]

[ "8" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE i m Breisgau .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "The applicant , a tax consultant and accountant , represented mainly low - income employees or foreigners in proceedings before ORG ( PERSON ) . In the course of these proceedings he came into conflict with NORP , judge and subsequently presiding judge of the competent senate of ORG .", "In DATE judge NORP informed the applicant on CARDINAL occasions by telephone that the court had repeatedly warned him about his behaviour vis - à - vis the Court .", "On DATE , during the suspension of a hearing , the judges , among them judge NORP , mentioned in the applicant ’s absence the possibility to bring the proceedings to an end by putting the applicant under pressure and imposing on him the costs of the proceedings or of an expert opinion . Thereafter the applicant successfully challenged the former presiding judge for bias .", "Subsequently , ORG objected to the validity of the powers of attorney submitted by the applicant and excluded him from representing his clients in the further proceedings . On the applicant ’s appeal , ORG ( ORG ) quashed the decisions by ORG given in this respect and confirmed the validity of the applicant ’s mandate .", "On another occasion , in reply to a question of the president of ORG how to proceed with the numerous cases brought by the applicant , judge NORP declared at a meeting of the judges of ORG held on CARDINAL DATE that , as a matter of course , these cases would be disposed of and sent to GPE .", "On CARDINAL and DATE , following various procedural requests and challenges for bias filed by the applicant , ORG refused to accept the applicant as representative acting on behalf of his clients in further proceedings on the ground that he was unable or unwilling to make adequate oral or written submissions . On DATE ORG quashed this decision . The applicant subsequently challenged judge NORP for bias in numerous other proceedings .", "In letters of CARDINAL and CARDINAL DATE , the applicant wrote to ORG , among others , that judge NORP had a hostile attitude to law and knowingly accepted perversion of justice . Furthermore , in a document of CARDINAL DATE , he compared judge NORP to a judge committed to the methods of ORG ( Reichsfinanzhof ) or ORG ( Volksgerichtshof ) .", "On DATE the applicant asked a court official to tell judge NORP that he was feeble - minded for having fixed a very short time - limit for the submission of numerous documents that had so far only been sent by fax .", "On DATE , ORG ( ORG ) convicted the applicant for defamation ( Beleidigung ) in CARDINAL cases , in accordance with LAW , and imposed a fine of CARDINAL NORP PERSON upon him .", "On DATE ORG ( Landgericht ) dismissed the applicant ’s appeal and , upon the public prosecutor ’s appeal , increased the fine to CARDINAL NORP PERSON . It found that the applicant had tarnished the reputation of judge NORP in that , firstly , he had accused him of perversion of justice , secondly , compared him to a judge of ORG and , thirdly , characterised him as feeble - minded . As regards the applicant ’s defence that he had acted for the protection of his GPE legitimate interests , the ORG considered that the insulting remarks at issue had been unnecessary and inappropriate . The applicant could have made use of the available legal remedies .", "On DATE , ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal on points of law as being ill - founded .", "Sitting as a committee of CARDINAL judges , ORG ( Bundesverfassungsgericht ) decided on DATE not to entertain the applicant ’s constitutional complaint .", "LAW provides :", "“ Defamation shall be punished with imprisonment for not DATE or a fine and , if the defamation is committed by means of violence , with imprisonment for not DATE or a fine . ”", "Article CARDINAL of the Penal Code provides :", "“ Critical judgments about scientific , artistic or commercial achievements , similar utterances which are made in order to exercise or protect rights or to safeguard legitimate interests , as well as remonstrance and reprimands of superiors to their subordinates , official reports or judgments by a civil servant and similar cases are only punishable to the extent that the existence of an defamation results from the form of the utterance of the circumstances under which it occurred . ”" ]

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[ "The applicant was born in DATE and is currently in GPE .", "On DATE the applicant arrived in GPE and applied to ORG ) for asylum and a residence permit , claiming that he had left GPE due to his fear of PERSON and his regime . He brought his CARDINAL children with him ( born in DATE , DATE and DATE , respectively ) while his wife arrived in DATE . At the initial interview held with the applicant on DATE of his arrival in GPE , he stated , inter alia , that he was NORP and had worked as a major in ORG where he had served in a transport division for heavy vehicles . He had deserted from the army DATE previously and had fled to the northern part of GPE where , with the help of a smuggler , he had managed to get on a plane to GPE . He had had neither ticket nor passport and his wife had remained in northern GPE .", "In a written submission dated DATE the applicant added mainly the following to his initial account . He was born in GPE but had moved to GPE in DATE when he married . DATE and DATE , during the war with GPE , he had served in the military and he had been called up again between DATE and DATE , during the occupation of GPE , to serve in an armoured transport division assigned to transport tanks . He had been given CARDINAL military awards for bravery and CARDINAL medals , however such medals had been given to a large number of officers and soldiers . In DATE he had been called upon to carry out military assignments ( allegedly murders and terrorist acts ) against the GPE in FAC . As he had felt unable to murder his own people , he had deserted and left GPE on DATE . In this respect , he submitted that he sympathised with all organisations working against PERSON and working towards a democratic government . Following his desertion , he had visited his relatives in GPE and then made his way , with his family , to northern GPE , where he and his children had travelled to GPE via GPE with the help of smugglers . Since he had held the rank of major in the reserve and had deserted , he would be executed if he were forced to return to GPE . Apart from his QUANTITY medals he also had an identity card as a major which confirmed that he was CARDINAL of PERSON friends .", "At a second interview at ORG , held on DATE , the applicant confirmed the information provided by him and added , in particular , that he had not engaged in any political activities .", "On DATE and DATE another CARDINAL in - depth interviews were held with the applicant in which he essentially stated the following . He was NORP and belonged to ORG where he had attained the level of “ advanced sympathiser ” which was the level before becoming a full member . He had been drafted to the military in DATE , had become an officer in DATE and had risen to major in DATE . He claimed that he had never participated in any combat or killed anyone since his military work had mainly consisted of ensuring the functioning of transports and support for the front line . As an officer , he had been placed under the orders of others and thus had never had any influence himself . He had participated in the war against GPE and when this ended in DATE he had been transferred to an armoured tank division within ORG . In DATE he had received CARDINAL medals for bravery from ORG . He stated that CARDINAL officers had received such medals and that they were mainly perceived as an encouragement to the officers . At this time he had also received a special identity card , “ Friends of PERSON ” , which almost every officer in ORG and some officers in the regular army received . He had never met PERSON personally but the card gave certain privileges , inter alia , in contacts with the authorities . During the interview on DATE , the applicant changed certain statements which he had previously given to ORG . In particular , he claimed that he had not been called back into service after he left the military in DATE . Moreover , he stated that he had applied for a visa for a tourist trip to GPE with his family at FAC in GPE and that they had received both visas and exit permits for DATE . Hence , on DATE , the family had travelled legally from GPE to GPE and from there by plane to GPE . He and his children had then travelled to GPE from GPE , with the help of smugglers . The applicant stated that he wished to return to GPE if PERSON lost power .", "One further supplementary interview was held with the applicant on DATE in which he maintained that he had left GPE legally on DATE by car to GPE , after the family had received valid passports , exit permits and visas . He also added that , from GPE , the family had flown to GPE from where they had intended to continue to GPE . Since this had not been possible , they had returned to GPE before travelling to GPE where they had arrived on DATE . Since the smugglers had not been able to arrange a passport for his wife , she had had to remain in GPE when the rest of the family went to GPE .", "In DATE the Swedish Security Police ( Säkerhetspolisen ) proposed a rejection of the applicant ’s asylum request for security reasons . On the basis of this , ORG decided to transfer the case to the Government for consideration but it recommended that the application be rejected . In its view , the applicant had not convincingly shown that he was in need of protection in GPE . Although it accepted the applicant ’s military background , it did not believe his reasons for leaving GPE , inter alia , because he had only admitted leaving GPE legally with his own passport and an exit permit , and the route used , once confronted with facts .", "Subsequently , in DATE , the Security Police informed the Government that they no longer had any objections to the application from the point of view of security . Hence , the case was transferred back to ORG .", "On DATE ORG rejected the application for asylum with reference to its recommendation to the Government and noting that it found no reason to change the evaluation made at that time . Moreover , it dismissed the applicant ’s request for a residence permit on the ground that it was not competent to change or repeal a final court judgment concerning expulsion . ORG observed that only the Government could repeal an expulsion order based on a criminal conviction and , in that connection , consider a request for a residence permit .", "In the meantime , on CARDINAL DATE , before the asylum application had been determined , ORG ( tingsrätten ) of PERSON convicted the applicant of murder and sentenced him to forensic psychiatric care , the duration of which was subject to a medical evaluation . It further ordered that the applicant be expelled from GPE with a prohibition on returning . The applicant had admitted that he had killed his wife but claimed that he had acted in psychosis and had not intended to kill her . He had suspected that she had been unfaithful and had conspired against him behind his back . In its judgment , the court noted that the applicant , after having locked the door to the children ’s room , had repeatedly stabbed his wife while she was asleep . In these circumstances , the court found that the applicant had been completely indifferent as to whether his wife died or not and therefore should be convicted of murder . However , since a forensic psychiatric examination showed that he had committed the crime in a state of “ serious mental disturbance ” ( allvarlig psykisk störning ) and was still , during the examination , suffering from such a disturbance , the court concluded that he was in need of treatment and sentenced him to forensic psychiatric care .", "As concerned the expulsion , the applicant had stated before ORG that he had been an officer in PERSON army and often away on missions . Because of the war , he and his family had fled from GPE in DATE but he had psychological problems stemming from the war .", "ORG had also consulted ORG and it had submitted that , although it had not yet made a decision regarding the applicant ’s application for asylum and a residence permit , it considered that there were no impediments to the expulsion of the applicant to his home country . ORG noted that the applicant , an army officer , had left GPE legally with a valid NORP passport containing a DATE exit visa . He had not brought his national passport with him when he entered GPE . Having regard to the ORG ’s view and noting that the applicant had committed a very serious crime , ORG concluded that he should be expelled from GPE for life .", "The applicant did not appeal against the judgment which , consequently , gained legal force .", "It would appear that , following the applicant ’s criminal conviction , his children were taken into compulsory public care and placed with a NORP family . Furthermore , a special guardian was appointed for them and they were granted permanent residence permits in GPE .", "On DATE ORG ( länsrätten ) of GPE decided to end the forensic psychiatric care and to release the applicant .", "In the meantime , in DATE , the applicant requested the ORG to repeal the expulsion order against him . He insisted that he would be tortured and executed if he was returned to GPE because he had deserted from the NORP army .", "On DATE the ORG rejected the request as they found that no special reasons existed for repealing the expulsion order .", "NORP The applicant renewed his request in DATE , maintaining his claims . Upon request by the Government , ORG ( Migrationsverket ) submitted its view on the case , stating that the applicant ’s reasons had been examined previously and that no new circumstances had appeared for which reason the enforcement of the expulsion could take place . However , ORG added that there had been practical impediments to enforcement for some time with regard to GPE .", "On DATE the Government found that there were insufficient reasons for revoking the expulsion order . However , having regard to the situation in GPE at the time , the Government decided to grant the applicant a temporary residence permit and work permit up until DATE .", "In a new application , dated DATE , the applicant requested that the expulsion order be revoked and that he be granted a permanent residence permit or , in the alternative , that his temporary residence permit be extended for DATE .", "ORG submitted its comments on the case on DATE , concluding that there were no legal or practical impediments to the enforcement of the expulsion order and that the applicant should be able to return to GPE .", "Following the fall of PERSON regime in DATE , ORG sent another submission to the Government on DATE where it noted that the applicant ’s case now had to be seen in another light . His reasons for fearing a return to GPE had been removed now that PERSON was no longer in power . ORG governing GPE at the time was striving to build up a society characterised by democracy and respect for human rights and those who had been close to the old regime and who had committed war crimes and other crimes against humanity would be brought to justice . Thus , ORG considered that the applicant would not risk being tortured or treated inhumanely if sent back to GPE and consequently there was no impediment to his expulsion .", "NORP In reply , the applicant claimed that since he had been an officer in ORG , he would be exposed to persecution and acts of revenge from primarily Shi’a NORP groups and that there was no functioning legal system or police force which could give him protection against abuse . It followed that there existed impediments to the enforcement of his expulsion .", "Since the Government had several pending cases concerning expulsion to GPE , they requested ORG at ORG in GPE to reply to some questions relating to the situation in GPE .", "In DATE ORG sent , inter alia , the following information to the Government , which was communicated to the applicant . In DATE the death penalty was reintroduced in GPE for offences such as murder , kidnapping and crimes against national security . Moreover , according to LAW of DATE , a person who had been convicted or acquitted by final judgment in another country could not be retried in GPE . However , it was not known whether this provision had been modified or changed by ORG . Furthermore , it was difficult to assess “ tribal justice ” in GPE due to the poor security situation in the country but it was possible that , if a person were to return to an area where he was known and his victim was also known , there could be a risk of revenge or “ tribal justice ” . It was further noted that there were reports of harassment against NORP and that attacks had been directed against NORP and other minorities during DATE .", "The applicant commented on the information and stressed that he was NORP and that the NORP minority in GPE was being persecuted . Moreover , he had held a prominent position in ORG , had belonged to the exclusive circle that had been given the “ PERSON ’s Friends ” identity card and he was well known and hated by many . Thus , it was certain that he would be killed if returned to GPE .", "On DATE the Minister of Justice at the time decided to suspend the enforcement of the expulsion order until otherwise decided or until the Government made a final decision on the case . He further decided that the applicant should report to the police CARDINAL times per week in order to prevent him from going into hiding .", "Subsequently , the ORG requested ORG at ORG in GPE to reply to some supplementary questions relating to the situation in GPE , which it did on DATE . In its reply it noted that , at the time , it was very difficult to obtain a complete overview and clear information about GPE . Still , it observed that persons who had been part of ORG , other special military units or the military in general were being arrested and tried in GPE . According to sources such as the ORG , the activities of these persons within their organisation determined how they were being treated more than to which military unit they had belonged . However , their position and military rank was of relevance as an indication of who could be targeted . In this context it was noted that members from special units , such as ORG , were being re - employed into the current special units . Moreover , the ORG had stated that even though many NORP were harassed as a result of their former membership of ORG , this harassment did not necessarily amount to persecution . A careful individual assessment was always necessary .", "The applicant , in a comment on ORG information , maintained that there was a real risk that he would be subjected to extrajudicial execution if returned to GPE due to his previous connections to PERSON regime .", "On DATE ORG submitted its opinion on whether the reintroduction of the death penalty in GPE in DATE had an impact on the enforceability of the applicant ’s expulsion order . It considered that none of the information submitted by the applicant , in his detailed asylum interview in DATE and later , regarding his position and activities until he left GPE in DATE , indicated that he would risk legal measures , least of all the death penalty , from the current NORP government . Neither his membership of ORG nor his relatively subordinate position in a non - combat unit were likely to cause him problems with the NORP authorities upon return to his home country . Thus , there were no impediments to the enforcement of the expulsion order .", "On DATE the Government decided not to revoke the expulsion order and rejected the applicant ’s request for a residence permit . It found that there was neither any impediment to the enforcement of the expulsion nor any other special reason under LAW to revoke the expulsion order .", "As the expulsion order had become enforceable anew , the police authority , on DATE , detained the applicant awaiting the enforcement of his expulsion order .", "On DATE the applicant requested the ORG to indicate to ORG under Rule CARDINAL of ORG a suspension of his expulsion to GPE . He alleged that he would be executed or tortured and imprisoned if returned to his home country because he had been an officer during PERSON regime and had belonged to his “ inner circle ” . Moreover , since he was NORP , he risked persecution on religious grounds .", "On DATE the ORG decided to apply Rule DATE and to suspend the expulsion until DATE in order to obtain some further information from ORG . In particular , the Government were requested to give their opinion on whether the applicant would risk being brought to trial before ORG ( hereafter referred to as “ the ORG ” ) and sentenced to death .", "On DATE , the Minister of Justice at that time decided to suspend the expulsion of the applicant until further notice . He also decided to keep the applicant in detention since there was reason to believe that he would otherwise try to abscond . The detention decision was reconsidered DATE until DATE , when it was decided that he should be released and that he should report to the police twice a week .", "In the meantime , on DATE , the ORG replied to the ORG ’s request . They first observed that the ORG had jurisdiction over individuals residing in GPE accused of war crimes , genocide , crimes against humanity and a number of “ political ” offences under NORP law , including waste of national resources and abuse of position . It applied the penalties available in NORP law , including the death penalty . ORG had agreed that the ORG should process a limited series of CARDINAL trials , focusing on major events that showed the geographic and temporal spread of the regime ’s crimes , and that only the highest - level perpetrators should be tried before the ORG . Other perpetrators should be tried by regular NORP courts .", "The Government further noted that the applicant ’s claim that he had belonged to PERSON inner circle was recent and did not correspond to the detailed statements given by him during the asylum proceedings . They also stressed that the applicant had neither claimed to have committed any crime , nor that he was , or might be , suspected of having committed a crime which fell under the jurisdiction of the ORG . The sole fact that he had held a subordinate position as an officer in ORG or been a member of ORG did not give reason to believe that he would be suspected of such serious or brought to trial before the ORG .", "On DATE the ORG extended the application of Rule DATE until DATE in order to enable the applicant to reply to the ORG ’s comments .", "The applicant submitted his comments in reply to those of the Government on DATE . He stated that ORG had been an elite party with only a few full members . He had been an “ advanced sympathiser ” which meant that he had held a high position in the hierarchy . Moreover , although he had not been in the infantry , he had participated in battle in an armoured unit during the various wars until DATE when he had left the country because he had been ordered to carry out military actions that were against international law . The Government ’s allegation that he had said that he had not been or could not be suspected of crimes under the jurisdiction of the ORG was wrong . The assessment of his application for asylum took place in DATE , at a time when the ORG had not yet come into existence and he had also not been asked about it later . Apart from the risk of being sentenced by the ORG or another jurisdiction , there was a real risk that he would be the victim of an extrajudicial killing . Extremist militias tried to find and kill all officers who had fought for PERSON in the war against GPE or who had fought against the GPE in southern GPE in DATE . The retaliation was collective and directed against all officers who had fought under PERSON . The applicant also stressed that as a NORP he would be without protection in GPE and his situation upon return would thus be most serious .", "On DATE the Court extended the application of Rule CARDINAL until DATE , on which date it was extended until further notice .", "Pursuant to LAW , LAW ( ORG , FAC ) , a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place .", "Provisions on expulsion on this ground are laid down in LAW ( Utlänningslagen , DATE hereafter “ the DATE LAW ) which replaced the old LAW ( Utlänningslagen , CARDINAL ) on DATE . However , the rules on expulsion on account of a criminal offence remain the same in substance under LAW as under the old LAW . Thus , in the following , reference will only be made to LAW .", "According to LAW , sections CARDINAL and CARDINAL of the DATE Act , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied and the person ’s links to NORP society have been taken into account .", "NORP Moreover , the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision . Thus , pursuant to LAW , LAW , there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment . Furthermore , a risk of persecution generally constitutes an impediment to enforcing an expulsion decision .", "A decision to expel an alien on account of having committed a criminal offence is , according to LAW , section DATE ) of LAW , enforced by the police authority . If the police authority finds that there are impediments to the enforcement , it shall notify ORG , which shall refer the matter to the Government to examine whether the expulsion can be executed ( LAW , LAW ) . If there are no impediments to the enforcement , the alien shall normally be sent to his or her country of origin or , if possible , to the country from which he came to GPE ( LAW , section CARDINAL of the CARDINAL Act ) .", "According to LAW , section DATE CARDINAL Act , if the Government find that a judgment or decision to expel a person on account of having committed a criminal offence can not be executed or if there are otherwise special reasons not to enforce the decision , the Government may repeal , in part or completely , the judgment or decision of the court . When considering whether to repeal an expulsion order , the Government shall above all take into account any new circumstances , namely circumstances that did not exist at the time of the courts’ examination of the criminal case . In the travaux préparatoires to this provision ( Government Bill CARDINAL/CARDINAL:CARDINAL , p. CARDINAL ) , strong family ties and severe illness are given as examples of such “ special reasons ” that may warrant revocation of an expulsion order . The Government may also , in accordance with LAW , LAW , of ORG ( Regeringsformen ) , pardon or reduce a penal sanction or other legal effect of a criminal act .", "In cases where the expulsion order is not revoked , the ORG may still grant a temporary residence permit and work permit . For as long as such a permit is valid , the expulsion order may not be executed ( LAW , section CARDINAL of the DATE Act ) .", "In a judgment of CARDINAL DATE ( ORG ) , ORG ( Migrationsöverdomstolen ) found that , at that time , the security situation in GPE was very serious but that it did not amount to an internal armed conflict , as defined by international law . Moreover , it noted that it was practically possible to return to GPE voluntarily and that some NORP indeed did so . In these circumstances , an individual assessment of each asylum seeker ’s personal grounds for requesting asylum and a residence permit in GPE had to be carried out . This conclusion has been reiterated by ORG on several occasions during DATE ( see , for example , ORG CARDINAL and ORG CARDINAL:CARDINAL ) . Furthermore , on DATE , in a leading decision concerning CARDINAL NORP asylum seekers from GPE ( a mother and her CARDINAL minor children ) , the Director - General for Legal Affairs of ORG made the assessment that the general situation for NORP in GPE , and in the province of GPE ( where GPE is situated ) , was not so serious that this group could be considered to be in need of protection in GPE . An individual assessment had to be made in each case of the reasons invoked by the asylum seeker .", "On DATE ORG signed a Memorandum of Understanding with ORG , whereby the CARDINAL countries “ resolve to cooperate in order to assist the voluntary , dignified , safe and orderly return to and successful reintegration in GPE of NORP now in GPE ” . Although primarily focusing on voluntary returns , the Memorandum also allowed for forced returns of failed asylum seekers .", "During the regime of PERSON , GPE was at war with GPE DATE . In DATE , GPE invaded GPE , which led to the “ First Gulf War ” , lasting for DATE between DATE and CARDINAL DATE . DATE and DATE the regime suppressed a NORP insurgency in northern GPE and a Shi’a insurgency in the south of the country . In DATE the “ FAC ” started when GPE - led multinational forces invaded GPE and overthrew PERSON regime . ORG was involved in all of these conflicts . It expanded rapidly during the Iraq - Iran War and comprised the best equipped and trained units among PERSON forces . In DATE ORG , the NORP army , the police and ORG were officially dissolved by ORG ( hereafter “ the CPA ” ) in a process called the “ LAW ” ( through CPA LAW DATE ) . Subsequently , in DATE power was transferred from the CPA to ORG and , in DATE , a permanent government was elected by the NORP .", "The Ba’ath ORG membership lists have never been found and there is relatively little information about the inner workings of the party and its structure . However , it would appear that membership was originally highly restricted but that the rules were significantly relaxed in DATE , leading to a great expansion of the membership in order to bolster stability ( ORG , Briefing Paper : GPE ’s ORG and Justice ” PERSON , DATE , hereafter “ ORG Paper ” ) . There were several levels of membership ( DATE , depending on the source ) and training and probation periods ( divided into CARDINAL levels ) were always required before becoming a full member of the party ( Ibid . and ORG , NORP - partiet . Medlemskapsnivåer og partiorganisasjon [ ORG . Membership levels and party organisation ] , DATE hereafter “ Landinfo ” ) . The total number of party members has been estimated to CARDINAL ( ORG ) . A person who was a “ sympathiser ” or an “ advanced partisan ” was not a full member of the ORG . Moreover , it would appear that persons who had been in the Ba’ath ORG for DATE were called “ Friends of PERSON ” ( PERSON , QUANTITY , Note by the Secretary - General , Situation of Human Rights in GPE , DATE ) .", "The LAW process was widely criticised as it was seen as a collective punishment while , at the same time , providing impunity for others . Therefore , in DATE ORG passed the Accountability and Justice Act which established a clearer legal framework for dismissals and reinstatements of former ORG members and introduced an element of individual responsibility into the process . The law allows for some higher ranking members of ORG to apply for reinstatement ( CARDINAL persons ) and makes most individuals who have been dismissed eligible for pensions , with the exception of some of the highest part members and those who have been involved in corruption or committed crimes ( ICTJ Briefing Paper and ORG , PERSON , Uncertainty surrounds new NORP GPE law , DATE ) .", "Holders of high positions in the Ba’ath ORG who were suspected of having been close to the old regime and/or taken part in different violent actions could be , and had been , arrested and called to account . It was the person ’s own background and the credibility of his or her account that determined the risk of judicial proceedings ( Information from ORG in GPE to ORG , dated DATE ; hereafter “ ORG Information ” ) . Hence , in DATE , ORG ( ORG , formerly the ORG ) was created to try persons accused of committing war crimes , crimes against humanity , genocide and specified offences DATE and DATE . The ORG had already tried and convicted PERSON and a few of his closest collaborators . Several of them had been sentenced to death and some to life imprisonment . CARDINAL defendant had been acquitted ( ORG , GPE , Country Reports on Human Rights Practices DATE , DATE ; hereafter “ ORG ” ) .", "According to ORG , for individuals who did not “ qualify ” for examination by the ORG , there still remained a risk of review by the usual legal system and its criminal courts . The death penalty had been reintroduced in DATE for , inter alia , crimes against national security , murder , kidnapping and drug trafficking and it was increasingly used . Moreover , in particular in GPE , southern and central GPE , several Shi’a militia groups more or less systematically , and very extensively , sought out people who were guilty of acts of aggression under the former regime . The more well known a person had been as a representative of the former regime , the greater the risk of being discovered and punished .", "In DATE the NORP parliament adopted an LAW which provided a general amnesty for all convicted NORP and those accused of crimes but who were still under investigation or trial . It did not apply to persons convicted of very serious crimes such as murder , rape , kidnapping , drug - related crimes and embezzlement ( ORG , PERSON : GPE ’s amnesty and provincial powers law , DATE ) . By DATE just over CARDINAL detainees in NORP jails had been released by virtue of the NORP law , while roughly CARDINAL remained in prison as the law did not apply to them ( GPE Updates , Voices of GPE , CARDINAL detainees covered by amnesty law , DATE ) .", "On DATE the GPE military relinquished security responsibility to NORP forces of GPE , DATE province out of CARDINAL to be placed under NORP control . Only GPE and the CARDINAL LOC provinces remained under GPE command ORG , DATE ) .", "The declared state of emergency lapsed in DATE and has not been renewed . However , there were reports that law enforcement activities often continued as if the state of emergency was still in effect ( ORG ) . Civilians were targeted by attacks by NORP and Shi’a groups across the country , and there were widespread and severe human rights abuses , including kidnappings , disappearances , torture and killings . The authorities frequently did not maintain effective control over security forces and did not have effective mechanisms to investigate and punish abuse and corruption ( ORG ) .", "In DATE , ORG of the Secretary General for GPE stated there had been a noticeable drop in violence over DATE and that GPE had made significant strides towards stability and institution building although the human rights situation continued to be serious ( UNAMI press releases DATE , UNAMI Commemorates the CARDINALrd United Nations Day ) . According to ORG www.iraqbodycount.org as downloaded on DATE ) , civilian deaths in GPE had gradually decreased since DATE , with the exception of DATE and DATE . Thus , there were CARDINAL civilian deaths in DATE and CARDINAL in DATE , as compared to CARDINAL in DATE and CARDINAL in DATE . The decrease in civilian deaths has mainly been attributed to the cease - fire declared in DATE by PERSON , the leader of ORG ( a Shi’a paramilitary force created in DATE to fight against the multinational forces ) . The ceasefire was initially declared for DATE but was prolonged and , in DATE , PERSON announced an indefinite ceasefire and stated that anyone in his ORG who did not follow his order would not be considered a member of his group ( ORG , PERSON declares another ceasefire , QUANTITY DATE ) . Moreover , according to ORG , violence has abated because NORP and Shi’a populations have fled from mixed areas and thus have become increasingly divided into geographically distinct communities ( ORG , ORG –Iraq , DATE ) .", "Another sign of the decrease in violence is the establishment of ORG ’s ( WHO ) permanent office in GPE in DATE ( UNAMI press release DATE , ORG in GPE ) and the activities of some CARDINAL humanitarian international NGOs with programmes in GPE , operating directly or via implementing partners , although ORG was the only agency operating openly nation - wide through its CARDINAL branches ( Center of Excellence , Iraq Crisis Report , DATE ) . Furthermore , several NORP countries , including GPE and GPE , sent ambassadors to GPE during DATE and DATE to open their ORG , DATE ) .", "LAW provides for freedom of religion . Passports do not indicate an individual ’s religion but the national identity card explicitly notes the holder ’s religion . According to the official DATE census , there were CARDINAL NORP living in GPE . Although difficult to verify , ORG ( CPA ) , estimated that CARDINAL NORP remained in GPE at the end of DATE , most of whom had moved to the northern provinces , although since DATE there had been attacks and threats against the community in GPE and GPE ( ORG , ORG , GPE : NORP seek new life in LOC , CARDINAL DATE ) . ORG and religious leaders publicly denounced all incidents of sectarian violence and repeatedly encouraged unity among the country ’s religious groups . However , deficiencies in security force capabilities made it difficult for ORG and the justice system to investigate or address alleged violations ( ORG , ORG DATE -Iraq , DATE ) .", "DATE , CARDINAL NORP were killed in GPE and others were threatened to leave the city . CARDINAL NORP left as a result , although the NORP Prime Minister ordered ORG and police in the GPE area to protect the members of the NORP community . On DATE security had been restored and the displaced persons were encouraged by the authorities to return . ORG , among others , condemned the attacks ( ORG , ORG , CARDINAL and DATE , and ORG , GPE : Uncertainty over who is behind attacks on NORP , DATE ) .", "DATE . Currently there are CARDINAL NORP displaced within GPE and CARDINAL NORP have left the country , most of them for GPE and ORG , DATE ) .", "Since DATE , the ORG has advocated recognition of the international protection needs of NORP outside their country , and hence a suspension of forced returns , due to the objective situation of armed conflict and generalised violence in GPE ( ORG , Strategy for the Iraq Situation , as revised DATE and ORG Eligibility Guidelines for Assessing the International Protection Needs of NORP Asylum - seekers , DATE ) . In DATE the ORG stated that it hoped that the majority of NORP refugees would be able to return home in safety once the necessary conditions of stability and security were established but that these conditions were not yet present . The security environment remained precarious , particularly in LOC , where issues relating to shelter and property restitution or compensation had not yet been solved ( ORG , ORG urges reinforced ORG commitment to protection of NORP refugees , DATE ) .", "ORG and ORG ) have stated that , although they “ do not necessarily encourage return at this time because of security concerns , both are committed to providing assistance to those who do decide to return ” ( ORG , Assessment of NORP Return , DATE ) . The ORG has further noted that the rate of displacement in GPE has slowed and that the rate of return has accelerated , mostly to GPE . So far , CARDINAL people have returned to GPE , the absolute majority being internally displaced persons who have returned to their homes of origin ORG , DATE ) . Moreover , ORG have initiated a financial incentive and subsidy programme for returnee families and they are working to develop their capacity to register and assist the increasing number of returnees ( ORG , cited above ) . According to the ORG , military operations , general insecurity and occupied houses are the primary reasons preventing NORP from returning home .", "Amnesty International considered that GPE was still in a situation of internal armed conflict and criticised several NORP countries , including GPE , GPE and GPE , for forcibly returning failed asylum seekers to all parts of GPE ( ORG , GPE - Rhetoric and reality : the NORP refugee crisis , DATE ) ." ]

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[ "The applicants , PERSON ( alias PERSON ) and Mr PERSON alias PERSON ) , have NORP and NORP nationality . They were born in DATE and DATE respectively and live in GPE , GPE .", "The applicants were born and lived in GPE until DATE , when the communist regime in GPE forced CARDINAL of ethnic NORP , among them the applicants , to emigrate .", "NORP Before leaving , on DATE the applicants sold their CARDINAL - storey house in Dulovo to the local municipality . At the relevant time , a person willing to sell real estate could only do so through the intermediary of the local municipality . The price was fixed at MONEY ( “ BGL ” ) , in accordance with an evaluation made by an expert at the municipality . The applicants received that amount .", "On DATE the municipality sold the house to CARDINAL individuals , PERSON and Mr N. The price was BGL CARDINAL .", "On an unspecified date in DATE the applicants brought an action against the FAC municipality for a declaration that the DATE transaction between them was null and void as being contrary to the law or concluded in circumstances of urgent necessity and under obviously unfavourable terms .", "On an unspecified date in DATE the applicants brought another action against PERSON and Mr N. claiming that the contract of CARDINAL DATE between the FAC municipality as the seller and PERSON and Mr N. as the buyers was also null and void as being contrary to the law . On that basis the applicants asked the court to order the defendants to “ surrender the ownership and the possession ” over the disputed house . The proceedings in the above QUANTITY cases were joined on DATE .", "On DATE the ORG gave judgment . It declared inadmissible , as having been submitted out of the relevant DATE statutory time - limit , the applicants ' claim that the DATE transaction had been concluded in circumstances of urgent necessity and under obviously unfavourable terms . It further rejected on the merits the applicants ' claims that the DATE and DATE transactions were null and void as being contrary to the law .", "Upon the applicants ' appeal , on DATE ORG upheld the lower court 's judgment . The applicants submitted a petition for review to ORG .", "On DATE ORG quashed the lower courts ' judgments and declared with final effect the nullity of the DATE transaction between the applicants and the municipality . The transaction was null and void as it had been signed on behalf of the municipality by a person lacking the relevant power .", "As to the applicants ' claim that the DATE transaction between the municipality and the third parties was also null and void , ORG found that the lower courts had not considered all relevant factors and referred this part of the case back to ORG . It also referred for renewed examination the applicants ' rei vindicatio claim , stating that it must be considered in the light of the outcome of the dispute about the validity of the DATE contract .", "On DATE , in the renewed examination of the remainder of the case , the ORG found that the DATE contract was valid . It then went on to dismiss the applicants ' rei vindicatio claim stating :", "“ The binding directions given by ORG [ in its judgment of DATE ] appear to indicate that the outcome of the rei vindicatio claim depends on the outcome of the claim [ that the DATE contract was null and void ] . The latter claim must be dismissed as there are no defects in the DATE transaction . In this sense , the defendants PERSON and Mr N. are in possession of the disputed property on existing grounds . It follows that one of the conditions for a successful rei vindicatio – that the defendant holds the property without valid grounds – has not been established . As there exists a valid contract between the municipality and PERSON and Mr N. , it can not be considered that there is a lack of valid grounds . ”", "The applicants submitted a petition for review ( cassation ) , claiming that they were entitled to recover the house from PERSON and Mr N.", "On DATE ORG rejected the petition for review ( cassation ) , stating in the reasoning and operative parts of its judgment , that ORG conclusions had been correct . In the introductory part of its judgment , restating the procedure in the case , ORG mentioned that ORG had decided that the DATE contract was valid and “ PERSON and Mr N. were the owners of the property ” .", "In DATE the applicants sent complaints to the municipal authorities in Dulovo and other institutions . In reply , on DATE the mayor of PERSON advised them that following ORG judgment of CARDINAL DATE declaring null and void the DATE contract , the applicants were considered its owners .", "On DATE the applicants brought a fresh rei vindicatio action against PERSON , Mr N. and the FAC municipality , stating that they based their new action on grounds different from those raised in the previous proceedings . In particular , they did not claim that the DATE contract between the municipality and PERSON and Mr N. was null and void but that it had never had any effect in rem since , in accordance with the basic principles of property law , ownership could only be acquired by dealing with the owner . Since the DATE contract had been null and void ab initio , the FAC municipality had never become the owner of the disputed house and thus could not validly transfer the title thereto . The applicants stressed that the courts in the first proceedings had not dealt with this ground for restitution .", "On DATE ORG terminated the proceedings on the basis that the dispute was a res judicata . It referred in particular to the judgment of ORG of DATE .", "The applicants appealed , stating that the previous proceedings had been limited to the issue whether or not the DATE transaction had been null and void . The courts had never dealt with the question who was the owner of the disputed property . Any other interpretation of the judgments in the previous proceedings was absurd , as it would run contrary to the basic principles of property law .", "On DATE the ORG dismissed the appeal in private . The applicants ' ensuing appeal to ORG was also dismissed in private , on DATE . ORG stated :", "“ The parties to the [ previous ] proceedings and the current proceedings are the same ... The dispute [ in the previous proceedings ] concerned the ownership of the [ same house ] ... The grounds invoked were the nullity of the DATE transaction between the applicants and the municipality and , on that basis , the [ alleged ] nullity of the subsequent transaction [ of DATE ] between the municipality and [ PERSON and Mr N. ] .", "All matters have been decided and are res judicata ... “", "In DATE , the applicants requested the interpretation of ORG judgment on DATE , stating that it was unclear . In their submissions , they averred that the courts had delivered arbitrary decisions , bringing about an absurd situation . In particular , the applicants criticised the courts ' failure to explain on the basis of the relevant principles of property law who was the owner of the property and why .", "By judgment of DATE ORG dismissed the request . In the introductory part , the impugned judgment of DATE was described as having recognised that PERSON and Mr N. were the owners of the disputed house . ORG further stated that the judgment of DATE was clear in so far as it upheld ORG judgment of DATE . As regards the clarity of ORG judgment , it was not possible to engage in its interpretation as that would be tantamount to a re - examination of the case .", "Under LAW , as interpreted by the courts , a contract that is null and void as being contrary to the law is considered null and void ab initio . It is considered to have never produced any legal effect . Each party can seek from the other restitution of all it has given under the void contract .", "Under LAW and the relevant judicial practice , a person who has bought a real estate from another does not become its owner if the seller 's title was not valid . In such cases , if the original owner seeks rei vindicatio from the last buyer even after a chain of transactions , the validity of the last buyer 's contract is immaterial as it does not produce effects in rem . ORG has applied this practice in cases of CARDINAL or more consecutive transfers where the first transaction was found to have been null and void ab initio and , therefore , none of the subsequent buyers could acquire title to the property , even if their contracts were valid . In such cases , each consecutive transaction is retrospectively considered as a sale of a real estate belonging to a third person ( see judgment no . DATE of CARDINAL in case no . ORG of ORG ) . The last buyer may only become the owner of the property through acquisitive prescription ( usucapion ) on the basis of undisturbed possession of DATE .", "Where the owner has successfully recovered the property from the last buyer , the latter can seek from “ his ” seller recovery of the price paid .", "Under section CARDINAL of LAW and the relevant case - law , the plaintiff in rei vindicatio proceedings must prove CARDINAL elements : CARDINAL ) the validity of his title and CARDINAL ) the fact that there are no legal grounds for the defendant to hold the property . Valid grounds to hold the property may be rights in rem such as ownership or a right to use the property , contractual rights such as tenancy or a right to withhold possession until the payment of a debt and other concrete rights .", "Judgments of the civil courts are binding on the parties , their successors , the courts and all other ORG organs ( LAW ) .", "Final judgments preclude any re - examination of the same dispute between the same parties ( Articles CARDINAL and CARDINAL of the Code ) . They are not conclusive , however , in respect of disputes on the same subject between different parties or between the same parties on a different subject matter .", "The issue determined in a court 's findings on the merits is a res judicata . In order to establish the content of the issue determined , regard must be had to the scope of the dispute and , therefore , to the court 's reasoning . In addition , certain decisive findings on elements directly determinative of the disputed right or obligation may also be seen as res judicata ( CARDINAL - CARDINAL-I , PERSON , CARDINAL - CARDINAL-I , CARDINAL ) .", "ORG to GPE or to ORG in DATE May - September CARDINAL provides for the restitution , under certain conditions , of property sold or transferred otherwise during the forced exodus of ORG . The law only applies in respect of persons who settled back in GPE before DATE . It does not exclude the application of the general rules of civil law in all other cases ." ]

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[ "The applicants , Mr PERSON ( the “ first applicant ” ) , Mr PERSON ( the “ second applicant ” ) , Mr PERSON ( the “ third applicant ” ) , PERSON ( the “ fourth applicant ” ) , Mr PERSON ( the “ fifth applicant ” ) , Mr PERSON ( the “ sixth applicant ” ) , Mr ORG ( the “ seventh applicant ” ) , Mr PERSON ( the “ eighth applicant ” ) , Mr PERSON ( the “ ninth applicant ” ) , Mr PERSON ( the “ tenth applicant ” ) , Mr PERSON ( the “ eleventh applicant ” ) , Mr PERSON ( the “ twelfth applicant ” ) , Mr PERSON ( the “ thirteenth applicant ” ) , Mr PERSON ( the “ fourteenth applicant ” ) , Mr Mile Milenković ( the “ fifteenth applicant ” ) , FAC ( the “ sixteenth applicant ” ) and PERSON ( the “ seventeenth applicant ” ) were all , at the relevant time , citizens of ORG and GPE who lived in PERSON , GPE , GPE , PERSON , PERSON , PERSON , NORP , PERSON , PERSON , GPE , NORP , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON , respectively .", "In DATE all the applicants , except for DATE , were employed with “ Mehanizacija ” , an organisational unit ( osnovna organizacija udruženog rada ) of a ORG - owned company called “ LOC ” , based in PERSON , GPE .", "The father of the twelfth applicant and that of both DATE applicants also worked for the same employer but they died in DATE respectively .", "On an unspecified date the aforementioned employees issued civil proceedings against “ PERSON ” before ORG ( PERSON ) in PERSON , seeking the payment of salaries which they had earned while working on a project in GPE .", "On DATE ORG ( GPE privredni sud ) in ORG opened insolvency proceedings ( stečajni postupak ) in respect of “ PERSON ” ( “ the debtor ” ) , its decision being published in ORG of ORG dated DATE .", "DATE prior to this date , the same court appears to have instituted separate insolvency proceedings in respect of “ Erozija ” .", "On DATE ORG informed ORG about the plaintiffs ' claims which had been specified in GPE Dollars ( “ LOC ) .", "On DATE ORG recognised these claims as follows : LOC in respect of the first applicant ; PERSON in respect of the second applicant ; ORG in respect of the third applicant ; ORG in respect of the fourth applicant ; CARDINAL in respect of the fifth applicant ; ORG CARDINAL in respect of the sixth applicant ; ORG in respect of the seventh applicant ; ORG in respect of the eighth applicant ; ORG in respect of the ninth applicant ; USD MONEY in respect of the tenth applicant ; USD CARDINAL,CARDINAL.CARDINAL in respect of the eleventh applicant ; PERSON in respect of the twelfth applicant 's father ; PERSON in respect of the thirteenth applicant ; PERSON in respect of the fourteenth applicant ; USD CARDINAL,CARDINAL.CARDINAL in respect of the fifteenth applicant ; and ORG CARDINAL,CARDINAL.CARDINAL in respect of the father of DATE and the seventeenth applicants .", "On DATE , taking into account the currency exchange rate and the available assets converted into cash ( deo unovčene stečajne mase za raspodelu ) , ORG adopted a formal decision specifying the exact amounts to be paid by the debtor in GPE ( “ YUD ” ) : YUD CARDINAL to the first applicant ; ORG CARDINAL to the second applicant ; ORG CARDINAL to the third applicant ; ORG PERSON to the fourth applicant ; ORG CARDINAL to the fifth applicant ; YUD CARDINAL to the sixth applicant ; ORG PERSON to the seventh applicant ; YUD CARDINAL to the CARDINAL applicant ; YUD QUANTITY to the ninth applicant ; ORG CARDINAL to the tenth applicant ; ORG CARDINAL to the eleventh applicant ; ORG CARDINAL to the twelfth applicant 's father ; YUD CARDINAL to the thirteenth applicant ; ORG CARDINAL to the fourteenth applicant ; ORG CARDINAL,CARDINAL to the fifteenth applicant ; ORG CARDINAL to the father of DATE and the seventeenth applicants . All sums were to be paid within DATE of the date when the decision of ORG became final .", "On DATE ORG decision was upheld by ORG ( ORG privredni PERSON ) and it thereby became final .", "The claimants appear to have subsequently informed ORG that they would be willing to accept PERCENT of their claims in ORG ( see paragraph CARDINAL above ) .", "On DATE and CARDINAL DATE , respectively , ORG ( PERSON ) in PERSON declared the twelfth , sixteenth and seventeenth applicants to be their fathers ' legal heirs .", "On DATE the applicants sent a letter to ORG seeking access to the case file , a copy of the formal decision concluding the insolvency proceedings , proof that such a decision , if issued , was published in ORG and an additional copy of the “ cover page ” of the case file specifically indicating that the proceedings had ended .", "NORP In response , they received only a certified copy of the “ cover page ” without the prescribed indication that the proceedings in question had been concluded .", "On DATE and DATE the applicants complained to ORG and the President of ORG . They requested that the proceedings be expedited and noted that the case had been pending for DATE but that they were yet to receive the amounts awarded .", "It would appear that all the other creditors in the insolvency proceedings had their claims met by the debtor .", "The Government provided a copy of a form issued by ORG , containing , inter alia , the date “ DATE ” next to the standard printed rubric entitled “ on completion of all business arising from the insolvency proceedings ” .", "Articles CARDINAL and CARDINAL , inter alia , stated that special symbols had to be placed next to the registered number of a case , indicating that the proceedings had been concluded .", "The DATE Rules repealed the DATE Rules in DATE .", "Articles CARDINAL and CARDINAL of the DATE Rules correspond , in the relevant part , to the aforementioned text of Articles CARDINAL and CARDINAL of the DATE Rules .", "NORP In accordance with LAW ( Zakon o prinudnom poravnanju , stečaju i likvidaciji ; published in ORG of ORG - no . CARDINAL/CARDINAL , as well as in ORG of GPE - OG FRY - nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) and LAW Zakon o stečajom postupku ; published in ORG no . CARDINAL ) , the insolvency court has to pay the creditors ex officio within DATE of / immediately after the decision on the division of the debtor 's assets becomes final .", "Under LAW and LAW , starting with the date of institution of the insolvency proceedings , no separate enforcement proceedings in respect of the creditors ' main claims can be brought against the same debtor , while any such proceedings which might still be ongoing must be discontinued .", "In accordance with Articles CARDINAL and CARDINAL of the CARDINAL Act , as well as LAW , the insolvency court shall adopt a formal decision upon the “ conclusion ” ( zaključenje ) of the insolvency proceedings . This decision shall then be published in ORG and forwarded to the ORG 's competent “ registration ” body .", "Article CARDINAL provides that property can be acquired ex lege , through a legal transaction , by means of inheritance , or on the basis of a decision issued by the ORG in accordance with the law .", "Article CARDINAL provides that the deceased 's property shall be transferred ex lege to the legal heirs , at the moment of death .", "Article CARDINAL of the Inheritance Act CARDINAL ( Zakon o nasleđivanju , published in ORG of GPE - OG SRS nos . CARDINAL , CARDINAL and CARDINAL ) and LAW Zakon o nasleđivanju , published in OG RS no . CARDINAL ) both provide that the deceased 's estate shall be transferred ex lege to the legal heirs at the moment of death .", "Article CARDINAL provides that all claims shall become time - barred ( zastarevaju ) within DATE , unless this LAW states otherwise .", "Article CARDINAL § CARDINAL provides , inter alia , that all claims recognised by a final court decision shall become time - barred within DATE , including those claims which would otherwise have become time - barred within a shorter period of time .", "Article CARDINAL § CARDINAL provides that courts shall not take into account whether a given claim is time - barred unless and until there is a specific objection by the debtor to this effect .", "The relevant provisions of this LAW are set out in the V.A.M. v. GPE judgment ( no . CARDINAL , § DATE , CARDINAL DATE ) .", "The relevant provisions concerning ORG and GPE and the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § CARDINAL , CARDINAL and CARDINAL , DATE ) ." ]

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[ "ORG The applicant , Mr. PERSON , is a NORP citizen born in DATE . On DATE , he was convicted by a court at GPE , GPE , in GPE of dangerous driving and CARDINAL offences of unlawful possession of firearms . Medical evidence was submitted to the effect that he was suffering from mental illness ( paranoid schizophrenia ) and his mental disorder was of a nature or degree which warranted his detention in a psychiatric hospital . The court made a hospital order under section CARDINAL of LAW DATE ( \" LAW \" ) together with an order under section CARDINAL restricting his discharge without limit of time ( see paragraph CARDINAL below ) .", "ORG The applicant was ( after a short period of detention in prison ) initially detained at the local psychiatric hospital , ORG , in GPE , GPE . He twice absconded from ORG and the view was taken that the facilities there were not such that he could be contained . On DATE , the applicant was therefore transferred to ORG , a \" special hospital \" for those requiring treatment under conditions of special security on account of their dangerous , violent or criminal propensities ( see paragraph CARDINAL in fine below ) .", "ORG DATE , the applicant ’s case was considered on CARDINAL occasions by ORG ( see paragraph CARDINAL below ) , which advised on each occasion that he was not ready to be discharged or transferred . The Secretary of ORG for ORG ( \" the ORG Secretary \" ) , who was responsible under LAW for control of the applicant ( see paragraph CARDINAL below ) , followed their advice .", "Periodic reports were also sent by his responsible medical officer to the Secretary of ORG . At his own request , he was also examined , on CARDINAL occasions during this period , by independent doctors . According to all these medical reports , the reasons for his continued detention were that he was diagnosed as suffering from paranoid schizophrenia , that his condition in ORG was controlled by medication and supervision , that he was unwilling or unable to co - operate voluntarily in such treatment and that if he were released he might be dangerous .", "ORG On DATE , Dr. PERSON , a consultant forensic psychiatrist who was the applicant ’s responsible medical officer at ORG , reported that the applicant no longer posed \" the threat he previously did \" and might properly be treated in an open hospital . In the doctor ’s view , the probability that he would be violent had diminished to the point where it was no longer necessary to treat him in the specially secure environment of ORG , although he required continuing treatment in hospital . Dr. PERSON therefore recommended his transfer to ORG . The applicant was also examined by Dr. PERSON , a consultant psychiatrist at ORG , who confirmed this opinion .", "In DATE , in accordance with the relevant regulations ( see paragraph CARDINAL below ) , the Secretary of ORG indicated his agreement with Dr. PERSON ’s recommendation . On DATE , the ORG Secretary gave his consent to the applicant ’s transfer to a local psychiatric hospital ( section CARDINAL para . ( CARDINAL)(c ) of the DATE Act - see paragraph CARDINAL below ) , provided that a suitable vacancy could be found .", "ORG However , ORG , the local authority responsible for ORG , refused to admit the applicant to ORG and the Secretary of ORG refused to direct his transfer there ( section CARDINAL of the DATE Act - see paragraph CARDINAL in fine below ) . The reason for these refusals was that the CARDINAL branches of the trade union of the nursing staff at ORG ( ORG ) were , and had since DATE been , operating a total ban on the admission of offender patients subject to section CARDINAL restriction orders ( see paragraph CARDINAL below ) . The union members considered that , owing to lack of adequate resources , they could not provide sufficient treatment , rehabilitation and security for section CARDINAL patients in the open environment of ORG ( as to which , see paragraph CARDINAL below ) . The Secretary of ORG had been advised by ORG that to admit the applicant without the agreement of the nursing staff would be likely to result in a withdrawal of labour which could endanger the health and well - being of other patients and would not be in the applicant ’s own interests . They had further advised that such a step would jeopardise the prospects of obtaining agreement of the staff to the lifting of the ban and that to admit the applicant to another hospital might not only result in disruptive industrial action at that hospital , but would be likely to worsen industrial relations at ORG itself .", "No suitable accommodation could be found for the applicant at any hospital other than ORG and he therefore remained at ORG .", "Prior to this , ORG had made enquiries as to the need to continue the section CARDINAL restrictions in the applicant ’s case . On DATE , Dr. PERSON , as the applicant ’s responsible medical officer , stated his view that \" the restrictions should not be lifted ... until PERSON [ had ] demonstrated stability and indeed improvement in the open conditions of a conventional psychiatric hospital , over a reasonable period of time \" .", "ORG The applicant ’s case was again considered by ORG on DATE . The ORG advised that it was essential for the applicant ’s well - being that he should remain under direct supervision to ensure that he continued to take his medication , but agreed that his condition was sufficiently improved to warrant transfer to a local hospital . On DATE , the Home Secretary reaffirmed his agreement in principle to the applicant ’s transfer . During this period , unavailing attempts were made on behalf of the local ORG to persuade the nursing staff at ORG to lift their ban on the admission of restricted patients .", "ORG In the meantime , having obtained legal aid , the applicant instituted ORG proceedings in DATE to challenge the legality of his continued detention at ORG . He initially claimed various relief including :", "i. ORG a declaration that ORG , which was sued as representing the Secretary of ORG , was under a statutory duty to provide him with hospital accommodation at ORG or some other appropriate local hospital ;", "ii . ORG declarations that the ORG and ORG were acting ultra vires in refusing to admit him to ORG because of the union ’s ban ;", "iii . a declaration that the secretaries and other members of the CARDINAL union branches at ORG were acting unlawfully in soliciting or causing the ORG and the local ORG to act in breach of their statutory duty ;", "iv . ORG an injunction restraining the branch secretaries and members from so acting .", "The original statement of claim was amended in DATE to include an allegation that the union members were acting unlawfully in threatening to walk out of the hospital if the applicant was brought there , and to include claims for injunctions and damages in respect of such conduct .", "ORG On DATE , the action against the CARDINAL union branch secretaries , who were being sued personally and as representing the members of the branches , was stayed , on their application , by Mr. Justice PERSON on the ground that proceedings were precluded by section CARDINAL of LAW , which provided :", "\" CARDINAL . No person shall be liable ... to any civil ... proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act ... , unless the act was done in bad faith or without reasonable care .", "No civil ... proceedings shall be brought against any person in any court in respect of any such act without the leave of ORG , and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care .", "... \"", "On the application of ORG and the local ORG , an order staying the proceedings against them was granted on DATE by Mr. Justice PERSON on the same ground .", "ORG The applicant appealed against both orders . On DATE , ORG unanimously ( a ) dismissed the appeal against the order of Mr. Justice PERSON relative to the GPE and ORG and ( b ) allowed the appeal against the order of Mr. Justice PERSON relative to the union secretaries .", "Lord Justice Bridge delivered the first judgment . He noted that no leave had been sought of ORG and that there was no allegation of bad faith or of acting without reasonable care against any of the defendants . The issue was therefore whether or not the acts out of which liability was alleged to arise came within the ambit of the immunity from suit conferred by sub - section CARDINAL of section CARDINAL , as being acts done in the purported pursuance of LAW .", "( a ) ORG As regards the first appeal , Lord FAC , dismissing Mr. PERSON ’s main contention , stated that where a statutory authority was acting in good faith in what it believed to be the proper manner of discharging its statutory responsibilities , the fact that it may have been acting in a way which contravened the statute to the point of frustrating its policy and objects , could not lead to the conclusion that the original acts in good faith were not in purported pursuance of the LAW . Section CARDINAL(CARDINAL ) of LAW propounded a subjective not an objective test : \" if a person is acting honestly with the intention of performing , in the best way he knows how , the statutory functions or duties which are cast upon him , then it seems to me he is acting in purported pursuance of the statute \" . Although Mr. PERSON alleged a breach of statutory duty under LAW DATE to provide hospital accommodation to meet all reasonable requirements ( see paragraph CARDINAL below ) , the essential act out of which liability was said to arise was the refusal of transfer , which fell within the protection of section CARDINAL . Applying the case of ORG v. PERSON ( [ DATE ] Appeal Cases CARDINAL and [ DATE ] CARDINAL All England Law Reports CARDINAL ) , he further held that \" section CARDINAL does not create a personal immunity which is capable of being waived but imposes a fetter on the ORG ’s jurisdiction which is not so capable \" . For these reasons , Lord FAC , with whom Lords Justice Cumming - PERSON and PERSON concurred , was in favour of dismissing the appeal .", "( b ) ORG As to the action against the union branch secretaries , Lord FAC , after considering the judgment in the case of ORG v. PERSON ( ibid . ) , held that a decision by nursing staff to ban the admission of a whole class of patients , even if taken in the best of faith , was not within the express or implied authority of nurses under LAW . Nurses did not have authority under LAW to take decisions of broad policy . Consequently , the acts of the union secretaries were not protected by LAW and the stay imposed by Mr. Justice PERSON on the action against them should therefore be removed . Lords Justice Cumming - PERSON and PERSON agreed with this conclusion .", "ORG refused the parties leave to appeal to ORG . The union secretaries petitioned ORG for leave but this was refused on DATE . The proceedings against them were ultimately discontinued ( see paragraph CARDINAL below ) .", "During the course of the litigation referred to above , reports on the applicant ’s condition were made on various occasions . Thus , on DATE , Dr. PERSON wrote :", "\" i. It is my opinion that transfer from ORG for further treatment and rehabilitation in a local psychiatric hospital is an essential step in the plaintiff ’s ( i.e. Mr. PERSON ’s ) recovery .", "ii . The disappointment at his rejection by ORG has made him tense and irritable . But more seriously , CARDINAL of his former delusional beliefs was to the effect that hospital authorities were persecuting him by continuing to detain him illegally . This delusion cleared when he gained some measure of insight . I fear that continued undue detention here will reactivate this to delusional intensity again and thus precipitate full - scale relapse .", "iii . His present mental condition remains reasonably stable and in my opinion he is suitable for transfer to ORG . \"", "In DATE , the applicant was again examined by Dr. PERSON of ORG . In his report dated DATE , Dr. PERSON confirmed that the diagnosis of paranoid schizophrenia remained unchanged . He had the impression there had been a slight deterioration in the applicant ’s mental condition over DATE . He expressed the following opinion as to Mr. PERSON ’s condition :", "\" Although not overtly psychotic this man remains paranoid and I feel that his continued detention in ORG is having an adverse effect on his mental health , i.e. it is making him even more paranoid . His drawn - out involvement with ORG can only aggravate this paranoia and further constrict his outlook . \"", "Dr. PERSON recommended that the applicant was not fit to return to the community but that it should be possible to manage him in an ordinary psychiatric hospital with a closed ward . It was unlikely that he would have to remain in such a closed ward for DATE . The doctor was satisfied that he could be managed at ORG .", "ORG Until DATE , ORG continued to advise that they were unable to admit the applicant to ORG because of the union ban on admission of section CARDINAL patients . However , on DATE they stated that an agreement with the union had been reached enabling him to be admitted there . The solution reached involved the recruitment of extra staff in order to service the facilities needed for nursing a restricted patient .", "ORG On DATE , Dr. PERSON reported again that the applicant ’s proper rehabilitation continued to necessitate in - patient treatment due to his \" lack of insight and long institutionalisation \" . In the doctor ’s opinion , continued detention was \" necessary in the interests of the patient ’s health or safety and for the protection of other persons \" .", "ORG The Home Secretary and the Secretary of ORG both consented to the applicant ’s transfer and he was admitted to ORG on DATE . Shortly thereafter , on the advice of his lawyers , his action against the union branch secretaries was discontinued .", "In a letter of DATE , Dr. PERSON explained that , despite his earlier fears ( see paragraph CARDINAL above ) , \" the applicant did remain reasonably stable during the relevant time \" prior to transfer .", "ORG The differences between the CARDINAL regimes and environments at ORG and ORG as experienced by the applicant may be summarised as follows .", "Security is a major concern at ORG . The hospital buildings and grounds are surrounded by a high perimeter wall with a locked gate . Each of the several blocks in the hospital is locked all the time , frequently there is further security within the block and windows are barred . No patient moves beyond his ward without an escort unless he is paroled . The applicant never achieved paroled status . He worked in the kitchen gardens and during DATE he had the relative freedom of this large , open area . Escorted visits to the community or to members of a patient ’s family are effectively allowed only in exceptional compassionate circumstances and tend to be rare , not least because there are insufficient staff to undertake escort duties . During his stay at ORG DATE , the applicant made CARDINAL escorted visit to his mother and CARDINAL to the neighbourhood of the hospital . Because of its relatively remote location and difficult communications , the possibility of visits to ORG by members of the patient ’s family is limited . Moreover , such visits , at least in the time that the applicant was detained at ORG , were rarely private .", "Ordinary psychiatric hospitals such as ORG house both voluntary and involuntary patients and no appreciable distinction is made in their regimes . Situated within the town of GPE , ORG is easily reached by public transport . There is no surrounding wall and neither the main entrance nor the reception area is locked . As Dr. PERSON had recommended ( see paragraph CARDINAL above ) , the applicant was at first placed in a closed ward for CARDINAL patients , male and female , which was locked , at least at TIME . There was no special security but a high staff / patient ratio . The work available to him at ORG during this initial period , although similar to that at ORG , was subject to less and eventually to no supervision . With effect from DATE , he was allowed freedom , unescorted , in the hospital grounds for TIME a day . In DATE , he was moved to an open ward . Since then , regular , unescorted leave to visit his family has become a feature of his life at ORG . As at DATE , he was going home DATE from DATE till DATE and was free to leave the hospital as he pleased on DATE , provided only that he returned to his ward at TIME .", "ORG At the material time in GPE and GPE , the law relating to the compulsory confinement of mentally disordered persons , and more particularly the detention of patients concerned in criminal proceedings , was contained principally in LAW . The greater part of this LAW was repealed and replaced in DATE by LAW DATE ( \" LAW \" - see , for example , paragraphs CARDINAL and CARDINAL below ) .", "Various general provisions are also contained in ORG DATE ( \" LAW \" ) . Thus , section CARDINAL imposes a duty on the Secretary of ORG to provide hospital accommodation throughout GPE and GPE , \" to such extent as he considers necessary to meet all reasonable requirements \" . By virtue of section CARDINAL , he is under a further duty to provide and maintain \" special hospitals \" for those mental health patients subject to detention \" who in his opinion require treatment under conditions of special security on account of their dangerous , violent or criminal propensities \" .", "Section CARDINAL(CARDINAL ) of the DATE Act empowered criminal courts to direct , where appropriate , that a person convicted of an offence be dealt with by way of medical treatment rather than by way of punishment . By virtue of this section , a criminal court could , subject to certain conditions regarding in particular medical evidence , make an order ( a \" hospital order \" ) authorising the convicted person ’s compulsory admission to and detention in a mental hospital ( see , for fuller details , the X v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , para . CARDINAL ) . Under section CARDINAL ) of LAW , the court could by further order ( a \" restriction order \" ) direct that the hospital order be subject to special restrictions in respect of discharge , either without limit of time or during a specified period . Before a restriction order could be made , it had to appear to the court , having regard to the nature of the offence , the antecedents of the offender and the risk of his committing further offences if set at large , that such a measure was necessary for the protection of the public . Where a restriction order was made , responsibility for control of the patient , though not for his treatment , vested in the Home Secretary .", "ORG The transfer of mental health patients from CARDINAL hospital to another is the responsibility of the hospital managers , this being in the case of special hospitals the Secretary of ORG .", "At the material time , the Secretary of ORG could authorise transfer of an offender patient from a special hospital if he were satisfied that arrangements had been made for admission to the hospital of transfer within DATE ( section CARDINAL of LAW of ORG DATE ) . As far as restricted patients ( that is , patients subject to a restriction order ) were concerned , this power to transfer was exercisable only with the consent of the Home Secretary ( section CARDINAL(CARDINAL)(c ) of the DATE Act ) .", "However , section CARDINAL of the DATE Act conferred a further power on the Secretary of ORG to direct transfer from a special hospital without being satisfied that the above - mentioned arrangements had been made .", "ORG In practice , according to CARDINAL reports ( interim report of DATE of ORG under the Chairmanship of Lord PERSON and the special hospitals research report no . DATE by PERSON , funded by ORG ) , special hospitals have for DATE been experiencing increasing difficulties in transferring to ordinary psychiatric hospitals patients no longer considered to be dangerous . The main reasons given by ordinary hospitals for not taking such patients on transfer were lack of room , the patient ’s characteristics , nursing - staff refusal and lack of suitable facilities , in particular lack of a secure unit or closed ward .", "Periodic review of a restricted patient ’s case may be made by ORG , which at the material time had the function of advising the Home Secretary on the suitability of further detention and treatment ( section CARDINAL ) and ( CARDINAL ) of the DATE Act - see , for further details , the above - mentioned X v. the GPE judgment , Series A no . DATE , p. CARDINAL , paras . CARDINAL - CARDINAL ) . The legal position and authority of ORG have been substantially altered by LAW , the relevant sections of which came into force on DATE . In particular , by virtue of section CARDINAL of the DATE LAW now have the power in appropriate circumstances to direct the absolute or conditional discharge of restricted patients .", "ORG Under the LANGUAGE law of torts , that is private civil wrongs , \" the breach of a statute may give rise to an action , commonly spoken of as an action for breach of statutory duty \" ( Clerk and PERSON on ORG , CARDINALth edition , DATE , para . CARDINAL , p. CARDINAL ) . However , this is only so if the statute created in the individual concerned an interest which was intended by ORG to be protected by an action in tort ; and one has to look at the statute in question to determine the types of conduct ( whether intentional , negligent or accidental ) in respect of which the interest of the individual is to be protected .", "The entitlement of patients confined under LAW to bring civil proceedings in connection with their detention was subject to the conditions and immunity laid down in section CARDINAL ( see paragraph CARDINAL above ) .", "This provision has been replaced by section CARDINAL of LAW , which section came into force on DATE , that is , subsequent to the particular facts of the present case . As from this date , the position has been that proceedings against the Secretary of ORG or against ORG are excluded from the protection from suit afforded by the section . In other cases , the requirement that a person seeking leave to bring civil proceedings should have to satisfy the judge of there being \" substantial ground \" for the allegation of bad faith or negligence has been removed and what remains is the sole requirement that leave should be sought ." ]

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[ "5", "6" ]

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

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[ "The applicant , Mr PERSON , is a NORP citizen of NORP origin who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in Ivanić Grad . 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 reported to the police that on that same day at TIME he had had a fight with a certain ORG and that ORG had fired CARDINAL shots . Several other individuals had joined ORG and together they had hit and kicked the applicant who , according to the medical documentation submitted , suffered grave injuries such as concussion , a broken nose , lacerations to his head and broken teeth . On DATE the police lodged a criminal complaint with the Zagreb State Attorney ’s Office .", "The Government submitted that on DATE the competent ORG had dropped the charges and that the case file had meanwhile been destroyed .", "The applicant submitted that he had never been informed of the said decision to drop the charges .", "On DATE the applicant lodged a criminal complaint against GPE and ORG , alleging that at DATE K.G. had threatened to kill him and that in DATE both GPE and ORG had threatened to kill him . On DATE he lodged a further complaint stating that on DATE GPE had said in front of CARDINAL GPE that he would kill the applicant .", "On DATE the NORP State Attorney ’s Office ordered the police to collect information in relation to the applicant ’s allegations . In their report of DATE the police informed the ORG Attorney ’s ORG that they had interviewed the applicant and CARDINAL witnesses . On DATE the ORG Attorney ’s ORG ordered the police to interview ORG and GPE On DATE the police submitted a report and enclosed the record of the interviews with the alleged perpetrators .", "On DATE the ORG Attorney ’s ORG requested an investigating judge of ORG ( istražni sudac ORG ) to hear evidence from the perpetrators . The investigating judge heard their evidence on DATE and CARDINAL DATE respectively .", "On DATE the ORG Attorney ’s ORG indicted ORG and GPE in ORG ( PERSON ) on charges of uttering threats against the applicant . Hearings before that court were held on DATE and DATE , QUANTITY DATE , DATE and DATE . The court heard evidence from CARDINAL witnesses and the defendants and on the last - mentioned date gave a judgment acquitting GPE for lack of evidence . ORG was found guilty of making death threats to the applicant and was given a suspended sentence of CARDINAL months’ imprisonment with a probation period of DATE . The ORG Attorney lodged an appeal which was dismissed by ORG on DATE .", "On DATE the applicant lodged a criminal complaint against ORG , alleging that at TIME on that same day PERSON had threatened to kill him , telling him that he was a “ newcomer ” and a “ shiptar ” , a derogatory term for persons of NORP origin . He had also warned the applicant that he had “ warrior experience ” and “ was in the war ” .", "On DATE the NORP State Attorney ’s ORG requested an investigating judge of ORG to hear evidence from the defendant and the applicant . The investigating judge heard their evidence on DATE and DATE respectively .", "On DATE the NORP State Attorney ’s Office indicted GPE in ORG on the charge of making death threats to the applicant . The factual basis of the offence as described in the indictment reads :", "“ ... that on DATE in GPE , ... , with the intention of scaring him , [ ORG ] told PERSON that he had “ war experience ” , that he had participated in the Homeland War , that he knew how to kill and that he was going to kill him and that he had no rights as an NORP because this was GPE and he was a NORP , which caused PERSON to fear for his personal safety ”", "After the indictment , the Zabok State Attorney ’s ORG took over the prosecution . ORG held hearings on DATE , CARDINAL July , CARDINAL DATE , DATE and DATE and on DATE . It heard evidence from CARDINAL witnesses , the defendant and the applicant .", "On DATE the GPE Attorney ’s Office informed ORG that it no longer wished to continue the prosecution of ORG on the grounds that the evidence of the witnesses heard had not shown that PERSON had seriously threatened to kill the applicant . Accordingly , on DATE ORG terminated the proceedings because ORG had dropped the charges . The applicant was informed that he could take over the prosecution within DATE of the date on which the decision was served on him . He did not pursue the prosecution nor did he appeal against the decision to terminate the proceedings .", "On DATE the applicant lodged a criminal complaint against ORG , alleging that on DATE at TIME he had met ORG in the street . ORG had made a gesture as if he were going to pull a gun on the applicant , saying that he was going to kill him .", "On DATE the ORG Attorney ’s Office ordered the police to collect information about the applicant ’s allegations . The police submitted their report on DATE .", "On DATE the ORG Attorney ’s office indicted FAC in ORG on the charge of threatening behaviour against the applicant . These proceedings are currently pending .", "The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provide as follows :", "“ ( CARDINAL ) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only . ...", "( CARDINAL ) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the ORG Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor .", "( CARDINAL ) Unless otherwise provided by law , the ORG Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person .", "( CARDINAL ) Where the ORG Attorney finds that there are no grounds to institute or conduct criminal proceedings , the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this LAW . ”" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government are represented by their agent , Mr PERSON , of ORG , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant ’s grandfather made a will in DATE ( and a codicil in DATE ) in which he left his residuary estate ( after payment of certain annuities ) on trust for his children in varying shares in the first place and , after they died , for their children . If a branch failed , the estate was to pass to the other branches . The grandfather died in DATE .", "The applicant ’s grandfather had CARDINAL children . The oldest was the applicant ’s father , born in DATE . The second oldest , born in DATE , died in DATE without issue . The third child , the only daughter , was born in DATE and the youngest child was born in DATE .", "In DATE , the youngest son married PERSON . CARDINAL children were born .", "In DATE PERSON ( nee Bray ) left her husband and went , with the CARDINAL children , to live with his brother , the oldest son . The applicant was born to DATE . In DATE the applicant ’s mother died , and in DATE the applicant was adopted by his father .", "In DATE , the applicant ’s grandfather ’s daughter died without issue .", "The applicant ’s father died in DATE , providing in his will that all of his estate passed to his son , the applicant . He was entitled at his death to a CARDINAL share of the income from his father ’s estate .", "The applicant claimed , in ORG , to be entitled to his father ’s CARDINAL share of the income . The executors considered that he was not entitled to any share because , as he was illegitimate , he could not inherit as a “ child ” of his father under the DATE will and codicil .", "On DATE in ORG of ORG , Judge PERSON found that the applicant was not entitled to take any share under his grandfather ’s will . He found that it was a well - established principle that a gift to a child or children was , apart from statute , to be construed as a gift to legitimate children unless it was possible to find a contrary intention in the will . Sections CARDINAL and CARDINAL(CARDINAL)(b ) of LAW DATE , which improve the position of illegitimate children ( including in the interpretation of wills ) , only apply to events after DATE , and so could not assist the applicant . Other statutes , which dealt with the effect of legitimation where a child ’s parents married after he was born , did not assist the applicant as the applicant ’s parents never married .", "LAW , which was in force at the time of the applicant ’s grandfather ’s will and codicil ( DATE and DATE ) provided that adoption did not confer any right to or interest in property as a child of the adopter , unless a contrary intention appeared in any disposition such as a will . There was no contrary intention and so at the date of death adopted children could not benefit under the will . Again , later amendments to the law were of no help to the applicant because they only applied prospectively .", "Finally , Judge PERSON considered the points raised by the applicant in connection with the Convention . He noted that LAW Protocol No . CARDINAL applied only to existing possessions , but that the applicant had never been entitled to any of his grandfather ’s estate . He also noted that the litigation was between private individuals , where the cases of ORG and Inze had both involved claims against the ORG . Finally , he recalled that the legislation relating to adoption and illegitimacy had been changed so that there was now no discrimination on grounds of adoption or illegitimacy save in cases where the will was made before the relevant date . The applicant ’s criticism was therefore criticism that the amending legislation was not retrospective so as to affect the interpretation of existing instruments . He considered that there were sound reasons , such as the need for legal certainty , for not making such legislation retrospective . He thus agreed with the applicant that the effect of the rules as to legitimacy and adoption in a case where the will was made in DATE discriminated against him as an illegitimate son of his father , but he did not consider that the position was altered by LAW DATE .", "Judge PERSON therefore concluded that the applicant was not a legitimate child of his grandfather within the meaning of his grandfather ’s will , and that the disputed share of the estate passed to the applicant ’s grandfather ’s youngest son . He also refused leave to appeal , but , according to the Government , extended the time for appealing .", "On DATE , after the time limit for appealing had expired , the applicant filed an applicant ’s notice with ORG , seeking an extension of the time for filing a notice . On DATE he sought a further lengthy extension of time in which to lodge a bundle of documents and generally to progress his application . An extension was granted to CARDINAL DATE . On DATE the applicant wrote to ORG , explaining that he would be unable to comply with the deadline as he had gone to GPE . He indicated that he wished to withdraw his application and sought a refund of his fee . He was sent “ dismissal with consent ” forms to complete and return , and was told that if the defects in his bundle were not remedied by DATE , his application would be dismissed unless he provided a sufficient reason . Nothing more was heard from the applicant , and on DATE the application was dismissed for failure to complete the dismissal with consent forms , and for failure to progress the case within ORG .", "On DATE , the applicant sought permission to reinstate , and ORG ) dismissed the application after a hearing on DATE . Lord Justice PERSON noted that the effect of reinstatement would be to grant an extension of time of over a year , and he could see no grounds for granting such a substantial extension . Time limits were there to be complied with unless there were good reasons for failing to do so , and the applicant had shown no good reasons . Lord Justice PERSON also referred to the applicant ’s reliance on the DATE period for bringing proceedings under section CARDINAL of LAW . However , the action before the court was not a proceeding under sections DATE CARDINAL of that LAW , and the CARDINAL-month period had no application . Lord Justice PERSON did not accept the applicant ’s submissions that it was not his fault that he was so substantially out of time , and refused to reinstate the earlier application which had been struck out . The judge mentioned in passing that he considered that the proposed appeal had no real prospect of success , and indeed that the judge ’s conclusions as to the effect of LANGUAGE statute law were plainly right . He underlined , however , that the application was dismissed for failure to provide good reason for the substantial delay .", "LAW DATE , which entered into force on DATE , provides as follows :", "“ CARDINAL . ( CARDINAL ) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any-", "( a ) judgment ... of ORG ...", "... so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen ...", "ORG ( CARDINAL ) So far as possible , primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights .", "( CARDINAL ) This section-", "( a ) applies to primary legislation and subordinate legislation whenever enacted ;", "( b ) does not affect the validity , continuing operation or enforcement of any incompatible primary legislation ...", "ORG ( CARDINAL ) Subsection ( CARDINAL ) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right .", "( CARDINAL ) If the court is satisfied that the provision is incompatible with a Convention right , it may make a declaration of that incompatibility ..", "( CARDINAL ) A declaration under this section ... -", "( a ) does not affect the validity , continuing operation or enforcement of the provision in respect of which it is given ; and", "( b ) is not binding on the parties to the proceedings in which it is made . ”", "In ORG and others v. Secretary of ORG ( [ DATE ] ORG CARDINAL ) , ORG considered that the ORG power to make a declaration of incompatibility in respect of legislation only arose where it was not possible to give effect to the statute in a manner compatible with the Convention . Further , ORG had not intended section CARDINAL ( CARDINAL ) of LAW DATE to have the effect of altering the existing rights and obligations of parties to an agreement made before the section entered into force ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Mr A. ORG , a lawyer practising in GPE .", "A report about the applicant , the leader of ORG ( a community describing itself as an NORP sect ) , entitled “ They came with bombs , they will leave with bombs ” ( “ Bombayla geldiler , bombayla gidecekler ” ) was published in DATE issues of PERSON ( “ FAC ) , a DATE newspaper with radical NORP leanings .", "On DATE the public prosecutor at ORG charged the applicant with incitement to commit an offence , within the meaning of LAW , and with insulting the memory of GPE , under PERSON no . DATE , which protects the memory of GPE .", "In a judgment of DATE , ORG acquitted the applicant of insulting the memory of PERSON , holding that his comments on Kemalism in the report in question amounted to criticism that could not be treated as an insult to the memory of PERSON .", "However , it sentenced him to DATE imprisonment for incitement to commit an offence . In support of that decision , it cited the following comments by the applicant that had appeared in the report :", "“ These people [ moderate NORP intellectuals ] have no strength left ... Now they have come up with ORG [ an NORP intellectual known for his moderate views ] ... Allah has blocked their water supply ... CARDINAL of NORP , among those not engaged in the struggle , regard ORG as someone important ... Now their teeth and nails have been ripped out , their hair has fallen out , they have been dethroned . They are still trying , but in vain , to preserve their greatness and , in doing so , provide a rather comic image of a monster ... like a hollow statue ... which , as soon as it is touched or set in motion ( in the event of an attack ) , will show that it no longer has the strength to do anything ... Indeed , this has already been seen ... All that is needed now is for CARDINAL brave man among the NORP to plant a dagger in their soft underbelly and run them through twice with a bayonet to show just how empty they are . They no longer have anything else to sustain them . There is nothing else left ... ”", "The court held that the applicant 's statement “ All that is needed now is for CARDINAL brave man among the NORP to plant a dagger in their soft underbelly and run them through twice with a bayonet to show just how empty they are ... There is nothing else left ... ” in the account of his opinions about ORG amounted to public incitement to commit an offence . It considered that in the instant case the right to impart information and to engage in criticism could not be relied on and that publication of the statements in question had not served any public interest . In conclusion , it held that the legal rules governing the exercise of the right to impart information had not been complied with .", "The applicant , submitting that his conviction had infringed his freedom of thought and expression , appealed on points of law on DATE .", "On DATE ORG dismissed his appeal and upheld the judgment at first instance .", "In the meantime , on DATE , ORG had sentenced the applicant to DATE imprisonment and a fine of MONEY , holding that the comments made by him in the report in question ( reference was made to other passages in the report , in which he had asserted that secularists and PERSON were infidels and enemies of NORP and should do penance to save their lives ) amounted to incitement to religious hatred . That decision was upheld by ORG on DATE .", "Article CARDINAL § CARDINAL of LAW provides :", "“ Public incitement to commit an offence", "Anyone who publicly incites another to commit an offence shall be liable :", "( CARDINAL ) ...", "( CARDINAL ) to a penalty of DATE imprisonment , depending on the nature of the offence and the sentence it carries , whether long - term imprisonment or a shorter custodial sentence ...", "Where incitement to commit an offence is done by means of mass communication , of whatever type – tape recordings , gramophone records , newspapers , press publications or other published material DATE by the circulation or distribution of printed papers or by the placing of placards or posters in public places , the terms of imprisonment to which convicted persons are liable shall be doubled ... ”", "Under the criminal law , while the ordinary criminal courts have jurisdiction in cases concerning public incitement to commit an offence , within the meaning of LAW , only the national security courts have jurisdiction to try the offences referred to in LAW , which prohibits incitement to religious hatred .", "The relevant part of section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL of DATE ) provides :", "“ ... persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served CARDINAL of their sentence , provided they have been of good conduct ... ”" ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE .", "DATE there was a ORG and Equipment International Exhibition ( “ the arms fair ” ) at FAC in GPE , GPE , which was the subject of protests and demonstrations .", "At TIME on DATE the first applicant was riding a bicycle and carrying a rucksack near the arms fair , on his way to join the demonstration . He was stopped and searched by QUANTITY police officers who told him he was being searched under section CARDINAL of LAW ( “ the GPE ” : see paragraphs CARDINAL below ) for articles which could be used in connection with terrorism . He was handed a notice to that effect . The first applicant claimed he was told in response to his question as to why he was being stopped that it was because a lot of protesters were about and the police were concerned that they would cause trouble . Nothing incriminating was found ( although computer printouts giving information about the demonstration were seized by the officers ) and the first applicant was allowed to go on his way . He was detained for TIME .", "At TIME on DATE , the second applicant , wearing a photographer 's jacket , carrying a small bag and holding a camera in her hand , was stopped close to the arms fair . She had apparently emerged from some bushes . The second applicant , a journalist , was in the area to film the protests . She was searched by a police officer from ORG notwithstanding that she showed her press cards to show who she was . She was told to stop filming . The police officer told her that she was using her powers under sections CARDINAL and CARDINAL of the CARDINAL Act . Nothing incriminating was found and the second applicant was allowed to go on her way . The record of her search showed she was stopped for TIME but she thought it was more like TIME . She claimed to have felt so intimidated and distressed that she did not feel able to return to the demonstration although it had been her intention to make a documentary or sell footage of it .", "The applicants sought to challenge the legality of the stop and search powers used against them by way of judicial review . Prior to ORG hearing , the Secretary of ORG offered the applicants a procedure which would have enabled ORG to review in closed session , with the benefit of submissions from a special advocate , the underlying intelligence material which had been the basis for the Secretary of ORG 's decision to confirm the authorisation ( section CARDINAL of the CARDINAL Act : see paragraphs DATE below ) . The applicants , however , indicated that they did not consider it necessary or appropriate to proceed in this way , since they did not intend to challenge the assessment that there was a general threat of terrorism against GPE . Instead , they contended , first , that the authorisation and confirmation in question , since they formed part of a rolling programme of authorisations covering the entire GPE area , were ultra vires and unlawful , since there were a number of clear indications that ORG had intended an authorisation under LAW ( “ a section CARDINAL authorisation ” ) to be given and confirmed only in response to an imminent terrorist threat to a specific location in respect of which normal police powers of stop and search were inadequate . Secondly , the applicants claimed that the use of the section CARDINAL authorisation by police officers to stop and search them at the arms fair was contrary to the legislative purpose and unlawful and that the guidance given to police officers was either non - existent or calculated to cause officers to misuse the powers . Thirdly , the applicants claimed that the section CARDINAL authorisations and the exercise of powers under them constituted a disproportionate interference with their rights under Articles CARDINAL , CARDINAL , DATE , DATE and CARDINAL of the Convention .", "On DATE , ORG dismissed the application ( [ DATE ] EWHC CARDINAL ) . Lord Justice PERSON , giving the judgment of the court , held that ORG had envisaged that a section CARDINAL authorisation might cover the whole of a police area as a response to a general threat of terrorist activity on a substantial scale and that the authorisation and the subsequent confirmation by the Secretary of ORG were not ultra vires .", "PERSON held as follows , in connection with the applicants ' second ground of challenge :", "“ The powers conferred on the police under section DATE are powers which most NORP people would have hoped were completely unnecessary in this country , particularly in time of peace . People have always been free to come and go in this country as they wish unless the police have reasonable cause to stop them . ORG has , however , judged that the contemporary threats posed by international terrorism and dissident NORP terrorism are such that as a people we should be content that the police should be able to stop and search us at will for articles that might be connected with terrorism .", "It is elementary that if the police abuse these powers and target them disproportionately against those whom they perceive to be no particular friends of theirs the terrorists will have to that extent won . The right to demonstrate peacefully against an arms fair is just as important as the right to walk or cycle about the streets of GPE without being stopped by the police unless they have reasonable cause . If the police wish to use this extraordinary power to stop and search without cause they must exercise it in a way that does not give rise to legitimate complaints of arbitrary abuse of power .", "We are not , however , satisfied that the police 's conduct on DATE entitles either Mr PERSON or PERSON to a public law remedy . There is just enough evidence available to persuade us that , in the absence of any evidence that these powers were being habitually used on occasions which might represent symbolic targets , the arms fair was an occasion which concerned the police sufficiently to persuade them that the use of section CARDINAL powers was needed ... . But it was a fairly close call , and ORG would do well to review their training and briefing and the language of the standard forms they use for section CARDINAL stop / searches if they wish to avoid a similar challenge in future . ... ”", "Finally , the court found that the powers were provided for by law and not disproportionate , given the risk of terrorist attack in GPE .", "The Court of Appeal gave judgment on DATE ( [ DATE ] EWCA Civ CARDINAL ) . As to the proper interpretation of the legislation , it held that :", "“ It is clear that ORG , unusually , has permitted random stopping and searching , but , as we have already indicated when examining the language of the relevant sections , made the use of that power subject to safeguards . The power is only to be used for a single specified purpose for a period of an authorisation granted by a senior officer and confirmed by the Secretary of ORG . Furthermore , the authorisation only has a limited life unless renewed .", "We do not find it surprising that the word ' expedient ' should appear in section NORP ) in conjunction with the power to authorise . The statutory scheme is to leave how the power is to be used to the discretion of the senior officer . In agreement with ORG , we would give the word its ordinary meaning of advantageous . It is entirely consistent with the framework of the legislation that a power of this sort should be exercised when a senior police officer considers it is advantageous to exercise the power for the prevention of acts of terrorism .", "Interpreted in this way , sections DATE and DATE could not conflict with the provisions of the Articles of the ORG . If those ORG were to be infringed it would be because of the manner of the exercise of the power , not its existence . Any possible infringement of the ORG would depend on the circumstances in which the power that the sections give is exercised . ”", "ORG did not consider it necessary to determine whether LAW applied , since it held that any deprivation of liberty was justifiable under LAW ) . However it held that , if the point had to be decided , the better view was that there was no deprivation of liberty , taking into account the likely limited nature of any infringement in a normal stop and search and the fact that the main aim would not be to deprive an individual of his liberty but rather to effect a verification of one form or another . Nor did it consider that LAW and CARDINAL applied . Although the applicants ' evidence gave some cause for concern that the power had been used against them to control or deter their attendance at the demonstration , those issues had not been tested because the thrust of their argument was directed at the conformity of the legislation with the LAW and , properly used as a measure of limited duration to search for articles connected with terrorism , the stop and search power would not impinge on the rights to freedom of expression or assembly .", "The respondent Commissioner of ORG had conceded that the stop and search measures amounted to interferences with the applicants ' LAW , and ORG accepted that this was the correct approach , describing section CARDINAL as “ an extremely wide power to intrude on the privacy of the members of the public ” . It considered that the interference was , however , in accordance with the law , for the following reasons :", "“ ' The law ' that is under criticism here is the statute , not the authorisation . That law is just as much a public record as is any other statute . And the provisions are not arbitrary in any relevant sense . Although the police officer does not have to have grounds for suspecting the presence of suspicious articles before stopping a citizen in any particular case ( section CARDINAL(CARDINAL)(b ) ) , he can only be authorised to use those powers for limited purposes , and where a decision has been made that the exercise of the powers is expedient for the serious purpose of the prevention of acts of terrorism ( section LANGUAGE ) . The system , so controlled , can not be said to be arbitrary in any sense that deprives it of the status of ' law ' in the autonomous meaning of that term as understood in LAW . In addition , while the authorisations and their confirmation are not published because not unreasonably it is considered publication could damage the effectiveness of the stop and search powers and as the individual who is stopped has the right to a written statement under section CARDINAL(CARDINAL ) , in this context the lack of publication does not mean that what occurred was not a procedure prescribed by law . ”", "Furthermore , given the nature of the terrorist threat against GPE , the authorisation and confirmation of the power could not , as a matter of general principle , be said to be disproportionate : the disadvantage of the intrusion and restraint imposed on even a large number of individuals by being stopped and searched could not possibly match the advantage that accrued from the possibility of a terrorist attack being thereby foiled or deterred . Having regard to the nature of the arms fair , its location near an airport and a previous site of a terrorist incident ( connected with the GPE problems ) and the fact that a protest was taking place , the police were entitled to decide that section CARDINAL powers should be exercised in connection with it . However , the inadequacy of the evidence provided by the police concerning the use of the section CARDINAL power in the vicinity of the arms fair made it impossible to come to any conclusion as regards the lawfulness and proportionality of the use of the power against the applicants .", "ORG , on DATE , unanimously dismissed the applicants ' appeals ( [ DATE ] UKHL CARDINAL ) . Lord PERSON , with whom the other ORG agreed , began by observing :", "“ CARDINAL . It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land , confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence . So jealously has this tradition been guarded that it has almost become a constitutional principle . But it is not an absolute rule . There are , and have for DATE been , statutory exceptions to it . These appeals concern an exception now found in sections CARDINAL - CARDINAL of LAW ( ' LAW ) . The appellants challenge the use made of these sections and , in the last resort , the sections themselves . Since any departure from the ordinary rule calls for careful scrutiny , their challenge raises issues of general importance . ”", "The first issue before ORG was as to the proper construction of the statute . The applicants had argued that section CARDINAL(CARDINAL ) should be interpreted as permitting an authorisation to be made only if the decision - maker had reasonable grounds for considering that the powers were necessary and suitable , in all the circumstances , for the prevention of terrorism . Lord PERSON rejected this interpretation , since the word “ expedient ” in the section had a meaning quite distinct from “ necessary ” . He continued :", "“ CARDINAL . ... But there are other reasons also for rejecting the argument . It is true , as already recognised , that section CARDINAL(CARDINAL)(b ) , in dispensing with the condition of reasonable suspicion , departs from the normal rule applicable where a constable exercises a power to stop and search . CARDINAL would therefore incline , within the permissible limits of interpretation , to give ' expedient ' a meaning no wider than the context requires . But examination of the statutory context shows that the authorisation and exercise of the power are very closely regulated , leaving no room for the inference that ORG did not mean what it said . There is indeed every indication that ORG appreciated the significance of the power it was conferring but thought it an appropriate measure to protect the public against the grave risks posed by terrorism , provided the power was subject to effective constraints . The legislation embodies a series of such constraints . First , an authorisation under section CARDINAL(CARDINAL ) or ( CARDINAL ) may be given only if the person giving it considers ( and , it goes without saying , reasonably considers ) it expedient ' for the prevention of acts of terrorism ' . The authorisation must be directed to that overriding objective . Secondly , the authorisation may be given only by a very senior police officer . Thirdly , the authorisation can not extend beyond the boundary of a police force area , and need not extend so far . Fourthly , the authorisation is limited to a period of DATE , and need not be for so long . Fifthly , the authorisation must be reported to the Secretary of ORG forthwith . Sixthly , the authorisation lapses after TIME if not confirmed by the Secretary of ORG . Seventhly , the Secretary of ORG may abbreviate the term of an authorisation , or cancel it with effect from a specified time . ORG , a renewed authorisation is subject to the same confirmation procedure . Ninthly , the powers conferred on a constable by an authorisation under sections CARDINAL(CARDINAL ) or ( CARDINAL ) may only be exercised to search for articles of a kind which could be used in connection with terrorism . Tenthly , ORG made provision in section CARDINAL for reports on the working of the LAW to be made to it at least once a year , which have in the event been made with commendable thoroughness , fairness and expertise by Lord PERSON of Berriew QC . Lastly , it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer , the Secretary of ORG or the constable , as the case may be , to corrective legal action .", "The principle of legality has no application in this context , since even if these sections are accepted as infringing a fundamental human right , itself a debatable proposition , they do not do so by general words but by provisions of a detailed , specific and unambiguous character . Nor are the appellants assisted by ORG circular . This may well represent a cautious official response to the appellants ' challenge , and to the urging of PERSON that these powers be sparingly used . But it can not , even arguably , affect the construction of section GPE ) . The effect of that sub - section is that an authorisation may be given if , and only if , the person giving it considers it likely that these stop and search powers will be of significant practical value and utility in seeking to achieve the public end to which these sections are directed , the prevention of acts of terrorism . ”", "Lord PERSON rejected the applicants ' contention that the “ rolling programme ” of authorisations had been ultra vires , as follows :", "“ CARDINAL . The appellants ' second , and main , ground of attack was directed to the succession of authorisations which had had effect throughout the Metropolitan Police District since DATE , continuing until DATE . It was , they suggested , CARDINAL thing to authorise the exercise of an exceptional power to counter a particular and specific threat , but quite another to authorise what was , in effect , a continuous ban throughout the GPE area . Again this is not an unattractive submission . One can imagine that an authorisation renewed DATE after DATE might become the product of a routine bureaucratic exercise and not of the informed consideration which sections CARDINAL and CARDINAL clearly require . But all the authorisations and confirmations relevant to these appeals conformed with the statutory limits on duration and area . Renewal was expressly authorised by section CARDINAL(CARDINAL ) . The authorisations and confirmations complied with the letter of the statute . The evidence of the Assistant Commissioner and PERSON does not support , and indeed contradicts , the inference of a routine bureaucratic exercise . It may well be that ORG , legislating before the events of DATE , did not envisage a continuous succession of authorisations . But it clearly intended that the section CARDINAL powers should be available to be exercised when a terrorist threat was apprehended which such exercise would help to address , and the pattern of renewals which developed up to DATE ( it is understood the pattern has since changed ) was itself a product of ORG 's principled refusal to confer these exceptional stop and search powers on a continuing , countrywide basis . Reporting on the operation of the CARDINAL Act during DATE and DATE , PERSON ... found that sections DATE and CARDINAL remained necessary and proportional to the continuing and serious risk of terrorism , and regarded GPE as ' a special case , having vulnerable assets and relevant residential pockets in almost every borough ' . ”", "On the question whether either applicant had been deprived of liberty as a result of the stop and search procedure , Lord PERSON commented on the absence of any decision of ORG on closely analogous facts and accepted that there were some features indicative of a deprivation of liberty , such as the coercive nature of the measure . However , since the procedure would ordinarily be relatively brief and since the person stopped would not be arrested , handcuffed , confined or removed to any different place , such a person should not be regarded “ as being detained in the sense of confined or kept in custody , but more properly of being detained in the sense of kept from proceeding or kept waiting ” . Article CARDINAL did not , therefore , apply .", "As to the question whether LAW was applicable , Lord PERSON was :", "“ CARDINAL . ... doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life . It is true that ' private life ' has been generously construed to embrace wide rights to personal autonomy . But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention , which is , after all , concerned with human rights and fundamental freedoms , and I incline to the view that an ordinary superficial search of the person and an opening of bags , of the kind to which passengers uncomplainingly submit at airports , for example , can scarcely be said to reach that level . ”", "Lord PERSON did not consider that the power to stop and search under sections DATE , properly used in accordance with the statute and Code A , could be used to infringe a person 's rights under Articles CARDINAL or CARDINAL of the Convention .", "NORP Despite his doubts as to the applicability of LAW , DATE , DATE or DATE , Lord PERSON went on to consider whether the stop and search powers complied with the requirement of “ lawfulness ” under the Convention , as follows :", "“ DATE . The lawfulness requirement in the Convention addresses supremely important features of the rule of law . The exercise of power by public officials , as it affects members of the public , must be governed by clear and publicly - accessible rules of law . The public must not be vulnerable to interference by public officials acting on any personal whim , caprice , malice , predilection or purpose other than that for which the power was conferred . This is what , in this context , is meant by arbitrariness , which is the antithesis of legality . This is the test which any interference with or derogation from a LAW right must meet if a violation is to be avoided .", "The stop and search regime under review does in my opinion meet that test . LAW informs the public that these powers are , if duly authorised and confirmed , available . It defines and limits the powers with considerable precision . Code A , a public document , describes the procedure in detail . The LAW and the LAW do not require the fact or the details of any authorisation to be publicised in any way , even retrospectively , but I doubt if they are to be regarded as ' law ' rather than as a procedure for bringing the law into potential effect . In any event , it would stultify a potentially valuable source of public protection to require notice of an authorisation or confirmation to be publicised prospectively . The efficacy of a measure such as this will be gravely weakened if potential offenders are alerted in advance . Anyone stopped and searched must be told , by the constable , all he needs to know . In exercising the power the constable is not free to act arbitrarily , and will be open to civil suit if he does . It is true that he need have no suspicion before stopping and searching a member of the public . This can not , realistically , be interpreted as a warrant to stop and search people who are obviously not terrorist suspects , which would be futile and time - wasting . It is to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion . It is not suggested that the constables in these cases exercised their powers in a discriminatory manner ( an impossible contention on the facts ) , and I prefer to say nothing on the subject of discrimination . ”", "Lord Hope of PERSON agreed with Lord PERSON . In particular , he considered that the stop and search power complied with the principle of legality for the following reasons :", "“ DATE . The sight of police officers equipped with bundles of the stop / search form CARDINAL which is used to record the fact that a person or vehicle was stopped by virtue of sections CARDINAL ) or CARDINAL ) has become familiar in LOC since the suicide bombings that were perpetrated on DATE and the attempts to repeat the attacks DATE . They can be seen inside the barriers at stations on LOC , watching people as they come through the barriers and occasionally stopping someone who attracts their attention and searching them . Most people who become aware of the police presence are there because they want to use the transport system . The travelling public are reassured by what they see the police doing at the barriers . They are in the front line of those who would be at risk if there were to be another terrorist outrage . But those who are singled out , stopped and searched in this way may well see things differently . They may find the process inconvenient , intrusive and irritating . As it takes place in public , they may well also find it embarrassing . This is likely to be the case if they believe , contrary to the facts , that they are being discriminated against on grounds of race . These features of the process give rise to this question . Are the limits on the use of the power sufficient to answer a challenge that the Convention rights of the person who is searched are being violated because its use is unforeseeable and arbitrary ?", "DATE . From that person 's perspective the situation is one where all the cards are in the hands of the police . It is they , and not the general public , who know that an authorisation is in force and the area that it relates to . It is they who decide when and where within that area they should exercise the power that has been given to them . It is they who decide which persons or which vehicles should be stopped and searched . Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) make it clear that the power may be exercised only by a constable in uniform . Section CARDINAL(CARDINAL)(a ) provides that the power may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism . But no criterion is laid down in the statute or in any published document as to the precise state of mind that the constable must be in before the power can be exercised .", "Section CARDINAL(CARDINAL)(b ) provides that the power may be exercised whether or not the constable has grounds for suspecting the presence of articles of a kind which could be used in connection with terrorism . The definition of the word ' terrorism ' for the purposes of the LAW is a wide one , and the matter is left to the judgment of each individual police officer . The first indication that members of the public are likely to get that they are liable to be stopped and searched is when the order to stop is given . Those who are well informed may get some indication as to what is afoot when they see the police with bundles of forms in their hands looking in their direction . But for most people the order to stop will come as a surprise . Unless they are in possession of articles of the kind that the constable is entitled to search for , they may well wonder why they have been singled out for the treatment that they are being subjected to .", "There is , of course , a strong argument the other way . If the stop and search procedure is to be effective in detecting and preventing those who are planning to perpetrate acts of terrorism it has to be like this . Advertising the time when and the places where this is to be done helps the terrorist . It impedes the work of the security services . Sophisticated methods of disguise and concealment may be used where warnings are given . Those involved in terrorism can be expected to take full advantage of any published information as to when and where the power is likely to be exercised . So the police need to be free to decide when and where the use of the procedure is to be authorised and whom they should stop on the spur of the moment if their actions are to be a step ahead of the terrorist . Must this system be held to be unlawful under LAW on the ground that it is arbitrary ?", "...", "... The use of the section CARDINAL power has to be seen in the context of the legislation that provides for it . The need for its use at any given time and in any given place to be authorised , and for the authorisation to be confirmed within TIME , provides a background of law that is readily accessible to the citizen . It provides a system of regulatory control over the exercise of the power which enables the person who is stopped and searched , if he wishes , to test its legality in the courts . In that event the authorisation and the confirmation of it will of necessity , to enable the law to be tested properly , become relevant evidence . The guidance in DATE of Code A warns the constable that the power is to be used only for reasons connected with terrorism , and that particular care must be taken not to discriminate against members of minority ethnic groups when it is being exercised . It is no more precise than that . But it serves as a reminder that there is a structure of law within which the power must be exercised . A constable who acts within these limits is not exercising the section CARDINAL power arbitrarily .", "As the concluding words of para CARDINAL of the decision in GPE v GPE ( DATE ) CARDINAL EHRR CARDINAL indicate , the sufficiency of these measures must be balanced against the nature and degree of the interference with the citizen 's Convention rights which is likely to result from the exercise of the power that has been given to the public authority . The things that a constable can do when exercising the section CARDINAL power are limited by the provisions of section CARDINAL ) and CARDINAL ) . He may not require the person to remove any clothing in public except that which is specified , and the person may be detained only for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle has been stopped . The extent of the intrusion is not very great given the obvious importance of the purpose for which it is being resorted to . In my opinion the structure of law within which it is to be exercised is sufficient in all the circumstances to meet the requirement of legality .", "It should be noted , of course , that the best safeguard against the abuse of the power in practice is likely to be found in the training , supervision and discipline of the constables who are to be entrusted with its exercise . Public confidence in the police and good relations with those who belong to the ethnic minorities are of the highest importance when extraordinary powers of the kind that are under scrutiny in this case are being exercised . The law will provide remedies if the power to stop and search is improperly exercised . But these are remedies of last resort . Prevention of any abuse of the power in the first place , and a tighter control over its use from the top , must be the first priority . ”", "Lord PERSON of PERSON - under - PERSON observed , inter alia :", "“ CARDINAL . Given the exceptional ( although , as Lord PERSON has explained , neither unique nor particularly novel ) nature of [ the section DATE ] power ( often described as the power of random search , requiring for its exercise no reasonable suspicion of wrongdoing ) , it is unsurprisingly hedged about with a wide variety of restrictions and safeguards . Those most directly relevant to the way in which the power impacts upon the public on the ground are perhaps these . It can be used only by a constable in uniform ( section CARDINAL ( CARDINAL ) and ( CARDINAL ) ) . It can be used only to search for terrorist - connected articles ( section GPE ) ( a ) ) . The person searched must not be required to remove any clothing in public except for headgear , footwear , an outer coat , a jacket or gloves ( section CARDINAL ) ) . The search must be carried out at or near the place where the person or vehicle is stopped ( section CARDINAL ) ) . And the person or vehicle stopped can be detained only for such time as is reasonably required to permit such a search ( section CARDINAL(CARDINAL ) ) . Unwelcome and inconvenient though most people may be expected to regard such a stop and search procedure , and radically though it departs from our traditional understanding of the limits of police power , it can scarcely be said to constitute any very substantial invasion of our fundamental civil liberties . Nevertheless , given , as the respondents rightly concede , that in certain cases at least such a procedure will be sufficiently intrusive to engage a person 's article CARDINAL right to respect for his private life , and given too that this power is clearly open to abuse — the inevitable consequence of its exercise requiring no grounds of suspicion on the police officer 's part — the way is clearly open to an argument that the scheme is not properly compliant with the Convention requirement that it be ' in accordance with the law . '", "For this requirement to be satisfied ... not only must the interference with the Convention right to privacy have some basis in domestic law ( as here clearly it does in LAW ) ; not only must that law be adequately accessible to the public ( as here clearly it is — unlike , for example , the position in GPE v GPE ( DATE ) CARDINAL EHRR CARDINAL ) ; not only must the law be reasonably foreseeable , to enable those affected to regulate their conduct accordingly ( a requirement surely here satisfied by the public 's recognition , from the very terms of the legislation , that drivers and pedestrians are liable to be subjected to this form of random search and of the need to submit to it ) ; but there must also be sufficient safeguards to avoid the risk of the power being abused or exercised arbitrarily .", "DATE . As I understand the appellants ' argument , it is upon this final requirement that it principally focuses : this power , submits PERSON , is all too easily capable of being used in an arbitrary fashion and all too difficult to safeguard against such abuse . True , he acknowledges , if the power is in fact abused in any particular case the police officer concerned will be liable to a civil claim for damages ( and , no doubt , to police disciplinary action ) . But , he submits , it will usually be impossible to establish a misuse of the power given that no particular grounds are required for its apparently lawful exercise . Assume , for example , that a police officer in fact exercises this power for racially discriminatory reasons of his own , how could that be established ? There are simply no effective safeguards against such abuse , no adequate criteria against which to judge the propriety of its use . Certainly it is provided by paragraph CARDINAL of Code A ( a published code issued CARDINAL of ORG ) that : ' Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers ' . But , say the appellants , there is simply no way of policing that instruction with regard to the exercise of so wide a random power . No way , that is , submits [ counsel for the applicants ] , unless it is by stopping and searching literally everyone ( as , of course , occurs at airports and on entry to certain other specific buildings ) or by stopping and searching on a strictly numerical basis , say every tenth person . Only in one or other of these ways , the appellants ' argument forces them to contend , could such a power as this be exercisable consistently with the principle of legal certainty : there can not otherwise be the necessary safeguards in place to satisfy the Convention requirement as to ' the quality of the law ' ...", "I would reject this argument . In the first place it would seem to me impossible to exercise the section CARDINAL power effectively in either of the ways suggested . Imagine that following the GPE bombings DATE the police had attempted to stop and search everyone entering an underground station or indeed CARDINAL ( or CARDINAL ) such person . Not only would such a task have been well nigh impossible but it would to my mind thwart the real purpose and value of this power . That , as Lord PERSON puts it in paragraph CARDINAL of his opinion , is not ' to stop and search people who are obviously not terrorist suspects , which would be futile and time - wasting [ but rather ] to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion . ' It is to be hoped , first , that potential terrorists will be deterred ( certainly from carrying the tools of their trade ) by knowing of the risk they run of being randomly searched , and , secondly , that by the exercise of this power police officers may on occasion ( if only very rarely ) find such materials and thereby disrupt or avert a proposed terrorist attack . Neither of these aims will be served by police officers searching those who seem to them least likely to present a risk instead of those they have a hunch may be intent on terrorist action .", "DATE . In his DATE review of the operation of the Prevention of Terrorism ( Temporary Provisions ) Act DATE ( amended as explained by Lord PERSON in paragraph CARDINAL of his opinion ) and GPE ( Emergency LAW Act DATE , Mr PERSON said this of the power to stop and search those entering or leaving GPE with a view to finding out whether they were involved in terrorism :", "' The “ intuitive ” stop", "It is impossible to overstate the value of these stops ...", "I should explain what I mean by an “ intuitive stop ” . It is a stop which is made “ cold ” or “ at random”—but I prefer the words “ on intuition”—without advance knowledge about the person or vehicle being stopped .", "DATE . I do not think such a stop by a trained Special Branch officer is “ cold ” or “ random ” . The officer has experience and training in the features and circumstances of terrorism and terrorist groups , and he or she may therefore notice things which the layman would not , or he or she may simply have a police officer 's intuition . Often the reason for such a stop can not be explained to the layman . '", "Later in his review Mr PERSON noted of the more general stop and search powers originally contained in sections CARDINALA and CARDINAL of the DATE Act that ' these powers were used sparingly , and for good reason ' . I respectfully agree that the section CARDINAL power ( as it is now ) should be exercised sparingly , a recommendation echoed throughout a series of annual reports on QUANTITY by PERSON of ORG , the independent reviewer of the terrorist legislation appointed in succession to Mr Rowe — see most recently paragraph CARDINAL of his DATE report , suggesting that the use of the power ' could be cut by CARDINAL per cent without significant risk to the public or detriment to policing . ' To my mind , however , that makes it all the more important that it is targeted as the police officer 's intuition dictates rather than used in the true sense randomly for all the world as if there were some particular merit in stopping and searching people whom the officers regard as constituting no threat whatever . In short , the value of this legislation , just like that allowing people to be stopped and searched at ports , is that it enables police officers to make what Mr PERSON characterised as an intuitive stop .", "Of course , as ORG chaired by Lord PERSON of GPE noted in its DATE report on ORG DATE :", "' Sophisticated terrorists change their profile and methods to avoid presenting a static target . For example , ORG is reported to place particular value on recruiting NORP converts because they judge them to be less likely to be scrutinised by the authorities . '", "It seems to me inevitable , however , that so long as the principal terrorist risk against which use of the section CARDINAL power has been authorised is that from ORG , a disproportionate number of those stopped and searched will be of NORP appearance ( particularly if they happen to be carrying rucksacks or wearing apparently bulky clothing capable of containing terrorist - related items ) .", "Is such a conclusion inimical to Convention jurisprudence or , indeed , inconsistent with domestic discrimination law ? In my judgment it is not , provided only that police officers exercising this power on the ground pay proper heed to paragraph CARDINAL of Code A :", "' The selection of persons stopped under LAW should reflect an objective assessment of the threat posed by the various terrorist groups active in GPE . The powers must not be used to stop and search for reasons unconnected with terrorism . Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers . There may be circumstances , however , where it is appropriate for officers to take account of a person 's ethnic origin in selecting persons to be stopped in response to a specific terrorist threat ( for example , some international terrorist groups are associated with particular ethnic identities ) . '", "Ethnic origin accordingly can and properly should be taken into account in deciding whether and whom to stop and search provided always that the power is used sensitively and the selection is made for reasons connected with the perceived terrorist threat and not on grounds of racial discrimination . ”", "The applicants also commenced a claim in ORG on DATE for , inter alia , damages under LAW DATE on the basis that the police had used the stop and search powers unlawfully against each applicant and in breach of LAW , CARDINAL of the Convention , to control or deter their attendance at the demonstration rather than to search for articles linked to terrorism . The claims were stayed pending the outcome of their appeal to ORG and were finally heard in DATE . ORG rejected the applicants ' claims and determined that the power had , in respect to each of them , been properly and lawfully exercised . The applicants did not seek to appeal against this judgment .", "Police officers have the power to stop and search individuals under a range of legislation . For example , section CARDINAL of the Police and Criminal Evidence Act DATE allows an officer who has reasonable grounds for suspicion to stop and search a person or vehicle to look for stolen or prohibited items . Section CARDINAL of ORG and LAW DATE allows a senior officer to authorise the stop and search of persons and vehicles where there is good reason to believe that to do so would help to prevent incidents involving serious violence or that persons are carrying dangerous instruments or offensive weapons .", "The police power to stop and search at random where expedient to prevent acts of terrorism was first introduced as a response to the bombing campaign DATE in and around GPE . LAW of ORG DATE inserted a new section CARDINALA into the Prevention of Terrorism ( Temporary LAW DATE ( “ the DATE LAW ) in similar terms to LAW CARDINAL of QUANTITY ( see paragraph CARDINAL below ) , but without any requirement that the Secretary of ORG confirm the authorisation . ORG DATE created an additional , separate power to stop and search pedestrians , under section CARDINALB of the CARDINAL LAW . LAW also established for the first time the confirmation procedure involving the Secretary of ORG .", "NORP In DATE the ORG asked Lord PERSON , a ORG judge , to undertake an Inquiry into the need for specific counter - terrorism legislation in GPE following the decrease in terrorism connected to GPE . The Inquiry included consideration of whether there remained a continuing need for a power equivalent to that in sections CARDINALA and CARDINAL of the DATE Act . In his ORG , § DATE ) , PERSON noted that DATE the police in GPE had carried out searches of CARDINAL drivers and passengers and CARDINAL pedestrians under sections CARDINALA and CARDINAL of the DATE Act . When considering whether similar powers should be retained in any permanent counter - terrorism legislation that might be enacted , he observed that a decision to give the police a power to stop and search at random was not to be taken lightly . On the other hand there was evidence that a number of terrorists had been intercepted by alert officers on patrol , and in CARDINAL case a potential catastrophe had been averted . He said that there was also reason to believe that terrorists were deterred to some extent by the prospect of police road checks and the consequent risk that they would be intercepted . He commented :", "“ As to usage , the figures show that the power has been used with great discretion . The requirement for authorisation by a very senior police officer is an important control mechanism . A number of requests have been turned down . That is reassuring . The police are very sensitive to the damage which would be done if there were ever any grounds for suspecting that the power was being used as anything other than a counter - terrorism measure . ”", "In the end Lord PERSON recommended that powers on the lines of the existing sections CARDINALA and DATE should be retained in permanent legislation . He also recommended that the Secretary of ORG 's confirmation should be required in relation to each provision . Since ORG applied the same standards to the terrorism provisions as to other statutory powers to stop and search , he saw no need for additional safeguards .", "The CARDINAL Act was intended to overhaul , modernise and strengthen the law relating to terrorism in the light , inter alia , of Lord ORG .", "“ Terrorism ” is defined , in LAW , as follows :", "“ ( CARDINAL ) In this LAW ' terrorism ' means the use or threat of action where -", "( a ) the action falls within subsection ( CARDINAL ) ,", "( b ) the use or threat is designed to influence the government or to intimidate the public or a section of the public , and", "( c ) the use or threat is made for the purpose of advancing a political , religious or ideological cause .", "( CARDINAL ) Action falls within this subsection if it -", "( a ) involves serious violence against a person ,", "( b ) involves serious damage to property ,", "( c ) endangers a person 's life , other than that of the person committing the action ,", "( d ) creates a serious risk to the health or safety of the public or a section of the public , or", "( e ) is designed seriously to interfere with or seriously to disrupt an electronic system .", "( CARDINAL ) The use or threat of action falling within subsection ( CARDINAL ) which involves the use of firearms or explosives is terrorism whether or not subsection ( CARDINAL ) is satisfied .", "( CARDINAL ) In this section -", "( a ) ' action ' includes action outside GPE ,", "( b ) a reference to any person or to property is a reference to any person , or to property , wherever situated ,", "( c ) a reference to the public includes a reference to the public of a country other than GPE , and", "( d ) ' the government ' means the government of GPE , of a Part of GPE or of a country other than GPE .", "( CARDINAL ) In this LAW a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation . ”", "Sections CARDINAL of the CARDINAL Act , under the sub - heading “ Suspected terrorists ” , provide for arrest without warrant , the search of premises and the search of persons by a police officer . In each case there must be reasonable suspicion that the person subject to the arrest or search is a terrorist .", "Sections CARDINAL - CARDINAL , under the sub - heading “ Power to stop and search ” , are not subject to the requirement of reasonable suspicion . These sections provide for a CARDINAL stage procedure .", "The first stage , under section CARDINAL , is authorisation :", "“ CARDINAL(CARDINAL ) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search -", "( a ) the vehicle ;", "( b ) the driver of the vehicle ;", "( c ) a passenger in the vehicle ;", "( d ) anything in or on the vehicle or carried by the driver or a passenger .", "( CARDINAL ) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search -", "( a ) the pedestrian ;", "( b ) anything carried by him .", "( CARDINAL ) An authorisation under subsection ( CARDINAL ) or ( CARDINAL ) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism .", "( CARDINAL ) An authorisation may be given -", "( a ) where the specified area or place is the whole or part of a police area outside GPE other than one mentioned in paragraph ( b ) or ( c ) , by a police officer for the area who is of at least the rank of assistant chief constable ;", "( b ) where the specified area or place is the whole or part of the metropolitan police district , by a police officer for the district who is of at least the rank of commander of the metropolitan police ;", "( c ) where the specified area or place is the whole or part of GPE , by a police officer for GPE who is of at least the rank of commander in GPE police force ;", "( d ) where the specified area or place is the whole or part of GPE , by a [ member of ORG ] who is of at least the rank of assistant chief constable .", "( CARDINAL ) If an authorisation is given orally , the person giving it shall confirm it in writing as soon as is reasonably practicable . ”", "By section CARDINAL(CARDINAL)-(CARDINAL ) , an authorisation takes effect when given and expires when it is expressed to expire , but may not be for longer than DATE . The existence and contents of section CARDINAL authorisations are not within the public domain .", "The second stage is confirmation , governed by section CARDINAL ) . The giver of an authorisation must inform the Secretary of ORG as soon as is reasonably practicable . If the Secretary of ORG does not confirm the authorisation within TIME of the time when it was given , it then ceases to have effect ( without invalidating anything done during the CARDINAL-hour period ) . When confirming an authorisation the Secretary of ORG may substitute an earlier , but not a later , time of expiry . He may cancel an authorisation with effect from a specified time . Where an authorisation is duly renewed , the same confirmation procedure applies . The Secretary of ORG may not alter the geographical coverage of an authorisation but may withhold his confirmation if he considers the area covered to be too wide .", "The third stage , under section DATE , involves the exercise of the stop and search power by a police constable :", "“ ( CARDINAL ) The power conferred by an authorisation under section CARDINAL ) or ( CARDINAL ) -", "( a ) may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism , and", "( b ) may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind .", "( CARDINAL ) A constable may seize and retain an article which he discovers in the course of a search by virtue of section CARDINAL ) or ( CARDINAL ) and which he reasonably suspects is intended to be used in connection with terrorism .", "( CARDINAL ) A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear , footwear , an outer coat , a jacket or gloves .", "( CARDINAL ) Where a constable proposes to search a person or vehicle by virtue of section CARDINAL ) or ( CARDINAL ) he may detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped .", "( CARDINAL ) Where -", "( a ) a vehicle or pedestrian is stopped by virtue of section CARDINAL(CARDINAL ) or ( CARDINAL ) , and", "( b ) the driver of the vehicle or the pedestrian applies for a written statement that the vehicle was stopped , or that he was stopped , by virtue of section CARDINAL(CARDINAL ) or ( CARDINAL ) ,", "the written statement shall be provided .", "( CARDINAL ) An application under subsection ( CARDINAL ) must be made within DATE beginning with the date on which the vehicle or pedestrian was stopped . ”", "These powers are additional to the other powers conferred on a constable by law ( CARDINAL Act , section CARDINAL ) . Section CARDINAL makes it an offence punishable by imprisonment or fine or both to fail to stop when required to do so by a constable , or wilfully to obstruct a constable in the exercise of the power conferred by an authorisation under section CARDINAL(CARDINAL ) or ( CARDINAL ) .", "Sections CARDINAL - CARDINAL of the CARDINAL Act came into force on DATE . It was disclosed during the domestic proceedings in the present case that successive section CARDINAL authorisations , each covering the whole of FAC district and each for the maximum permissible period ( DATE ) , have been made and confirmed ever since that time .", "A Code of Practice was issued by the Secretary of ORG on DATE to guide police officers in the exercise of all statutory powers of stop and search . It was required to be readily available at all police stations for consultation by police officers and was a public document .", "The Code required , inter alia , that such powers be “ used fairly , responsibly , with respect to people being searched ” . It required that the power under LAW “ must not be used to stop and search for reasons unconnected with terrorism ” and that the power should be used “ to search only for articles which could be used for terrorist purposes ” . In paragraphs PERSON and CARDINAL , the Code provided :", "“ CARDINAL.CARDINAL The intrusion on the liberty of the person stopped or searched must be brief and detention for the purposes of a search must take place at or near the location of the stop .", "CARDINAL these fundamental principles are not observed the use of powers to stop and search may be drawn into question . Failure to use the powers in the proper manner reduces their effectiveness . Stop and search can play an important role in the detection and prevention of crime , and using the powers fairly makes them more effective . ”", "Paragraph CARDINAL.CARDINAL of the Code provided :", "“ There is no power to require a person to remove any clothing in public other than an outer coat , jacket or gloves except under section CARDINAL(CARDINAL ) of LAW ( which empowers a constable conducting a search under section CARDINAL ) or CARDINAL ) of that LAW to require a person to remove headgear and footwear in public ) ... A search in public of a person 's clothing which has not been removed must be restricted to superficial examination of outer garments . This does not , however , prevent an officer from placing his or her hand inside the pockets of the outer clothing , or feeling round the inside of collars , socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search . For the same reasons , subject to the restrictions on the removal of headgear , a person 's hair may also be searched in public ... ”", "Certain steps were required by paragraph CARDINAL to be taken before the search :", "“ CARDINAL Before any search of a detained person or attended vehicle takes place the officer must take reasonable steps to give the person to be searched or in charge of the vehicle the following information :", "( a ) that they are being detained for the purposes of a search ;", "( b ) the officer 's name ( except in the case of enquiries linked to the investigation of terrorism , or otherwise where the officer reasonably believes that giving his or her name might put him or her in danger , in which case a warrant or other identification number shall be given ) and the name of the police station to which the officer is attached ;", "( c ) the legal search power which is being exercised ; and", "( d ) a clear explanation of ;", "( i ) the purpose of the search in terms of the article or articles for which there is a power to search ; ...", "( iii ) in the case of powers which do not require reasonable suspicion ... , the nature of the power and of any necessary authorisation and the fact that it has been given . ”", "Officers conducting a search were required by paragraph CARDINAL to be in uniform . The PERSON continued , in paragraphs CARDINAL - CARDINAL.CARDINAL :", "“ CARDINAL Before the search takes place the officer must inform the person ( or the owner or person in charge of the vehicle that is to be searched ) of his or her entitlement to a copy of the record of the search , including his entitlement to a record of the search if an application is made within DATE , if it is wholly impracticable to make a record at the time . If a record is not made at the time the person should also be told how a copy can be obtained .... The person should also be given information about police powers to stop and search and the individual 's rights in these circumstances .", "CARDINAL If the person to be searched , or in charge of a vehicle to be searched , does not appear to understand what is being said , or there is any doubt about the person 's ability to understand LANGUAGE , the officer must take reasonable steps to bring information regarding the person 's rights and any relevant provisions of this Code to his or her attention . If the person is deaf or can not understand LANGUAGE and is accompanied by someone , then the officer must try to establish whether that person can interpret or otherwise help the officer to give the required information . ”", "A record was required to be made at the time or as soon as practicable ( paragraph CARDINAL ) :", "“ CARDINAL.CARDINAL An officer who has carried out a search in the exercise of any power to which this Code applies , must make a record of it at the time , unless there are exceptional circumstances which would make this wholly impracticable ( e.g. in situations involving public disorder or when the officer 's presence is urgently required elsewhere ) . If a record is not made at the time , the officer must do so as soon as practicable afterwards . There may be situations in which it is not practicable to obtain the information necessary to complete a record , but the officer should make every reasonable effort to do so . ”", "Section CARDINAL of the CARDINAL Act requires the Secretary of ORG to lay a report on the working of the LAW before ORG at least once DATE and PERSON of Berriew ORG has been appointed as ORG to prepare the DATE report , inter alia .", "In paragraph CARDINAL of his report on the operation of the Act in DATE PERSON briefly summarised the effect of section CARDINAL - CARDINAL and then said :", "“ No difficulties have been drawn to my attention in relation to the exercise of these powers . They were used extensively in DATE . I have examined the full list of such authorisations , which have been deployed in almost every police authority area in GPE . It would not be in the public interest to provide details of the reasons and events . I am satisfied that their use works well and is used to protect the public interest , institutions , and in the cause of public safety and the security of the state . I have been able to scrutinise the documentation used for LAW authorisations . It is designed to limit inconvenience to the general public , and to ensure that no authorisation is given without detailed and documented reasons . ”", "In Lord PERSON 's “ Report on the Operation in DATE and DATE of LAW CARDINAL ” , he commented on the section CARDINAL power as follows :", "“ CARDINAL . Part CARDINAL of the Act contains counter - terrorism powers available to the police to deal with operational situations . During DATE these powers have become more controversial , particularly because of increased levels of protest arising from the war against GPE . In particular , section CARDINAL has been the cause of considerable anxiety and debate .", "...", "DATE I asserted that no particular problems had been drawn to my attention from the operation of these provisions during DATE . The opposite has been the case in relation to DATE . I have received many complaints , some from organisations and others from individuals . I can not comment here on individual cases ...", "...", "In GPE there have been rolling DATE authorisations for the whole of the area policed by the GPE police and GPE . I have seen detailed figures for the use of the powers in every part of that area . In some parts of GPE the section CARDINAL/CARDINAL powers have been used very little . In others , with obvious targets such as an airport or ORG , there has been more extensive use , as one would expect . There is no part of GPE where the powers have not been used at all between DATE and DATE , the period for which I have statistics . There are huge differences between the boroughs in this context : I take this to be evidence of specific operational decisions by the police . The nature of GPE means that a terrorist may well live in CARDINAL borough , have associates in others , and have targets in yet others . Having said that , at present there is no other city with continuous section CARDINAL authorisations .", "...", "Lord Justice PERSON 's judgment [ in the present case : see paragraph CARDINAL above ] exactly reflects my own concerns on this front . Whilst the section CARDINAL authorisations for the Metropolitan Police area , and for parts of GPE and neighbouring areas , at the material times were justifiable and proof from judicial review , their use gave some rise for anxiety . That anxiety arises from the contents of DATE , and the difficulty faced in real - time situations by constables confronted by complex legislative decisions .", "Pursuant to section DATE , a section CARDINAL/CARDINAL search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion , but may only be ' for articles of a kind which could be used in connection with terrorism ' . This calls at least theoretically for officers to pause for thought between ( a ) stop , ( b ) commencement of search , and ( c ) during search . If the search commences as defined in section CARDINAL(CARDINAL)(a ) , but the officer realises at any given moment that in reality he is searching for non - terrorism articles , he should change gear into a non-[Terrorism Act CARDINAL ] search procedure . This is asking a lot of an officer who may have been briefed in short form at a testing scene .", "...", "In my view section DATE and section CARDINAL remain necessary and proportional to the continuing and serious risk of terrorism . GPE is a special case , having vulnerable assets and relevant residential pockets in almost every borough . The use of LAW authorisations elsewhere in the country has been relatively sparing . However , I would urge ORG and [ the ORG ] ... to produce new , short , clear and preferably nationally accepted guidelines for issue to all officers in DATE authorised areas . All briefings should remind officers that , even where there is a section CARDINAL authorisation , other stop and search powers may be judged more appropriate with some individuals stopped . Whilst agreeing with the Chief Constable of GPE that the powers are drawn widely , and with ORG that they have great potential utility to protect the public , in using the powers appropriate attention should be given to the important right to protest within the law . ”", "NORP In his report on the operation of QUANTITY in DATE ( DATE ) , PERSON commented :", "“ CARDINAL . In DATE and DATE I received many complaints , some from organisations and others from individuals , about the operation of sections CARDINAL and CARDINAL . These and some litigation have been taken seriously by the police . As a result , I have been consulted upon and have been able to contribute to work towards providing a clearer understanding throughout police forces of the utility and limitations of sections DATE .", "The crucial thing is that police officers on the ground , exercising relatively unfamiliar powers sometimes in circumstances of some stress , should have a greater degree of knowledge of the scope and limitations of those powers . Terrorism related powers should be used for terrorism related purposes ; otherwise their credibility is severely damaged . An incident on DATE at a hospital in GPE yet again highlighted this . In a diverse community the erroneous use of powers against people who are not terrorists is bound to damage community relations .", "...", "... [ LAW ] authorisations have been used extensively in DATE , unsurprisingly in the immediate aftermath of the events of the CARDINALth and DATE .", "Although available in GPE , to date section CARDINAL powers have never been authorised by a NORP police force . I had anticipated that they might have been deployed for the DATE meeting of the GCARDINAL Summit in GPE . They were not . GPE apart , I doubt that there is evidence that GPE is less at risk from terrorism than other parts of the country . This perpetuates the question of why section CARDINAL is needed in GPE and GPE if it is not required in GPE . There is no other provision specific to PERSON to explain the difference of approach . At the very least this demonstrates that other powers are on the whole perfectly adequate for most purposes .", "My view continues as expressed DATE - that I find it hard to understand why section CARDINAL authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles . This view has not been affected by the events of DATE .", "I remain sure that section CARDINAL could be used less and expect it to be used less . There is little or no evidence that the use of section CARDINAL has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search .", "ORG scrutinises applications critically . It is a sound approach for them to refuse unless the circumstances are absolutely clear .", "In my view section DATE and section CARDINAL remain necessary and proportional to the continuing and serious risk of terrorism . GPE is a special case , having vulnerable assets and relevant residential pockets in almost every borough , and fairly extensive use is understandable . However , I emphasise that they should be used sparingly . Evidence of misuse , especially in an arbitrary way , will not find favour with the courts and could fuel demands for repeal . It involves a substantial encroachment into the reasonable expectation of the public at large that they will only face police intervention in their lives ( even when protesters ) if there is reasonable suspicion that they will commit a crime . ”", "In his report on the operation of LAW in DATE ( DATE ) , Lord PERSON observed :", "“ CARDINAL . My view continues as expressed in DATE that I find it hard to understand why section CARDINAL authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles .", "I remain sure that section DATE could be used less and expect it to be used less . There is little or no evidence that the use of section CARDINAL has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search . Its utility has been questioned publicly by senior ORG staff with wide experience of terrorism policing .", "ORG continues to scrutinise applications critically . I think that they could and should refuse more often . There are instances in which public order stop and search powers are as effective DATE and they are always more palatable to those stopped and searched .", "In my view section DATE and section CARDINAL remain necessary and proportional to the continuing and serious risk of terrorism . However , I emphasise again that they should be used sparingly . They encroach into the reasonable expectation of the public at large that they will only face police intervention in their lives ( even when protesters ) if there is reasonable suspicion that they will commit a crime . ”", "In his report into the operation of LAW in DATE ( DATE ) , Lord PERSON noted that the criticism of the section CARDINAL power had increased further during DATE and continued :", "“ CARDINAL . I am sure beyond any doubt that section CARDINAL could be used less and expect it to be used less . There is little or no evidence that the use of section CARDINAL has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search . Whilst arrests for other crime have followed searches under the section , none of CARDINAL of searches has ever related to a terrorism offence . ... ”", "Nonetheless , he concluded that the powers remained necessary and proportionate to the continuing terrorist threat .", "Finally , in his report on the operation of LAW in DATE ( DATE ) , Lord PERSON commented :", "“ CARDINAL . Examples of poor or unnecessary use of section CARDINAL abound . I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that , realistically , there is not the slightest possibility of him / her being a terrorist , and no other feature to justify the stop . In CARDINAL situation the basis of the stops being carried out was numerical only , which is almost certainly unlawful and in no way an intelligent use of the procedure . Chief officers must bear in mind that a section CARDINAL stop , without suspicion , is an invasion of the stopped person 's freedom of movement . I believe that it is totally wrong for any person to be stopped in order to produce a racial balance in the section CARDINAL statistics . There is ample anecdotal evidence that this is happening . I can well understand the concerns of the police that they should be free from allegations of prejudice ; but it is not a good use of precious resources if they waste them on self - evidently unmerited searches . It is also an invasion of the civil liberties of the person who has been stopped , simply to ' balance ' the statistics . The criteria for section CARDINAL stops should be objectively based , irrespective of racial considerations : if an objective basis happens to produce an ethnic imbalance , that may have to be regarded as a proportional consequence of operational policing .", "Useful practice guidance on stop and search in relation to terrorism was produced during DATE by ORG on behalf of ORG [ ORG ] . This guidance emphasises crucial requirement , which include DATE", "● These powers are exceptional", "● The geographical extent of LAW authorisations must be clearly defined", "● The legal test is expediency for the purposes of preventing acts of terrorism", "● Community impact assessments are a vital part of the authorisation process", "● The Home Secretary should be provided with a detailed justification for a section CARDINAL authorisation", "● Chief officers must expect ORG to apply detailed and rigorous scrutiny in considering whether to confirm authorisations", "● Leaflets should be made available to the public in an area where the power is being deployed", "● Officers must keep careful records", "...", "My view remains as expressed in DATE , but reinforced : that I find it hard to understand why section CARDINAL authorisations are perceived to be needed in some force areas , and in relation to some sites , but not others with strikingly similar risk profiles . Where other stop and search powers are adequate to meet need , there is no need to apply for or to approve the use of the section . Its primary purpose is to deal with operationally difficult places at times of stress , when there is a heightened likelihood of terrorists gaining access to a significant location . For example , I have no criticism of its careful use at the time of a major demonstration at FAC : terrorists might well use the opportunity of participation in such a demonstration to enter , photograph or otherwise reconnoitre , and otherwise add to their knowledge of a potential target such as FAC . Nor do I criticise its use at or near critical infrastructure or places of especial national significance .", "I now feel a sense of frustration that ORG still does not limit their LAW authorisations to some boroughs only , or parts of boroughs , rather than to the entire force area . I can not see a justification for the whole of the LOC area being covered permanently , and the intention of the section was not to place GPE under permanent special search powers . However , a pilot project is about to start in which the section is deployed in a different way . I shall examine that project closely . The alarming numbers of usages of the power ( CARDINAL stops per month as we entered DATE ) represent bad news , and I hope for better in a DATE 's time . The figures , and a little analysis of them , show that section DATE is being used as an instrument to aid non - terrorism policing on some occasions , and this is unacceptable .", "I am sure that safely it could be used far less . There is little or no evidence that the use of section CARDINAL has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search . Whilst arrests for other crime have followed searches under the section , none of CARDINAL of searches has ever resulted in conviction of a terrorism offence . Its utility has been questioned publicly and privately by senior ORG staff with wide experience of terrorism policing .", "It should not be taken that the lesser usage of section CARDINAL in places other than GPE means that such places are less safe , or more prone to terrorism . There are different ways of achieving the same end . The effect on community relations of the extensive use of the section is undoubtedly negative . Search on reasonable and stated suspicion , though not in itself a high test , is more understandable and reassuring to the public .", "I emphasise that I am not in favour of repealing section CARDINAL . Subject to the views expressed above , in my judgment section CARDINAL and section CARDINAL remain necessary and proportional to the continuing and serious risk of terrorism . ”", "Under section CARDINAL of LAW DATE , the Secretary of ORG is under an obligation to publish information relating to the criminal justice system with reference to avoiding discrimination on the ground of race . In a report published pursuant to this obligation in DATE , “ Statistics on Race and the Criminal Justice System – CARDINAL ” , ORG recorded that :", "“ A total of CARDINAL searches were made under section CARDINAL ) and CARDINAL ) of LAW in DATE compared with CARDINAL in DATE , an overall increase of PERCENT ( Table CARDINAL.CARDINAL ) . Searches of NORP people increased from CARDINAL to CARDINAL ( up PERCENT ) , searches of NORP people increased from CARDINAL to CARDINAL ( up PERCENT ) . Searches of people in the Other ethnic group also increased , from CARDINAL in DATE to CARDINAL in DATE ( up PERCENT ) , as did searches of White people , increasing from CARDINAL in DATE to CARDINAL in DATE ( up PERCENT ) . CARDINAL of searches took place in the ORG area and PERCENT in GPE , compared to PERCENT and PERCENT respectively in DATE . The large increases in comparison to the CARDINAL/CARDINAL figures may be explained , in part , by the GPE bombings of DATE . As with stop and searches under s.CARDINAL PACE , resultant increased street activities of the police led to an increase in the use of stop and search powers under LAW .", "In DATE , CARDINAL searches of vehicle occupants were made under section CARDINAL ( CARDINAL ) ( Table CARDINAL ) . MONEY of those searched in DATE were White , PERCENT NORP and PERCENT Black . There was a slight increase in the proportion of White people searched and a slight fall in the proportion of NORP people searched under this provision compared to DATE . CARDINAL arrests of vehicle occupants in connection with terrorism resulted from section CARDINAL ( CARDINAL ) searches , compared to CARDINAL in DATE . Arrests under non - terrorism legislation following the use of this provision remained constant DATE at CARDINAL . Most arrests following a section CARDINAL ( CARDINAL ) search were in GPE . This most likely reflects the increased use of the powers in GPE .", "The number of stop and searches of pedestrians under section CARDINAL(CARDINAL ) nearly doubled DATE with CARDINAL stop and searches recorded in DATE . This increase was accounted for by the increase in use of the power in GPE . Use of the power in areas outside of GPE decreased by PERCENT DATE . In DATE , PERCENT of people stopped under section CARDINAL(CARDINAL ) were White compared to PERCENT in DATE and PERCENT in DATE . The proportions for NORP and NORP people fell to PERCENT and PERCENT respectively in DATE . In DATE , CARDINAL arrests in connection with terrorism resulted from section CARDINAL ( CARDINAL ) searches compared to CARDINAL in DATE and CARDINAL in DATE . Arrests under non - terrorist legislation rose from CARDINAL in DATE to CARDINAL in DATE . ”", "In the report published DATE , in DATE , “ Statistics on Race and the Criminal Justice System – CARDINAL/CARDINAL ” , ORG recorded that :", "“ A total of CARDINAL searches were made under section CARDINAL ) and CARDINAL ) of LAW in DATE compared with CARDINAL in DATE and represents a decrease of PERCENT ( Table CARDINAL.CARDINAL ) . Over a third of police force areas did not record any use of this power in DATE . Searches decreased for all ethnic groups but the biggest fall was for NORP people ( PERCENT ) , followed by those in the White group ( PERCENT ) , those in the Other category ( PERCENT ) , and lastly NORP people ( PERCENT ) . CARDINAL areas did increase the number searched under LAW and this included the [ ORG ] who registered an PERCENT rise . This contrasts with GPE where there was a PERCENT fall . The proportion of NORP people searched under LAW in the GPE police area ( PERCENT ) exceeded the proportion of NORP persons ( PERCENT ) .", "In DATE searches of vehicle occupants were made under LAW ) ( Table CARDINAL.CARDINAL ) . CARDINAL per cent of those searched during this period were White , a fall of CARDINAL percentage points on DATE , PERCENT Black ( up CARDINAL percentage points ) , and PERCENT NORP ( up CARDINAL percentage points ) . CARDINAL arrests of vehicle occupants in connection with terrorism resulted from LAW ( CARDINAL ) searches , compared to CARDINAL DATE . CARDINAL of these involved NORP persons and CARDINAL NORP . NORP under non - terrorism legislation following the use of this provision have remained constant DATE at CARDINAL .", "The number of stop and searches of pedestrians under LAW ) has reduced by PERCENT DATE from CARDINAL . A large part of DATE can be accounted for by the decrease in GPE from CARDINAL to CARDINAL over DATE . The proportion of White pedestrians searched under LAW ) has increased since DATE from PERCENT of the total to PERCENT . NORP people remain the highest ORG group both searched ( PERCENT ) and subsequently arrested in connection with terrorism ( PERCENT ) . ”", "The most recent report , “ Statistics on Race and the Criminal Justice System DATE ” , published in DATE , recorded a significant increase in the use of the section CARDINAL powers :", "“ A total of CARDINAL searches of people were made under section CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW in DATE compared with CARDINAL in DATE and represents an increase of PERCENT ( Table CARDINAL.CARDINAL ) . Just under a fifth ( PERCENT ) of police force areas did not record any use of this power in DATE . Searches increased for all ethnic groups but the biggest rise was for Black people ( PERCENT ) , followed by those in the NORP group ( PERCENT ) , those in the Other category ( PERCENT ) , and lastly White people ( PERCENT ) .", "The large rise in the number of stop and searches made under LAW largely reflects increases in the use of this power by the GPE police . In DATE the GPE police were responsible for PERCENT of searches made under LAW ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW , compared to PERCENT of those made in DATE . The Metropolitan police used this power on CARDINAL more occasions than in DATE , which represents an increase of PERCENT . This rise is directly attributable to the robust response by the GPE police to the threat of terror related networks in GPE since the Haymarket bomb in DATE .", "Tables CARDINAL and CARDINAL show selected police force areas , where the total number stopped and searched under s. CARDINAL ( CARDINAL ) & ( CARDINAL ) of LAW CARDINAL exceeded CARDINAL people in DATE .", "In DATE , CARDINAL searches of vehicle occupants were made under LAW ( CARDINAL ) ( Table CARDINAL.CARDINAL ) . CARDINAL per cent of those searched during this period were White , a fall of CARDINAL percentage points on DATE , PERCENT were Black ( up CARDINAL percentage points ) , and PERCENT were NORP ( up CARDINAL percentage points ) . CARDINAL arrests of vehicle occupants in connection with terrorism resulted from LAW ( CARDINAL ) searches , compared to CARDINAL DATE . CARDINAL of these involved NORP persons and CARDINAL NORP . NORP under non - terrorism legislation following the use of stop and search under LAW ( CARDINAL ) increased to CARDINAL from CARDINAL in DATE .", "The number of stop and searches of pedestrians under LAW ( CARDINAL ) has increased by PERCENT DATE from CARDINAL ( Table CARDINAL ) . As previously mentioned , this large increase can be attributable to the LOC police 's robust response to the LOC bombs . The proportion of White pedestrians searched under LAW ( CARDINAL ) has decreased since DATE from PERCENT of the total to PERCENT . NORP people remain the highest ORG group both searched ( PERCENT ) and subsequently arrested in connection with terrorism ( PERCENT ) . ”", "In its ORG , “ Demonstrating respect for rights ? A human rights approach to policing protest ” , published in DATE , ORG on Human Rights recommended , in connection with CARDINAL of the CARDINAL Act :", "“ Counter - terrorism powers", "A significant number of witnesses expressed serious concerns at the use of counter - terrorism powers on protestors , particularly the power under LAW to stop and search without suspicion . Witnesses suggested that the use of the powers contravened the ORG which note :", "Domestic legislation designed to counter terrorism or ' extremism ' should narrowly define these terms so as not to include forms of civil disobedience and protest ; the pursuit of certain political , religious , or ideological ends ; or attempts to exert influence on other sections of society , the government , or international opinion .", "ORG complained that the police had relied on LAW to prevent journalists from leaving demonstrations . Some witnesses noted that restrictions on peaceful protests were increasingly justified by reference to the security threat . The following comment by PERSON reflects the views of a number of witnesses :", "... there can be no justification to call upon anti - terrorism legislation to police protests / protestors and such use debases the very real threat terrorists are capable of posing to us all .", "High profile examples of the inappropriate use of counter - terrorism powers include : preventing PERSON from re - entering the ORG conference in GPE in DATE , following his physical ejection for heckling the then ORG Secretary PERSON MP ; and stopping and searching a protestor and a journalist at an arms fair at FAC in GPE , GPE in DATE . Less well - known examples include the use of stop and search on demonstrators at military bases or people wearing slogans on t - shirts .", "ORG and the author and commentator PERSON both distinguished protestors ( including animal rights extremists ) from terrorists . Mr PERSON said ' terrorism is a word we ought to reserve for some kind of insurgency , or guerrilla of asymmetrical warfare ' . In contrast , ORG argued in relation to protest against its activities by animal rights activists , however , that ' insufficient consideration was given to counter - terrorism powers in what was widely considered in practice ( but not in name ) to be domestic terrorism ' .", "When we asked police representatives whether it was appropriate to use counter - terrorism powers against protestors , PERSON replied that ' there are occasions when we do need to use our counter - terrorism powers : I would say that that is why we have them ' .", "Addressing the same question , the Minister was clear that counter - terrorism powers should only be used in relation to terrorism . He noted that the Prime Minister had ordered a review into the use of stop and search powers and as a result new guidance had been published . He pointed out , however , that :", "If you have a big protest near a big power station or airport , [ ... ] it is very difficult to say that under no circumstances should the police in those situations ever consider using a counterterrorism power when we all know it is perfectly possible for the legitimate protestors to be infiltrated by CARDINAL or CARDINAL who may have other desires ...", "The new guidance on stop and search noted that the powers to stop and search under sections CARDINAL and CARDINAL of LAW CARDINAL only allow an officer to ' search for articles of evidence that relate to terrorism ' and that ' [ the section CARDINAL ] power should be used sparingly ' . In the light of the decision of ORG in PERSON , which concerned the use of the stop and search power on protestors and journalists outside an arms fair in the FAC in GPE , the guidance states that stop and search should never be used to conduct arbitrary searches but should be based on objective criteria . The guidance refers to protests , noting that section CARDINAL may be appropriate for large public events that may be at risk from terrorism , but states ' officers should also be reminded at briefings that stop and search powers under LAW CARDINAL must never be used as a public order tactic . ' The only reference to human rights is contained in the section of the guidance on the contents of the community impact assessment : it suggests that ' the requirements of LAW DATE ' should be included in the community impact assessment . Although not specifically referring to journalists , the guidance states that LAW , even where a section CARDINAL designation is in place , does not prevent people from taking photographs . In addition , although film and memory cards may be seized as part of a search , officers do not have a legal power to delete images or destroy film .", "Whilst we accept that there may be circumstances where the police reasonably believe , on the basis of intelligence , that a demonstration could be used to mask a terrorist attack or be a target of terrorism , we have heard of no examples of this issue arising in practice . We are concerned by the reports we have received of police using counter - terrorism powers on peaceful protestors . It is not clear to us whether this stems from a deliberate decision by the police to use a legal tool which they now have or if individual officers are exercising their discretion inappropriately . Whatever the reason , this is a matter of concern . We welcome the Minister 's comments that counter - terrorism legislation should not be used to deal with public order of protests . We also welcome the recommendation in the new guidance to human rights being included in community impact assessments . We recommend that the new guidance on the use of the section CARDINAL stop and search power be amended to make clear that counter - terrorism powers should not be used against peaceful protestors . In addition , the guidance should make specific reference to the duty of police to act compatibly with human rights , including , for example , by specifying the human rights engaged by protest . ”", "In DATE ORG published a report summarising the conclusions of their review into the use of the power under LAW . The report stated that the “ emerging findings ” from the review supported a CARDINAL - layered approach to the use of the power , namely that the power should continue to be available in the vicinity of sites across GPE of key symbolic or strategic importance , but that elsewhere , except where authorised by a specific directive , officers should only stop and search individuals using the power under LAW of LAW , where they had grounds to suspect that the person might be engaged in a terrorism - related offence ." ]

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[ "The applicant , Mr PERSON , was born in DATE and lives in GPE .", "After the dissolution of GPE , the land and property of the former collective farms ( kolkhozes ) were divided among the villagers who had been members of the collective farms . In some localities new collective farms were formed , to which the villagers contributed their land and other goods inherited from the former collective farms . The collective farms were headed by leaders . In some cases the villagers worked in the collective farms , whereas in other cases they merely received a part of the revenue of the farm at DATE . At the time of the events in question , the applicant was a member of such a collective farm and had a tense relationship with its leader , GPE , whom he suspected of abusing his position . It does not appear that the applicant and PERSON had an employer - employee relationship .", "In DATE during a local election campaign , the applicant , who was a member of the electoral staff of CARDINAL of the candidates , wrote a letter to the President of GPE , the Speaker of ORG and the local ORG which was critical of ORG , who was also a candidate for the position of mayor of their village . In the letter , the applicant accused ORG of numerous abuses . The applicant requested that the ORG authorities intervene in order to solve the problems of : ( i ) access to a lake and pasture on the part of local villagers ; and ( ii ) PERSON 's abusive behaviour .", "NORP In DATE TIME initiated civil defamation proceedings against the applicant and claimed compensation of CARDINAL lei ( ORG ) . He argued , in particular , that the following passages from the applicant 's letter had been defamatory of him :", "“ [ CARDINAL ] ORG who , as a matter of coincidence , was the leader of the collective farm is shameless ... [ CARDINAL ] He has no education and only attended primary school ... He obtained false diplomas and can not even read properly ... [ CARDINAL ] He illegally possesses shares in the collective farm ... [ CARDINAL ] The property [ of the collective farm ] which was gathered by the people over a very long period of time is now used by shameless people . [ CARDINAL ] He has guns and threatens people with them ... ”", "ORG also submitted that the applicant had been spreading such rumours in the village and that because of this he had lost the elections for the position of mayor .", "In his written defence before ORG , the applicant rejected PERSON 's accusations and stated that the information concerning ORG 's education and diplomas had been provided to him and to many other villagers by a person named GPE and that it had been common knowledge in the village . As to GPE 's reading skills , the applicant submitted that all the members of the collective farm could confirm that ORG had had difficulty reading a text during a meeting . As to ORG 's threatening people with guns , the applicant stated by way of example that during a village festival GPE had fired twice from a gun into the air in order to intimidate CARDINAL people . As to the allegation that ORG had abusively limited the villagers ' access to the lake , the applicant submitted that a court had deprived GPE of possession of the lake in the interim .", "On DATE the ORG found in favour of ORG and ordered the applicant to pay him MDL CARDINAL in compensation for non - pecuniary damage and MDL CARDINAL for costs and expenses . The judgment was upheld by ORG but quashed by ORG , which ordered a fresh examination of the case . In so doing , ORG instructed the inferior courts to determine : ( i ) when and on exactly which occasion the impugned expressions were made by the applicant ; and ( ii ) whether the impugned expressions had constituted value judgments .", "On DATE the ORG again found in favour of ORG and ordered the applicant to pay him MDL CARDINAL in compensation for non - pecuniary damage and MDL CARDINAL for costs and expenses .", "The court heard several witnesses , who declared that they had heard the applicant spreading the impugned rumours among the villagers . The applicant objected and argued that all the witnesses put forward by ORG had been his relatives . The applicant also submitted that the impugned statements had only been made in the letter addressed to ORG , the President and the Speaker of ORG .", "On the basis of the evidence before it , the court found the impugned passage from the letter of DATE to be defamatory . It did not find the applicant guilty of spreading the impugned statements by any other means . The court found the first statement to be false and defamatory because ORG had been legally elected as the leader of the collective farm . The court also held the second statement to be defamatory because ORG had been able to present a diploma from a university in GPE . In so far as the third statement was concerned , in declaring it defamatory the court relied on a letter of ORG in reply to the applicant 's letter of DATE , in which ORG stated that ORG 's title to the shares was legitimate . As to the fourth statement , the court found that since ORG had been the leader of the collective farm , he had had the right to administer its property and , therefore , the statement “ used by shameless people ” was defamatory of ORG Finally , the court also found the last statement to be defamatory on the basis of a document issued by the police , according to which ORG did not possess any registered guns . The court did not refer in its reasoning to the submissions of a witness put forward by the applicant , who claimed to have been threatened with a gun by GPE In calculating the compensation for the non - pecuniary damage suffered by GPE , the court held that the fact that the impugned letter had been written during the election campaign and that the applicant had been a member of the electoral staff of the candidate running against GPE in the elections were aggravating factors on the part of the applicant .", "NORP The applicant appealed and submitted , inter alia , a document issued by ORG of his village , according to which ORG 's use of a barn belonging to the collective farm had not had a legal basis . The applicant also attached to his appeal a letter from ORG indicating that a criminal investigation was pending against ORG in respect of his possession of a false diploma . It appears that in DATE the mayor 's office of the applicant 's village had made an inquiry of the university in GPE which ORG had stated that he had graduated from . According to a letter signed by the president of the university dated DATE , no person named PERSON had graduated from that university in DATE indicated on ORG 's diploma . It is not clear from the parties ' submissions whether this document was part of the case file in the defamation proceedings . It would appear that it was part of the case file in the criminal proceedings pending against GPE", "On DATE ORG dismissed the applicant 's appeal . The court held , inter alia , that the pending criminal proceedings against GPE for possession of a false diploma were not a sufficient ground for quashing the judgment of the first - instance court . Only a final judgment finding ORG guilty which had been adopted before the impugned letter had been written would have justified such an accusation being made against him .", "The applicant lodged an appeal on points of law and reiterated , inter alia , that his letter of DATE had not been made public but rather had only been sent to a limited number of people .", "On DATE ORG upheld the judgment of ORG but reduced the amount awarded in respect of compensation for non - pecuniary damage from MDL CARDINAL to MDL CARDINAL .", "The relevant part of LAW reads as follows :", "“ ( CARDINAL ) Every person has the right to the respect for his or her honour , dignity and professional reputation .", "( CARDINAL ) Every person has the right to request the renunciation of information which affects his or her honour , dignity and professional reputation if the person circulating such information can not prove that it corresponds to reality .", "...", "( CARDINAL ) Where information which affects a person 's honour , dignity and professional reputation is circulated in a mass medium , the court shall order [ that medium ] to publish a disclaimer in the same column , page , programme or series of programmes , within a maximum of DATE of the date of entry into force of the court judgment .", "...", "( CARDINAL ) A person whose rights and lawful interests have been violated by a publication in a mass medium has the right to publish a reply in the medium in question , at the latter 's expense .", "( CARDINAL) Every person about whom information has been published [ thereby ] violating his or her honour , dignity and professional reputation has the right to request compensation for pecuniary and non - pecuniary damage in addition to the publication of a renunciation . ”" ]

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[ "The applicants were born in DATE , DATE and DATE respectively . The first and second applicants live in GPE and the third applicant lives in GPE .", "The applicants were employed by ORG of ORG in GPE and were involved in the organisation of public activities and events during religious and national days . Upon the instructions of the mayor and the deputy mayor , the applicants organised on DATE a special night called the “ Jerusalem Night ” during DATE . The event was announced DATE in advance and representatives of the security forces and several important personalities living in the district were invited . The hall was decorated with posters of martyrs who had given their lives for the liberation of GPE . The applicants also organised a TIME play for TIME . The second applicant cleaned the hall , set up and maintained the sound system and welcomed the guests . The play , which was written by the first and third applicants , took the form of a conversation between a father and his son about life in GPE and the struggle of the NORP people . The first applicant played the role of the father in the play . The mayor of NORP and the Ambassador to GPE made speeches before the play began .", "The second and third applicants were taken into police custody on DATE and the first applicant on DATE . They were accused of disseminating propaganda in support of an armed , illegal organisation , namely the ORG . During their police interrogations , the applicants denied the charges against them .", "On DATE the applicants were brought before the public prosecutor . During their questioning , they repeated the statements they had made at the police station .", "On DATE the applicants were brought before the investigating judge attached to ORG , where they made similar statements . Subsequently , the investigating judge ordered that the applicants be remanded in custody .", "In an indictment dated DATE , the public prosecutor attached to ORG initiated criminal proceedings against the applicants . It was alleged that they had disseminated propaganda in support of an armed , illegal organisation . The prosecution therefore called for the applicants to be sentenced pursuant to LAW .", "On DATE ORG , which was composed of CARDINAL judges including a military judge , found that the applicants had aided and abetted a terrorist organisation by engaging in propaganda in support thereof . It found the applicants guilty as charged , sentenced them to DATE and QUANTITY months’ imprisonment and debarred them from public service for DATE .", "On DATE ORG upheld the decision of ORG .", "A full description of the domestic law may be found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ." ]

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[ "The applicant was born in DATE and lives at FAC ( in the province of GPE ) .", "She teaches history and geography at secondary - school level . From DATE to DATE she was the head teacher of a secondary school in ORG where she taught .", "ORG gave notice through an advertisement in ORG of DATE of an internal competition to fill CARDINAL senior teaching posts at secondary - school level . On DATE ORG and ORG ( “ the GPE ” ) published a provisional list of the candidates whose applications to take part in the competition had been accepted . The final list comprised CARDINAL candidates , including the applicant , and was published on DATE .", "On DATE the ORG published the candidates’ assessments and the number of marks awarded to each under the chosen selection criteria , in order to allow any complaints to be lodged .", "By an order of DATE , it published a final list of the candidates , including the applicant , who had passed the examination .", "NORP In DATE CARDINAL candidates issued proceedings in ORG complaining about the manner in which the competition had been organised and , in particular , of the use of , and weighting given to , teacher - training diplomas in the assessment process , which they maintained was discriminatory . Notice of each individual application was published in ORG of the province of GPE . The national and regional press carried reports that a large number of legal actions had been brought complaining about the organisation and results of the competition and that senior officials in the NORP government or members of their families had passed the examination as a result of the significant weighting given to CARDINAL of the assessment criteria . The dispute was referred to the Ombudsman ( defensor del pueblo ) for GPE , who strongly criticised the weighting system and advised the NORP government to annul the competition . The teachers unions took a stand on the matter , which was also debated in the NORP parliament .", "By a decision of the ORG dated DATE the applicant was appointed to the grade of senior history and geography secondary - school teacher .", "In the judicial review proceedings that had been brought by a large number of candidates , ORG ordered the ORG to furnish a list of the candidates in the competition , to produce the administrative file and to serve notice on interested third parties to attend the hearing . ORG lodged written pleadings , but without identifying the interested third parties who ought to be summoned . At the end of the proceedings , in a judgment of DATE , ORG annulled the competition for history and geography teachers and directed the examiners to re - mark the examination papers without applying the disputed weighting .", "NORP In other judicial review proceedings that had been brought in FAC on the same grounds , interested third parties , who had not been personally served with summonses to appear , made an application under LAW for leave to intervene after learning about the proceedings from other sources . ORG agreed to their participation in the proceedings .", "On the reassessment of the candidates under the procedure laid down by ORG , the applicant did not attain the requisite level and failed the examination . ORG issued an order on DATE , which was published on DATE in ORG of ORG , annulling her appointment to the senior teaching post .", "The applicant lodged an amparo appeal with ORG under LAW ( right to a fair hearing ) against ORG judgment of DATE and the ORG ’s order of CARDINAL DATE . She said in her appeal that she had learnt of the notice in the DATE issue of ORG of ORG by accident and complained in substance that the process whereby her appointment to the senior teaching post had been annulled was unfair , as she had not been summoned to appear before ORG as an interested party to the dispute . In that connection , she argued , inter alia , that ORG had been under a duty under LAW to inform her of the court proceedings and to summon her to appear . She also sought a stay of execution of ORG judgment .", "In a decision of CARDINAL DATE ORG declared her amparo appeal admissible .", "On DATE ORG granted the applicant a stay of execution ; it discharged that order on DATE .", "State Counsel lodged written pleadings with ORG on DATE concerning the amparo appeal . He argued that the appeal should be allowed in part , as there had been a violation of LAW for the following reasons :", "“ ... In order to examine this appeal , it is necessary to recapitulate the criteria and conditions laid down in the case - law of ORG establishing that a failure to serve a summons personally will violate the right to the effective protection of the courts .", "In that connection , the notion of ‘ legitimate interest’ has a special meaning for the purposes of LAW ( of LAW ) , as it determines who has a legitimate right to take part in court proceedings , that is to say standing as an interested party to bring an appeal .", "ORG has frequently stated that the notion of ‘ legitimate interest ... is defined as an advantage or any legal benefit arising out of the remedy sought’ ( judgment no . CARDINAL/CARDINAL ) . In the present case , it will be seen that the appellant had a legitimate interest in the application before ORG , as she was liable to be affected by the judgment , which resulted in a new list of selected candidates being drawn up and , consequently , the loss of her newly obtained status as a senior secondary - school teacher . From that standpoint , therefore , it was vital for the summons to be served on her personally and directly in the proceedings .", "Secondly , ... since the appellant was identifiable , it is necessary to determine whether she could have been served personally . In that connection , it will be observed from the pleadings lodged with ORG in support of the application for judicial review that it was not only the ‘ ORG that was contested , but also the provisional list of candidates permitted to take part in the competition , which means that the persons concerned were readily identifiable .", "Consequently , it was not only necessary , but also feasible , for the appellant to be summoned personally and directly . The last requirement is that the person concerned should have no knowledge of the proceedings . In the present case , there is no evidence to suggest that the appellant knew or could have found out about the proceedings , as the judgment was not even served on her . Accordingly , the rule established in ORG judgment no . DATE should be applied , namely : ‘ this ORG will only dismiss the appeal if there is evidence establishing that the appellant was aware of the proceedings ... ’", "In the light of the foregoing , in the present case , the appellant should have been summoned to appear in the judicial review proceedings in ORG . The fact that she was not so summoned put her in a position that was prejudicial to her defence rights , in breach of the fundamental right guaranteed by LAW . ”", "NORP In a decision of CARDINAL DATE , ORG ordered the joinder of various amparo appeals against ORG judgment in which the appellants all relied on the same points of law .", "In a judgment delivered on DATE after an adversarial hearing , ORG dismissed the amparo appeal .", "With respect to the complaint that the annulment of the applicant ’s appointment to the senior teaching post was tainted with procedural unfairness , owing to the failure to summon her to appear before ORG as an interested party to the dispute , ORG held :", "“ ...", "NORP ... While it is true that the appellants allege , firstly , a violation of section CARDINAL of FAC on the ground that ORG effected service by advertisement and not personally , such a violation would only have a legal bearing on a constitutional amparo appeal if the breach of the LAW also constituted a violation of the fundamental right relied on ( see judgments LAW . CARDINAL/CARDINAL and CARDINAL , legal reason no . CARDINAL ) . ORG addressed the issue of failure to summon third parties with an interest in judicial review proceedings in detail in its judgment no . CARDINAL/CARDINAL . The rules established in that case have been systematically recited , inter alia , in decisions delivered during DATE , in judgments nos . CARDINAL/CARDINAL ( legal reason no . CARDINAL ) ; ORG ( legal reason no . CARDINAL ) ; PERSON ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; PERSON ( legal reason no . CARDINAL ) ; and CARDINAL ( legal reason no . CARDINAL ) . As a general rule , the following CARDINAL conditions must be satisfied for amparo relief to be granted :", "( a ) The appellant must have a personal legitimate right or interest capable of being affected by the judicial review proceedings concerned ...", "( b ) It must be possible for the court or tribunal concerned to identify the appellant . Whether that requirement is satisfied will depend essentially on the information set out in the notice of application , the administrative file or the grounds of appeal ...", "( c ) Lastly , the appellant must have been a victim of a material infringement of his or her defence rights [ indefensión material ] . There will be no material infringement of defence rights if the person concerned has constructive notice of the proceedings and has not appeared through want of diligence . A finding that the person concerned had constructive notice of the proceedings must be based on reliable evidence [ fehaciente ] ( judgments nos . CARDINAL/CARDINAL ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; CARDINAL/CARDINAL ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; and CARDINAL ( legal reason no . CARDINAL ) ) . That does not prevent proof being established on the basis of presumptions ( judgments nos . DATE ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; and CARDINAL ( legal reason no . CARDINAL ) . The presumption that the person concerned had notice will be particularly strong in cases concerning civil servants employed by an authority that is a defendant in the proceedings ( judgments LAW . CARDINAL ( legal reason no . CARDINAL ) ; and CARDINAL ( legal reason no . CARDINAL ) ) .", "The application of the aforementioned constitutional parameters to the present case gives the following results :", "( a ) Firstly , the appellants indisputably had a legitimate interest ...", "( b ) Secondly , ... in the present case , ORG had precise details of the co - defendants or other parties , as the application for judicial review referred to the provisional list of the selected and unselected candidates ... and even the final list of candidates ...", "( c ) However , thirdly , as to whether there has been a material infringement of the rights of the defence , this Court held in its judgment no . PERSON ( legal reason no . CARDINAL ) that it was reasonable to presume that teachers had constructive notice of judicial review proceedings when , as in the present case , they had been appointed to their senior teaching posts following a competition that had been challenged in the administrative courts , had attracted extensive media coverage and had had an important impact in trade - union circles ...", "We reach the same conclusion in the present case . A number of articles on the proceedings challenging the scale used in the competition ( and the list of candidates selected to take part ) have appeared in large circulation newspapers in GPE ( the case has received extensive coverage in PERSON ( GPE ) , ORG ( PERSON edition ) , PERSON , GPE , PERSON and PERSON ) ) . The underlying issues were also examined by the NORP parliament at a briefing session ( held on DATE ) . In DATE ORG and ORG sent a memorandum to the teachers via the ‘ ORG Office’ expressly informing them of the proceedings pending in ORG . To these considerations must be added the subjective characteristics common to all the applicants : they are all civil servants employed by the defendant authority ; as teachers , they are in a category of the population that has frequent access to the media , particularly the press . Lastly , the number of people affected by the appeals is very high ( CARDINAL teachers entered the competition and CARDINAL were selected in a very specific functional environment ( teaching ) ) . In the light of the foregoing , we reach the clear conclusion that the appellants had constructive notice of the judicial review proceedings that were heard by ORG in GPE . Consequently , their failure to take part in those proceedings was not attributable to any lack of diligence by that ORG . Accordingly , there has been no violation of the right to the protection of the courts ( LAW ) . ”", "“ CARDINAL . Everyone shall have the right to the effective protection of the judges and courts in the exercise of his rights and legitimate interests and shall never be left defenceless .", "Likewise , everyone shall have the right of access to a judge of ordinary jurisdiction , as predetermined by law , to defend himself and to be assisted by a lawyer , to be informed of the charges against him , to have a public trial without undue delay and attended by all safeguards , to use the evidence relevant to his defence , not to incriminate himself , not to admit guilt and to be presumed innocent .", "... ”", "“ Everyone appearing to have an interest in the dispute shall be immediately informed of any decision by the authority that issued the relevant instrument or provision to forward the administrative file to the court and summoned within DATE to attend the hearing ... ”", "NORP In a series of judgments published in ORG of the ORG , ORG has established the legal principles applicable to cases in which interested third parties have not been personally served with summonses requiring their appearance in judicial review proceedings to which they were not parties ( see section CARDINAL of FAC ) . A detailed summary of the rules is to be found in ORG judgment of DATE in the present case ( see paragraph CARDINAL above ) .", "It is the settled case - law of ORG that anyone with constructive notice of and a legitimate personal interest in judicial review proceedings who has not been personally served with a summons to take part in those proceedings may apply to the court for leave to do so by virtue of LAW . A number of interested parties were given leave to intervene in some of the applications for judicial review heard by ORG challenging the assessment criteria used by the authority ( see paragraph CARDINAL above ) ." ]

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[ "6-1" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in the town of ORG , ORG .", "The respondent Government were represented by PERSON GPE , the then Representative of GPE at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant ’s neighbour ( the plaintiff ) lodged a claim with a court , seeking partition of the plot of land on which their respective houses were situated . On DATE ORG of GPE granted the plaintiff ’s claim . On DATE ORG upheld the judgment .", "On DATE the Presidium of ORG on the applicant ’s request quashed the above judgments by way of supervisory review and remitted the case for fresh consideration .", "On DATE the ORG commissioned an expert report and requested the plaintiff to pay for it .", "On DATE the court discontinued the proceedings because of the plaintiff ’s failure to pay for the expert report . This decision was not appealed against and became final .", "In the meantime , the applicant complained about the length of the proceedings . By letters of DATE and DATE , the President of ORG instructed the President of ORG to make inquiries and to speed up the proceedings . In reply , by a letter of DATE , the President of ORG informed that the case had been discontinued on DATE and that the applicant had been informed accordingly . A copy of the letter of CARDINAL DATE was sent to the applicant .", "According to the Government , on DATE the plaintiff brought new proceedings against the applicant in ORG . The plaintiff sought a delimitation of their respective plots of land . On DATE , ORG declined jurisdiction in favour of a justice of the peace .", "On DATE the applicant lodged a counterclaim requesting the court to order the plaintiff not to impede her use of the land . ORG declined jurisdiction in respect of the counterclaim in favour of a justice of the peace .", "Both cases were joined and a hearing was scheduled for DATE . On that date the justice of the peace declined , however , jurisdiction in favour of ORG .", "On DATE ORG scheduled a hearing for DATE . The hearing was adjourned until DATE because the applicant failed to attend . DATE and DATE the proceedings were suspended awaiting an expert report . On DATE the judge requested a ORG agency to provide information on the land plots in question . On DATE the judge granted the applicant ’s request and ordered another expert report .", "On DATE the expert requested further details about the case and asked for payment . On DATE the judge forwarded this request to the parties . On DATE the judge resumed the proceedings . On DATE the judge adjourned the proceedings in view of the applicant ’s wish to retain counsel . On DATE the judge granted the applicant ’s additional request and ordered another expert report . However , on DATE the applicant withdrew her request .", "By a judgment of CARDINAL DATE ORG granted the plaintiff ’s claims . On DATE ORG set aside this judgment and required a new hearing .", "On DATE ORG , having obtained the parties’ consent , ordered yet another expert report . On DATE the expert refused to issue the report , referring to the applicant ’s alleged repeated challenges to different experts and attempts to influence them .", "On ORG insistence , on DATE the expert issued the report . On DATE ORG granted the plaintiff ’s claims . On DATE ORG upheld the judgment .", "The applicant also brought separate proceedings against the bailiff service in relation to the judgment of CARDINAL DATE . She claimed that it contained wrong findings and that the bailiff had wrongly set the delimitation border between the respective plots of land . By the final judgment of DATE ORG rejected her claims as unfounded ." ]

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[ "Mr Cheniti Omar , an NORP national who was born in DATE , is retired and lives in GPE .", "His CARDINAL sons , ORG and PERSON , who are also NORP nationals , and were born in DATE and DATE respectively , were building workers at the material time .", "The CARDINAL applicants were charged in DATE with aiding and abetting the investment , concealment or conversion of funds derived from drug trafficking . PERSON was detained on remand from CARDINAL DATE to CARDINAL DATE and PERSON and PERSON from CARDINAL DATE to CARDINAL DATE . On release they were placed under judicial supervision .", "On DATE the investigating judge appointed an expert to inspect the accounts of a number of firms and those of the PERSON family . The expert filed his main report on DATE and a supplementary report on CARDINAL DATE .", "By an order of CARDINAL DATE the applicants were committed for trial in ORG , which , in a judgment of DATE , sentenced PERSON to four years’ imprisonment , DATE of which were suspended , and PERSON and PERSON to DATE imprisonment each . It also issued warrants for their arrest .", "The court held , inter alia , that the offence of laundering the proceeds of drug trafficking had been made out by the fact that the accused were unable to give convincing explanations regarding the source of the family ’s considerable income . The expert had noted the existence of CARDINAL bank accounts containing a total of MONEY , whose origin could not be explained solely by the activity of the trading or property companies owned by the accused , notwithstanding their assertion during the investigation that they had accumulated the money by not declaring their earnings to the inland revenue .", "NORP The CARDINAL applicants appealed against the above judgment and requested a second expert opinion on their accounts .", "On DATE the case was heard at an adversarial hearing attended by the accused .", "In a judgment of DATE ORG fully upheld the impugned judgment with regard to the DATE prison sentences imposed on PERSON and PERSON and raised PERSON sentence to DATE . It also issued warrants for the arrest of each of the CARDINAL applicants , with a view to ensuring that they would serve the sentences imposed on them . They , although duly informed of the date on which the judgment would be delivered , were not in court .", "Acting through a lawyer at ORG , the CARDINAL applicants lodged an appeal on points of law within the time - limit of CARDINAL clear days laid down by LAW ( see paragraph CARDINAL below ) . None of the applicants complied with the arrest warrants issued , but PERSON was arrested by the police at his place of work on DATE and committed to prison pursuant to the warrant for his arrest .", "On DATE ORG declared the appeal inadmissible on the ground that :", "“ It follows from the general principles of criminal procedure that a convicted person who has not complied with a warrant for his arrest is not entitled to act through a representative in order to lodge an appeal on points of law . It can not be otherwise unless evidence has been supplied of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time . As no such evidence has been supplied by the CARDINAL appellants , against whom arrest warrants were issued after they had appeared in court for the hearing , their appeal , which has been lodged by an attorney practising in ORG , must be declared inadmissible . ”", "In DATE and DATE PERSON and PERSON were arrested and committed to prison pursuant to the warrants for their arrest .", "On DATE and CARDINAL DATE the prefect of the Rhône département issued deportation orders against them .", "In NORP law an appeal on points of law , which is an exceptional remedy , may be lodged by any person who has an interest in doing so and gives notice within the time - limit , against any judicial decision given at last instance .", "Article CARDINAL of LAW , which lays down the formalities to be observed in connection with appeals on points of law , provides :", "“ Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged .", "It must be signed by the registrar and by the appellant himself or by an attorney ( avoué ) of the court which has given judgment or by a specially authorised agent . In the last - mentioned case , the authority to act shall be annexed to the document drawn up by the registrar …", "… ”", "Article CARDINAL of the Code of Criminal Procedure provides :", "“ The prosecution and all parties shall have DATE after the date on which the impugned decision was given in which to lodge an appeal on points of law . ”", "Article CARDINAL of the Code of Criminal Procedure provides :", "“ During the time allowed for an appeal on points of law and , where such an appeal has been lodged , until ORG delivers judgment , execution of the judgment of ORG shall be stayed , except in respect of orders concerning civil matters , and unless ORG upholds the warrant issued by the trial court pursuant to LAW , first sub - paragraph , or unless it issues a warrant itself under the same conditions and according to the same rules . ”", "The suspensive effect of an appeal on points of law is derived from statute and may therefore likewise be restricted by statute , particularly in the interests of speedier and more effective punishment . That is the case where an arrest warrant has been issued by the trial court ( see , to that effect , PERSON , PERSON , GPE , CARDINALth edition , DATE , § MONEY ) .", "Article CARDINAL of the Code of Criminal Procedure provides :", "“ If a person sentenced to a term of imprisonment of DATE has not surrendered to custody and has not obtained from the court which convicted him exemption , on or without payment of a surety , from the obligation to surrender to custody , his right to appeal on points of law shall be forfeit .", "The memorandum of imprisonment or the judgment granting exemption shall be produced before ORG not later than the time when the case is called for hearing .", "For his appeal to be admissible , it is sufficient for the appellant to establish that he has surrendered to custody at a prison , either in the place where ORG sits or in the place where sentence was passed . The governor of that prison shall admit him there on the order of ORG at ORG or of the head of the public prosecutor ’s office at the court of trial or appeal . ”", "ORG has ruled on a number of occasions that an appeal lodged by the representative of a convicted person who has not complied with a warrant for his arrest is inadmissible ( PERSON . crim . DATE , PERSON , p. CARDINAL ) . But the convicted person may give notice himself of his intention to appeal ( PERSON . crim . DATE , ORG . Crim . no . CARDINAL ) , subject to the provisions of LAW , reproduced above .", "ORG considers that an appeal is admissible in the following CARDINAL situations :", "( a ) where , instead of acting through a representative , the appellant signs the notice of intention to appeal in person ( PERSON . crim . DATE , ORG . crim . no . CARDINAL ) by reporting to the registry before the warrant has been executed ( PERSON . crim . PERCENT , ORG . crim . no . CARDINAL ) and accepting the risk of being arrested by mentioning his exact address in the notice ( PERSON . crim . CARDINAL DATE , ORG . crim . no . CARDINAL ; GPE . DATE , ORG . crim . , p. CARDINAL , confirmed by a decision of CARDINAL DATE published in ORG , ORG . , p. CARDINAL ) ;", "( b ) where , when acting through a representative , in accordance with LAW , he can prove that there were “ circumstances that made it absolutely impossible for him to surrender to custody at the appropriate time ” ( PERSON . crim . CARDINAL DATE , ORG . crim . no . CARDINAL ; PERSON . crim . DATE , ORG . crim . no . CARDINAL ; PERSON . crim . CARDINAL DATE ; PERSON . crim . DATE , ORG . crim . no . CARDINAL ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE . On CARDINAL DATE he arrived in GPE from GPE . He stayed in PERSON at his cousin 's flat .", "On DATE the applicant was arrested on suspicion of the unlawful purchase and possession of drugs . A search was carried out in the flat where he was staying .", "On DATE the applicant was charged under LAW CARDINAL of LAW with the unlawful purchase and possession of QUANTITY of hashish . He pleaded not guilty and indicated that he did not need an interpreter because he had studied in GPE .", "On DATE and DATE the applicant 's detention was extended until DATE .", "On DATE ORG of PERSON refused the applicant 's request for release on bail . It found that the applicant 's detention had been extended in accordance with the law and that no grounds for releasing him could be established . The applicant did not appeal to ORG .", "On DATE and DATE the applicant 's detention was extended until DATE .", "On DATE the acting Prosecutor General approved the extension of the applicant 's detention until DATE . The applicant appealed to ORG , which on DATE dismissed the appeal , finding that the applicant had been charged with an particularly serious criminal offence and had resided in PERSON only temporarily , his permanent residence being in GPE , NORP , so that there was good reason to suspect that he would abscond if released . The applicant did not appeal against that decision to ORG .", "On DATE the supervising prosecutor approved the bill of indictment and the case against the applicant and CARDINAL co - defendants was sent to ORG for trial .", "On DATE and CARDINAL DATE the applicant requested ORG to review the lawfulness of his detention on remand .", "On DATE ORG ordered the case to be remitted for an additional investigation because the bill of indictment had not been translated into the NORP language , even though CARDINAL of the defendants were NORP . The court held that the applicant and his co - defendants should remain in custody .", "On DATE the prosecution appealed against the decision but subsequently withdrew their appeal . On DATE the case was returned to ORG for examination on the merits .", "On DATE ORG ordered the case to be remitted for an additional investigation because the rights of some of the defendants had been unlawfully restricted . The prosecution appealed .", "On DATE ORG of the Russian Federation quashed the decision of DATE . It found that , after the case had been remitted for an additional investigation on DATE , the prosecution had not remedied the defects identified by ORG . In particular , the prosecution had not arranged for translation of the bill of indictment or checked that the interpreter had the requisite skills . In view of these procedural defects , ORG held that all the subsequent judicial decisions had been unlawful and remitted the case to ORG for implementation of the decision of DATE .", "On DATE the case was remitted to the prosecutor of GPE for an additional investigation . On DATE a deputy prosecutor of LOC extended the applicant 's detention on remand by DATE , until DATE .", "On DATE the prosecutor of GPE applied to ORG for an order extending the applicant 's detention . The applicant lodged objections in which he alleged , inter alia , that the prosecution had thus far failed to perform any additional investigation .", "On DATE the ORG established that the bill of indictment had been translated into NORP and that on DATE the defendants and their lawyers had begun their examination of the case file . Noting the gravity of the charges against the applicant , his NORP nationality and absence of a permanent residence in PERSON , ORG further remanded him in custody until DATE .", "On DATE and CARDINAL DATE the applicant appealed against the decision of ORG .", "On DATE ORG established that one of the applicant 's co - defendants had not been provided with an interpreter into NORP and that the applicant and other co - defendants had had no access to the materials examined by ORG . It held as follows :", "“ The defects of the court hearing described above and the curtailing of the defendants ' statutory rights ... are substantial violations of the rules of criminal procedure , which could have affected the judge 's conclusions ; the decision [ of DATE ] must therefore be quashed and the materials of the case relating to the extension of the defendants ' pre - trial detention must be referred for a new judicial examination . During the new examination of the prosecutor 's request , the above defects shall be remedied ... and the arguments by the defendants and their counsel , including those concerning the lawfulness of their detention , shall be reviewed ... The preventive measure [ imposed on , in particular , the applicant ] shall remain unchanged ” .", "By an interim decision of the same date , ORG refused the applicant leave to appear at the appeal hearing .", "On DATE and DATE ORG adjourned hearings in order to afford the defendants additional time in which to read the case - file .", "On DATE ORG upheld a challenge by the applicant against the presiding judge .", "On DATE , DATE , CARDINAL and DATE hearings were adjourned because of the absence of several lawyers , including the applicant 's counsel .", "On DATE the Vladimir Regional Court again granted the prosecutor 's request ( of DATE ) for an extension of the defendants ' detention on remand until DATE . It found that it was necessary for the applicant to remain in custody because he was a national of NORP , was not registered as resident in PERSON , and had been charged with a serious criminal offence . The court also referred to certain “ conclusions ” contained in the prosecutor 's application to the effect that the applicant might abscond or obstruct justice . The content of these “ conclusions ” was not disclosed .", "On DATE the applicant lodged an appeal against the decision of ORG . He claimed that the contested decision was “ unlawful and unconstitutional ” and requested leave to appear in person at the appeal hearing .", "On DATE ORG upheld the decision of DATE , finding as follows :", "“ The judge came to a well - justified conclusion that the defendants ... could not be [ released pending trial ] . The judge had regard to the fact that these persons were charged with serious and particularly serious criminal offences , he considered the information on their character and all the circumstances to which the prosecutor had referred in support of his application ...", "The fact that the above - mentioned decision on the prosecutor 's application was [ only ] made after the defendants had spent that length of time in custody ... is not a ground for quashing the decision of DATE because the first judicial decision on this matter was quashed in accordance with the law and the prosecutor 's application of DATE was remitted for a new examination . The subsequent progress of the criminal case is , under these circumstances , of no relevance to a decision on the prosecutor 's application . ”", "By an interim decision of the same date , ORG refused the applicant 's request for leave to appear because the defendants ' arguments were clearly set out in their grounds of appeal and their lawyers were present at the hearing while the prosecutor was not .", "Meanwhile , on DATE the additional investigation was completed and the case sent to ORG . On or about that date the applicant asked the court to order his release pending the trial .", "On DATE the ORG fixed the first hearing for DATE and held that the applicant should remain in custody pending trial :", "“ [ The court ] did not establish any grounds ... to amend or revoke the preventive measure imposed on the accused given the gravity of the offence with which the defendants are charged . Furthermore , the fact that the court decision extending the detention on remand of several defendants in order to afford them [ time ] to examine the case materials was quashed on appeal is of no legal significance . [ In its decision of DATE ] ORG did not revoke the preventive measure , the case was referred to the [ trial ] court without delay and no other grounds for amending the preventive measure were established . ”", "On DATE the applicant lodged an appeal against the decision . He complained , in particular , that his detention was unlawful because it had significantly exceeded the maximum DATE period permitted by law , that the conditions in which he was detained were poor and that he had been ill - treated by police officers , both at the time of his arrest and subsequently . He alleged that his notice of appeal had never been dispatched to ORG .", "On DATE the hearing was adjourned until DATE because CARDINAL defendants had failed to appear . On DATE the applicant prepared an appeal against the decision to adjourn the hearing ; in the notice of appeal , he also repeated the points he had raised in his appeal of CARDINAL DATE . He again stated that his notice of appeal had not been sent to ORG .", "On DATE the ORG established that the case was not ready for consideration on the merits because of a series of procedural defects : in particular , several defendants had not had sufficient time to study the case file , CARDINAL defendant had not been provided with interpretation facilities into NORP , and the applicant had not been informed in good time of the expert examinations . The court remitted the case for an additional investigation and remanded the defendants in custody “ in the light of the gravity and dangerous nature of the offences ” .", "On DATE the prosecution appealed against the decision of CARDINAL DATE and the applicant did likewise on DATE . The applicant submitted , in particular , that the domestic law did not permit extensions of detention “ during the investigation ” beyond the maximum period of DATE which had expired , in his case , on DATE .", "On CARDINAL DATE the case - file was forwarded to ORG for examination of the issue of detention on remand .", "On DATE ORG refused , in an interim decision , the applicant 's request for leave to appear , holding that his position had been clearly and exhaustively stated in the grounds of appeal .", "On DATE it examined the appeals lodged by the prosecutor , the applicant and his co - defendants and found that the defence rights had not been impaired . On this ground it quashed the decision of DATE and instructed ORG to proceed with the trial . It held that the applicant and his co - defendants should remain in custody because “ there were no legal grounds to amend the preventive measure given the gravity and dangerous nature of the offences ” .", "On DATE the case - file was returned to ORG .", "On DATE the Vladimir Regional Court extended the applicant 's detention on remand until DATE . It found as follows :", "“ The case was referred to ORG on DATE ; on DATE it was decided to remit the case for additional investigation . On DATE ORG quashed that decision on appeal by the prosecutor . Thus , the defendants have remained in custody for DATE and DATE , starting from the date of the case 's referral and excluding the period between [ the end of the ] examination on the merits and the quashing of the decision [ of DATE ] on appeal .", "Regard being had to the fact that the defendant is charged with serious and particularly serious criminal offences , in order to secure the examination of the case and the enforcement of the conviction [ sic ] , there are no grounds to [ release the applicant ] . Under these circumstances , pursuant to LAW of LAW , the defendant 's detention on remand is extended for DATE ” .", "On DATE the ORG granted a further extension of the applicant 's detention for DATE , that is to say until DATE [ the decision mistakenly indicates DATE ] . The grounds invoked by the court were identical to those set out in the decision of DATE .", "On DATE and DATE and DATE the applicant 's lawyers lodged appeals against the decisions of CARDINAL DATE and CARDINAL DATE with ORG . They submitted , in particular , that the DATE period of the applicant 's detention which had started from the moment the case was referred for trial , had expired on DATE but had been extended DATE , on DATE . Therefore , the applicant 's detention from CARDINAL March to CARDINAL DATE had not been covered by any detention order : the prosecution had not assumed responsibility for the case , whilst the courts considered that the case had been remitted for an additional investigation and held the prosecution accountable for the applicant 's detention .", "On DATE , CARDINAL May , DATE and DATE and CARDINAL DATE the ORG authorised further extensions of detention in respect of the applicant and CARDINAL co - defendants , on each occasion for DATE . The reasons given in the decisions of DATE , CARDINAL May and CARDINAL DATE were identical to those given in the decisions of CARDINAL DATE and DATE ( see above ) . The decisions of CARDINAL DATE and DATE referred to the gravity of the charges and the existence of “ sufficient reasons to believe that the defendants would abscond ” .", "The applicant submitted appeals against each of these decisions .", "DATE and DATE the trial proceeded . On DATE the parties began their final submissions .", "DATE . On DATE the Vladimir Regional Court , by an interim decision , held that the applicant 's detention on remand was not to be extended because the prosecution had reduced the charges against him . He appears to have been released from custody DATE .", "On DATE ORG examined the applicant 's and/or his co - defendants ' appeals against the decisions of CARDINAL DATE and DATE , CARDINAL DATE , CARDINAL May , DATE and DATE and DATE extending their detention on remand .", "ORG quashed the decisions of DATE and DATE and DATE on the ground that they had been given by an incomplete formation : a single judge instead of a CARDINAL - judge panel . As regards the applicant 's situation , it further held :", "“ Since the judge 's decision has been quashed because of a breach of the rules of criminal procedure , the court will not examine the arguments in the appeals alleging that the extension of the [ applicant 's ] detention was unlawful on other grounds . The matter will not be remitted for a new examination because [ the applicant ] has been acquitted . ”", "ORG upheld the other decisions , finding that ORG had correctly referred to the gravity of the charges and the existence of sufficient grounds to believe that the defendants would abscond during the trial .", "On DATE ORG , by an interim decision , dismissed the charges of participation in an organised criminal enterprise and running an opium den against the applicant after they were withdrawn by the prosecution .", "By another interim decision of the same date , the court dismissed a charge against the applicant in respect of CARDINAL incident of drug possession because of a recent change in the NORP criminal law that had decriminalised possession of negligible amounts of drugs .", "Finally , by a judgment of DATE , the court acquitted the applicant of the remaining drug - trafficking charges because his involvement in the commission of the offences could not be proven . Some of his co - defendants were convicted and sentenced to various terms of imprisonment .", "On DATE ORG of GPE upheld , on appeal , the above judgment and decisions of ORG .", "On DATE ORG examined the applicant 's complaint concerning his exclusion from the proceedings before ORG and confirmed that the applicant should have had the right to appear in person and plead his case before the court if a prosecutor was present .", "On DATE ORG issued decision ( определение ) no . CARDINAL on the applicant 's complaint about the ex post facto extension of his “ detention during trial ” by ORG decision of DATE . It held as follows :", "“ LAW provides that the [ trial court ] may ... upon the expiry of DATE after the case was sent to it , extend the defendant 's detention for successive periods of DATE . It does not contain , however , any provisions permitting the courts to take a decision extending the defendant 's detention on remand once the previously authorised time - limit has expired , in which event the person is detained for a period without a judicial decision . Nor do other rules of criminal procedure provide for such a possibility . Moreover , Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW expressly require the court , prosecutor , investigator ... to release anyone who is unlawfully held in custody beyond the time - limit established in the LAW immediately . Such is also the requirement of LAW and CARDINAL of LAW ... which is an integral part of the legal system of GPE , pursuant to LAW ... ”", "On DATE the ORG delivered decision no . CARDINAL on the applicant 's complaint about ORG refusal to permit him to attend the appeal hearings on the issue of detention . It held :", "“ LAW regulating the presence of a defendant remanded in custody before the appeal court ... can not be read as depriving the defendant held in custody ... of the right to express his opinion to the appeal court , by way of his personal attendance at the hearing or by other lawful means , on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms ... ”", "From DATE to CARDINAL DATE the applicant was held in detention facility no . OD-CARDINAL/T-CARDINAL of GPE ( учреждение ОДCARDINAL/Т-CARDINAL PERSON по PERSON области ) , known as “ Vladimirskiy NORP ” . He stayed in various cells in wings CARDINAL . CARDINAL and DATE , built in DATE and DATE , respectively .", "According to a certificate issued on DATE by the facility director , and which the Government have produced , the applicant was kept in CARDINAL cells described as follows : cell no . CARDINAL - CARDINAL ( QUANTITY , CARDINAL bunks , average population CARDINAL to CARDINAL inmates ) , cell no . CARDINAL ( QUANTITY . m , CARDINAL bunks , CARDINAL to CARDINAL inmates ) , cell no . CARDINAL - CARDINAL ( QUANTITY . m , CARDINAL bunks , CARDINAL inmates ) , cells CARDINAL . CARDINAL , DATE , DATE , CARDINAL and DATE ( CARDINAL to QUANTITY m , QUANTITY , CARDINAL inmates ) .", "The applicant did not dispute the cell measurements or the number of bunks . He disagreed , however , with the figure given by the Government for the number of inmates . According to him , DATE he stayed in cell no . CARDINAL - CARDINAL that housed CARDINAL inmates and DATE and DATE he was kept in cells measuring approximately QUANTITY . m , together with CARDINAL other detainees . After the new Code of Criminal Procedure came into effect on DATE , the number of inmates in his cell dropped to CARDINAL . Given the lack of beds , inmates slept in TIME shifts . They waited for their turn sitting on the concrete floor or on a stool if one was available .", "In support of his statements the applicant produced written depositions by CARDINAL former cellmates , PERSON , Mr PERSON and Mr PERSON . They stated , in particular , that in DATE cell no . CARDINAL had housed CARDINAL inmates ( Mr PERSON 's deposition ) or even CARDINAL to DATE ( Mr PERSON 's deposition ) , as had cells CARDINAL . CARDINAL and DATE . They also testified that they and the other detainees had slept in turns .", "The Government , relying on a certificate of DATE from the facility director , submitted that the “ sanitary and anti - epidemic condition of the facility remained satisfactory , including ... in the cells where [ the applicant ] had been held ” . Another certificate of DATE showed that “ the cells ... were equipped with [ a lavatory pan ] placed CARDINAL cm above the floor and separated by a partition of QUANTITY in height with additional curtains ” . Running tap water was available and detainees were permitted to use immersion heaters .", "The applicant conceded that there had been no outbreaks of contagious diseases or epidemics . Apart from that , the sanitary conditions were wholly unsatisfactory . Prisoners infected with tuberculosis , hepatitis , scabies and the human immunodeficiency virus ( HIV ) were occasionally held in his cell . The cells were infested by lice , bed - bugs , flies , mosquitoes , cockroaches , rats and mice , but the facility administration did not provide any repellents or insecticides . Detainees were not given any toiletries , such as soap , toothbrush , toothpaste or toilet paper , apart from QUANTITY of caustic soda once DATE and CARDINAL plastic bottles of bleach ( QUANTITY each ) DATE . Cells had no ventilation systems . In DATE they were cold and in DATE it was hot , stuffy and excessively damp inside .", "The applicant challenged the ORG 's description of the toilet facilities as factually untrue . The cast - iron pan was raised on a pedestal CARDINAL cm high and separated from the living area from CARDINAL side with a QUANTITY - high partition . The person using the toilet was in full view of other inmates . No curtains were provided ; occasionally the inmates hung a sheet but wardens tore it down and disciplined those responsible . What is more , the lavatory pan had no seat or cover : inmates stuck an empty plastic bottle in the hole in order to prevent smells from spreading . The dining table was fixed to the floor just QUANTITY from the pan . His description was corroborated by written depositions by former cellmates , Mr PERSON , Mr Gunin , Mr PERSON and Mr PERSON , and CARDINAL colour photos showing the lavatory pan and the dining table from various angles .", "The Government asserted that “ the applicant was fed in accordance with the established legal norms ” . It appears from an undated certificate signed by the facility director that his DATE diet consisted of CARDINAL g of meat , CARDINAL g of fish , QUANTITY , CARDINAL g of pasta , QUANTITY of salt , QUANTITY of tea [ sic ] , QUANTITY of potatoes , QUANTITY of vegetables , QUANTITY of bread .", "The applicant submitted that the food was of an extremely low quality . Many a meal only contained so - called balanda , a soup - like mix of millet , barley and pasta without any fat . Meat was replaced with a soya substitute . No fresh vegetables were given , occasionally the evening meal included cooked beetroot , sauerkraut or pickled cucumbers . Salt and tea were never distributed . Written depositions by CARDINAL of the applicant 's former cellmates confirmed these submissions .", "The parties agreed that the applicant had been entitled to a DATE walk of TIME . The applicant indicated , however , that he was not able to go outdoors on DATE when there were court hearings .", "The Government did not describe the outdoor conditions . The applicant , and CARDINAL former cellmates in written depositions , portrayed the following picture of the exercise yards : The yards were closed LOC measuring CARDINAL , CARDINAL or QUANTITY m. The opening to the sky was covered with a metal roof with a QUANTITY gap between the roof and the top of the walls . In DATE it was extremely hot and stifling inside as the sun heated the roof . The walls were coated with so - called shuba , a sort of abrasive concrete lining , designed to prevent detainees from leaning on the walls . The entire cell population was brought to the yard at once ; occasionally it was impossible to move around , let alone to exercise , because of the sheer number of prisoners .", "DATE . According to the applicant , metal blinds that prevented natural light getting into the cells were only removed on DATE after a delegation that included a representative of ORG had paid a visit to PERSON detention facilities . The Government did not contest that information .", "The applicant 's relatives were not permitted to see him throughout the pre - trial investigation . After the trial began , he was allowed CARDINAL short visits by his wife , children , sister and brother . At these meetings the applicant and his parents were prohibited from talking in any language other than NORP . The applicant was likewise prohibited from corresponding with his relatives other than in NORP : the facility administration refused to dispatch or hand over letters written in NORP .", "The Government explained that these restrictions had been due to the lack of a staff interpreter from NORP in the facility .", "The applicant was transported from the remand centre to ORG for hearings on CARDINAL occasions ; of these hearings , CARDINAL concerned the charges against him and CARDINAL applications for extensions of detention . The applicant offered the following description of DATE , which was corroborated by written depositions from CARDINAL former cellmates .", "On DATE of the hearing he was woken up at CARDINAL or TIME At TIME he was taken from his cell to the so - called “ assembly cell ” , together with other detainees who had a hearing on DATE . Each “ assembly cell ” measured CARDINAL to QUANTITY . m and housed CARDINAL prisoners . “ ORG cells ” had no ventilation system and the air was soon heavy with smoke . At CARDINAL or TIME the applicant was taken to a van .", "The prison van had CARDINAL collective compartment designed for CARDINAL prisoners and CARDINAL individual compartments of QUANTITY m. It was designed to carry CARDINAL prisoners . However , it transported CARDINAL and on CARDINAL occasion CARDINAL detainees . The applicant was put in an individual compartment together with another prisoner . Owing to the lack of space , CARDINAL of them would sit on the bench and the other on his lap . The route to ORG took TIME and the van called at other facilities on its way .", "The applicant did not normally arrive back at the prison until CARDINAL or CARDINAL p.m. During DATE he received no food or outdoor exercise and was liable to miss out on the shower he was allowed periodically .", "The Government submitted that the applicant had been transported in special prison vans that met the standard requirements . The route from facility no . OD-CARDINAL/T-CARDINAL to ORG was QUANTITY long and took TIME .", "DATE . Until DATE criminal - law matters were governed by LAW of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .", "“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal security , bail and detention on remand ( LAW CCrP , LAW ) .", "LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .", "Under the old ORG , a decision ordering detention on remand could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .", "The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence ( LAW CARDINAL , CARDINAL - CARDINAL ) .", "When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or re - offend ( LAW CCrP ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW CCrP , LAW ) .", "NORP Before DATE , detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . On DATE the old ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment or if they had previously defaulted or had no permanent residence in GPE or if their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they committed . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .", "The Codes distinguished CARDINAL types of detention on remand : the first being “ pending the investigation ” , that is while a competent agency – the police or a prosecutor 's office – investigated the case , and the second “ before the court ” ( or “ during the trial ” ) , that is while the case was being tried in court . Although there was no difference in practice between them ( the detainee was held in the same detention facility ) , the calculation of the time - limits was different .", "After arrest the suspect is placed in custody “ pending the investigation ” . The maximum permitted period of detention “ pending the investigation ” is DATE but it can be extended for DATE in “ exceptional circumstances ” . Extensions were authorised by prosecutors of ascending hierarchical levels ( under the old CCrP ) but must now be authorised by judicial decisions taken by courts of ascending levels ( under the new ORG ) . No extension of detention “ pending the investigation ” beyond DATE is possible ( LAW CCrP , LAW of the new ORG ) .", "The period of detention “ pending the investigation ” is calculated to DATE when the prosecutor sent the case to the trial court ( Article CARDINAL of the old CCrP , Article CARDINAL § CARDINAL of the new CCrP ) .", "Access to the file materials is to be granted DATE before the expiry of the authorised detention period ( LAW CCrP , LAW of the new ORG ) . If the defendant needs more time to study the case - file , a judge , on a request by a prosecutor , may grant an extension of detention until such time as the file has been read in full and the case sent for trial ( LAW CCrP , LAW ( CARDINAL ) of the new ORG ) . Under the old ORG , such an extension could not be granted for DATE .", "Under the old ORG , the trial court had the right to remit the case for an “ additional investigation ” if it established that procedural defects existed that could not be remedied at the trial . In such cases the defendant 's detention was again classified as “ pending the investigation ” and the relevant time - limit continued to apply . If , however , the case was remitted for an additional investigation , but the investigators had already used up all the time authorised for detention “ pending the investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE starting from the date he received the case . Subsequent extensions could only be granted if the detention “ pending the investigation ” had not exceeded DATE ( Article CARDINAL ) .", "From the date the prosecutor forwards the case to the trial court , the defendant 's detention is “ before the court ” ( or “ during the trial ” ) .", "DATE the old ORG set no time - limit for detention “ during the trial ” . On DATE a new LAW was inserted which established that the period of detention “ during the trial ” could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant 's release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with particularly serious criminal offences .", "The new ORG establishes that the term of detention “ during the trial ” is calculated from the date the court received the file and to the date the judgment is given . The period of detention “ during the trial ” may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .", "Under the old ORG , the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor , and any subsequent extension order , before a court . The judge was required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . The review was to be conducted in camera in the presence of a prosecutor and the detainee 's counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee 's release ( LAW ) .", "An appeal to a higher court lay against the judge 's decision . It had to be examined within the same time - limit as appeals against a judgment on the merits ( see paragraph CARDINAL below ) ( Article CARDINAL in fine ) .", "NORP Under the new CCrP , an appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention on remand . The appeal court must decide the appeal within DATE after its receipt ( LAW ) .", "Upon receipt of the case - file , the judge must determine , in particular , whether the defendant should remain in custody or be released pending trial ( Articles CARDINAL § CARDINAL and CARDINAL of the old ORG , ORG ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) of the new ORG ) and rule on any application by the defendant for release ( LAW CCrP ) . If the application was refused , a fresh application could be made once the trial had commenced ( LAW of the old ORG ) .", "At any time during the trial the court may order , vary or revoke any preventive measure , including detention on remand ( LAW CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberations room and signed by all the judges in the formation ( LAW ORG , LAW ) .", "An appeal against such a decision lies to the higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP – see paragraph CARDINAL below ) .", "Under the old ORG , within DATE after receipt of the case - file ( if the defendant was in custody ) , the judge was required either : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to return the case for an additional investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court having jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ( предварительное слушание ) ; or ( CARDINAL ) to fix a date for trial ( LAW ) . The trial must begin DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .", "The duration of the trial is not limited in time .", "Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE of its receipt . In exceptional circumstances or in complex cases or in proceedings before ORG this time - limit could be extended by DATE ( Article CARDINAL ) . No further extensions were possible .", "The new ORG establishes that the appeal court must start the examination of the appeal DATE after its receipt ( LAW .", "The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held at GPE in DATE , and approved by ORG by its resolution CARDINAL C ( XXIV ) of DATE and CARDINAL ( LXII ) of CARDINAL DATE , provide , in particular , as follows :", "“ 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 ) Artificial 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 ... ( 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 ) read as follows :", "“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG 's mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .", "A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...", "Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...", "Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...", "The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .", "It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”", "“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG 's mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .", "The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”", "“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...", "In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .", "The ORG frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”" ]

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

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

[]

[ "5" ]

[ "5-1" ]

[]

[ "The applicants PERSON and PERSON , born in DATE and DATE respectively , are the children of PERSON ( born in DATE ) . The applicant PERSON , born in DATE , is the mother of PERSON .", "On DATE , PERSON died in ORG , GPE , GPE , whilst in the care of ORG GPE government as a convicted prisoner .", "PERSON had a long history of intravenous heroin addiction and was asthmatic , for which she had been admitted to hospital on CARDINAL occasions during DATE .", "It is purported that PERSON had , prior to being imprisoned , told her mother , who now cares for her children PERSON and PERSON , that she wanted rehabilitation assistance to rid herself of the heroin addiction . She told her solicitor that she had tried to refer herself for help but that it was impossible to obtain appointments without inordinate delays .", "After having been convicted of theft , PERSON was sentenced at ORG , on DATE , to CARDINAL months’ imprisonment , despite an alternative proposal for a probation order with a condition that she be treated for her addiction . Thereafter , she was detained at FAC , GPE . She stated to her solicitor that she intended to use the period in custody as an opportunity to rid herself of her addiction to heroin .", "At the health screening on her arrival at the prison on DATE , PERSON was noted as not seeming excessively withdrawn , depressed or anxious . She weighed QUANTITY . She complained of swelling to her left arm , withdrawal symptoms from her addiction and suffering from severe asthma especially when withdrawing , and was kept in the health - care centre pending an examination by a doctor . TIME , PERSON telephoned her mother complaining of her infected arm and asthma . During TIME , when she was observed to be wheezing , she was given an inhaler . She was also given paracetamol .", "The prison medical records showed thereafter that she was complaining of withdrawal symptoms and that she was vomiting frequently . The records consisted of the continuous medical record , prescription and administration charts and the nursing assessment notes . Her blood pressure , temperature and pulse were checked DATE .", "On DATE PERSON was examined by PERSON , the prison senior medical officer , who prescribed antibiotics for her arm , inhalers for her asthma and medication , ORG , to appease the symptoms of heroin withdrawal . The nursing notes stated that she threw a cup of tea across the cell , was “ locked in for education ” and that during the night she was very loud and demanding . ORG was not administered at TIME . The applicants alleged that this was a punishment , while the Government submitted that it was on the instructions of the doctor due to a drop in PERSON blood pressure . The entries in the nursing notes show that PERSON was seen by a medical officer that TIME and the drugs record sheet , signed by PERSON , indicates that after a blood pressure reading of CARDINAL/CARDINAL the next dose of ORG was omitted at TIME .", "On DATE the record noted that she remained demanding . She had been told to clean her cell prior to education , which was a reference to the routine tidying - up of the cell and in accordance with normal practice . It was noted that she refused to comply . She was locked in during the education period and declined every meal . In the evening her weight was recorded as QUANTITY . It was noted that she had vomited during TIME and had complained of vomiting during TIME . She was encouraged to take fluids and given CARDINAL doses of a mild anti - nausea drug ( magnesium trisilicate ) by the nursing staff .", "Her situation was reviewed by PERSON on DATE . As stated later in a statement to the coroner dated DATE , her medical readings ( temperature , pulse and blood pressure ) remained satisfactory . She did not appear dehydrated – it was noted that her tongue was moist and clean – but as she was still complaining of vomiting she was given an injection of anti - emetic medication . She complained of diarrhoea and stomach cramps to the nurse on duty during the night . A dose of magnesium trisilicate was given for nausea but it was recorded that this had little effect .", "On DATE PERSON called her mother in tears , complaining that despite having been given an injection , she could not stop vomiting and was getting no other medical support to assist her to come off drugs . She said that she was having to clean up her own vomit and thought she was going to die . The Government stated that there was a lavatory in her cell which she would have been able to reach and that the practice was for nursing staff to clean up if vomit landed on the floor or any other area . The only member of staff involved in the care of PERSON who remains with ORG and who is head of nursing care at the prison has informed the Government that a prisoner would not have been asked to clean up her own vomit and she has no recollection of PERSON being asked to do so .", "On DATE she was recorded as keeping down a cup of tea and a glass of juice but was vomiting again during the afternoon and evening . At TIME she was found smoking in bed and when asked what the matter was , she replied “ nothing ” . DATE , she was found to be “ opiate positive ” .", "The doctor examined her on DATE . She was given a further injection of medication to help with her symptoms . He found her general condition to be stable . In his statement of CARDINAL DATE he noted that , following the injection , she was able to keep down oral fluids during DATE , although she vomited again in the evening . The Government stated that the doctor checked her for signs of dehydration but did not find any . This was confirmed by PERSON evidence to the coroner . The notes stated that her tongue was moist and clean . In the case of a person who was severely dehydrated , he would have expected the person to be physically very weak and possibly bedridden , to have a fast pulse rate and low blood pressure and , on examination , the eyes would appear sunken , the tongue dry and cracked , the lips drawn and the skin drawn and thin .", "On DATE she continued to vomit and suffered from diarrhoea and abdominal discomfort . Her weight was recorded as QUANTITY . She ate nothing . The nursing notes recorded that she had had a better night . There was a reference : “ Continues to vomit on occasions ? hand down throat . ” The medical record stated that she had been observed with fingers down throat and vomit on her hand .", "On DATE according to the nursing entries , there was no vomiting complained of or witnessed apart from twice at DATE . It was also recorded that she ate a small dinner and slept for long periods that night . There were no entries in the medical record on DATE . The doctor stated in his statement of DATE that on CARDINAL and DATE her temperature , pulse and blood pressure all remained within normal limits . Oral doses of anti - emetic drugs ( metoclopromide ) were prescribed to follow the injections , and administered on CARDINAL occasions DATE . In her evidence to the coroner , the head of nursing care stated that the drugs were not given on DATE as PERSON had stopped vomiting .", "NORP However , at TIME on DATE , the following was noted in the continuous medical record :", "“ ... went to see inmate in cell , as she got out of bed she collapsed against me vomiting ( coffee ground ) . Laid on floor in recovery position and summoned help . Patient appeared unresponsive and appeared to be having a fit . Ambulance called ( CARDINAL ) . Regained consciousness , still vomiting , CARDINAL nurses helped her onto bed . Oxygen in situ . ECG taken . Unable to obtain pulse or ORG . Unable to gain PERSON access due to abscesses on arms and previous drug use . Next of kin rung at TIME at FAC request , unavailable , son to pass on message within TIME . Taken to hospital by ambulance . Ambulance arrived at TIME and left at TIME for ORG , GPE . ”", "Lots of “ coffee - ground ” vomit ( altered blood in the stomach ) was recorded as being found on her bed . ORG medical records showed that she was admitted at TIME Her mother was informed around that time that PERSON was in hospital and that she was ill but had stabilised . She was recorded as being", "“ ... drowsy but movable and responsive . Staff nurse informed me that the white cell count was raised , with abnormal kidney and liver function ... possible diagnosis of ... drug abuse ” .", "Her mother later learned from the nursing staff that on admission PERSON hair was matted with vomit .", "On DATE at TIME , the following entry was recorded :", "“ Transferred to Ward CARDINAL ; Ward CARDINAL contacted in the middle of an emergency with her , arrested , but has been resuscitated ( sic ) and now is having a blood transfusion and an airway [ made ] ... ”", "At TIME :", "“ ... Ward CARDINAL contacted to ask if relatives have been informed of deterioration , they are with her now , they are going to reassess her in TIME and if no improvement turn off the ventilator . ”", "The hospital informed the family that PERSON was in a critical condition and might have suffered brain damage due to the cardiac arrest . Her liver and kidneys were failing and they could not stabilise her . She was ventilated by hand as there were no beds in ORG ( ICU ) . The doctors said that they would stop the medication to see if she came round and breathed on her own and , if not , they would leave her . A NORP priest was called . The family was advised to say goodbye to PERSON and did . She then recovered a little and at TIME she was moved to FAC where there was an ICU bed available . She was stable on the ICU ward although she was kept on life support and was heavily sedated .", "On DATE at TIME , PERSON condition was recorded as stable but critical . At TIME she was given a very poor prognosis . By TIME on DATE , her condition had improved a little . She remained on a ventilator , although sedation had then been stopped . She made jerking movements at times and appeared to be waking up slowly . On TIME DATE , she opened her eyes and responded to light , although the brain scan did not reveal any activity .", "On DATE PERSON was transferred to ORG to ORG and from there to Ward CARDINAL . It was recorded on DATE that although her eyes were open , she remained unresponsive and in a critical condition . On DATE her mother visited with the children . Her eyes were open but she appeared dark yellow in colour and making jerky movements associated with brain damage .", "On DATE the hospital advised the family to go to the hospital immediately . The prison medical record stated that PERSON died at TIME", "The autopsy report , following the post - mortem examination of CARDINAL January DATE , noted that PERSON weighed QUANTITY . It stated that although one symptom of heroin withdrawal can be vomiting , the cause of the applicant ’s vomiting was never fully established . Episodes of severe vomiting could have caused a tear in the upper gastro - intestinal tract ( “ a PERSON tear ” ) though this would most likely have healed by the time she died . This was the most likely cause of haemorrhaging in the stomach which could result in coffee - ground vomiting . If she had lost a substantial amount of blood , rendering her anaemic , this could have triggered the cardiac arrest . The cardiac arrest precipitated hypoxic brain damage and multi - organ failure with an inevitably fatal outcome .", "In a letter dated DATE , the coroner informed the family that an inquest would be held before a jury . At the inquest , which took place on DATE , evidence was given by PERSON , the prison doctor , PERSON , the head of nursing care at the prison , the forensic pathologist who carried out the post mortem , CARDINAL consultants from the PERSON and ORG who had been involved in treating PERSON and the third applicant , PERSON mother . The latter was represented during the proceedings by a solicitor who put questions to the witnesses on her behalf .", "During the evidence it emerged that the scales used to weigh PERSON in prison were inaccurate and incompatible , those used on reception being QUANTITY out compared with those used subsequently in the health - care centre . Due to this discrepancy , PERSON explained that he placed greater importance on his clinical impressions of PERSON regarding any effect of possible weight loss , but was aware of the potential problem and had given instructions for her weight to be monitored . Notwithstanding that antibiotics had been prescribed for her septic arm , it was also indicated that these had not been given to her over DATE out of QUANTITY doses that she should have received over DATE , she received CARDINAL . The head of nursing care , PERSON , was unable to explain the omissions although she suggested that the nurse could have forgotten to sign the medicine card .", "Both PERSON and PERSON gave evidence that PERSON did not give a clinical impression of being very ill during this period , stating that she was up and about and associating with others . PERSON stated that her symptoms had been diminishing and that given her blood pressure , temperature , pulse and her general condition , he had no concern that she was gravely ill or that there was any need to admit her to an outside hospital . It was revealed that PERSON did not work in the prison on DATE and was not present therefore on DATE before PERSON collapse . A part - time doctor attended on DATE TIME and the prison depended on calling a doctor on agency if required . This explained the lack of any record in the notes for DATE . Sister N. explained that the entry in the nursing notes on DATE which stated that PERSON had been “ locked in for education ” referred to the routine procedure whereby those prisoners not participating in the education class were detained in their cells during that period .", "Evidence was also given by the CARDINAL consultants who treated PERSON in hospital , concerning her state on arrival and her subsequent deterioration . They were unable to say with any certainty what had caused her collapse or the bleeding in her stomach . PERSON considered that she was dehydrated on arrival at hospital but , due to her disturbed state , he was unable to put in a central line which would have allowed an accurate analysis to be made . Under questioning , he stated that the signs consistent with dehydration could also have been caused by fresh bleeding but not by one episode of coffee - ground vomiting .", "In his summing - up to the jury , the coroner summarised the evidence as follows :", "“ ... for DATE PERSON was admitted in ORG ... she was then seen by the doctor , [ Dr PERSON ] , on DATE , on DATE . He examined her and made a note . She was still retained in ORG but as DATE proceeded , PERSON started to become unwell . You have heard evidence of the fact that she was a heroin abuser and it was known that if she was to withdraw from heroin she might develop some unpleasant symptoms ... those symptoms might manifest themselves for example with diarrhoea and vomiting , possible stomach cramps , depleted sleep patterns and the like and in fact the information that PERSON gave to her mother when she first rang rather gave you the impression that she knew that possibly she was to have a rough road ahead but she was prepared to put up with that .", "Certainly throughout DATE ... it is well - documented that PERSON was vomiting profusely . Although she was given medication for that on occasions it only worked for a very short time and it is fair to say that from DATE she was vomiting at some stage DATE . There was also reference to the fact that she had diarrhoea and she was generally unwell .", "Her nutritional state may well have been not all that it should have been and although drinks were available for her there was no means of monitoring how much liquid she was taking in . It was not possible to monitor whether she was actually drinking and vomiting it back or not drinking at all . There was no attempt at measuring fluid during the course of DATE and her vomiting actually progressed and on some occasions it was described as a lot of vomiting . It was referred to in the notes “ vomiting + + + ” which means rather a lot and although she was seen by nursing staff DATE and by the doctor on other occasions the medical staff at FAC were under the impression all along that PERSON was showing no signs of being dehydrated . In other words , she was not being depleted of fluids and [ Dr PERSON ] explained in his evidence his findings and the fact that he could see no real evidence that she was dehydrated at the time and felt that even with hindsight there was no necessity for her to be admitted into hospital .", "DATE after her admission to [ prison ] on TIME when she woke up ... she virtually collapsed in the presence of nursing staff and she vomited a large amount of ... coffee ground vomit ...", "There was some discussion during the evidence ... as to whether PERSON had actually had a cardiac arrest at that time . In fact all the doctors who subsequently examined her ... felt that that was not likely to have been the case , although there was certainly a collapse and although she may well have lost a fair amount of blood as a consequence of that . There was no evidence at that particular time that she had experienced a cardiac arrest .", "She was taken by ambulance to ORG ... where she was immediately placed under the care of PERSON ... His working diagnosis at the time was that PERSON may well have some degree of liver failure and that there could also be some ... bleeding from the upper gastro - intestinal tract , the oesophagus ... because of the fact that she had vomited the coffee ground vomit .", "The evidence of Dr PERSON , the Pathologist ... found some residual material in PERSON ’s stomach which could well have resembled blood or changed blood but ... was at pains to explain that she could find no source of any bleeding within PERSON ’s internal organs ... CARDINAL possible likely cause of the bleed that had produced itself in the coffee ground vomiting was that the retching which she had sustained ... might have caused a small tear either in her oesophagus at the point where it reaches the stomach or alternatively in the lining of the stomach itself ... that is a medical condition known as a PERSON tear but she could not find evidence of that . Her view was that possibly that small tear might well have healed by the time that she saw PERSON ’s body which was obviously by then DATE . That is the only explanation as to why there was any bleeding ... The significance of that bleed is appropriate because it is highly likely that as a consequence ... PERSON will have lost some volume of blood which will have meant that her heart might have had to work harder in order to overcome that and certainly when she was at ORG she was extremely unwell .", "PERSON was of the view that he felt that PERSON was in fact dehydrated but he could not prove that specifically because you will recall from PERSON evidence that it was not possible for him to insert a central line . Had he been able to do that then it might have been that could have been used as a diagnostic tool ... certainly PERSON was of the opinion that there would seem to be some suggestion that PERSON was dehydrated , notwithstanding , according to the medical staff at FAC , they felt that that was not the case as DATE had gone on .", "On TIME DATE ... unfortunately PERSON experienced a cardiac arrest and it was felt that as a consequence of that she had become deprived of oxygen and ... there would have been a deprivation of oxygen to her brain which would have caused her to sustain what was called hypoxic brain damage .", "... The post - mortem evidence ... explained the cause of death and PERSON was able to confirm that the cause of death was hypoxic brain damage , deprivation of oxygen to the brain , caused by a cardiac arrest which PERSON felt was as a consequence of an upper gastro - intestinal haemorrhage of an undetermined cause ... ”", "The coroner invited the jury to return a verdict of death through natural causes or an open verdict . The jury unanimously returned an open verdict .", "Legal aid was granted to the CARDINAL applicants to pursue domestic remedies for compensation . Their solicitors sent a notice of issue , under cover of a letter dated DATE , to the ORG Solicitor requesting disclosure of medical and prison records in view of a claim for damages with respect to the death of PERSON .", "In a report dated DATE , the doctor consulted by the applicants stated , inter alia , as follows :", "“ It is my understanding that repeated vomiting can be a symptom of heroin withdrawal and while I have no personal experience in managing people undergoing a detoxification programme , I would , however , be very unhappy about managing anyone who was vomiting repeatedly , without the use of intravenous fluids , the intravenous administration of anti - emetic drugs and the facility to monitor blood chemistry frequently .", "... PERSON was severely under weight .", "Her poor overall nutritional state was almost certainly longstanding and probably connected to her heroin addiction but any prolonged bout of vomiting , from whatever cause , was likely to cause a serious imbalance of her blood chemistry very quickly . Apart from electrolyte disturbance and dehydration , she would be very likely to have had difficulty maintaining an adequate blood sugar level , as she would have had no reserves in the form of stored carbohydrate substances within the body , that could have been utilised , when she was unable to absorb adequate nutrients from her gastrointestinal system due to her persistent vomiting .", "In such circumstances a vicious circle can occur . A low blood sugar level itself can cause more nausea and vomiting . Multiple metabolic pathways can be interfered with . The subject can become irritable . The level of consciousness may be severely reduced and coma can even occur .", "Intravenous access is often very difficult in intravenous drug abusers , even for clinicians such as anaesthetists who routinely insert needles . Central lines are likely to be needed . These are special long catheters , often with CARDINAL lumen , that are inserted into major blood vessels close to the heart . I would not expect the average prison medical officer to be proficient in inserting such a line .", "It is preferable for these lines to be inserted in hospital , by personnel with the necessary skills . After insertion , the correct positioning ... needs to be checked by ORG before it is used to administer drugs and fluids . Once inserted their maintenance requires skilled , aseptic nursing care ...", "I would be inclined to attribute the agitation and apparent lack of cooperation displayed by PERSON after her admission ... and before her second collapse to cerebral irritation . Cerebral irritation is often seen following a period of cerebral hypoxia . Certainly , a degree of cerebral hypoxia probably occurred at the time of her collapse [ in prison ] and continued up to the time that resuscitation was underway at PERSON ...", "The bleeding that occurred , following a period of persistent and violent vomiting , could certainly have been caused by a PERSON tear as suggested ... in the autopsy report .", "If PERSON had been admitted to hospital earlier , it might still have proved difficult to control the vomiting and , in view of her poor general and nutritional state , if the cause of her bleeding was a PERSON tear , this might still have occurred , but she would not have had such a degree of dehydration and/or biochemical disturbance , and the consequences of such an occurrence would probably have been less serious .", "Alternatively , if her vomiting had been brought under control at an earlier stage , the subsequent sad sequence of events might have been prevented . ”", "In his opinion of DATE , counsel advised the applicants in the light of this medical report that there was insufficient evidence to establish the necessary causal link between PERSON death and the allegedly negligent care afforded to her in custody . They did not pursue their claims in negligence .", "A person who suffers injury , physical or psychiatric , in consequence of the negligence of another may bring an action for damages for that injury . An exacerbation of an existing condition constitutes such injury . Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation , do not entitle a plaintiff to damages . Any personal injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death .", "Claims arising from the death of an individual caused by negligence are brought under LAW DATE or LAW ( LAW DATE . The former enables those who were financially dependent upon the deceased to recover damages for the loss of dependency . The scheme of the CARDINAL Act is compensatory and save for the sum of MONEY for bereavement to the spouse of a deceased or parent of a deceased child under CARDINAL at the time of death , damages are awarded to reflect the loss of support . The latter enables damages to be recovered on behalf of the deceased ’s estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses ." ]

[ "13", "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "In DATE the applicant lodged an action in damages against the owner of a flat in which he lived with his family . He also sought the protection of possession with respect to the flat . The respondent lodged a counter - claim seeking the payment of usage fees for the flat .", "After having held several hearings and obtained the opinions of experts , on DATE ORG delivered its judgment , finding that the respondent was liable for the damages sought . It partly upheld the counter - claim of the respondent and ordered the applicant to pay usage fees for the flat .", "On DATE ORG , sitting as a second - instance court , increased the amount to be paid to the applicant .", "On DATE , ORG , acting as a review instance , decreased the amount to be paid to the applicant and increased the amount of usage fees to be paid to the respondent ." ]

[ "6" ]

[ "6-1" ]

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[ "ORG The case was brought before ORG on DATE by ORG ( \" the Commission \" ) and on CARDINAL DATE by ORG and GPE ( \" the Government \" ) . It originated in CARDINAL applications ( nos . CARDINAL , CARDINAL , CARDINAL and CARDINAL ) against GPE which had been lodged with the Commission , on DATE , CARDINAL DATE , CARDINAL DATE and PERCENT DATE respectively , by CARDINAL NORP citizens , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON .", "As regards the facts of the case , reference is made to CARDINAL to CARDINAL of the ORG ’s judgment of CARDINAL DATE ( \" the principal judgment \" - Series A no . CARDINAL-B , pp . PERCENT ) .", "In that judgment the ORG held , inter alia :", "( a ) that there had been no violation of LAW ( LAW , the applicants’ detention having been based on a reasonable suspicion of commission of an offence and effected for the purpose of bringing them before the competent legal authority ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) ;", "( b ) that there had been a violation of LAW ( LAW ) in respect of all CARDINAL applicants , in that they had not been brought promptly before a judge or other officer authorised by law to exercise judicial power ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) ;", "( c ) that there had been no violation of LAW ( LAW ) , the applicants having been entitled to take proceedings of the nature required by this provision ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) ;", "( d ) that there had been a violation of LAW ( LAW ) in respect of all CARDINAL applicants , in that they had no enforceable claim for compensation before the domestic courts for the breach of LAW ( LAW ) ( CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) ;", "( e ) that there was no call to examine the application of LAW ) in relation to reimbursement of any costs or expenses incurred , the applicants not having submitted any claim in this respect and this not being a matter which the ORG had to examine of its own motion ( paragraph CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) .", "In their memorial of CARDINAL DATE the applicants had claimed , under LAW ) of the LAW , compensation for prejudice suffered . They contended that an award of exemplary damages would be appropriate and suggested , notably , that compensation should be calculated on the basis of MONEY for TIME of wrongful detention .", "In the principal judgment the ORG held that the question of the application of LAW ) in relation to this claim was not ready for decision ; accordingly , it reserved the said question in that respect and invited the Government to submit their written comments within DATE and , in particular , to notify ORG of any agreement reached between them and the applicants ( paragraph CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and DATE ) .", "In accordance with the foregoing invitation and the President ’s directions , there were filed at the registry , on DATE , a memorial of the Government and , on DATE , observations of the applicants . These documents revealed that no agreement as aforesaid had been reached .", "On DATE the Delegate of the Commission lodged observations on the question of the application of Article CARDINAL ( article CARDINAL ) in the present case .", "The ORG decided on DATE that there was no call to hold a hearing ." ]

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[ "ORG The first applicant , PERSON , was born in DATE and lives in PERSON . The second applicant , PERSON , is his daughter .", "On DATE the first applicant ’s wife , ORG , together with the second applicant , then aged CARDINAL , moved out of the flat in which they had been living with the first applicant . ORG subsequently filed a petition for divorce .", "On DATE the first applicant and his wife , with whom the second applicant was living , signed an agreement on access arrangements .", "On DATE the first applicant filed a request with ORG ( “ the FAC ” ) seeking formal determination of the access arrangements , claiming that since DATE PERSON had denied him access to the second applicant .", "During DATE PERSON gave a number of statements at FAC , opposing contact between the applicants , stating that the first applicant represented a danger to her and the second applicant . She also lodged a criminal complaint against the first applicant for endangering their safety .", "On DATE the expert committee of FAC submitted an opinion in the case .", "On DATE a hearing was held at FAC . While the first applicant attended the hearing , ORG refused to attend , claiming that she did not feel safe in the presence of the first applicant .", "On DATE FAC issued an order granting the first applicant TIME a week with the second applicant , taking into account the expert committee ’s opinion and the fact that , at the supervised meeting between the applicants , the second applicant had not appeared to be afraid of the first applicant but , on the contrary , pleased to see him . FAC did not follow the first applicant ’s proposal that he should be allowed to pick the second applicant up at her nursery ; instead it ordered ORG to bring the second applicant to a meeting point at a local train station .", "On DATE , further to an appeal by ORG , ORG , Family and Social Affairs ( “ the Ministry ” ) modified the order in part . However , in essence , the access arrangements remained unaffected . The access order therefore became final and enforceable on DATE .", "ORG failed to comply with the order . She did not bring the second applicant to the meeting - point specified therein .", "On DATE the first applicant requested enforcement of the order . After hearing evidence from both parties , on DATE ORG ( “ the Unit ” ) allowed the enforcement and ordered ORG to hand the second applicant over to the first applicant at the next meeting . In addition , the ORG decided that if ORG failed to do so she would be ordered to pay a fine of CARDINAL NORP tolars ( SIT ) ( MONEY ( ORG ) ) . It also noted that the fine could be increased in the event of further failure to comply .", "M.E. continued to refuse the first applicant all access to the second applicant .", "Further to the first applicant ’s thirteen notices of non - compliance by ORG , on CARDINAL , DATE , DATE and DATE , CARDINAL May and DATE the ORG issued orders imposing fines which increased from SIT CARDINAL to SIT CARDINAL ( approximately ORG CARDINAL ) . The orders were forwarded to the tax authorities for execution .", "M.E. appealed against the orders .", "According to letters addressed to the court by FAC on DATE and CARDINAL DATE , in the context of proceedings no . P CARDINAL , ORG and the ORG attempted to organise supervised meetings between the applicants , but ORG refused to cooperate .", "On DATE the ORG quashed the impugned enforcement orders , finding that ORG had not been informed of the first applicant ’s notices concerning non - compliance and had had no opportunity of participating in the proceedings and presenting arguments in her favour . ORG also found that the ORG had not examined the situation by verifying whether the meetings had actually failed to take place , and , if so , whether there had been justifiable reasons for such failure . ORG , however , noted that the order determining access arrangements remained enforceable and could not be challenged in those proceedings . The ORG was ordered to reexamine the notices . Neither of the parties challenged the decision before ORG and it therefore became final on DATE .", "Further to changes in legislation which stipulated that the first - instance authority should be in charge of enforcement , the ORG transferred the file to FAC on DATE . There are no indications in the case file that any steps were subsequently taken by FAC in the context of these proceedings .", "On DATE , further to the divorce petition filed by ORG , ORG issued an interim decision granting PERSON provisional custody ( varstvo in vzgoja ) of the second applicant pending the outcome of the proceedings . This decision was upheld by ORG on DATE .", "On DATE ORG issued a judgment granting the first applicant and ORG a divorce , granting ORG custody of the second applicant and fixing the amount the first applicant had to pay in child support .", "On DATE ORG upheld ORG ’s appeal in part and increased the child support . This was a final decision in these proceedings .", "On DATE the first applicant lodged an application for custody of the second applicant , relying on the fact that ORG was denying them contact . He also requested an interim order under which the second applicant would be placed in his custody pending the outcome of the proceedings , and the appointment of a curator ad litem to represent the second applicant ’s interests in the proceedings . He further requested that the case be granted priority . On DATE the applicant submitted documents in support of his request for exemption from obligation to pay the court fees .", "The hearing scheduled for DATE was cancelled at the first applicant ’s request .", "At a hearing held on DATE the first applicant requested to have the case dealt with through mediation . The request was allowed by the court . However , it would appear that ORG showed no interest in resolving the issues in that manner .", "On DATE the first applicant requested the President of the court to establish why no hearing had been scheduled . DATE a hearing was scheduled for DATE . That hearing was then adjourned as ORG did not attend . LOC was requested to conduct an interview with ORG and to inform the court about the implementation of contact between the applicants .", "At the hearing of CARDINAL May CARDINAL , the first applicant requested that the proceedings be stayed , after having had an opportunity to see the second applicant at the school ’s parent - teacher meetings .", "NORP However , as GPE continued to refuse any contact between the applicants , on DATE the first applicant requested that the proceedings be resumed and a hearing was scheduled for DATE . It was adjourned as the court decided , further to the first applicant ’s request , to appoint an expert psychologist . On DATE the court appointed expert D.T. to produce an opinion in the case .", "On DATE the first applicant lodged written submissions and requested the court to urge the expert to prepare the opinion . In addition , he made an alternative request seeking , inter alia , a change in the access arrangements and to have proceedings Pn CARDINAL/CARDINAL ( see paragraphs CARDINAL - CARDINAL below ) joined to the current set of proceedings . In these and subsequent submissions the second applicant was also mentioned as a plaintiff .", "On DATE and DATE the first applicant lodged further written submissions . In the first set , he submitted that he had had no access to the second applicant . He also asked the court to appoint another expert , as D.T. had failed to produce an opinion . In the second set of submissions the first applicant urged the court to issue the interim custody order ( see paragraph CARDINAL above ) and added an alternative request for an interim access order . In the latter , he emphasised the need to organise the visits in a manner that would prevent ORG from obstructing them . Accordingly , he proposed to pick the second applicant up from school , after her lessons . The first applicant also informed the court that , to his knowledge , ORG was refusing to be examined by D.T. , and complained about the passivity of the court . In addition , the first applicant alerted the court to the fact that he had had no access to the second applicant in DATE , except on CARDINAL occasion at her school .", "In the meantime , the appointed expert informed the court on DATE that he was unable to prepare the opinion as ORG had refused to cooperate . On DATE , the court informed the first applicant that it would decide on the interim orders only when the expert opinion was available .", "On DATE the first applicant lodged supervisory appeals with the President of the court and ORG complaining about the passivity of the judge .", "On DATE the first applicant again urged the court to decide on the case , stressing that PERSON was deliberately avoiding examination by the expert .", "On DATE the judge prepared a report in reply to supervisory appeal . DATE the President of the court replied to the first applicant . He noted that no interference with the judge ’s decision concerning the appointment of the expert was permitted and that there were no reasons for any measures to be taken in response to the first applicant ’s supervisory appeal . He also informed him that the main reason for the delay in the proceedings was ORG ’s failure to cooperate and reassured him that if the expert could still not examine ORG court would decide on the interim access order in the absence of an expert opinion .", "On DATE the first applicant requested the expert , the judge and the President of the court to step down from the case , arguing that they were inactive . His requests were dismissed on the ground that the statutory conditions for withdrawal were not fulfilled .", "On DATE PERSON was examined by the expert .", "On DATE the court held a hearing concerning the interim orders . Beforehand , it acquired information concerning the first applicant ’s criminal record and relevant information from FAC and ORG ’s bank . All parties were present at the hearing . Subsequently , on DATE , the court issued a decision rejecting the first applicant ’s application for provisional custody and upholding his alternative request for an interim access order . It noted that “ during the court proceedings the applicants had contact once in DATE at the school in PERSON and , subsequently , twice at the school in GPE ” . The applicants were granted the right to spend , inter alia , TIME a week together , whereby the first applicant would pick the second applicant up after school and return her to ORG at TIME , plus DATE and part of DATE . These arrangements were to be implemented after CARDINAL DATE preparatory meetings . The court also decided that ORG could be subjected to a fine of SIT QUANTITY ( approximately EUR CARDINAL,CARDINAL ) if she was found to be preventing or obstructing contact between the applicants . The second applicant was by then DATE .", "As GPE and the second applicant moved to GPE , the PERSON Social Welfare Centre ( “ the FAC ” ) obtained jurisdiction in the case . On CARDINAL , DATE and DATE the applicants had contact in the context of the preparatory meetings held at FAC . The ORG assessed the visits very positively . In answer to the court ’s request , ORG informed it that subsequent contact between the applicants did not appear to have been hindered .", "On DATE the first applicant lodged written submissions complaining that on certain occasions he had been denied access to the second applicant . He also requested that ORG be penalised as stipulated in the decision of CARDINAL DATE .", "On DATE the expert D.T. issued a report which assessed the relationship between the applicants in positive terms , finding that the second applicant showed affection for the first applicant and that there were no reasons to doubt the latter ’s capacity to be a parent . D.T. further found that ORG had in DATE changed her attitude regarding the relationship between the applicants and gained some trust in the first applicant . D.T. also noted that the second applicant was growing up with her mother and had expressed a wish to continue living with her .", "On DATE the court ordered the first applicant to pay the expert ’s fees . The first applicant appealed on DATE . On DATE ORG upheld the order of the first - instance court , finding that the first applicant had undertaken to pay the fees for the expert whose appointment he had proposed .", "In the meantime , on DATE , the first applicant received the expert opinion .", "On DATE the court scheduled a hearing for DATE , which was adjourned sine die at ORG ’s request . PERSON stated that she would not be available during that period as she had given birth in DATE and was breastfeeding .", "On DATE the first applicant lodged a supervisory appeal , relying on section CARDINAL of the Act on Protection of the Right to a Hearing without Undue Delay ( “ the CARDINAL Act ” ) .", "On DATE the President of the court , relying on section CARDINAL , paragraph CARDINAL of LAW , replied to the supervisory appeal stating that the hearing had been held on DATE , that is , within DATE of receipt of the supervisory appeal .", "On DATE the court held a hearing . It joined proceedings Pn CARDINAL/CARDINAL to the existing proceedings . Since the first applicant insisted that the second applicant act as a second plaintiff and be represented in the proceedings by a curator ad litem ( see paragraph CARDINAL above ) , the court adjourned the hearing and appointed a lawyer to represent the second applicant .", "On DATE the first applicant lodged preliminary written submissions in which he expressed his dissatisfaction with certain parts of the expert opinion and requested that a new expert be appointed .", "DATE . On DATE the first applicant lodged a motion for a deadline , relying on LAW CARDINAL of LAW . On DATE the President of ORG rejected ( zavreči ) the motion . He found that the first applicant had not sufficiently explained his allegations of undue delay and therefore failed to satisfy the requirements of section CARDINAL , paragraph CARDINAL , point CARDINAL of LAW .", "A hearing was scheduled for CARDINAL DATE but was cancelled at the request of the second applicant ’s representative .", "The next hearing was held on DATE . At the hearing the parties agreed on new access arrangements . Under the terms of that agreement , the first applicant also withdrew his application for custody rights . In addition , the parties withdrew CARDINAL other claims – CARDINAL criminal complaint for defamation lodged by ORG against the first applicant and a civil complaint pursued by the first applicant against PERSON On DATE the proceedings were “ finally resolved ” ( see paragraph CARDINAL below ) .", "On DATE the first applicant lodged a request for access arrangements in separate proceedings . In his request the first applicant noted that the access order issued in administrative proceedings had been ineffective and requested that the court grant an interim access order which would ensure contact between the applicants . In this connection , he requested to be granted the right to pick up the second applicant at her school , which would prevent ORG from hindering the access . In DATE and DATE the court tried to serve the request on ORG , but to no avail . The court then ordered that the request be served through ORG ’s employer .", "In his written submissions of DATE the first applicant included the second applicant as a claimant .", "On DATE the GPE pri ORG held a hearing . It found that it lacked jurisdiction to decide in the case and referred it to ORG .", "On DATE the applicants requested the GPE pri ORG to transfer the case file to ORG .", "On DATE the GPE pri ORG informed the first applicant that the case could not be transferred as the decision concerning the court ’s lack of jurisdiction had not yet become final owing to the lack of success in serving it on GPE", "On DATE the case was transferred to ORG and was registered under number Pn CARDINAL .", "On DATE the first applicant requested priority .", "The court held a hearing on DATE in the absence of ORG The first applicant testified that he had had access to the second applicant only on CARDINAL occasions , namely on DATE , on CARDINAL DATE and on DATE . The judge informed the first applicant that an interim access order could not be issued as the final access order issued in administrative proceedings was still in force .", "On DATE and DATE the first applicant filed written submissions .", "On DATE ORG asked the first applicant to enclose a confirmation from the social welfare centre that an attempt had been made to reach an agreement concerning access rights as stipulated in the Marriage and Family Relations Act . It also noted that the advance for the payment of expert fees had not been paid . It appears from this decision that the second applicant , represented by her father , was also considered a claimant in the proceedings .", "On DATE the court dismissed the request for new access arrangements as the first applicant had failed to submit the required documents . It seems , however , that this decision did not become final as on DATE the first applicant successfully requested that the proceedings be joined to proceedings P CARDINAL/CARDINAL ( see paragraph CARDINAL above ) .", "Until DATE ORG were in principle responsible for taking decisions concerning access arrangements . The enforcement of such decisions could then be requested only in administrative proceedings . As regards the sanctions , LAW ( Zakon o splošnem upravnem postopku , ORG no . CARDINAL/CARDINAL ) provided in its section CARDINAL :", "“ If the enforcement of a non - pecuniary obligation can not be achieved or achieved in time by the means specified in sections CARDINAL and CARDINAL of this law [ such as the imposition of administrative fines ] , it may , depending on the nature of the obligation concerned , be secured by direct coercion unless otherwise stipulated in the applicable legislation . ”", "The Marriage and Family Relations Act ( “ the MFR Act ” , Zakon o zakonski zvezi in družinskih razmerjih , ( old ) Official Gazette of GPE no . CARDINAL/CARDINAL ) stated in its section CARDINAL that :", "“ ... In the event of a divorce or annulment of marriage , parental rights ( roditeljska pravica ) shall be exercised by the parent who has custody of the child .", "Decisions that are decisive for the development of a child , shall be taken by both parents together ....", "If the parents can not reach an agreement , ORG shall decide . ”", "On DATE the ORG delivered an important decision in which it found several provisions of the MFR Act concerning custody and access arrangements to be unconstitutional . Subsequently , an amendment was enacted by ORG no . CARDINAL/CARDINAL ) . It entered into force on DATE .", "Further to the above - mentioned legislative changes , the courts acquired jurisdiction to adjudicate custody and access arrangements . Since then , parents have been able to reach an agreement ( outside divorce proceedings ) in non - contentious civil proceedings . If no agreement can be reached with the assistance of ORG , the issue of custody is decided in contentious civil proceedings . The issue of access arrangements can be decided in non - contentious civil proceedings if it is not raised together with the issue of custody ( sections CARDINAL , CARDINAL and CARDINAL as amended in DATE ) . In particular , sections CARDINAL and CARDINAL provide , as far as relevant :", "“ ...", "If the parents , with the assistance of ORG , can not reach an agreement on the custody of children ( varstvo in vzgoja otrok ) , the court shall decide at the request of CARDINAL or both parents that all the children are in the custody of CARDINAL of them or that some children are in the custody of CARDINAL and the others in the custody of the other parent . The court may , of its own motion , decide to place all or some of the children in the custody of a third person . Before the decision is taken by the court , the opinion of ORG shall be obtained . The court shall take the child ’s view into account if the child expresses his or her view ...", "“ A child has the right to have contact with both parents . Both parents have the right to have contact with their children . Contacts should be in the child ’s interest first and foremost .", "The parent with whom the child lives ... shall avoid anything that hinders or prevents such contact . He or she must strive to maintain an appropriate attitude in the child in respect of contacts with the other parent ...", "...", "The court can withdraw or limit the right to contacts only if this is necessary for the protection of the child ’s interests ... ”", "Section CARDINAL of the amended ORG states also that , if the custodial parent denies the non - custodial parent access to the child and contact can not be secured with the assistance of ORG , the court shall , at the request of the non - custodial parent , transfer custody to him or her if this is in the interest of the child .", "DATE . In addition , the amended MFR Act annulled the previous section CARDINAL ( see paragraph CARDINAL above ) , providing instead , in sections CARDINAL and CARDINAL :", "“ Minors shall be represented by their parents .", "Letters or information to be served on the minor may be served effectively on any of the parents ; if the parents do not live together , they shall be served on the one with whom the child lives ... ”", "“ Parental rights shall be exercised mutually by both parents in accordance with the child ’s best interests . If they can not reach an agreement , ORG shall assist .", "When the parents do not live together and do not have joint custody , they shall decide mutually on all issues decisive for the child ’s development in accordance with the child ’s best interest . If they can not reach an agreement , ORG shall assist . Questions concerning the child ’s everyday life shall be decided by the custodial parent .", "If the parents , even with the assistance of the social welfare centre , do not reach an agreement .... , the court decides on these issues .", "... ”", "Section QUANTITY states the circumstances in which parental rights can be withdrawn :", "“ The parent who abuses his or her parental rights or abandons a child or demonstrates unwillingness to take care of the child or in any other way neglects his or her responsibilities shall be deprived of his or her parental rights by a court judgment . ”", "Section CARDINAL of the amended LAW provides that cases covered by the LAW should be processed with priority .", "Lastly , pursuant to the transitional provisions of the amended MFR Act , proceedings instituted before the entry into force of the amendments ( that is , before DATE ) were to be continued and completed before ORG . In such cases any appeal against the first - instance decision was still to be examined by ORG . However , where the first - instance decision was quashed by ORG , the proceedings were to be continued before the district court with territorial jurisdiction in accordance with the amended ORG .", "The relevant provisions of LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL , in force since DATE ) , read as follows :", "“ In marital disputes and disputes concerning relations between parents and children the courts shall of their own motion take all steps necessary to safeguard the rights and interests of the children ...", "In disputes concerning the custody and maintenance of children [ and in disputes concerning contacts between children and parents or other persons DATE added with the amendment of DATE , in force since CARDINAL May CARDINAL ] , the panel is not bound by the parties’ requests . Where so provided by the law , the panel may take decisions even without any request being made .", "For the protection of the interests of the persons mentioned in the first paragraph , the panel may investigate facts which were not provided by the parties , and collect the information necessary for its decision ... ”", "“ ...", "If there is a conflict of interests between the child and his or her statutory representative ( zakoniti zastopnik ’s interests . ”", "“ During proceedings concerning marital disputes and disputes relating to relationships between parents and children , the court may , at the request of CARDINAL of the parties or of its own motion , issue interim orders ( začasne odredbe ) concerning child custody and maintenance as well as interim orders withdrawing or restricting access arrangements .", "... ”", "As regards the stay of proceedings , section CARDINAL of LAW provides :", "“ ... the proceedings are stayed ( mirovanje postopka ) until a party proposes that they be continued . The proceedings may not be resumed until DATE after they were stayed . ”", "The Act on the Protection of the Right to a Hearing without Undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG no . DATE CARDINAL Act ” ) was passed by the ORG on DATE and entered into force on DATE .", "DATE . LAW provides for remedies to expedite pending proceedings ( a supervisory appeal and a motion for a deadline ) . In addition to these acceleratory remedies , LAW also provides for the possibility of obtaining redress through a compensatory remedy , by instituting proceedings for just satisfaction within DATE of the “ final resolution ” of the case ( see paragraph CARDINAL below ) .", "As regards the acceleratory remedies , a claimant may , during the first- and second - instance proceedings , that is the proceedings before the regular courts , use a supervisory appeal if he or she considers that the court is unduly protracting the decision - making . If the president of the court dismisses the supervisory appeal or , inter alia , fails to respond to the claimant within DATE , the claimant can lodge a motion for a deadline with the court hearing the case . The motion for a deadline is dealt with by the president of the higher court . He or she shall decide on the motion for a deadline within DATE of receiving it .", "As regards the obligatory elements which must be included in a supervisory appeal and a motion for a deadline , section CARDINAL provides in the relevant part :", "“ ( CARDINAL ) For the purposes of decision - making concerning the protection of the right to a trial without undue delay , the supervisory appeal [ the same applies to a motion for a deadline ] shall contain the following elements :", "– personal or corporate name or any other name of the party , with address of permanent or temporary residence or registered office ;", "– personal or corporate name or any other name of the representative or lawyer , with address of permanent or temporary residence or registered office ;", "– indication of the court hearing the case ;", "– reference number of the case or date on which the case was filed in the court ;", "– indication of circumstances or other particulars concerning the case which demonstrate that the court is unduly protracting the decision - making ;", "– handwritten signature of the party , representative or lawyer . ”", "As to the claim for just satisfaction , sections CARDINAL , DATE and DATE of the CARDINAL Act provide that for the claimant to be able to lodge a claim for just satisfaction CARDINAL cumulative conditions must be satisfied . Firstly , during the first- and/or second - instance proceedings the claimant must have successfully availed himself of a supervisory appeal or have lodged a motion for a deadline , regardless of its outcome . Secondly , the proceedings must have been “ finally resolved ” ( pravnomočno končan postopek ) . The final resolution of the case refers in principle to the final decision against which no ordinary appeal lies . This would normally be the first- , or if an appeal has been lodged , the second - instance court ’s decision . The maximum amount of just satisfaction for non - pecuniary damage fixed by LAW is EUR CARDINAL,CARDINAL .", "As regards proceedings terminated before DATE , section CARDINAL lays down the following transitional rules in relation to applications already pending before the ORG :", "“ ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased and the party has made a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney ’s ORG shall offer the party a settlement on the amount of just satisfaction within DATE of the date of receipt of the case referred by the international court for the settlement procedure . ...", "( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE of the date on which the party made its proposal , the party may lodge a claim [ for just satisfaction ] with the competent court under this LAW ... ”", "For a more detailed presentation of LAW , see GPE v. GPE , ( dec . ) no . CARDINAL , DATE ." ]

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[ "8-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE at TIME the applicant , who at the material time was a student , was arrested in a yard of school no . CARDINAL by police officers while receiving a sum of money from another student .", "The applicant was suspected of extortion and was taken to GPE police station no . CARDINAL ( “ FAC of GPE ” ) where he was locked in an office .", "The applicant submits that CARDINAL of the police officers who had arrested him periodically entered the office , asked him questions and beat him .", "The applicant was then taken to another office where CARDINAL more police officers were present . The officers explained to him that he had the right not to give evidence against himself .", "According to the applicant , they then started to ask him questions , which he refused to answer . All CARDINAL officers started to beat him . CARDINAL of them forced the applicant to stay in a CARDINAL - squatting position while holding a metallic plate in his hands . The officer warned the applicant that if he failed to maintain the position , he would “ get a kick in his chest ” .", "Allegedly , when the applicant dropped the plate , he was kicked in the chest and the beatings resumed . At CARDINAL point the applicant was kicked in the face . On the verge of losing consciousness , the applicant agreed to “ sign all the papers ” , after which he was placed in a cell .", "On DATE at TIME the applicant was taken by a police officer to the casualty department of polyclinic no . CARDINAL where he was examined by a doctor . The doctor concluded that the applicant 's lower jaw was fractured and that he needed an urgent in - patient examination by a surgeon .", "Following the doctor 's examination , the applicant was taken back to the police station where he was once again placed in a cell . TIME the applicant was taken to another police station , no . CARDINAL , where his fingerprints were taken .", "On DATE at TIME the applicant was released .", "On DATE of his release , the applicant was taken to ORG no . CARDINAL ( GPE клиническая больница № CARDINAL г. GPE ) for NORP treatment . The applicant was diagnosed as having a “ fracture of the lower jaw in the area of the right condylar process accompanied by a dislocation of the articular head ” . The medical report further stated that “ the lower jaw was abnormally mobile and the configuration of the face had changed due to a post - traumatic oedema in the right parotid area ” . In the course of his treatment the applicant underwent surgery to replant the articular head .", "The applicant was discharged from hospital on DATE .", "On an unspecified date criminal proceedings were instituted against the applicant , who was charged with extortion .", "On DATE ORG of GPE ( ORG межмуниципальный суд северо-восточного административного округа г. PERSON ) decided , on a request by the applicant , to terminate the criminal proceedings against him on the basis of an LAW in respect of minors and women passed by ORG on DATE .", "On an unspecified date the applicant 's defence counsel lodged an appeal against the decision of ORG claiming that the applicant was not guilty and that he should have been acquitted . The outcome of that appeal is unclear .", "On DATE the applicant lodged a complaint with the Head of ORG of ORG ( начальник PERSON собственной безопасности ORG ) stating that he had been subjected to ill - treatment by police officers . His complaint contained a detailed description of the events and of all CARDINAL police officers involved . He also stated that CARDINAL of them had participated in his earlier arrest and that another was called ORG", "It appears that on DATE the applicant 's mother lodged similar complaints with ORG ( ORG межрайонная прокуратура г. PERSON ) and ORG ( прокуратура г. PERSON ) . The case was assigned to Investigator PERSON of ORG of GPE .", "On DATE the applicant lodged a complaint with ORG . In his complaint the applicant submitted that no decision , whether to institute or refuse to institute criminal proceedings , had been taken so far on the basis of his allegations of ill - treatment . He further submitted that pressure had been exerted by the investigators of police station no . CARDINAL on the witnesses in the criminal case against him and that his family had received threatening phone calls because they had complained that the applicant had been ill - treated .", "On DATE the applicant 's mother lodged a complaint with ORG ( Генеральная прокуратура РФ ) . In her complaint she once again raised the issue of the applicant 's ill - treatment by the police officers . She further submitted that since DATE no effective investigation had been carried out . The case had been transferred from CARDINAL investigator to another and no forensic medical examination had yet been ordered . She also alleged that their family had received threatening phone calls .", "By a letter of CARDINAL DATE Investigator PERSON informed the applicant 's mother that :", "“ ... on DATE criminal proceedings no . DATE have been instituted under LAW of LAW [ ( Уголовный кодекс ORG ) ] on the basis of your complaint about the physical injuries caused to [ the applicant ] ” .", "On DATE Investigator PERSON ordered a forensic medical examination to be carried out . The investigator found that :", "“ On DATE [ the applicant ] was arrested on suspicion of having committed an offence by police officers of FAC of GPE [ ( ORG внутренних дел района GPE г. GPE ) ] . On DATE [ the applicant ] was placed in GPE ORG no . CARDINAL as a result of physical injuries which , according to [ him ] , had been inflicted by police officers . ”", "A number of questions were put to the forensic expert . The latter was also provided with the applicant 's medical file .", "On DATE the applicant 's mother lodged a complaint with Investigator PERSON In her complaint she submitted that during the medical examination carried out on DATE she had discovered that certain vital documents were missing from the applicant 's medical file . In particular , she drew attention to the doctor 's conclusion , in which , besides the diagnosis and need for urgent hospitalisation , it was also allegedly stated that the applicant had been brought to the casualty department by a police officer . The applicant 's mother alleged that this document had been deliberately destroyed in order to substantiate the version of events put forward by the police , according to which the applicant had been released from the police station at TIME on DATE .", "On CARDINAL and DATE the applicant 's mother lodged similar complaints with the prosecutor of ORG of GPE and ORG respectively , requesting an inquiry to be carried out . In addition , she requested permission to familiarise herself with the materials in case no . DATE in the presence of a public official .", "NORP By letter of DATE Investigator PERSON informed the applicant 's mother that access to the case file could not be granted as , in accordance with the relevant rules of procedure , the victim , the accused , the civil plaintiff and the defendant could familiarise themselves with the case file only after the investigation had been completed .", "On an unspecified date before DATE , the head of a local human rights NGO , ORG ( PERSON за гражданские права ) , acting as the applicant 's defence counsel , sent a letter to ORG complaining of the ineffective nature of the investigation into the applicant 's allegations of ill - treatment . In his letter the defence counsel alleged that police officers PERSON ( last name ) and PERSON ( first name ) had participated in the beating of the applicant . He further alleged that police officer PERSON had been exerting pressure on witnesses in the criminal case against the applicant . As a result , the witnesses had confirmed PERSON 's version of events , according to which the applicant fell and injured his jaw during his arrest .", "By letter of DATE the acting head of ORG at ORG ( и.о. начальника PERSON по надзору за следствием при прокуратуре г. GPE ) informed the applicant 's defence counsel that the criminal case against police officers of FAC was being examined by ORG . The letter stated that “ a medical examination had been carried out and a number of witnesses had been questioned ” . It was further stated that “ the investigation was being supervised ” .", "On DATE Investigator PERSON decided to stay the preliminary investigation of criminal case no . DATE on the grounds that “ the person against whom charges should be brought had not been identified ” .", "On DATE the applicant 's mother applied to Investigator PERSON seeking to obtain a copy of the decision to stay the preliminary investigation .", "NORP By letter of DATE the Deputy to ORG ( заместитель Бутырского межрайонного прокурора г. PERSON ) informed the applicant 's mother that the decision to stay the preliminary investigation had been set aside and that the investigation had been resumed and assigned to Investigator PERSON . of ORG of GPE ( следователь PERSON межрайонной прокуратуры г. PERSON ) . A letter along similar lines dated DATE was received by the applicant 's father from Investigator PERSON .", "By letter of DATE ORG informed the applicant 's defence counsel , in reply to his complaint about the ineffective nature of the investigation , that “ the preliminary investigation had been resumed and the necessary investigative measures were being taken ” . The letter also stated that “ no evidence of pressure by the police officers of FAC on witnesses or on the applicant 's family had been found ” . It was further stated that “ the investigation was being supervised ” .", "By letter of DATE Investigator PERSON . informed the applicant and his parents that :", "“ criminal proceedings no . DATE ... have been terminated on DATE ... owing to the lack of evidence of any crime having been committed . ”", "It appears that the applicant 's mother lodged an appeal against that decision with ORG .", "On DATE she also requested permission to familiarise herself with the materials in criminal case no . DATE .", "NORP By letter of DATE she was informed by Investigator PERSON . that :", "“ ... The legislation does not permit the parties to criminal proceedings to obtain copies of the case - file materials .", "According to the law , only the accused , the victim and their counsel have the right to familiarise themselves with the materials in the case file . Your status , as well as the status of [ the applicant ] and [ his father ] , is that of a WITNESS . Therefore , you do not have the right to familiarise yourself with the materials in the case file .", "Since the termination of the present criminal case affects the lawful interests of [ the applicant ] , only he , after lodging a relevant request , will be allowed to familiarise himself with the decision , and only the decision , to terminate the criminal proceedings . ”", "By letter of DATE ORG informed the applicant 's mother and defence counsel that the decision of DATE “ had been found to be lawful and substantiated ” . ORG also forwarded to ORG the complaint of the applicant 's mother and his defence counsel about the lack of access to the case file .", "By letter of DATE the Deputy to ORG informed the applicant 's mother that as witnesses neither she , nor the applicant or his father , had the right to have full access to case file no . DATE . They could , however , familiarise themselves with the relevant decision to terminate the criminal proceedings by coming to ORG at a convenient time . The letter further stated that “ there were no grounds for transferring criminal case no . DATE to another prosecutor 's office in GPE for a further investigation , or for imposing criminal liability on police officer PERSON and other persons , or for imposing disciplinary sanctions on Investigator PERSON ” .", "By letter of CARDINAL DATE the acting head of ORG at ORG informed the applicant 's mother , in reply to her complaint about the ineffective nature of the investigation , that “ the allegations of ill - treatment by police officers are not corroborated by the materials in the case ” . In the letter it was further stated that “ there was no evidence that the investigation was not being carried out in an objective way or that Investigator PERSON . had threatened witnesses ” .", "By letter of DATE the acting head of ORG at ORG ( и.о. начальника PERSON по надзору за расследованием преступлений органами прокуратуры при NORP прокуратуре PERSON ) informed the applicant 's counsel , in reply to his complaint , that ORG had examined the applicant 's case and the relevant materials . It had been found that the applicant had attempted to flee during his arrest on DATE . Therefore , the police officers had had to apply force , as a result of which the applicant had fallen and fractured his jaw . There was no criminal element in the actions of the police officers and , therefore , there were no grounds for reversing the decision to terminate the criminal proceedings .", "According to the Government , on DATE the investigation was reopened and transferred to ORG . Some time later , police officer PERSON was charged with abuse of office under LAW . The investigation established that on DATE at TIME . the police officer PERSON escorted the applicant to GPE police station no . CARDINAL on suspicion of extortion . In office CARDINAL of the station he inflicted blows to the applicant 's jaw with his right fist with a view to forcing the applicant to confess .", "On DATE the investigation in this case was completed and the case file was sent for examination to a trial court .", "According to a judgment dated DATE , ORG of the city of GPE had examined police officer PERSON 's alleged actions and acquitted him in respect of the episode involving the applicant . The court , having questioned a number of witnesses , including the applicant , his family members as well as the doctors and police officers , found that the statements and other evidence collected by the investigation had been too confusing and contradictory to enable the court to conclude with sufficient certainty that the injuries in question had indeed been inflicted by officer B.", "NORP In particular , in respect of the statements given by the applicant during the trial , the court stated as follows :", "“ ... The court is critical in respect of the statements made by [ the applicant during the trial ] and does not trust them , since they are self - contradictory as well as incompatible with the objective information contained in the case file . From his statements it is clear that he believes that the blows were inflicted on him by PERSON , and not anyone else , and that it is his presumption . At the same time , under [ domestic law ] all doubts concerning the guilt of the accused which can not be eliminated in accordance with LAW are interpreted in favour of the accused . Also , the court considers that by giving these statements , the applicant is trying to defend himself and the extortion committed by him by showing that his initial confessions were motivated by police coercion . Later , however , [ the criminal case against the applicant ] was discontinued owing to LAW , that is , on the basis of non - rehabilitative grounds ... ”", "Having examined some further witnesses , including the family of the applicant and the medical personnel who carried out the medical examination of the applicant , the court noted that :", "“ ... All the statements by witnesses ... to which the prosecution is referring , do not prove the guilt of B. in connection with [ the crime ] , since they only indirectly confirm the fact that injuries were inflicted on [ the NORP the basis of the descriptions made by [ the applicant himself ] . ”", "The court noted that the police officers who had been on duty on DATE had consistently stated that no coercion or violence had been used in respect of the applicant .", "The court further noted that it had examined the CARDINAL medical examination reports submitted in the prosecution case file , both confirming the existence of the injuries on the applicant 's body . The court accepted CARDINAL of them as evidence in the case and rejected the other on the grounds that the prosecution had failed to comply with legal requirements concerning the use of copies of documents and the methodology of the examination .", "The court did not elaborate on other possible causes of the applicant 's injuries , having limited the analysis to the issue of ORG 's involvement in the incident . At the same time , the court stated that :", "“ ... [ it ] takes note of the fact that the bodies involved in the preliminary investigation , by bringing criminal proceedings in respect of B. on a request by [ the applicant ] , took the decision not to initiate criminal proceedings in respect of ORG , PERSON . , PERSON . [ other police officers ] , even though [ the applicant himself ] had sought a finding of liability in respect of all of the persons mentioned , and thus accepted [ the applicant 's ] application only in part ... ”", "The judgment of DATE was upheld on appeal by ORG on DATE .", "NORP In particular , ORG agreed with ORG conclusion concerning the assessment of admissibility of the medical examinations of the applicant . ORG specifically noted that in a decision of DATE the investigator in charge of the case had acknowledged that :", "“ ... medical documents and x - rays of [ the applicant ] from polyclinic no . CARDINAL and ORG no . CARDINAL could not be submitted for expert examination because they had been lost by an investigator of [ the local prosecutor 's office ] ... ”", "The court further noted that :", "“ As can be seen from the case file , the court was unable to locate the original medical documents in question confirming [ the applicant 's injuries ] , as attested by the reply of DATE no . DATE from ORG ... ”", "Article CARDINAL § CARDINAL of the LAW provides that no one may be subjected to torture , violence or any other cruel or degrading treatment or punishment .", "Article CARDINAL § CARDINAL ( a ) of MONEY provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens , committed with violence or the threat of violence , shall be punishable by DATE imprisonment with a prohibition on occupying certain posts or engaging in certain activities for DATE .", "Article CARDINAL of LAW DATE ( CARDINAL кодекс РСФСР ) , as in force at the relevant time , provided that a prosecutor , investigator , inquiry body or judge were obliged to consider applications and information about any crime committed , and to take a decision on that information within DATE . In exceptional cases , this time - limit could be extended to DATE . The decision should be either a ) to institute criminal proceedings , or b ) to refuse to institute criminal proceedings , or c ) to transmit the information to another competent authority .", "Article CARDINAL of the LAW provides that in order to terminate the proceedings the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination . A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor . The investigator should also notify the victim and the complainant in writing of the termination of the proceedings and the reasons for that , and explain how they could appeal against that decision . An appeal against the decision to terminate proceedings could be lodged with the prosecutor or a court within DATE of the date of notification of the decision .", "Under LAW of the Code , the prosecutor could reverse the above decision of the investigator and reopen the proceedings .", "Under LAW , the prosecutor was responsible for the general supervision of the investigation . In particular , the prosecutor could order that specific investigative activities be carried out , transfer the case from one investigator to another , or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies ." ]

[ "3", "38" ]

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