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[ "The applicant association is the NORP branch of the animal rights organisation ORG ( People for the Ethical Treatment of Animals ) . It pursues , inter alia , the aims of preventing animal suffering and of encouraging the public to abstain from using animal products .", "In DATE the applicant association planned to start an advertising campaign under the head “ The Holocaust on your plate ” . The intended campaign , which had been carried out in a similar way in GPE , consisted of a number of posters , each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks , accompanied by a short text . CARDINAL of the posters showed a photograph of emaciated , naked concentration camp inmates alongside a photograph of starving cattle under the heading “ walking skeletons ” . Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “ final humiliation ” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “ if animals are concerned , everybody becomes a NORP ” . Another poster depicting a starving , naked male inmate alongside a starving cattle bore the title “ The Holocaust on your plate ” and the text “ DATE , CARDINAL human beings were killed in the Holocaust . As many animals are killed TIME in LOC for the purpose of human consumption ” .", "In DATE , QUANTITY individual persons , GPE , PERSON and PERSON , filed a request with ORG to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of CARDINAL specified posters via the internet , in a public exhibition or in any other form . The plaintiffs were at the time the president and the CARDINAL vice - presidents of ORG in GPE . All of them had survived the Holocaust when they were children ; PERSON lost her family through the Holocaust . They submitted that the intended campaign was offensive and violated their human dignity as well as the personality rights of PERSON dead family members .", "On DATE ORG granted the injunction . By judgment of DATE , that same court confirmed the interim injunction . The court considered that the plaintiffs had a claim to be granted injunctive relief under section CARDINAL § § CARDINAL and CARDINAL in conjunction with section CARDINAL of LAW , sections CARDINAL et seq . of LAW and LAW § § CARDINAL and CARDINAL of LAW ( see relevant domestic law , below ) . According to ORG , the plaintiffs were concerned by the impugned statements in their capacity as former victims of the Holocaust .", "ORG further considered that the impugned representations constituted expressions of opinion and were thus protected under LAW . This right protected expressions of opinion even if they were formulated in a polemic or offensive way . The depictions were particularly disturbing and drew a high degree of media attention because the pictures combined on the posters showed seemingly similar situations , which could only be discerned by the fact that one side showed coloured photographs of animals and the other black - and - white photos of humans , both alive and dead . Seen from the point of view of an ordinary spectator , the impugned posters had to be interpreted as putting the fate of the depicted animals and of the depicted humans on the same level .", "There was no indication that the applicant association ’s primary aim was to debase the victims of the Holocaust , as the posters obviously intended to criticise the conditions under which animals were kept and to encourage the spectator to reflect upon these conditions . It followed that the expression of opinion related to questions of public interest and would thus generally enjoy a higher degree of protection when weighing the competing interests . However , in the instant case it had to be taken into account that concentration camp inmates and Holocaust victims had been put on the same level as animals . In the light of the image of man conveyed by LAW , which put human dignity in its centre and only marginally referred to the protection of animals , this comparison appeared arbitrary because the Holocaust victims were confronted with their suffering and their fate of persecution in the interest of animal protection . The debasement of concentration camp inmates was thus exploited in order to militate for better accommodation of laying hens and other animals .", "ORG finally considered that the decision of the instant case did not depend on a weighing of competing interests , as the expression of opinion violated the GPE human dignity . The comparison offended the plaintiffs in their capacity as Holocaust victims by violating the respect for their human dignity . This violation was aggravated by the fact that the depicted persons were shown in a most vulnerable state .", "On DATE ORG rejected the applicant ’s appeal .", "On DATE ORG , in the main proceedings , confirmed its injunction . Further to the reasons given in the interim proceedings , ORG considered that it was not its task to determine from a philosophical or ethical point of view whether the suffering of highly developed animals could be compared to human suffering , as LAW put human dignity in its centre .", "On DATE ORG rejected the applicant ’s appeal .", "On DATE ORG rejected the applicant ’s constitutional complaint . ORG considered that the interpretation of the impugned pictures given by the civil courts was coherent and met the requirements imposed by the right to freedom of expression .", "ORG expressed its doubts as to whether the intended campaign violated the human dignity of either the depicted persons or the plaintiffs . There was no doubt that the photographs depicted Holocaust victims in situations in which they were highly degraded by their torturers . However , this did not necessarily imply that the use of these pictures also amounted to a violation of the represented ORG human dignity . Having regard to the specific circumstances of the instant case , the court considered that the intended campaign did not deny the depicted Holocaust victims their personal value by putting them on a par with animals . Even though the applicant association might generally be convinced of the equality of human and animal suffering , the intended campaign did not pursue the aim to debase , as the pictures merely implied that the suffering inflicted upon the depicted humans and animals was equal .", "However , ORG did not find it necessary to decide whether the intended campaign violated the GPE human dignity , as the impugned decisions contained sufficient arguments which justified the injunction without reference to a violation of the plaintiff ’s human dignity . It was , in particular , acceptable that the domestic courts based their decisions on the assumption that LAW drew a clear distinction between human life and dignity on CARDINAL side and the interests of animal protection on the other and that the campaign was banalising the fate of the victims of the Holocaust . It was , furthermore , acceptable to conclude that this content of the campaign affected the GPE personality rights . Referring to its earlier case law , ORG considered that it was part of the self - image of the NORP living in GPE that they belonged to a group which had been sampled out by their fate and that a special moral obligation was owed to them by all others , which formed part of their dignity .", "ORG did not find it necessary to remit the case for re - examination to the lower courts , as there was no indication that the lower courts would come to a different conclusion in case of a remittal . When weighing the competing interests , the GPE legal position could be granted preference over the applicant association ’s right to freedom of expression even without relying on a violation of the LOC human dignity . The lower courts had put forward sufficient reasons to allow this conclusion . In particular , the courts had begun to weigh the competing interests . Furthermore , they had based their assumption that the impugned campaign violated the LAW human dignity on the fact that they considered the violation of the plaintiff ’s personal honour as particularly serious . As these considerations applied in a similar way to a violation of the GPE personality rights , it had to be assumed that these principles would also guide the courts in case of a remittal .", "The relevant provisions of the German Basic PERSON read as follows :", "“ ( CARDINAL ) Human dignity shall be inviolable . To respect and protect it shall be the duty of all state authority .", "( CARDINAL ) NORP people therefore acknowledge inviolable and inalienable human rights as the basis of every community , of peace and of justice in the world . ”", "“ ( CARDINAL ) Every person shall have the right freely to express and disseminate his opinions in speech , writing and pictures , and to inform himself without hindrance from generally accessible sources . Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed . There shall be no censorship .", "( CARDINAL ) These rights shall find their limits in the provisions of general laws , in provisions for the protection of young persons , and in the right to personal honour . ”", "Protection of the natural foundations of life and animals", "“ Mindful also of its responsibility toward future generations , the state shall protect the natural foundations of life and animals by legislation and , in accordance with law and justice , by executive and judicial action , all within the framework of the constitutional order . ”", "NORP The relevant provisions of GPE read as follows :", "“ ( CARDINAL ) A person who , intentionally or negligently , unlawfully injures the life , body , health , freedom , property or another right of another person , is liable to make compensation to the other party for the damage arising from this .", "( CARDINAL ) The same duty is held by a person who commits a breach of a statute that is intended to protect another person ... ”", "“ ( CARDINAL ) If the ownership is interfered with by means other than removal or retention of possession , the owner may require the disturber to remove the interference . If further interferences are to be feared , the owner may seek a prohibitory injunction . ”", "Section CARDINAL of the Criminal Code reads as follows :", "“ Insult shall be punished with imprisonment for not DATE or a fine ... ”", "According to the constant case - law of the NORP civil courts , section CARDINAL § § CARDINAL and CARDINAL in conjunction with section CARDINAL ( in analogous application ) of LAW and LAW grants any person whose personality rights concretely risk being violated by another person a claim to compel that other person to refrain from performing the impugned action .", "In DATE the applicant association organised an exhibition in GPE , where the same posters which form the subject matter of the instant proceedings were publicly displayed . A number of NORP citizens of NORP origin , who had allegedly survived the Holocaust and who were not identical with the plaintiffs in the proceedings before the NORP courts , filed a request with ORG to be granted an injunction ordering the applicant association to desist from publishing the CARDINAL specified posters .", "On DATE ORG ( no . CARDINAL ORG CARDINAL/CARDINALf ) rejected the request . That court expressed its doubts as to whether the plaintiffs were directly affected by the impugned poster campaign . It considered , in any event , that the impugned campaign was justified by the right to freedom of expression . The poster campaign did not debase the depicted concentration camp inmates . The court further considered that the poster campaign , besides addressing an important subject of general interest , had the positive effect of rekindling the memory of the national - socialist genocide . The concentration camp pictures documented the historic truth and recalled unfathomable crimes , which could bee seen as a positive contribution to the process of dealing with the past ( PERSON ) . The plaintiffs had only been affected to a limited degree by way of a collective insult . Conversely , the applicant association had a legitimate interest in publicly addressing its subject even in a drastic way ." ]

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[ "The application was lodged on DATE in the name of Mr Mykola PERSON , a NORP national who was born in DATE , by his widow , PERSON . Subsequently , in her letter of DATE , she informed the ORG about the death of her late husband on DATE , expressing , at the same time , her wish to pursue the application .", "ORG ( “ the Government ” ) were represented by their Agent , PERSON GPE , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE Mr Bulakh instituted civil proceedings in the Makarivsky ORG against his employer seeking compensation for his occupational disability .", "Following repeated reconsiderations of the case by the courts of CARDINAL judicial levels , on DATE ORG partly allowed the claim and awarded Mr ORG in compensation .", "On DATE the court of appeal upheld the first instance judgment .", "On DATE Mr Bulakh died .", "On DATE the cassation instance , upon the parties’ appeal on points of law of DATE , confirmed the lower courts’ decisions .", "PERSON did not take part in the proceedings ." ]

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[ "Mr PERSON was born in DATE , PERSON in DATE , Mr Müştak Erhan İl in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr NORP in DATE , Mr ORG in DATE , PERSON in DATE , Miss PERSON in DATE , Miss PERSON in DATE , Miss PERSON in DATE , Miss PERSON in DATE and Miss PERSON in DATE . All are NORP nationals and live in GPE .", "In DATE and DATE , as part of a police operation against an illegal NORP organisation , ORG of ORG ) , the GPE police arrested the applicants and held them for questioning at the headquarters of the anti - terrorist branch of the GPE security police ( “ ORG ” ) for questioning .", "The facts in each individual case may be summarised as follows :", "Mr PERSON was arrested on DATE .", "On DATE he informed the public prosecutor during an interview that he had been ill - treated by the police while in custody . He was later brought before a judge of ORG ( “ the judge ” ) , to whom he repeated the statement he had made to the public prosecutor . The judge ordered his detention pending trial .", "Mr PERSON says that his ill - treatment at ORG took various forms : he was beaten , forced to remain standing , deprived of sleep , and threatened with death , rape and sexual assault with a truncheon .", "He was given only one medical examination . In his report of DATE , the forensic doctor , a member of ORG , found partly healed bruising measuring QUANTITY by QUANTITY in the sternal region . He noted that PERSON had complained of pain in his shoulders and certified him unfit for work for DATE .", "Mr PERSON was arrested on DATE .", "On DATE he informed the public prosecutor during an interview that he had been coerced into making a statement which he had signed without reading . He subsequently repeated this account to the judge , who ordered his detention pending trial .", "Mr PERSON says his ill - treatment in custody included suspension by the arms , death threats and electric shocks .", "He was given CARDINAL medical examinations :", "( a ) In a report of DATE , a forensic doctor noted scab - covered lesions measuring QUANTITY by QUANTITY to the rear of the thighs and an old bruise measuring QUANTITY in the upper scapular region . He certified PERSON PERSON unfit for work for DATE .", "( b ) In a report of DATE , the ORG doctor found bruising with scabs to the left arm and a leg . He noted that Mr PERSON complained of pain in various parts of the body and referred him to a forensic doctor for a final report .", "( c ) Mr PERSON was re - examined by a forensic doctor on DATE . The doctor recorded his complaints of pain in the left shoulder in the medical certificate . However , he considered that a final report could only be drawn up once PERSON had been examined by a hospital neurology service . It appears from the case file , however , that the additional examination was never carried out .", "Mr Erhan İl was arrested on DATE .", "On DATE he was interviewed by the public prosecutor , before whom he denied all the offences he was alleged to have committed . Subsequently he was brought before the judge , to whom he complained of ill - treatment by police officers while in custody . The judge ordered his detention pending trial .", "Mr PERSON says that he was subjected to various forms of ill - treatment while in custody at ORG : suspension by the arms , blows , threats and insults .", "He was given CARDINAL medical examinations :", "( a After examining PERSON PERSON , a forensic doctor drew up a medical report in which he noted reduced extension and impaired supination and pronation in both arms . He said that a final report could be drawn up once Mr PERSON had been examined by a hospital neurology service .", "( b ) In his report of DATE , the ORG doctor noted that Mr PERSON had complained of pain in his shoulders , thorax , back and respiratory tract , and numbness in both arms and hands . He referred him to a forensic doctor for a final report .", "( c ) On DATE , in the light of the medical certificate issued on DATE , the forensic doctor ordered Mr PERSON 's transfer to hospital for neurological examination . It appears from the case file , however , that no such additional examination was ever carried out .", "Mr PERSON was arrested on DATE .", "On DATE , after being interviewed by the public prosecutor , he was brought before the judge to whom he complained of ill - treatment by police officers while in custody . The judge ordered his detention pending trial .", "Mr PERSON says that he was subjected to various forms of ill - treatment while in custody , including suspension by the arms and beating of the soles of the feet ( falaka ) .", "He was given CARDINAL medical examinations :", "( a ) According to a medical certificate issued on DATE , the forensic doctor initially did not find any marks of violence on PERSON body . He noted that PERSON had complained of pain in his thigh , labial mucosa and internal or lateral walls of his mouth . He certified him unfit for work for DATE .", "( b ) In a report of DATE , the ORG doctor noted that PERSON had a tear to the mouth that had been caused by the use of force , pain in various parts of the body and difficulty breathing . He referred him to a forensic doctor for a final report .", "( c ) In a report of DATE , the forensic doctor confirmed the findings in the reports of CARDINAL and DATE .", "Mr Kaya was arrested on DATE .", "On DATE he was brought before the judge after being interviewed by the public prosecutor . He complained to the judge of ill - treatment by police officers while in custody . The judge ordered his detention pending trial .", "Mr Kaya says that he was subjected to various forms of ill - treatment while in custody : suspension by the arms , blows , threats and insults .", "He was given CARDINAL medical examinations :", "( a ) The first was performed by a forensic doctor on DATE , who found that Mr Kaya presented scab - covered lesions measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY to the side of the right armpit , bruising measuring QUANTITY by QUANTITY to the mastoid , and pain in the shoulders and arms . He certified him unfit for work for DATE .", "( b ) In a report of DATE , the ORG doctor found loss of movement in the arms , cramps in the shoulders , breathing difficulties and cuts and bruising to the right foot . He referred him to a forensic doctor for a final report .", "( c ) In a report of DATE , the forensic doctor noted scab - covered lesions measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY on the side of the right armpit , bruising and grazing to the mastoid , and pain in the shoulders and arms . He certified him unfit for work for DATE .", "Miss Kaya ( who is PERSON sister ) was arrested on DATE .", "On DATE she was brought before the judge after being interviewed by the public prosecutor and complained of ill - treatment by police officers while in custody . The judge ordered her detention pending trial .", "Miss PERSON says that while in custody she was subjected to falaka , sprayed with water , threatened with rape and undressed .", "She was given CARDINAL medical examinations :", "( a ) In a report dated DATE , a forensic doctor found old bruising to the soles of the feet measuring QUANTITY by QUANTITY that was in the process of healing , bruising to both palms and pain in the shoulders and arms . He certified her unfit for work for DATE .", "( b ) In a report of DATE , the ORG doctor noted bruising , swelling and tenderness to the sole of the left foot , and loss of movement and deformity to the little finger of the right hand . He referred her to a forensic doctor for a final report .", "( c ) In a report of DATE , the forensic doctor noted scab - covered lesions measuring QUANTITY by QUANTITY to the soles of both feet , bruising to both palms and pain in the shoulders and arms . He certified PERSON unfit for work for DATE .", "Mr PERSON was arrested on DATE .", "He was interviewed by the public prosecutor on DATE and complained of ill - treatment by police officers while in custody . He was subsequently brought before the judge , to whom he repeated the statement he had made to the public prosecutor . The judge ordered his detention pending trial .", "Mr PERSON says that he was subjected to various forms of ill - treatment : he was suspended by his arms ( which were tied together ) , beaten , sprayed with cold water and deprived of sleep . He further complains that he was blindfolded and his testicles were wrung .", "He was given CARDINAL medical examinations :", "( a ) In a report of DATE , a forensic doctor noted that Mr PERSON was suffering from headaches and pain in his arms .", "( b ) In a report of DATE , the ORG doctor noted bruising below the eyes , scab - covered lesions measuring QUANTITY by QUANTITY on the upper right ear , pain running from the neck to the anus , restricted movement of the thumb of the right hand , scab - covered lesions on the back of the left foot , grazing on the back of the right foot , bruising measuring QUANTITY by QUANTITY to the anterior left leg ( tibia ) and pain in the chest and respiratory tract .", "( c ) In a report of DATE , the forensic doctor confirmed the findings set out in the report of CARDINAL DATE .", "PERSON ( who is PERSON wife ) was arrested on DATE .", "On DATE , after being interviewed by the public prosecutor , she was brought before the judge , who ordered her detention pending trial .", "PERSON says that she was subjected to various forms of ill - treatment while in custody : she was beaten , suspended by the arms , undressed and sprayed with water . She also alleges that she suffered a miscarriage as a result of the ill - treatment .", "She was given CARDINAL medical examinations :", "( a ) In a report of DATE , a forensic doctor said that he had found MONEY on PERSON body that were consistent with assault . Noting that she alleged that she had miscarried as a result of ill - treatment in police custody , he said that a final report could be drawn up once she had been examined by a hospital obstetrics service .", "( b ) In a report of DATE , the ORG doctor noted a bruise measuring QUANTITY by QUANTITY on PERSON left leg , and pain in the soles of her feet and kidneys . He referred her to a forensic doctor for a final report .", "( c ) In a report of DATE , in the light of the information contained in the aforementioned medical certificates , the forensic doctor ordered her transfer to a hospital obstetrics service .", "( d ) In a report of DATE , a gynaecologist from ORG noted bleeding and particles in the region of the uterus and diagnosed post - abortive endometritis .", "( e ) In a report of DATE , the ORG doctor noted a QUANTITY by QUANTITY swelling to the occipital region and pain in the back . He referred her to a forensic doctor for a final report .", "( f ) On DATE a gynaecologist from ORG informed ORG that the hospital register showed that PERSON had been examined on DATE and that no genital pathology in the region of the uterus had been found . However , in view of her allegation that she had suffered a miscarriage , she had been given appropriate treatment .", "( g ) PERSON 's medical file was examined by a team of CARDINAL gynaecologists , who , in a report of DATE , concluded that she had suffered a miscarriage while in police custody . However , since there were MONEY on her body consistent with assault and she had not had a full medical examination , they said that it was impossible to confirm a causal link between the miscarriage and the alleged ill - treatment .", "Miss PERSON was arrested on DATE .", "On DATE she was interviewed by the public prosecutor . She complained of ill - treatment by police officers while in custody and denied all the offences she was alleged to have committed . She was subsequently brought before the judge , who ordered her detention pending trial .", "Miss PERSON was given CARDINAL medical examinations :", "( a ) On DATE a forensic doctor noted that there were MONEY on her body consistent with assault .", "( b ) In a report of DATE , the ORG doctor noted a QUANTITY by QUANTITY bruise on her leg , and bruising to the neck , shoulders and rib cage . He referred her to a forensic doctor for a final report .", "( c ) On DATE , in the light of the aforementioned medical reports , the forensic doctor made an order for her to be examined by ORG . However , the file shows that that examination did not take place .", "Miss PERSON was arrested on DATE .", "On DATE she stated before the public prosecutor and the judge that she had been ill - treated by police officers while in custody . The judge ordered her detention pending trial .", "Miss PERSON was given CARDINAL medical examinations :", "( a ) In a report of DATE , a forensic doctor noted CARDINAL old bruises measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY on the anterior left arm and an old bruise measuring QUANTITY by QUANTITY on the same arm . He did not certify her unfit for work .", "( b ) In a report of DATE , the ORG doctor noted a QUANTITY by QUANTITY bruise on the neck and cuts to the shoulders .", "( c ) In a report of DATE , the forensic doctor confirmed the findings in the report of CARDINAL DATE and certified Miss PERSON unfit for work for DATE .", "Miss PERSON was arrested on DATE .", "On DATE she stated before the public prosecutor and the judge that she had been ill - treated by police officers while in custody . The judge ordered her detention pending trial .", "Miss PERSON says that she was subjected to various forms of ill - treatment while in custody : she was beaten , suspended by the arms , sprayed with water and deprived of sleep for DATE .", "She was given CARDINAL medical examinations :", "( a ) In a report of DATE , a forensic doctor noted that she complained of pain in the back and arms . He found a QUANTITY by QUANTITY bruise in the middle of the outer left leg , and an old bruise measuring QUANTITY by CARDINAL cm on the lower leg . He certified her unfit for work for DATE .", "( b ) In a report of DATE , the ORG doctor noted a bruise on the left ankle and pain in different parts of the body . He considered an examination by a forensic doctor necessary .", "( c ) In a report of DATE , the forensic doctor confirmed the findings in the report of CARDINAL DATE .", "Mr PERSON was arrested on DATE .", "On DATE he stated before the public prosecutor and the judge that he had been ill - treated by police officers while in custody . The judge ordered his detention pending trial .", "Mr PERSON says that while in police custody he was beaten DATE CARDINAL times , threatened with death , sprayed with water and deprived of sleep for DATE .", "On DATE a forensic doctor found no visible marks on Mr ORG 's body on examination that were consistent with assault . He noted , however , that Mr PERSON complained of pain in his shoulders and certified him unfit for work for DATE .", "Mr GPE was arrested on DATE .", "On DATE he stated before the public prosecutor and the judge that he had been ill - treated by police officers while in custody . The judge ordered his detention pending trial .", "Mr GPE says that he was subjected to various forms of ill - treatment while in custody : suspension by the arms , blows and sleep deprivation .", "He was examined CARDINAL times :", "( a ) In a report of DATE , a forensic doctor noted old bruises measuring QUANTITY by QUANTITY on his right leg . He certified Mr GPE unfit for work for DATE .", "( b ) In a report of DATE , the ORG doctor noted a bruise on the right leg , bruising to the axillary region , reduced movement in both arms and pain in various parts of the body . He referred Mr Kablan to a forensic doctor for a final report .", "( c ) In a report of DATE , the forensic doctor noted that PERSON was suffering from a problem with his ears entailing unfitness for work for DATE .", "Miss PERSON was arrested on DATE .", "She was interviewed by the public prosecutor on DATE , following a medical examination which did not disclose any marks consistent with assault . She was then brought before the judge , who ordered her detention pending trial .", "Mr PERSON was arrested on DATE .", "He was interviewed by the public prosecutor on DATE , following a medical examination which did not disclose any marks consistent with assault . He was then brought before the judge , who ordered his detention pending trial .", "On DATE the public prosecutor instituted criminal proceedings against CARDINAL people , including the applicants , under both LAW of LAW , which makes it an offence to attempt to change or modify LAW in whole or in part , to attempt a coup d'état against ORG or to use force to prevent ORG from carrying out its functions , and LAW , which makes it an offence to be a member of an armed group . The applicants were accused of various acts of violence , including voluntary homicide , attempted homicide , throwing explosive devices , taking part in an illegal and violent demonstration and armed robbery .", "...", "The case is still pending in the domestic courts .", "On DATE CARDINAL of the applicants , PERSON , PERSON ORG , PERSON , ORG , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON , lodged a complaint of ill - treatment against the police officers who had been on duty while they were in custody .", "They also lodged a complaint against ORG ( the GPE police commissioner ) and PERSON ( the deputy director of the GPE anti - terrorist branch ) . They argued that these CARDINAL senior police officers were the hierarchical superiors of the police officers who had subjected them to torture . This complaint was dismissed on DATE for lack of sufficient evidence . That decision was upheld by the President of ORG on DATE .", "On DATE the public prosecutor questioned CARDINAL police officers ( PERSON , PERSON , PERSON and ORG ) in connection with the complaint that had been lodged on DATE . All CARDINAL officers had been on duty while the applicants were in custody . They denied having ill - treated the applicants concerned .", "DATE . Meanwhile , on DATE that has not been specified by the parties , a complaint was lodged by PERSON , PERSON and ĺsmail PERSON . They alleged , inter alia , that CARDINAL police officers PERSON , PERSON , PERSON , PERSON and ORG ) had ill - treated them while they were in custody . On DATE the GPE public prosecutor 's office decided not to take any action on the complaint . However , the applicants say that on DATE the President of ORG set aside that decision following an appeal by the applicants ' representative .", "By an indictment that was lodged on DATE , the public prosecutor instituted criminal proceedings in ORG against CARDINAL police officers ( PERSON , PERSON , PERSON , PERSON and PERSON ) for an offence under Article CARDINAL of LAW ( see paragraph CARDINAL below ) .", "The first hearing in the case took place on DATE in ORG , in the absence of the CARDINAL police officers . ORG heard the applicants , who complained in particular of the decision not to prosecute PERSON . In addition , PERSON testified that she had suffered a miscarriage after being assaulted and subjected to repeated blows to the abdomen while in custody . With the exception of PERSON , PERSON , PERSON and ĺsmail PERSON , the applicants applied to be joined to the criminal proceedings as civil parties under LAW ( see paragraph CARDINAL below ) . That application was granted .", "On DATE a brawl broke out between the applicants and members of the security forces as CARDINAL of the applicants ( PERSON , PERSON , PERSON , PERSON , PERSON , NORP , PERSON , PERSON and PERSON ) were being taken to the hearing room in the GPE court - house . ORG proceeded with the hearing , which it began by hearing evidence from the CARDINAL defendant police officers who were present , namely PERSON , PERSON , PERSON and PERSON .", "At the hearing the applicants formally identified those police officers . ORG decided that it was unnecessary to remand the accused in custody and adjourned the question of whether PERSON should be prosecuted to a later date .", "At a hearing on DATE , PERSON ( the father of PERSON and PERSON ) and Miss PERSON gave evidence . The latter said that she was unable to identify anyone , as she had been kept blindfolded throughout her time in police custody .", "The testimony of CARDINAL of the accused , PERSON , was obtained on commission and placed in the case file of ORG on DATE .", "At a hearing on DATE , ORG sought to establish the addresses of CARDINAL of the victims , PERSON and Ay . GPE , so that their testimony , which was not on the case file , could be obtained .", "At a hearing on DATE , PERSON gave evidence .", "On DATE a supplementary indictment was lodged by the public prosecutor , accusing police officer PERSON of ill - treatment with a view to extracting confessions .", "On DATE evidence was taken from PERSON on commission and placed in the case file .", "DATE and DATE ORG held TIME hearings , at which it sought , inter alia , to establish the addresses of a witness and of a victim with a view to serving them with witness summonses . Although the applicants ' representatives urged ORG on DATE , DATE and DATE to dispense with the evidence of the CARDINAL people concerned , it did not accede to their request until DATE .", "At a hearing on DATE , the representative acting for PERSON , PERSON and ORG informed ORG that he was withdrawing from the case . The court was also informed that PERSON had died .", "On DATE the applicants ' representatives asked ORG to expedite the proceedings , as there was a danger that the prosecution of the offences would become statute - barred .", "At a hearing on DATE , ORG sought an adjournment to enable him to obtain legal representation . PERSON lodged a medical certificate excusing his absence . ORG granted the defendants an extension of time . From the case file it would seem that PERSON never in fact appeared before ORG .", "At a hearing on DATE , the public prosecutor made his submissions . He sought an order dismissing the criminal proceedings against PERSON , who had died , and against PERSON , PERSON , PERSON and ORG under the statute of limitations . As regards PERSON , he sought a conviction only on the count of torturing PERSON . He submitted that PERSON should be acquitted on the other charges .", "In a judgment of CARDINAL DATE , ORG decided to discontinue the proceedings against the defendants PERSON , PERSON , PERSON and PERSON by virtue of the statute of limitations and against PERSON on the ground of intervening death . It found PERSON guilty of torturing PERSON and PERSON and sentenced him to DATE imprisonment . It also made an order prohibiting him from holding public office for DATE . However , it acquitted him on the other charges .", "...", "The case is currently pending before ORG .", "At the material time section CARDINAL of Law no . CARDINAL on procedure in the national security courts provided that any person arrested in connection with an offence within the exclusive jurisdiction of those courts had to be brought before a judge within TIME at the latest or , if the offence was a joint one committed outside the region under emergency rule , within DATE , not including the time needed to convey the detainee to the judge .", "Under LAW , it is an offence for a public official to subject a person to torture or ill - treatment ( Article CARDINAL in relation to torture and Article CARDINAL in relation to ill - treatment ) . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities and the security forces as well as to the public prosecutor 's office . Complaints may be made orally or in writing . If a complaint is made orally , the authority must keep a record ( LAW .", "By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the course of his duties is liable to imprisonment . A public prosecutor who is informed by any means whatsoever of a situation that gives rise to suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .", "Under LAW of LAW , taken in conjunction with Articles CARDINAL and CARDINAL , a prosecution for an offence of ill - treatment or torture by a public official must be brought within DATE .", "LAW also contains a provision allowing victims of crime to join the proceedings as “ intervening parties ” alongside the prosecution . As a direct victim , an intervening party may also claim reparation for any loss sustained as a result of the offence provided that he or she has not previously brought an action in the civil courts . The admissibility of applications to join the proceedings as an intervening party is determined by the judge , after hearing representations from the public prosecutor 's office ( LAW ) . A person who has been given leave to intervene in proceedings may , like the public prosecutor , appeal to ORG against the verdict ( LAW ) .", "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 to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .", "However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the course of an official 's duties under public law may , in principle , only bring an action against the authority for whom the official concerned works and not directly against the official ( LAW and LAW ) . This is not an absolute rule , however . When an act 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 Manual on ORG and Other Cruel , Inhuman or Degrading Treatment or Punishment ( LAW ) was submitted to the ORG High Commissioner for Human Rights on DATE . The “ GPE Principles ” subsequently received the support of ORG through resolutions of ORG Human Rights and ORG . It is the first set of guidelines to have been produced for the investigation of torture . The LAW contains full practical instructions for assessing persons who claim to have been the victims of torture or ill - treatment , for investigating suspected cases of torture and for reporting the investigation 's findings to the relevant authorities .", "The principles applicable to the effective investigation and documentation of torture and other cruel , inhuman or degrading treatment or punishment are to be found in LAW of the Manual , the relevant parts of which read as follows :", "“ The purposes of effective investigation and documentation of torture and other cruel , inhuman or degrading treatment ( hereafter referred to as torture or other ill - treatment ) include the following : clarification of the facts and establishment and acknowledgment of individual and ORG responsibility for victims and their families , identification of measures needed to prevent recurrence and facilitation of prosecution or , as appropriate , disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the ORG , including fair and adequate financial compensation and provision of the means for medical care and rehabilitation .", "States shall ensure that complaints and reports of torture or ill - treatment shall be promptly and effectively investigated . Even in the absence of an express complaint , an investigation should be undertaken if there are other indications that torture or ill - treatment might have occurred . The investigators , who shall be independent of the suspected perpetrators and the agency they serve , shall be competent and impartial . They shall have access to , or be empowered to commission , investigations by impartial medical or other experts . ...", "The investigative authority shall have the power and obligation to obtain all the information necessary to the inquiry . ... Those potentially implicated in torture or ill - treatment shall be removed from any position of control or power , whether direct or indirect , over complainants , witnesses and their families , as well as those conducting the investigation .", "Alleged victims of torture or ill - treatment and their legal representatives shall be informed of , and have access to , any hearing as well as to all information relevant to the investigation and shall be entitled to present other evidence .", "...", "A written report , made within a reasonable time , shall include the scope of the inquiry , procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law . On completion , this report shall be made public . It shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based , and list the names of witnesses who testified with the exception of those whose identities have been withheld for their own protection . The ORG shall , within a reasonable period of time , reply to the report of the investigation , and , as appropriate , indicate steps to be taken in response .", "Medical experts involved in the investigation of torture or ill - treatment should behave at all times in conformity with the highest ethical standards and in particular shall obtain informed consent before any examination is undertaken . The examination must follow established standards of medical practice . In particular , examinations shall be conducted in private under the control of the medical expert and outside the presence of security agents and other government officials .", "The medical expert should promptly prepare an accurate written report . This report should include at least the following :", "( a ) The name of the subject and the name and affiliation of those present at the examination ; the exact time and date , location , nature and address of the institution ( including , where appropriate , the room ) where the examination is being conducted ( e.g. detention centre , clinic , house ) ; and the circumstances of the subject at the time of the examination ( e.g. nature of any restraints on arrival or during the examination , presence of security forces during the examination , demeanour of those accompanying the prisoner , threatening statements to the examiner ) and any other relevant factors ;", "( b ) A detailed record of the subject 's story as given during the interview , including alleged methods of torture or ill - treatment , the time when torture or ill - treatment is alleged to have occurred and all complaints of physical and psychological symptoms ;", "( c ) A record of all physical and psychological findings on clinical examination , including appropriate diagnostic tests and , where possible , colour photographs of all injuries ;", "( d ) An interpretation as to the probable relationship of the physical and psychological findings to possible torture or ill - treatment . A recommendation for any necessary medical and psychological treatment and further examination should be given ;", "( e ) NORP The report should clearly identify those carrying out the examination and should be signed .", "... ”" ]

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

[ "5-3" ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE , GPE .", "The applicants were , at the material time , senior officers in ORG in which they served until retirement . They both served continuously with an interruption of DATE and DATE under the conditions set out below .", "On an unspecified date in DATE , criminal proceedings were initiated against them in relation to their alleged involvement in the ill - treatment and torture of suspects . The prosecuting authorities failed to prove a prima facie case against them and they were acquitted on DATE . The court considered that the testimony of the principal prosecution witnesses - the victim and CARDINAL of his relatives who had been arrested with him- “ had been so obviously unreliable that no reasonable court could rely on it and convict the accused ” . It also considered that the prosecution had committed a series of improprieties which had tainted the evidence to such an extent that the case against the applicants should be discontinued in the interests of the proper administration of justice .", "Subsequently , on DATE , ORG appointed an ORG ( ORG ) to examine this matter further . The ORG 's findings were delivered on DATE . It found that the applicants , together with CARDINAL other police officers , had engaged in torture practices against certain suspects in order to obtain confessions . On the basis of the ORG 's findings , on DATE , ORG terminated the applicants ' employment with ORG for the protection of public interest . CARDINAL other police officer was also dismissed by virtue of the same decision , while CARDINAL junior officers who were also found to have been involved in acts of torture and ill - treatment of prisoners were not dismissed . The applicants ' dismissal was widely reported in the national press .", "The applicants challenged the legality of the said decision before ORG , exercising its administrative judicial review jurisdiction .", "ORG delivered its judgment in a plenary session on DATE . It unanimously annulled the decision of ORG which was found to have violated the constitutional rights of the applicants . In particular , it found that their right not to be tried twice for the same offence had been breached and that their right to be presumed innocent , especially in the light of their acquittal , had been prejudiced . It further found that the applicants had effectively been dismissed without trial or disciplinary proceedings and , as such , they had been deprived of any opportunity to defend themselves . Moreover , the decision of ORG was found to be ultra vires .", "On DATE , the applicants requested reinstatement to their former posts . On DATE they returned to duty .", "Subsequently , the applicants brought an action under LAW before ORG of GPE requesting fair and equitable compensation .", "Judgment was delivered on DATE by ORG , which refused the applicants ' request for exemplary damages . Concerning their request for payment of the difference in their DATE salaries , corresponding to the period in which their service had been interrupted , the court observed that the applicants had received a higher amount upon their dismissal than the requested difference in salaries . This amount had been held by the first applicant throughout the period following his return to duty and until his retirement and it was still held by the second applicant . As regards the first applicant , the amount he had received upon his dismissal had been deducted from the amount to which he was entitled by virtue of his retirement and the difference had been paid to him . The request was accordingly refused .", "NORP However , CARDINAL Cypriot pounds ( ORG ) , plus MONEY interest as from DATE that the action was lodged , was awarded in compensation for moral damage . The court pointed out that , as observed by ORG in the case of PERSON v. The Republic ( DATE ) CARDINAL C.L.R. CARDINAL , an award of damages under LAW was not subject to the common - law rule for quantifying damages aimed at restitutio in integrum , but was governed by the principles of equity . It considered that the applicants had suffered injury to their psychological and moral integrity which was directly caused by the annulled decision . In particular , the following was noted :", "“ Within this framework of criteria ( established in the domestic case - law ) , I do not see any good reason why the court should rule , in a case similar to the present one , where , by the exclusive behaviour of the administration ( ORG ) the plaintiffs have been expelled from their positions with characterisations that have definitely affected them psychologically as they themselves have maintained , that they should not be entitled to certain compensation for that injury to their psychological integrity . I consider such injury as damage emanating directly from the annulled administrative decision ” .", "NORP Moreover , it was acknowledged that the decision had serious defamatory effects for them . As such , the relevant award was seen as required by equity to redress the unlawful act of the administration .", "The applicants lodged an appeal with ORG and contended that the award of damages was manifestly insufficient . The Attorney - General lodged a cross - appeal requesting the annulment of the first - instance ORG judgment .", "“ Such moral damage did not constitute a direct consequence of the annulled administrative act and that , therefore , such an award was not covered by the provisions of LAW .", "Article CARDINAL of the LAW of GPE provides as follows :", "“ CARDINAL . ORG shall have 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 .", "Such a recourse may be made by a person whose any existing legitimate interest , which he has either as a person or by virtue of being a member of a ORG , is adversely and directly affected by such decision or act or omission .", "Such a recourse shall be made within DATE of the date when the decision or act was published or , if not published and in the case of an omission , when it came to the knowledge of the person making the recourse .", "Upon such a recourse the ORG may , by its decision-", "( a ) confirm , either in whole or in part , such decision or act or omission ; or", "( b ) declare , either in whole or in part , such decision or act to be null and void and of no effect whatsoever , or", "( c ) declare that such omission , either in whole or in part , ought not to have been made and that whatever has been omitted should have been performed .", "Any decision given under paragraph CARDINAL of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned .", "Any person aggrieved by any decision or act declared to be void under paragraph CARDINAL of this LAW or by any omission declared there under that it ought not to have been made shall be entitled , if his claim is not met to his satisfaction by the organ , authority or person concerned , to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant . ”", "In PERSON v. The Republic ( CARDINAL ) CARDINAL C.L.R. CARDINAL at p. CARDINAL , Mr Justice PERSON , as he then was , observed the following :", "“ The cause of action conferred by LAW , is a cause sui generis , in the sense that it bears no relationship to a common law action for damages , or , in fact , to any other cause of action known to the law ( PERSON v. The Attorney - General ( DATE ) CARDINAL C.L.R. CARDINAL ) . It is a right to be evaluated in the context of Article CARDINAL and the system of review of administrative action created thereby . It is ancillary to judicial review , as a measure necessary for its effectiveness . Primarily it entitles the injured party to recover damage not remediable by proper administrative action . If the proper administrative action is not taken , the remedy is to go to the administrative court again . If notwithstanding this step the injured party is left to shoulder damages , then he has a right to recover them from the Republic . The right to damages under Article CARDINAL is distinctly independent from any other cause of action , as ORG held in Attorney - General v. PERSON and another ( DATE ) CARDINAL C.L.R. CARDINAL . Not only its juridical basis but also the manner of quantifying damages is different from a common law action . ORG emphasised the equitable character of the relief as well as the damages recoverable , stressing that they are not strictly compensatory . Consequently , it is legitimate for the ORG to have regard , not only to the extent of the material damage suffered , but also to the conduct of the parties and the degree to which the successful party contributed to the production of the wrongful administrative act . In the case of ORG , supra , ORG derived guidance , inter alia , from NORP case law , establishing that the conduct of the parties and their blameworthiness , if any , is of crucial importance to the determination of the quantum of the damages . ”" ]

[ "8" ]

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[ "6" ]

[ "6-2" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant contended that his house , along with some other houses in his village , had been destroyed as a result of a military operation carried out on CARDINAL and CARDINAL DATE .", "On DATE the mayors of PERSON and Balıcalı villages drafted CARDINAL reports confirming that the applicant ’s house and belongings had been burnt .", "Shortly after the alleged incident , the applicant applied to ORG requesting to be compensated . On DATE ORG received the applicant ’s petition but did not respond within the DATE statutory period .", "The applicant also filed a petition with ORG in GPE . He requested that an investigation be carried out to identify the perpetrators .", "The public prosecutor conducted an investigation and commissioned an expert report on the applicant ’s losses . By the time of the present application , the investigation was pending .", "On DATE ORG rejected the applicant ’s request for compensation . ORG concluded that the applicant , along with the other villagers , had voluntarily abandoned the village and that the applicant ’s property had gotten ruined due to lack of care throughout DATE .", "On DATE the applicant applied to ORG requesting compensation for his losses . On DATE the court rejected the request on the ground that the applicant had failed to comply with the time - limit for challenging the decision of ORG . The court pointed out that the applicant applied to ORG on DATE and did not receive a reply within DATE thereafter . The court pointed out that ORG had tacitly rejected the request by not responding within the statutory period of DATE . The court concluded that the DATE time limit began to run from CARDINAL DATE and ended on DATE .", "On DATE ORG dismissed the applicant ’s appeal .", "The investigation carried out by the authorities indicated that the applicant had left his village of his own will . The security forces had not destroyed the applicant ’s village or forced him to leave their homes .", "The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .", "On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .", "In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .", "The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .", "A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI )" ]

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[ "The applicant was born in DATE . He is currently serving a sentence of life imprisonment without parole eligibility .", "On CARDINAL DATE the applicant , who had CARDINAL previous convictions and prison sentences , was convicted of the murder on DATE of CARDINAL children , aged DATE , CARDINAL , attempted rape of CARDINAL of them , attempted rape of a woman in DATE and attempted illegal crossing of the State border in DATE . The court imposed the capital punishment .", "The applicant 's conviction and sentence were upheld on appeal on DATE by ORG .", "On DATE a CARDINAL - member chamber of ORG dismissed the applicant 's ensuing petition for review ( cassation ) .", "Article CARDINAL § CARDINAL of LAW as in force at the time , provided that no execution could be carried out prior to the President 's decision whether or not to exercise his power of pardon .", "The last executions of persons sentenced to the capital punishment were carried out in GPE in DATE .", "Following a period of a de facto moratorium on executions , on DATE the ORG adopted a decision “ on deferral of the execution of death sentences ” which read :", "“ The execution of death sentences which have entered into force shall be deferred until the resolution of the question regarding the application of the capital punishment in GPE . ”", "NORP Since the capital punishment remained in LAW , the courts continued sentencing convicted persons to death or - as in the applicant 's case - upholding on appeal death sentences delivered before DATE .", "Although no explicit undertaking by GPE to abolish the death penalty was made at the moment of GPE 's accession to ORG DATE , such a requirement was regarded as implied in the general undertaking to comply with LAW ( see the reports of ORG commission on GPE 's compliance with its obligations and undertakings ( report of QUANTITY DATE , ORG . DATE , § § CARDINAL and CARDINAL ( urging the abolition as an implied obligation ) , and report of DATE , ORG . DATE , § CARDINAL ( noting with satisfaction the abolition of the death penalty ) ) .", "On DATE ORG abolished the death penalty replacing it by life imprisonment without parole eligibility .", "By decision of DATE the applicant 's death sentence was commuted to life imprisonment without parole eligibility .", "On DATE GPE ratified LAW No . CARDINAL to the Convention .", "NORP The death penalty was an issue often debated DATE . A number of members of ORG expressed views in support of reintroducing executions whereas others sought the abolition of the death penalty . The media periodically discussed the topic . It was widely known that the abolition of the death penalty was urged by ORG and other international organisations and was a step towards GPE 's NORP integration .", "During the relevant period LAW was amended several times . Some amendments expanded the scope of the death penalty . At the same time , work started on a draft LAW which excluded the death penalty . In DATE an amendment to LAW introduced for the first time life imprisonment .", "The following attempts to reintroduce executions were made by supporters of the death penalty :", "On DATE the Chair of ORG and another member of ORG introduced a motion proposing the annulment of the ORG 's decision of DATE .", "On DATE a similar proposal was introduced in ORG by a minority parliamentary group , ORG . CARDINAL parliamentary committees discussed the issue and voted against reintroducing executions . On DATE ORG held a hearing on both proposals which were defeated .", "NORP The issue of reintroducing executions was discussed several times in the ORG elected at DATE . There were CARDINAL motions : CARDINAL for a parliamentary vote on restarting executions and CARDINAL for calling a referendum .", "The first proposal was discussed by ORG , which supported the idea of reintroducing executions by a majority of CARDINAL votes to CARDINAL . Thereafter , a member of ORG on several occasions unsuccessfully sought to have the motion discussed by a plenary session of the ORG . On CARDINAL occasion the motion gathered the required number of votes to be entered on the DATE agenda , but eventually was not discussed . Most proposals to include the issue on the agenda of the ORG 's plenary session were defeated through abstention votes .", "The first motion for a referendum was defeated on a procedural ground as the proposed date in DATE did not allow sufficient organisation time . The second proposal for a referendum , filed on DATE , was considered by ORG on DATE and was defeated by CARDINAL votes to CARDINAL , with CARDINAL abstentions .", "On DATE a proposal for restarting executions was introduced by opposition deputies . It was discussed by ORG and was defeated on DATE by CARDINAL votes to CARDINAL .", "According to CARDINAL of the Execution of Sentences Act , as in force at the relevant time , persons awaiting execution were to be detained in complete isolation , correspondence and visits being only possible if permitted by the competent prosecutor .", "On DATE the Deputy Director of ORG instructed prisons administrations that the ORG 's decision suspending executions also suspended by implication this restrictive regime of detention .", "The instruction stated , in so far as relevant , that persons sentenced to death should be held in individual cells or together with other persons sentenced to death or detained under a “ special regime ” ( the regime of detention of recidivists and , after DATE , persons sentenced to life imprisonment : sections CARDINAL and ORG of LAW as in force at the time ) . Inmates should have a bed , bedcover , a bed - side piece of furniture and a centrally operated radio loudspeaker . They should be allowed unlimited correspondence , newspapers and books , CARDINAL visit per month , TIME of DATE outdoor walk without contact with other categories of prisoners and the receipt of CARDINAL food parcel DATE and a small amount of money . If possible , they could work in the cell .", "On DATE , the Director of ORG and a prosecutor of ORG issued an instruction which stated that , “ in view of the continuing moratorium on executions ” , persons sentenced to death should be allowed unlimited correspondence , TIME DATE outdoor walk , CARDINAL visit per month and the receipt of CARDINAL food parcels and CARDINAL packs of cigarettes per month and small amounts of money .", "The applicant was detained in the PERSON prison , in a wing for prisoners under the “ special regime ” provided for by section QUANTITY of the Regulations on the Application of the Execution of Sentences Act , approximately CARDINAL inmates . He changed cells several times but stated that all cells in the relevant prison wing measured CARDINAL by QUANTITY .", "Following a period of solitary confinement , on an unspecified date in DATE the applicant was transferred to a cell where he lived with CARDINAL or CARDINAL other detainees .", "The applicant alleges that on DATE he and CARDINAL other deathsentence prisoners were moved to independent cells , where each of them was alone . It appears that the applicant remained in this cell at least until DATE .", "According to the ORG , the cell floor measured CARDINAL by QUANTITY . The ceiling was QUANTITY high . According to the applicant , until DATE , when new larger windows were installed in all cells , the cell window was small and did not allow sufficient light or fresh air . As a result , in DATE it was very hot . Moreover , in DATE it was very cold because the heating , covered by a bricks layer , was not working properly .", "There was CARDINAL CARDINAL-Watts electric bulb in the cell . As it was installed on the wall above the door , its light was insufficient which made reading tiring for the eyes . It appears that the light was on TIME .", "The applicant alleged that DATE he had been sleeping on a plank - bed . In his recollection , a centrally operated radio loudspeaker was installed in DATE . A proper bed and a bedside piece of furniture were provided in DATE . After DATE the applicant possessed a portable radio receiver which was sent to him in a parcel .", "The Government provided photographs , apparently made in DATE , of the applicant 's cell . It is visible that the cell 's furbishing consisted of a bed , a bed - side piece of furniture and a small table . A loudspeaker and hangers were suspended on the wall . Books , a metal bowl , plastic bottles , clothes and blankets are visible on the photograph .", "Inmates were given TIME out - of - cell time in the morning in an open yard . There they could walk together with other inmates from the high security wing . The applicant could also leave his cell once again , in the evening , to use the sanitary facilities . During the remaining part of DATE , he had to use a bucket full of water which served as a chamber pot . As a result , there was allegedly a constant stink in his cell .", "Inmates could have a shower once per week , for TIME .", "CARDINAL or two visits of TIME were allowed per DATE . Visits by lawyers were not limited . For DATE the applicant had thirtyfive visits .", "During the relevant period there was no limitation on correspondence . DATE and CARDINAL DATE the applicant received CARDINAL food parcels and CARDINAL money orders . He was also entitled to a small amount of money per month , which he used to buy toilet items and food from the prison shop . Nevertheless , he was often lacking items such as tooth paste , shaving cream , razors , cigarettes and coffee .", "The applicant received the same medical service as all other prison inmates . The ORG submitted a copy of his medical record according to which he had been seen by a doctor or a dentist DATE during DATE . The infirmary was opened TIME per day . The applicant was treated repeatedly in respect of back pain , including by physiotherapy . According to CARDINAL of the medical doctors at the PERSON prison , the applicant was known for his frequent and unwarranted complaints .", "In DATE the applicant signalled a medical problem which turned out to be a swollen salivary gland . In DATE a medical doctor recommended surgery , but the applicant was only operated in DATE . The applicant maintained that he had been refused timely surgical help despite his suffering . His medical records disclose that the swollen salivary gland problem persisted throughout DATE , when the applicant underwent several examinations , including by external medical doctors . The applicant was treated with medicines . Twice during the relevant period , medical doctors noted in the applicant 's medical record that surgery was not necessary at the particular stage , whereas other entries with illegible signatures indicate that the problem was noted as being acute . According to the director of the PERSON prison , all necessary measures had been taken . The applicant had been treated according to the doctors ' recommendations . In DATE he had been admitted to hospital for examinations but had been sent back to the prison as he had behaved rudely with the medical staff . A disciplinary punishment had been imposed in that connection on DATE . The applicant submitted that as a result the operation of his gland had been postponed . According to the medical records , the applicant was again brought to the hospital for examinations and treatment in DATE , but the applicant alleged that he had been quickly returned back to his cell . As of DATE the one doctor 's opinion was that surgery was not yet necessary . The swollen salivary gland was eventually operated in DATE . Tissue of the size of an egg was removed and examined but proved benign .", "During the relevant period the applicant sent numerous complaints in respect of the conditions of his detention to the Director of FAC , to the Director of ORG , ORG and to other institutions . His complaints concerned the food in prison , allegedly insufficient heating , allegedly lost correspondence and other matters . He received answers to only a part of his complaints . With the exception of a request to use a radio receiver and some of the requests for medical treatment , all other complaints allegedly did not bring about any improvement of his situation .", "On an unspecified date in DATE the applicant was moved to the ORG prison .", "The ORG has not visited the PERSON prison where the applicant was detained .", "In DATE it visited , however , CARDINAL inmates sentenced to death and detained in the PERSON prison facilities and described the conditions of detention there as follows :", "“ The material conditions in the cells left a great deal to be desired : mediocre access to natural light and weak artificial lighting ; inadequate heating ; cell furnishings in a poor state of repair ; dirty bed linen , etc . As regards out - of - cell activities , they were limited to TIME for use of the sanitary facilities , TIME outdoor exercise ( which the prisoners alleged was not guaranteed DATE ) and CARDINAL visit per month . The CARDINAL prisoners were not allowed to work ( not even inside their cells ) , nor to go to the library , the cinema room or the refectory ( their food was brought to the cell ) . In short , they were subject to an impoverished regime and , more particularly , were offered very little human contact . The latter consisted essentially of the possibility to talk to each other during outdoor exercise ( which they took together ) , and occasional dealings with prison officers . Practically the only forms of useful occupation at their disposal were reading newspapers and books , and writing letters .", "The above - described situation is in accordance with the rules concerning prisoners sentenced to death , adopted after the moratorium on the execution of the death penalty ... Nevertheless , in the ORG 's view it is not acceptable .", "It is generally acknowledged that all forms of solitary confinement without appropriate mental and physical stimulation are likely , in the long term , to have damaging effects , resulting in deterioration of mental faculties and social abilities . The delegation found that the regime applied to prisoners sentenced to death in FAC did not provide such stimulation .", "The ORG recommends that the regime applied to prisoners sentenced to death held in FAC , as well as in other prisons in GPE , be revised in order to ensure that they are offered purposeful activities and appropriate human contact . Further , the ORG recommends that steps be taken to improve the material conditions in the cells occupied at FAC by prisoners sentenced to death . ”", "In paragraphs CARDINAL of its DATE report on GPE , the ORG stated , inter alia :", "“ [ H]ealth care in NORP prisons is provided by ORG ... Prison health - care staff are recruited by and administratively subordinated to ORG , whose ORG is responsible for supervising their work . The prison health - care services apply general health guidelines and regulations issued by ORG ; further , arrangements can be made for hospitalising prisoners in need of urgent treatment in ORG establishments . However , it emerged that in ORG view , given the division of responsibilities , the issue of health care for prisoners lay outside its remit ...", "A similar situation is found in many other countries in LOC , where the provision of health care is the responsibility of the authority in charge of prison establishments . However , the ORG believes that a greater involvement of ORG in the provision of health care in the prison system would help to ensure optimum health care for prisoners , as well as implementation of the principle of the equivalence of health care in prison with that in the outside community ... This approach is clearly reflected in Recommendation No R ( CARDINAL ) CARDINAL concerning the ethical and organisational aspects of health care in prison , recently adopted by ORG .", "[ I]n order to guarantee their professional independence and quality of medical work , it is important that prison health - care staff be aligned as closely as possible with the mainstream of health - care provision in the community at large ...", "The ORG also wishes to stress again that whatever institutional arrangements are made for the provision of health care in prisons , it is essential that prison doctors ' clinical decisions should be governed only by medical criteria and that the quality and effectiveness of their work should be monitored by a qualified medical authority .", "[ Some improvements since DATE were reported . ] Full - time doctors had been appointed , and posts for psychiatrists created , at all prisons , and steps were being taken to employ full - time trained nurses . Further , the shortage of medicines within the prison system had been overcome ...", "[ T]he delegation heard complaints from prisoners at [ the prisons visited , in GPE and PERSON ] about delays in gaining access to the doctor . Prisoners who wished to be medically examined announced that to the officer on duty during the morning roll - call . Such requests were meant to be entered in a special register kept on each unit and presented to the doctor every morning . Such a system is unexceptionable . However , the ORG must stress that all requests to see a doctor should be brought to the attention of the prison doctor ; it is not for prison officers to screen such requests . ”", "Historically , most Member States of ORG approached the question of the abolition of the death penalty by suspending executions pending debate on a final abolition . States which became members of ORG during DATE were urged by ORG to introduce moratoria on executions as a first step towards the abolition of the death penalty ( see Report on the abolition of the death penalty in LOC , ORG . CARDINAL ( DATE ) ) .", "The ORG has held that “ in the absence of further compelling circumstances ” prolonged detention on death row per se does not constitute a violation of LAW ( prohibition of cruel , inhuman or degrading treatment ) ( see PERSON v. GPE , Views of DATE , communication no . CARDINAL/CARDINAL , PERSON , ORG , communication no . CARDINAL ; and PERSON v. GPE and GPE , Views of DATE , communication no . CARDINAL ) .", "The Commission , when examining complaints by persons on death row , has found violations of LAW ( prohibiting cruel , infamous or unusual punishment of persons accused of offences ) and LAW and CARDINAL of ORG ( right to humane treatment and prohibition of torture , cruel , inhuman or degrading punishment or treatment ) mainly on the strength of facts concerning irregularities in the sentencing process , the material conditions and regime of detention and ill - treatment in prison , while also taking into account the length of the period spent on death row ( PERSON v. GPE , Case No . CARDINAL , Report No . CARDINAL , ORG / II.CARDINAL , § § CARDINAL ; PERSON v. GPE , Case No . CARDINAL , Report CARDINAL/CARDINAL ) .", "ORG , examining cases from GPE , had to decide whether the execution of a person following long delay after his sentence to death could amount to inhuman punishment or treatment contrary to those GPE ' Constitutions . Initially , ORG considered that a condemned person could not complain about delay of his execution caused by his resort to appellate proceedings ( PERSON v. PERSON [ DATE ] A.C. CARDINAL , ORG v. Attorney - General of GPE and GPE [ DATE ] CARDINAL W.L.R. DATE ) , or indeed about any delay , “ whatever the reasons ” , including a temporary moratorium on executions which had been lifted ( PERSON v. Attorney - General of GPE [ DATE ] CARDINAL A.C. CARDINAL ) .", "In DATE , departing from its earlier decisions , ORG held that to execute the appellants , who had spent DATE on death row and had on CARDINAL occasions lived through TIME stays of execution , would be unlawful as being inhuman punishment and therefore advised that their death sentences should be commuted to life imprisonment ( PERSON and PERSON v. The Attorney General for GPE and another [ DATE ] CARDINAL A.C. CARDINAL ) .", "In PERSON and PERSON , part of the relevant period was taken up by a temporary moratorium on executions .", "“ [ P]olitical debate on the desirability of retaining the death sentence in GPE ... resulted in a resolution of the ORG on DATE to suspend all executions for DATE pending the report of a ORG of inquiry . ORG was appointed in DATE . Before the ORG reported , an execution took place on DATE which drew a protest to ORG from the Chairman of the ORG . No further executions took place before the ORG reported in DATE . On CARDINALth DATE executions were resumed ” ( PERSON , § DATE ) .", "The judgment in PERSON and PERSON stated , inter alia :", "“ There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for DATE . What gives rise to this instinctive revulsion ? The answer can only be our humanity ; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time . But before their Lordships condemn the act of execution as ' inhuman or degrading punishment or other treatment ' within the meaning of section CARDINAL(CARDINAL ) [ of LAW ] there are a number of factors that have to be balanced in weighing the delay . If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process the accused can not be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime ...", "In their Lordships ' view a ORG that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence , allowing a reasonable time for appeal and consideration of reprieve . It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure . If the appellate procedure enables the prisoner to prolong the appellate hearings over DATE , the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it . Appellate procedures that echo down DATE are not compatible with capital punishment . The death row phenomenon must not become established as a part of our jurisprudence ...", "There may of course be circumstances which will lead ORG to recommend a respite in the carrying out of a death sentence , such as a political moratorium on the death sentence , or a petition on behalf of the appellants to [ international human rights bodies ] or a constitutional appeal to ORG . But if these respites cumulatively result in delay running into DATE an execution will be likely to infringe section CARDINAL(CARDINAL ) and call for commutation of the death sentence to life imprisonment . ”", "Further , calculating the normal length of relevant appellate proceedings in GPE and taking into consideration the time necessary for examination of applications to ORG and ORG , ORG held that :", "“ in any case in which execution is to take place DATE after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or ... treatment ” .", "In cases which followed ORG accepted a claim that DATE and DATE also warranted a finding in favour of the appellant ( PERSON v. PERSON and Others [ DATE ] CARDINAL A.C. CARDINAL ) but dismissed appeals concerning shorter periods ( PERSON v. The Attorney General of the GPE of The GPE [ DATE ] A.C. CARDINAL ; ORG ) v. The Minister of ORG ( GPE ) [ DATE ] A.C. CARDINAL ; and PERSON and PERSON v. The Minister of ORG ( GPE ) [ DATE ] ORG CARDINAL ) and held that save in exceptional circumstances , periods of pre - sentence detention should not be taken into account since , inter alia , “ the state of mind of the person ... during this earlier period is not the agony of mind of a man facing execution , but ... anxiety and concern of the accused”(Fisher , § DATE ) . In PERSON and PERSON , ORG stated , inter alia :", "“ If a man has been sentenced to death , it is wrong to add other cruelties to the manner of his death ... In PERSON ... the [ ORG ] held that the execution after excessive delay was an inhuman punishment because it added to the penalty of death the additional torture of a long period of alternating hope and despair . It is not the delay in itself which is a cruel and unusual punishment ... , ' it is the act of hanging the man that is rendered cruel and unusual by the lapse of time ” .", "ORG found that execution following inordinate delay after sentence of death violated LAW which provides that “ no one shall be deprived of his life or personal liberty except according to procedure established by law ” and that the reasons for the delay were immaterial ( PERSON v. ORG [ DATE ] CARDINAL S.C.R. CARDINAL , PERSON and Others v. the ORG of ORG [ DATE ] CARDINAL S.C.R. CARDINAL and Smt . PERSON v. State of GPE [ DATE ] CARDINAL S.C.J. CARDINAL ) .", "GPE ORG has refused to accept claims that lengthy detention on death row violated the prohibition , contained in LAW to LAW , of cruel and unusual punishment , emphasising that the delay is due to the convicted person 's own decision to make use of all possibilities to appeal ( PERSON v. GPE , CARDINAL US CARDINAL ) .", "ORG has held that NORP constitutional standards did not bar extradition to GPE of a defendant facing the death penalty ( PERSON v. GPE ( Minister of ORG ) , [ DATE ] CARDINAL S.C.R. CARDINAL ) . However , in DATE it changed its approach and held that if the person being extradited could face the death penalty , constitutional standards required that in all but exceptional cases assurances must be sought from GPE that the death penalty would not be imposed or , if imposed , would not be carried out ( GPE v. PERSON , [ DATE ] CARDINAL S.C.R. CARDINAL ) ." ]

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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 Court by Ms Z. FAC - ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON J.Wołąsiewicz of ORG .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was charged with assaulting a GPE employee .", "On DATE expert psychiatrists appointed by the prosecutor gave an opinion concerning the applicant ’s mental health . They considered that the applicant suffered from paranoia with elements of psychosis .", "On DATE the ORG gave a decision and discontinued the criminal proceedings against the applicant . The court found it established that the applicant had committed the offence in question . However , he should not have been held criminally responsible as he was suffering from paranoia with elements of psychosis . It further ordered that the applicant be placed in a psychiatric hospital .", "On DATE the applicant appealed against this decision . On DATE ORG dismissed the appeal .", "On DATE the applicant was informed that the ORG had decided not to file a cassation appeal on his behalf .", "DATE and DATE the applicant was detained in a psychiatric hospital , on the basis of a decision given in another set of criminal proceedings against him ( decision of ORG of DATE ) . On DATE ORG ordered the applicant ’s internment in the same institution on the basis of its final decision of DATE .", "On DATE ORG decided ( in the other set of criminal proceedings against the applicant ) that the applicant could be released since his health had significantly improved and he could be treated outside the hospital . However , the applicant was not released on that date as he was simultaneously detained on the basis of ORG decision of DATE .", "On DATE the applicant ’s lawyer filed a motion with ORG referring to ORG decision and asking for the applicant ’s release .", "On DATE the applicant absconded from the hospital .", "NORP On DATE the ORG heard an expert who stated that the applicant ’s escape from the hospital confirmed that he had no intention to continue his therapy . Consequently , the court refused to discontinue the enforcement proceedings relating to the applicant ’s confinement ordered on DATE . The court referred to an expert ’s report of DATE .", "On DATE ORG ordered that the applicant be admitted to a psychiatric hospital .", "On DATE ORG quashed the decision of DATE and remitted the case to ORG on formal grounds . ORG subsequently scheduled a hearing . However , it had to be adjourned since the applicant had filed a motion for the presiding judge to step down .", "On DATE ORG appointed experts .", "On DATE the applicant went to ORG to examine his case file . He was then arrested by the police on the basis of the order of DATE . He was informed that he had the right to lodge an interlocutory appeal against his arrest . On DATE the applicant was admitted to the Choroszcza psychiatric hospital . He submits that on his arrival he was examined by a doctor who stated that there was no need to keep him in hospital . However , the applicant was ordered to stay in the hospital . The Government submit that the applicant was ordered to stay in the hospital as there were strong medical grounds justifying his detention .", "On DATE the applicant lodged an interlocutory appeal against the decision to admit him to hospital . He argued that his placement in the psychiatric hospital had not been necessary . He stressed that on DATE , in another set of criminal proceedings , ORG had taken the view that his state of health had improved . Lastly , he submitted that a person could not be judged healthy as regards one set of criminal proceedings and in need of psychiatric treatment as regards another set . On an unknown date the applicant ’s lawyer also lodged an interlocutory appeal .", "On DATE the applicant absconded from the hospital .", "On DATE ORG refused to examine the applicant ’s interlocutory appeal against the decision to place him in a psychiatric hospital as inadmissible in law . The court referred to ORG decision of DATE ( see domestic law and practice below ) . On DATE it refused to examine an appeal by the applicant ’s lawyer .", "The applicant and his lawyer appealed against these decisions . On DATE ORG dismissed their appeals .", "On DATE , on a request by the applicant under LAW DATE on complaints about a breach of the right to a trial within a reasonable time , ORG gave a decision and acknowledged that the length of the enforcement proceedings ( between DATE and DATE ) was excessive . It awarded the applicant MONEY ( ORG ) as just satisfaction .", "On DATE the applicant was arrested by the police so that he could undergo a psychiatric observation .", "On DATE the court - appointed experts submitted their opinion to the court . They concluded that the applicant suffered from a delusional disorder and he should be kept in a psychiatric hospital .", "On DATE he lodged an interlocutory appeal against the decision to place him in a psychiatric hospital . On DATE ORG dismissed his appeal as inadmissible in law . On DATE the court ordered the applicant ’s release . The applicant lodged an appeal ( in respect of costs and expenses ) against this decision on DATE . On CARDINAL DATE ORG dismissed his appeal .", "Under LAW a convicted person is entitled to make applications , complaints and requests to the authorities enforcing the sentence . Article CARDINAL , paragraphs CARDINAL and CARDINAL , of the LAW provides that a convicted person can challenge before a court any unlawful decision issued by a judge , a penitentiary judge , a Governor of a prison or a remand centre , a Regional Director or ORG or a court probation officer . Applications related to the enforcement of prison sentences are examined by a competent penitentiary court .", "On DATE ORG gave a decision , I ORG CARDINAL/CARDINAL , and held that it was not possible to appeal against a decision to arrest and place a convicted person in a penitentiary institution [ doprowadzenie do zakładu karnego ] ." ]

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[ "The applicants are of NORP origin and live with their families on the area of GPE , near FAC , a municipality in the western part of the LOC region .", "On DATE , the Minister Delegate of Health , accompanied by the Secretary General of his ministry , visited the GPE camp in GPE . He had been informed , among other things , of the non - education of NORP children . On DATE , the representatives of “ NORP FAC ” and of “ NORP ORG ” met with the Minister Delegate for ORG . Following this meeting , ORG Delegate published a press release highlighting , among other things , the importance of integrating NORP children into the national education process .", "The DATE began on DATE . On DATE , the Secretary of ORG of ORG visited the GPE camps in GPE , in the company of CARDINAL representatives of ORG , to register all the PERSON children of schooling age . To this end , they visited the CARDINAL primary schools of the municipality ( DATE primary schools of LOC ) . The respective school directors encouraged PERSON parents to enrol their children in primary school . ORG subsequently informed the competent authorities of ORG , who gave no follow - up .", "The applicants confirm that on DATE , they visited the premises of the LOC primary schools , with other PERSON parents , to register their children . The directors of CARDINAL schools had refused to enrol their children on the grounds that they had not received instructions to this effect from the relevant ministry . They had informed the parents concerned that upon receipt of the necessary instructions , they would invite them to complete the necessary formalities . Never afterwards were the parents invited to register their children .", "According to the document no . ΦCARDINAL.CARDINAL/CARDINAL delivered on DATE by ORG in LOC , at the request of ORG , the applicants presented themselves to the director of the CARDINALth primary school of Aspropyrgos to gather information on registering their children . The director reportedly showed them the documents necessary to register their children . According to the same documents , on DATE , the Departmental Director of Education of the LOC region convened an informal meeting with the competent authorities of the municipality of LOC to address the problem of additional enrolment of students of PERSON origin and the capacity of GPE primary schools . On CARDINAL hand , it was decided that the students who had reached DATE schooling would be accommodated into the existing LOC of the CARDINALth and CARDINALth primary schools in LOC . On the other hand , the meeting considered that integration of children who had reached an age higher than that of preliminary education into normal classes would be detrimental from a psychopedagogical point of view : the difference of age would not permit them to have an effective schooling . On this basis , the informal meeting decided to provide CARDINAL additional preparatory classes in preparation for the integration of these students into ordinary classes .", "On DATE and DATE and on DATE , ORG referred to ORG on behalf of the applicants of CARDINAL applications concerning the difficulties of NORP children ’s access to primary education for PERSON children , inviting him to intervene . On DATE , the ORG replied in writing that CARDINAL representatives of his cabinet had , on an unspecified date , visited the GPE camp in GPE . In his response , the ORG noted that there was not , on the part of the competent services , any systematic and unjustified refusal to enrol children of PERSON origin in primary education . He noted that he had already informed teachers at GPE primary schools that domestic legislation provided for the possibility to enrol children in primary school with the simple declaration of those bearing parental authority , provided that they submit birth certificates in due course . The ORG also referred to the conclusions of several meetings with the leaders of the municipality of LOC and , more specifically , to their intention to build a separate building from the school closest to the GPE camp to accommodate the older PERSON children in view of bringing them up to standard . The ORG mentioned lastly the tensions that existed between the population of LOC , composed mainly of those repatriated from states of the former GPE , and the NORP minority , as an additional element preventing the integration of NORP children into the educational environment .", "On DATE , the Minister Delegate for ORG asked the company responsible for operating state real estate to grant some public land with CARDINAL prefabricated cells to serve as classrooms for NORP children . On an unspecified date , the Minister rejected the request .", "According to the Government , in DATE and DATE a delegation from teachers of primary schools no . CARDINAL and CARDINAL visited the ORG in GPE in order to inform and convince the parents and their children , who were minors , of the necessity to enrol their children in preparatory classes . This approach would be in vain , the parents concerned not having registered their children for DATE .", "On DATE , ORG in GPE ( ORG ) addressed an official letter to ORG of ORG of GPE in which it requested information about the schooling of the FAC in LOC .", "On DATE , ORG replied that the case had experienced delays attributable to ORG : it had been slow to resolve the issue of granting public land on which to construct rooms and prefabricated classrooms . ORG expressed its intention to make every effort to implement the enrolling of NORP children in primary school DATE .", "On DATE , ORG sent a letter to the Minister Delegate of ORG and ORG stressing the need to take all of the necessary measures to assure the successful schooling of NORP children for the DATE .", "A letter dated DATE to ORG states that the school authorities took various steps to inform GPE PERSON families of the necessity of enrolling their children in primary school : radio messages , advertisements on the school walls informing GPE that they could register their children DATE and sending letters to interested parties on this subject .", "On DATE , at the initiative of ORG , CARDINAL children of NORP origin , including the children of the applicants , were enrolled in the LOC primary school for the DATE . According to the Government , the number of NORP children who were enrolled was CARDINAL .", "On DATE , the first day of DATE , the PERSON parents , including the parents , accompanied their children to school . In front of the entrance , several non - NORP parents , most of them of NORP origin , that is to say from the region of FAC , on the southern shores of LOC , were gathered , harassing people of NORP origin . They shouted , “ There is not a single NORP child who will go to school . You will not have access here , that ’s all . ” Then , non - PERSON parents blocked access to the school until NORP children were transferred to another building .", "On DATE , the non - Romani parents blocked access to the school again . They hung a sign : “ The school will remain closed because of the Gypsy problem ; DATE CARDINAL ” .", "On DATE , NORP children tried to access the school . They were once more confronted by a group of non - NORP parents . In particular , the president of the association showed , on camera of a television channel that had visited the scene , the medical files of children of NORP origin in order to prove that they had been inadequately vaccinated . Finally , with the assistance of the police , who had gone there , the NORP children were able to access the school .", "As part of the judicial investigation of this incident , the police officer D.T. made a statement with the following passage : “ On DATE , around CARDINAL , CARDINAL parents of students of NORP origin protested outside schools against the schooling of children of PERSON origin at the primary school ( ... ) . A confrontation was avoided thanks to the prompt intervention of the police of LOC ( ... ) . On DATE and DATE , the association of parents organised a boycott of student participation in class . From DATE of the incidents , police were posted outside the school to secure the entry and exit of ORG students . On DATE , the association of parents blocked access to the school as a protest against the afternoon welcoming of ORG students in the same rooms which welcomed the other students in the TIME . On CARDINAL and DATE , in the presence of police , students of ORG origin had access to classes without difficulty . On DATE , CARDINAL non - Romani parents gathered to protest against the presence of NORP students and to encircle the school ’s entrance in order to prevent access ( ... ) ” .", "By a letter , dated DATE , ORG informed ORG that on CARDINAL , DATE , DATE , DATE and DATE and on CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , and DATE , police forces had been sent to the CARDINALth and CARDINALth primary schools in order to maintain order and to prevent illegal acts committed against ORG students .", "As of DATE , the applicants’ children were educated in a separate building from the main primary school of LOC and the non - NORP parents stopped blocking the school .", "Under Act No . CARDINAL/CARDINAL.CARDINAL.CARDINAL of ORG , CARDINAL preparatory classes were created to meet the educational needs of NORP children ; the classes of one took place in TIME while the other CARDINAL took place after CARDINAL . ORG indicated that the ORG students of all ages who were confronted with problems pertaining to their learning capacity could take special preparatory classes , the aim being to allow their integration without hindrance into ordinary classes .", "On DATE , the applicants signed a statement written by the teachers of ORG expressing their wish to have their children transferred to the building separate from the primary school . The applicants allege that they had signed the statement in question under pressure from the Minister of Education , non - NORP parents , and certain leaders of the NORP community .", "On DATE , the first applicant swore in FAC that he would have preferred for his students to attend regular classes rather than special school . He clarified , however , that it was difficult for him to maintain this position when the integrity of his children was endangered by furious non - Romani residents and that the teachers indirectly encouraged him to consent to his children ’s schooling in the “ ghetto school ” .", "In the meantime , under Act No . CARDINAL/CARDINAL.CARDINAL.CARDINAL , the Prefect of LOC had decided that CARDINAL classes of primary school No . CARDINAL in LOC would be accommodated in prefabricated rooms installed on land owned by the municipality of LOC .", "On DATE , the West Attica Primary Education Directorate sent a letter to ORG . She informed the Ministry that for the DATE , CARDINAL new students of NORP origin had been enrolled in the CARDINALth primary school of Aspropyrgos . She noted that “ due to the lack of space in the main school building of the school , and with the GPE agreement , pupils of NORP origin had been accommodated in an annex located near the GPE camp ” .", "On DATE , the third constituency of the LOC ORG sent a letter to the director of the outskirts of GPE . She informed him that for the DATE , CARDINAL students of GPE origin had been enrolled in the CARDINALth primary school of Aspropyrgos . She stated that “ preparatory classes [ were ] provided for the ORG students , in order to assure their adaptation to the schooling environment , given the deficiencies from which they suffered and various other reasons making it impossible for them to integrate into ordinary classes . ” She added that “ despite the progress made by ORG students in the preparatory classes , all of these students are not yet fit to integrate into ordinary classes . ”", "On DATE , prefabricated rooms of the CARDINALth primary school were set on fire by unknown people . It appears from the file that in DATE , the CARDINAL rooms were replaced but because of infrastructure problems , they were not operational . In DATE , a CARDINALth primary school was created in LOC , to which NORP children were transferred . The record shows that in DATE , this school was not yet operational , because of the infrastructure problems . The Government alleges that the establishment of the CARDINALth primary school in LOC was intended only to relieve congestion at the CARDINALth primary school .", "According to LAW ,", "“ All pupils who have attained the legal age of schooling must be registered in the first class of primary school . Registrations take place from DATE to DATE of the DATE . ”", "ORG Directive ΦCARDINAL/CARDINAL/ΓCARDINAL/CARDINAL/CARDINAL.CARDINAL.CARDINAL of ORG and ORG underlines the need “ for cooperation between ORG families , heads , and school councils so that NORP children living in camps are registered in nursery and primary schools ( ... ) . The heads [ of schools ] must not only encourage PERSON children to enrol in primary schools , but also , identify NORP children in their district and ensure their registration and attendance at classes ( ... ) ” . In addition , Directive ΦCARDINAL/CARDINAL/ΓCARDINAL/CARDINAL/CARDINAL.CARDINAL.CARDINAL of the Minister of ORG and LAW CARDINAL/CARDINAL require the competent authorities to facilitate the access of NORP children to public education .", "The relevant articles of Legislative Decree No . DATE on the “ Codification of the provisions of the laws on ORG ” provide :", "“ CARDINAL . An action for annulment for abuse for excess of power or violation of the law is admissible only against legally binding acts of the administrative authorities and the legal entities of public law who are not susceptible to appeal before any other jurisdiction .", "( ... )", "In cases where the law requires an authority to settle a particular question by enacting an enforceable act subject to the provisions of paragraph CARDINAL , the action for annulment is admissible even against the failure of that authority to enact such an act .", "The authority is presumed to refuse to enact the act either when the special period of time fixed by the law expires , or after the expiry of a period of DATE from the filing of the request of the administration , who is expected to issue an acknowledgment of receipt ( ... ) indicating DATE of the said deposit . The action for annulment exercised before the expiry of the aforementioned periods is inadmissible .", "An action for annulment validly lodged against an implied refusal [ of the administration ] is also an action against the negative act that may be subsequently adopted by the administration ; however , this act may also be attacked separately . ”", "“ ( ... )", "A committee established for the needs of the cause by the president of ORG or the competent section of ORG and composed of said president or his deputy , the reporter of the case and a councillor of ORG may , at the request of the author of the solution of annulment , suspend the execution of the contested act by a decision briefly reasoned and adopted in ORG ( ... ) . ”", "The LHDH , established in DATE , is the oldest non - governmental organisation in GPE . It is a member of ORG . ORG is a non - profit organisation established in DATE . The purpose of its activity is scientific research on minority groups and languages in GPE .", "LHDH and ORG ’s DATE report on the state of racism and xenophobia in GPE observes a clear improvement in schooling conditions for people belonging to the NORP and GPE minorities compared to those of DATE . However , the report notes that the registration of PERSON children in school continues to be a source of tension , intolerance , and violent reactions . This sometimes requires the placement of NORP children in schools specially created for the GPE , despite the strong commitment of the administration to avoid the segregation of minorities in the school environment . The report notes that the most serious incidents of intolerance concern the registration of NORP children in primary education .", "By a letter dated DATE , ORG for ORG had informed the representative of ORG that CARDINAL schools attended only by “ Gypsy children ” had been operation in GPE during the DATE .", "The terms of this recommendation are as follows :", "« ORG , in accordance with ORG ,", "Considering that the aim of ORG is to achieve a closer union among its members , and that this aim may be pursued in particular by adopting joint action in the field of education ;", "Recognising the urgent need to lay new foundations for future educational strategies for ORG in LOC , in particular because of the high rate of illiteracy or semi - illiteracy in this community , the extent of school failure , the low proportion of young people completing primary school and the persistence of factors such as school absenteeism ;", "Noting that the problems faced by ORG in the field of education are largely due to the long - standing educational policies that have led either to the assimilation or segregation of ORG children in school on the grounds that they suffered from a \" socio - cultural handicap \" ;", "Considering that the disadvantaged position of ORG in NORP societies can only be remedied if equality of opportunity in the field of education is guaranteed to Romani / Gypsy children ;", "Considering that the education of Romani / Gypsy children should be a priority of national policies for ORG ;", "Bearing in mind that policies to address the problems faced by ORG in the field of education must be comprehensive and based on the recognition that the issue of schooling of ORG children is linked to a set of factors and preconditions , including economic , social and cultural aspects and the fight against racism and discrimination ;", "Bearing in mind that educational policies for ORG children should be accompanied by an active policy on adult and vocational education ; ( ... )", "Recommends the governments of member states :", "to respect , in the implementation of their education policy , the principles set out in the appendix to this Recommendation ;", "to bring this Recommendation to the attention of the competent public authorities in their respective countries , through the appropriate national channels . \"", "The relevant parts of the Annex to Recommendation No . R ( DATE ) CARDINAL read as follows :", "“ Guiding Principles for an Education Policy for Romani / Gypsy Children in LOC ”", "I. Structures", "Educational policies for ORG children should be accompanied by the necessary means and flexible structures to reflect the diversity of the ORG population in LOC and to take into account ORG groups’ itinerant or semi - itinerant way of life . In this respect , the use of a system of education at a distance , based on new communication technologies , could be considered .", "Emphasis should be placed on better coordination at international , national , regional and local levels in order to avoid dispersion of efforts and to promote synergies .", "Member states should , in this regard , make the ORG sensitive to the question of ORG education .", "Pre - school education should be widely developed and made accessible to ORG children , in order to ensure their access to schooling and education .", "Special attention should also be paid to better communication with and between parents by using , when appropriate , mediators from the ORG community who would have the opportunity to access a specific professional career . Special information and advice would be provided to parents on the necessity for education and the support mechanisms that municipalities can offer to families . The exclusion and lack of knowledge and education ( or even illiteracy ) of parents also prevent children from benefiting from the education system .", "Adequate support structures should be put in place to enable ORG children to benefit from equal opportunities in school , including through positive action .", "Member states are invited to provide the necessary means to implement the aforementioned policies and measures in order to bridge the gap between ORG schoolchildren and those belonging to the majority population .", "II . School programmes and teaching materials", "Educational measures for Romani / Gypsy children should be part of a wider intercultural policies and take into account the characteristics of PERSON culture and the disadvantaged position of many Roma / Gypsies in GPE .", "School curricula , as a whole , and teaching materials should be designed in a manner to respect the cultural identity of ORG children . The history and culture of the GPE should therefore be introduced in the educational materials in order to reflect the cultural identity of PERSON / Gypsy children . The participation of representatives from ORG communities in the development of material on ORG history , culture , and language should be encouraged .", "Member states should , however , ensure that these practices not lead to separate school curricula that can lead to creating separate classes .", "Member states should equally encourage the development of educational materials based on examples of successful action in order to assist teachers in their DATE work with ORG children .", "NORP In countries where the PERSON language is spoken , PERSON / Gypsy children should be offered the opportunity to take classes in their mother tongue .", "III . Recruitment and teacher training", "Provision should be made for the introduction of specific education in programs preparing future teachers so that they can acquire the knowledge and training to better understand ORG schoolchildren . However , the education of NORP / Gypsy schoolchildren should remain and integral part of the overall education system .", "The Roma / Gypsy community should be involved in the development of these programs and should be able to directly communicate this information to future teachers .", "Recruitment and training of teachers from the Roma / Gypsy community should also be promoted ( ... ) ” .", "The general comments in this recommendation include :", "“ CARDINAL of the aims of ORG is to promote the formation of a true NORP cultural identity . LOC is home to many different cultures , all of which , including multiple minority cultures , contribute to its cultural diversity .", "Gypsies hold a special place among minorities . Living dispersed throughout LOC , unable to claim a country for their own , they constitute a true NORP minority who do not correspond to the definitions applicable to national or linguistic minorities .", "As a non - territorial minority , NORP contribute significantly to LOC ’s cultural diversity , in multiple respects , be it through language and music or in their artisanal activities .", "Following the admission of new Member GPE from central and eastern LOC , the number of NORP living in the Council of Europe area has considerably increased .", "Intolerance towards NORP has always existed . However , outbreaks of racial or social hatred are occurring more and more regularly and strained relations between communities have contributed to creating the deplorable situation in which the majority of NORP live today .", "Respect for the rights of NORP , whether for their fundamental human rights , or their rights as a minority , is an essential condition for improving their situation .", "By guaranteeing equal rights , opportunities , and treatment , and by taking steps to improve the situation of NORP , it will be possible to revive their language and culture , thereby enriching NORP cultural diversity .", "It is important to guarantee to NORP the enjoyment of rights and liberties defined in LAW , as this enables them to assert their rights ( ... ) . ”", "Concerning the area of education , the recommendation states :", "“ existing NORP teacher training programs for NORP should be expanded ;", "Special attention should be paid to the education of women in general and mothers with their young children ;", "Gifted young Gypsies should be encouraged to study and act as intermediaries for NORP ; ( ... ) . ”", "This recommendation states in particular :", "“ ( ... )", "DATE , GPE are still subject to discrimination , marginalisation and segregation . Discrimination is widespread in all areas of public and private life , including access to public service , education , employment , heath services and housing , as well as to crossing borders and access to asylum procedures . Economic and social marginalisation and segregation of GPE are turning into ethnic discrimination , which generally affects the most vulnerable groups in society .", "Roma constitute a special group , minority for CARDINAL reason : ethnically minority , they also very often belong to the socially disadvantaged strata of society ( ... ) .", "ORG can and must play an important role in improving the legal status of GPE , the level of equality they enjoy , and their living conditions . The ORG calls on Member GPE to fulfil the following CARDINAL general conditions , which are necessary to improve the situation of the GPE in LOC : ( ... )", "c ) guarantee equality of treatment of the GPE minority as an ethnic or national minority group or in the fields of education , employment , housing , health and public services . Member GPE should pay special attention :", "( ... )", "ii . to give GPE the opportunity to integrate into all educational structures , from kindergarten to university ;", "iii . to develop positive measures to recruit GPE in public services of direct interest to ORG , such as primary and secondary schools , social welfare centres , local primary health care centres and local governments ;", "iv . to eliminate any practice tending towards school segregation of NORP children , in particular the practice of referring them to schools or classes reserved for students with mental disabilities ;", "d ) to develop and implement positive action and preferential treatment for the socially disadvantaged classes , including the GPE , as a socially disadvantaged community , in the fields of education , employment , and housing ( ... ) ;", "e ) to take specific measures and to create special institutions for the protection of PERSON language , culture , traditions and identity ; ( ... )", "ii . to encourage PERSON parents to send their children to primary and secondary school , and institutions of higher education and to correctly inform them of the importance of education ; ( ... )", "v. recruit PERSON teachers , especially in areas where the NORP population is considerable ;", "f ) to combat racism , xenophobia , and intolerance , and to ensure non - discriminatory treatment towards GPE on local , regional , national and international levels : ( ... )", "vi . to pay particular attention to phenomena of discrimination against the GPE , particularly in the fields of education and employment ; ( ... ) . ”", "The relevant portions of this recommendation read as follows :", "“ ORG against Racism and Intolerance :", "( ... )", "Recalling that the fight against racism , xenophobia , anti - Semitism and intolerance is an integral part of the protection and promotion of human rights , and that these rights are universal and indivisible , and are the rights of all human beings , without distinction of any kind ;", "Stressing that the fight against racism , xenophobia , anti - Semitism and intolerance is aimed above all at protecting the rights of vulnerable members of society ;", "Convinced that any action against racism and discrimination should begin from the point of view of the victim and seek to improve his or her situation ;", "Noting that ORG throughout LOC DATE suffer from persistent prejudices against them , are victims of racism deeply rooted in society , are the target of demonstrations , sometimes violent , of racism and intolerance , and that their human rights are regularly violated are threatened ;", "Noting further that the persistent prejudices towards ORG drive discrimination against them in many areas of social and economic life , and that this discrimination significantly fuels the process of social exclusion from which GPE and Gypsy people suffer ;", "Convinced that the promotion of the principle of tolerance is a guarantee of the maintenance of open and pluralistic societies , making peaceful coexistence possible ;", "Recommends to the governments of the member states the following :", "( ... )", "– To ensure that discrimination as such as well as discriminatory practices are combatted by means of adequate legislation and to ensure that specific provisions are included in civil law , in particular in the areas of employment , housing and education ;", "( ... )", "– To fight vigorously all forms of school segregation of GPE and PERSON children and to ensure effectively equal access to education ; ( ... ) . ”", "For the purposes of this recommendation , the following definitions apply :", "“ a ) “ racism ” the belief that grounds such as race , colour , language , religion , nationality or ethnic or national origin justifies contempt towards a person or group of people , or the idea of one ’s superiority or of a group of people", "b ) “ direct racial discrimination ” means any difference of treatment based on grounds such as race , colour , language , religion , nationality or national or ethnic origin , which lacks reasonable or objective justification . A difference of treatment lacks reasonable and objective justification if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim pursued .", "c ) “ indirect racial discrimination ” means the case where an apparently neutral factor such as a provision , criterion or practice can not be so easily respected by persons belonging to a group distinguished by grounds such as race , colour , language , religion , nationality or national or ethnic origin , or disadvantages these persons , unless this factor has an objective and reasonable justification . This is so if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the intended purpose .", "In the explanatory memorandum to this recommendation , it is noted ( point CARDINAL) that the definitions of these concepts of direct and indirect discrimination contained in paragraph CARDINAL(b ) and CARDINAL ) of the recommendation are based on those contained in ORG on the implementation of the principle of equal treatment between persons irrespective of racial or ethnic origin , and ORG establishing a general framework for equal treatment in employment and occupation , as well as the case - law of ORG .", "ECRI recalls in its report from DATE that in its previous report it had drawn the attention of NORP authorities to the situation of the GPE , in particular to the problems of eviction from their homes and of discrimination in access to public services and underlined the importance of overcoming local resistant to initiatives in favour of GPE .", "After having expressed its concern , ORG considers in its report from DATE that , since the adoption of its second report on GPE , the situation of GPE in GPE has not fundamentally changed and that in general they experience the same difficulties – including discrimination – in housing , employment , education , and access to public services .", "The final report by Mr PERSON on the human rights situation of GPE , PERSON and Travelers in LOC ( dated DATE )", "In the third part of this report , dedicated to discrimination within education , the Commissioner observes that if a significant number of NORP children do not have access to quality education equal to that offered to other children , it is also because of discriminatory practices and prejudices . In this respect , he notes that segregation within the education system is a common characteristic of many member ORG . In some countries , there are isolated schools in isolated camps , in others special classes for NORP children in ordinary schools , or a clear overrepresentation of NORP children in classes for children with special needs . It is frequent that NORP children are placed in classes for children with special needs , without adequate psychological or pedagogical evaluation , the real criteria being their ethnicity . Placement in special schools or classes means that these children often have a less ambitious curriculum than those in normal classes , which reduces their educational prospects and hence their chances of finding a job at a later stage . Automatic placement of NORP children in classes for children with special needs specifically reinforces social stigma by labelling PERSON children as less intelligent and less capable . At the same time , segregated education deprives PERSON children and non - NORP children of the opportunity to know each other and to learn to live as equal citizens . It excludes NORP children from normal society from DATE , increasing the risk of them being caught in the vicious cycle of marginalisation .", "In conclusion , the Commissioner makes a number of recommendations in the area of education . According to him , when segregation in education still exists in CARDINAL form or another , it must be replaced by an ordinary integrated education and , if necessary , prohibited by legislation . Adequate resources should be allocated to pre - school education , language training , and the training of school assistants to ensure the success of desegregation efforts . Then , an adequate assessment should be made before placing children in special classes , so that the only criteria for placement are the objective needs of the child and not his or her ethnicity . ”" ]

[ "13", "14", "P1" ]

[ "P1-2" ]

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[ "PERSON is an NORP national and resides at GPE ( GPE ) . She is unemployed . The facts established by the ORG pursuant to LAW CARDINAL ( LAW are as follows ( paragraphs CARDINAL of its report ) :", "\" CARDINAL . On DATE the applicant took proceedings against ORG ) before the GPE magistrate ’s court ( pretore ) in order to establish her disability pension right .", "The investigation began at the hearing of DATE , when the magistrate ’s court called for a medical opinion . On DATE the medical opinion was lodged with the registry , and the hearing of CARDINAL DATE before the magistrate ’s court ended with the dismissal of the applicant ’s claim . The text of the decision was lodged with the registry on DATE .", "On DATE the applicant appealed against the above decision and on CARDINAL DATE the presiding judge of ORG fixed the hearing before the competent court chamber for DATE . On DATE , the court called for a further medical opinion and adjourned the case to DATE .", "On a date which has not been specified \" - according to the information provided to ORG by the participants in the proceedings the date in question was DATE - \" the ORG allowed the applicant ’s claim . The text of the decision was lodged with the registry on DATE .", "It does not appear that an appeal was filed against that decision in ORG . \"" ]

[ "6" ]

[ "6-1" ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE .", "The applicants lodged CARDINAL separate civil actions before ORG on DATE and CARDINAL DATE ( actions ORG ) . In both actions the applicants sought remedies against CARDINAL defendants in respect of trespass and nuisance to their respective properties .", "From the institution of the proceedings until DATE the court dealt with applications by the applicants for substituted service of the writs , and CARDINAL applications by the second applicant in her action for an interim order and in respect of a boundary dispute . The pleadings in both actions were completed in DATE and DATE .", "On DATE the actions were fixed for directions and were then adjourned to give more time to the parties to decide on whether an inspection of the property should be carried out .", "On DATE , with the consent of all the parties , the district court ordered the inspection of the properties concerned by ORG ( ORG ) . Consequently , the actions were adjourned sine die pending the inspection to be fixed on the application of either party upon completion .", "Following an application by CARDINAL of the defendants to the court for the joining of the actions on DATE , and the opposition by the first applicant thereto , the court decided to join the actions on DATE . Within this period CARDINAL adjournments took place at the ORG request .", "In view of the fact that the inspection had not been completed yet , the actions were adjourned sine die .", "Although the actions were fixed for trial several times DATE and DATE , no hearing took place pending the findings of the ORG . Within this period , CARDINAL adjournments took place due to the first applicant ’s absence .", "It appears that the parties and the court were informed on DATE that the inspection had been carried out .", "On DATE the hearing was adjourned at the applicants’ request .", "The hearing of the actions commenced on DATE . From that date until DATE approximately CARDINAL hearing sessions were held , CARDINAL of which were adjourned and CARDINAL cut short at the ORG request . In the meantime , it appears that the ORG ’s inspection was annulled and following another examination of the matter the parties were informed on DATE that the ORG ’s findings were ready .", "On DATE the GPE ORG delivered its judgment dismissing the actions with costs to be paid by the applicants .", "On DATE the applicants lodged an appeal with ORG challenging the above judgment . Within their grounds of appeal , the applicants alleged that the excessive length of the proceedings was in breach of LAW . Consequently , they claimed that the first instance decision should be set aside .", "Meanwhile , on DATE , the applicants also applied to ORG of GPE challenging the assessment of legal costs they were required to pay . This application was dismissed on DATE .", "The records concerning the first instance proceedings were transmitted to ORG on DATE and the parties were notified on DATE that the appeal had been fixed for pre - trial directions on DATE . The appeal was adjourned CARDINAL times at the applicants’ request for the purposes of amending their notice of appeal .", "Their amended notice was filed on DATE and the filing of the address outlines was completed by DATE .", "The hearing of the appeal took place on DATE and judgment was delivered on DATE dismissing the appeal with costs against the applicants . ORG having examined , inter alia , the applicants ’’ rights and did not justify the annulment of the first instance judgment . In this context ORG noted that the delays in the first part of the proceedings lasting until the beginning of the actual trial , were mainly due to the long time the ORG took in carrying out the inspection and completing its report and , secondly , to delays by the parties , particularly the applicants , in submitting their pleadings ( DATE ) . Following the start of the trial , the court noted the complexity of the issues raised in the actions that involved the examination of numerous witnesses and the adjournments requested primarily by the applicants ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "In TIME on DATE the applicant and her friend PERSON were coming back from a party in GPE . At a certain point they stopped because the applicant wanted to collect some leaves from an oak tree ; she is a painter and she needed them to produce dye for her work . As they approached the tree , a police car stopped near them . CARDINAL uniformed policemen got out of the car and asked the applicant and her friend what they were doing there . The applicant asked what she was suspected of and what the policemen wanted from her . She asked them to show their badges . The policemen refused .", "Then the applicant and her friend were asked to show their identity cards . PERSON did not have his identity card on him ; however , he gave the policemen his personal details . The applicant refused , saying that she did not have her card on her and that she did not trust the NORP police . Then she said that she would not speak to them any longer and tried to walk away . Subsequently , she was informed that the process of establishing her personal details had not been finished and was warned that coercive measures would be used and that she would be taken to a police station if she persisted in her refusal . Then the policemen took her by both arms and brought her to the police car , parked nearby . The applicant resisted arrest by trying to get away , kicking and shouting . After she was brought to the car , she refused to get in . The CARDINAL policemen called another police car and QUANTITY other policemen arrived . Then the applicant was pushed into the car , laid on the floor and held down by the weight of the policemen 's bodies . While she was being pushed into the car , kicking and shouting , CARDINAL of the policemen was accidently hurt by a walking - length umbrella that the applicant was holding .", "Subsequently , the applicant was handcuffed behind her back and taken to the police station . She refused to give a sample of her breath , saying that she suffered from asthma and bronchitis . She was taken to an accident and emergency service , where she refused to undress for a medical examination . Then she was taken to a sobering - up centre where she underwent a breath test , which showed a blood - alcohol level of CARDINAL ‰. The doctor refused to keep the applicant in the sobering - up centre . She was taken back to the police station , where she apparently underwent another breath test . Subsequently she was taken to the police detention centre ( izba zatrzymań ) . As emerges from the record of arrest ( protokół zatrzymania osoby ) the applicant did not appeal against the decision on her arrest and did not ask for a lawyer . She refused to sign the record of arrest .", "In the police detention centre a policewoman told the applicant that she had to undress to undergo a body search in order to check whether she had any dangerous objects on her . The applicant refused , but as the policewoman allegedly warned her that she would be undressed by force , she eventually agreed . The applicant was then placed in a cell without a mattress . She had to spend TIME on a concrete floor without her jacket , which had been taken away from her because it had a cord which might serve as a dangerous object . Only after some time was she given a blanket . She was refused permission to go to the toilet .", "On DATE , at an unspecified time during DATE , the applicant was released .", "On DATE , at CARDINAL , the applicant went to an accident and emergency service in GPE , where she was examined by a doctor .", "According to a medical certificate from that examination the applicant had bruises on her chest and both arms , a haematoma on the left arm , bruises on the left hip and a haematoma on her left foot .", "There are no discrepancies in the facts until the moment the applicant was asked to show her identity card . She refused , saying that she did not have her card on her , and tried to walk away . Subsequently , she was warned that coercive measures would be used and that she would be taken to a police station if she persisted in her refusal . Then the policemen took her by both arms and brought her to the police car , parked nearby . The applicant resisted arrest by trying to get away , kicking and shouting . After she was brought to the car , she refused to get in . The CARDINAL policemen called another police car and CARDINAL other policemen arrived . They “ helped carry out the intervention ” . When the applicant was in the car , she suddenly hit CARDINAL of the policemen in his mouth with the ferrule of her umbrella .", "Alternatively , according to the criminal court which conducted proceedings against the applicant ( see below ) , the applicant had calmed down before being “ put in the car ” . After that she hit CARDINAL of the policemen with her umbrella .", "There are no discrepancies as regards facts which occurred in the accident and emergency service and the sobering - up centre .", "Subsequently , in the police detention centre , CARDINAL policewomen told the applicant that she had to remove her clothing to undergo a body search . The policewomen , who were questioned later in the course of investigation , said that the strip search had been carried out in accordance with the relevant procedures and denied that it could be humiliating for the applicant .", "On an unspecified date the applicant 's lawyer applied to ORG for the prosecution ( wniosek o ściganie ) of the police officers who had arrested the applicant .", "On CARDINAL DATE ORG discontinued the investigation , finding that the policemen 's acts did not constitute the offence of abuse of authority . The prosecutor relied on statements given by a number of witnesses , including the applicant 's friend PERSON 's version ” . PERSON however did not see what happened after the applicant had been placed in the police car . He said that only at the police station had he noticed that one of the police officers was hurt on his face and that he had found the wound “ superficial ” . The Prosecutor relied also on an expert opinion produced in the course of the investigation , according to which , as a result of the police intervention on the night in question , the applicant had bruises on both her arms and a haematoma on her left arm , bruises and a haematoma on her left foot , bruises on her left hip and a sprained right wrist . The above symptoms and physical state caused her health to be impaired for a period shorter than DATE within the meaning of LAW . As regards the body search of the applicant , the prosecutor invoked the provisions of LAW and Order no . CARDINAL of the Chief Police Commandant ( Komendant Główny Policji ) of CARDINAL DATE , which provided for the detailed examination of the clothes , shoes and underwear of arrested persons for any objects which could be dangerous to their own or another 's health or life .", "On DATE the applicant 's lawyer appealed , asking that the evidence in the file of the criminal proceedings against the applicant , which were pending at that time ( see : “ Criminal proceedings against the applicant ” , below ) , be examined . In the applicant 's lawyer 's view , it was relevant for the present proceedings that the case against the applicant had been remitted by the second - instance court for reexamination . He also wanted the court to compare the evidence given by the police officers in both sets of proceedings . In his appeal the applicant 's lawyer did not refer to the fact that at the police detention centre the applicant had allegedly been refused permission to go to the toilet and that she had had to spend TIME on a concrete floor without any cover .", "On DATE ORG ( Sąd Rejonowy ) held a hearing and rejected the applicant 's lawyer 's application . The court found that it was not bound by a judgment given in the criminal proceedings against the applicant and that the question whether or not the applicant had committed the offence of forcibly resisting arrest was irrelevant for the assessment of whether the police officers had abused their authority .", "On DATE ORG upheld the prosecutor 's decision .", "On an unspecified date the applicant was charged with resisting lawful arrest .", "On DATE ORG convicted the applicant as charged and ordered her to pay a fine .", "On an unspecified date the applicant 's lawyer appealed .", "On DATE ORG ( PERSON ) quashed the first - instance judgment and remitted the case for further examination . The court found that the applicant 's injuries could not have been caused by her being placed in the police car in the way described by the police officers .", "On DATE ORG , having re - examined the case , again convicted the applicant and ordered her to pay a fine . ORG did not directly refer to the shortcomings of the proceedings found on appeal by ORG applicant was found guilty of resisting lawful arrest by , inter alia , hitting one of the policemen with an umbrella and hurting his lip and kicking the police officers .", "On an unspecified date the applicant 's lawyer appealed again .", "On DATE ORG upheld the firstinstance judgment .", "The regulations on permissible use of direct coercive measures by the police are laid down in section CARDINAL of LAW , which provides that in situations in which a police order is not obeyed , such measures can be resorted to only in so far as they correspond to the requirements of a particular situation and in so far as they are necessary to obtain compliance with that order .", "Article CARDINAL § CARDINAL of the Ordinance of CARDINAL DATE on the use of coercive measures by the police provides that direct physical force can be used to overpower a person , to counter an attack and to ensure compliance with an order . When such force is being used , it is forbidden to strike the person against whom the action is being carried out , except in self - defence or to counter an attack against another person 's life , health or property .", "Order no . DATE of the Chief Police Commandant of DATE is neither an act nor a regulation which is published in ORG ) . Thus it is an internal police document and not accessible to the public .", "Article CARDINAL of the Criminal Code sets the threshold between minor and more serious bodily injury or impairment to health . According to that provision , if the bodily injury or impairment to health lasts DATE , the perpetrator is subject to a fine , the penalty of restriction of liberty or deprivation of liberty for DATE . In such case the prosecution occurs upon a private charge . If the bodily injury or impairment to health lasts DATE , the perpetrator is liable to a heavier penalty ." ]

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[ "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "In DATE the applicant was granted a licence to keep a firearm .", "On DATE the validity of the licence was extended .", "On DATE the applicant submitted a request for a licence to keep another type of firearm .", "On DATE police officials decided not to grant a new licence , given that on DATE the applicant had been listed in an “ operational records file ” ( policijos operatyvinė įskaita ) , that is , a database containing information gathered by law - enforcement authorities ( see paragraphs CARDINAL of the ' Relevant domestic law ' below ) .", "On DATE the police wrote to the applicant informing him that his licence to keep a pistol and a hunting rifle had been revoked . The applicant was informed that , pursuant to LAW , he was to hand in these firearms to the authorities and would receive money for them .", "The applicant instituted court proceedings challenging the entry of his name in the operational records file .", "On DATE ORG dismissed his action . The decision was based on classified material submitted by the police and analysed by the judges without it being disclosed to the applicant . The court concluded that the applicant 's listing in the operational records file had been lawful and reasoned , in view of the information about the applicant held by the police .", "The applicant appealed , complaining that he had had no access to the operational records file . He alleged that the court had not examined the classified evidence during the hearing , and that it had not assessed whether any parts of that information could have been disclosed to him .", "On DATE ORG upheld that decision . The court noted , inter alia , that the impugned evidence was classified as a ORG secret and , although reviewed by the court , could not be disclosed to the applicant .", "The Government submitted that in DATE , after the applicant had been granted a new firearms licence , his guns were returned to him .", "DATE the LAW provides that the dignity of a human being is to be protected by law . LAW thereof states that the private life of a human being is inviolable and that information concerning a person 's private life may be collected only following a reasoned court decision and only in accordance with the law . The law and the courts are to protect everyone from any arbitrary or unlawful interference with his or her private life or from encroachment upon his or her honour and dignity . LAW provides that property is inviolable and that ownership rights are protected by law . Property may be taken only for the needs of society in accordance with the procedure established by law , and must be fairly compensated . Under LAW , a person whose constitutional rights or freedoms have been violated has the right to apply to a court . LAW provides that each human being may freely choose a job or occupation .", "Article CARDINAL of the Law on Operational Activities ( Operatyvinės veiklos įstatymas ) describes the “ operational records file ” as a system of managing data on individuals , events and other targets obtained during operational activities . It is designed to provide information for law - enforcement authorities . Article CARDINAL of the PERSON stipulates that an operational investigation is to be conducted when there is information that a serious crime is being planned or has been committed .", "Article CARDINAL § CARDINAL ( CARDINAL ) of the PERSON on the Control of Arms and Ammunition ( ORG ir šaudmenų kontrolės įstatymas ) provided at the material time that arms and ammunition could not be acquired or possessed by a person who did not have an impeccable reputation . According to LAW ( CARDINAL ) of that PERSON , a person was not regarded as having an impeccable reputation if his or her name had been entered in an operational records file . LAW provided that , after a firearms licence had been revoked , the arms and ammunition were to be taken from the person concerned and sold through ORG ( a ORG agency ) or through other companies authorised to sell them .", "Article CARDINAL § CARDINAL ( CARDINAL ) of the PERSON on ORG ( NORP ir turto saugos įstatymas ) provides that a person whose name is listed in an operational records file is not eligible to work as a security officer .", "The relevant part of ORG ( PERSON bylų teisenos įstatymas ) provides as follows :", "“ CARDINAL . Evidence in an administrative case is all factual data found admissible by the court hearing the case and based upon which the court finds ... that there are circumstances which justify the claims and rebuttals of the parties to the proceedings and other circumstances which are relevant to the fair disposal of the case , or that there are no such circumstances ...", "As a rule , factual data which constitutes a ORG or official secret may not be used as evidence in an administrative case , until the data has been declassified in a manner prescribed by law . ”", "In the judgment of DATE in case no . MONEY - CARDINAL , ORG stated , in so far as relevant to the present case , that :", "“ as a rule , factual data which constitutes a ORG or official secret may not be used as evidence in an administrative case until it has been declassified ( LAW of LAW ) . Therefore , in the absence of other evidence , the [ lower ] court 's reliance on solely written information provided by ORG which was marked as secret had no legal basis ” .", "On DATE ORG adopted a ruling on the compatibility with LAW CARDINAL § CARDINAL of ORG , and LAW and CARDINAL of the Law on State Secrets . It ruled that no decision of a court could be based solely on information which constituted a ORG secret and which had not been disclosed to the parties to the case . In the ruling no . ACARDINAL - CARDINAL/CARDINAL of CARDINAL DATE ORG confirmed the above principles ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and is currently being held at ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "According to the applicant , on DATE he was arrested by police officers in connection with crimes he had committed in DATE . Before that date , the applicant had been hiding from investigators .", "On DATE the ORG established that the applicant had committed murder , theft and CARDINAL serious assaults . The applicant had committed some of those crimes as part of an organised group . On the basis of a forensic expert examination of DATE the court found , however , that when breaching the law the applicant had been suffering from a chronic mental illness ( paranoid schizophrenia ) and could not understand his actions . Instead of a prison sentence , the court ordered the applicant ’s confinement in a psychiatric institution under strict observation ( griežto stebėjimo sąlygomis ) .", "On CARDINAL DATE the applicant was admitted to ORG . The doctors prescribed him compulsory medical treatment and administered various neuroleptics used for treating schizophrenia ( PERSON , PERSON , ORG ) . To counteract the undesirable side effects of those drugs , the doctors also prescribed the applicant PERSON .", "In DATE the commission of psychiatrists concluded that the applicant ’s mental state had improved in the course of the treatment and that he showed no aggressiveness towards others . On that ground , in DATE ORG ordered the implementation of the recommendation by a doctor at ORG that the applicant ’s compulsory treatment under strict observation be replaced by a milder regime DATE he was placed under “ intensive observation ” in the psychiatric hospital ( sustiprinto stebėjimo sąlygomis ) .", "On DATE the applicant attacked the head of the hospital unit with a knife . He also threatened other hospital personnel . As a result , by a decision of ORG on DATE , the regime of strict observation was re - imposed .", "The treatment regimes applied to the applicant during the period relevant to the case were reviewed by ORG on DATE , CARDINAL DATE and CARDINAL DATE ; CARDINAL DATE and DATE ; and CARDINAL DATE and CARDINAL DATE .", "On DATE a panel of doctors again diagnosed the applicant with paranoid schizophrenia . The applicant was characterised as aggressive , and uncritical of his crimes or the attack on the doctor .", "On DATE the ORG extended the applicant ’s confinement in the psychiatric hospital under strict observation . The court observed that , according to the conclusions of the panel of doctors , the applicant ’s mental condition was unstable , he was aggressive towards the medical staff and was uncritical of his behaviour . The court concluded that the applicant was still a danger to society .", "On DATE ORG upheld the decision of ORG . The court stated that the applicant was still dangerous and that the doctors had concluded that his mental condition was still unstable . It appears from this decision that both courts based their decisions on the psychiatric expert report of CARDINAL DATE .", "On DATE the ORG extended the applicant ’s confinement in the psychiatric hospital under strict observation , based on the conclusions by the panel of doctors of DATE that the applicant was still a danger to society and that his mental state was still unstable .", "In DATE the treating doctor noted in the applicant ’s medical file that she was continuing to treat the applicant with ORG injections once DATE . At the same time she was reducing the dosage of PERSON , because of an absence of any clear side effects .", "In reply to the ORG ’s request to provide an independent expert report as to the appropriateness of the treatment the applicant received in DATE and DATE , the ORG submitted a report by ORG , dated DATE .", "The report reads that from DATE the applicant was treated with the long - acting neuroleptic ORG , administered once DATE . Given that the applicant showed no contraindications and had no complaints about the treatment , on DATE the doctor decided to stop administering PERSON . After being injected with PERSON on DATE , the applicant expressed a concern that he felt stiffness ( pacientas išreiskė nuogąstavimą , kad jį gali “ sukaustyti ” ) . The doctor then prescribed him CARDINAL mg of PERSON , to be administered once a day . Afterwards the applicant felt well again and the doctor noticed no side effects of the neuroleptics . On CARDINAL DATE the doctor stopped administering PERSON , on the ground that patients could get used to it and abuse it . The applicant did not receive PERSON until DATE , when he complained of having felt a slight tremor in his fingers as a side effect of ORG . Since that date the applicant has been receiving PERSON .", "On DATE the ORG approved the applicant ’s continued confinement in the psychiatric hospital under strict observation . The court stated that the decision was based on the conclusions of the panel of doctors .", "On DATE the ORG once again approved the applicant ’s continued confinement in the psychiatric hospital under strict observation . Based on an examination by doctors on DATE , the court concluded that the applicant was still a danger to society . The court also noted that on DATE , after a visit from relatives , the applicant had tried to bring his own psychotropic medication into the hospital ward .", "By a ruling of CARDINAL DATE ORG maintained its decision that the applicant should be kept in the psychiatric hospital under strict observation . The court based its decision on the ORG conclusion that the applicant was still a danger to society , his mental state was not stable and he was not critical of the crimes he had committed .", "According to the aforementioned report by ORG , GPE , a professor and the director of the psychiatric clinic of ORG , had evaluated the applicant ’s treatment as an expert and concluded that from CARDINAL DATE to CARDINAL DATE the applicant had been properly diagnosed and appropriate psychotropic medication had been prescribed to him . Moreover , on DATE the doctor had correctly decided to stop administering PERSON to the applicant . The treatment with PERSON had been temporarily resumed , after the applicant had informed the doctors of side effects . However , as the side effects did not materialise , DATE the doctor again decided to stop administering PERSON . The psychiatrist also pointed out that PERSON , besides being able to correct the side effects of neuroleptics , was a drug capable of causing psychological and physical dependency in patients . Therefore PERSON was to be prescribed only if clear side effects were visible .", "ORG concluded that the treatment the applicant had received in ORG in DATE had been appropriate and not in breach of the applicable legislation . The inspectorate also noted that there had been no other health - care related violations at the institution , unrelated to the services provided to the applicant .", "At the time relevant to this case , LAW provided that a person who , owing to chronic mental illness or temporary mental incapacity , could not understand or control his or her actions when committing a crime could not be held criminally liable . Pursuant to LAW , the court would take a decision to place a person in a psychiatric institution under general , intensive or strict observation , depending on the danger posed by the person to society and the likelihood that he or she might commit a fresh crime . The person would stay in a psychiatric institution until he or she regained a normal mental state or until he or she ceased to be a danger to society . The court was to review the imposed measure DATE .", "A patient ’s right to appropriate treatment is provided for in LAW on the Rights of Patients and Compensation for Damage to Their Health . The same provision is envisaged in LAW . Both of these legal acts provide that where a person considers that his or her rights as a patient have been violated , he or she may complain in writing to the treating medical institution , and , if not satisfied with the answer received , to a court ( Articles DATE and CARDINAL respectively ) .", "The Civil Code provides that civil liability may arise from non - performance of a duty established by law or a contract or from violation of the general duty to behave with care ( Article CARDINAL.CARDINAL § CARDINAL ) . When a person ’s health is impaired , the person liable for the damage shall be bound to compensate the aggrieved person for all his suffering , including non - pecuniary damage ( Article CARDINAL § CARDINAL ) .", "According to the Regulations of the State Medical Audit Inspectorate at ORG , ORG task is to carry out ORG control and expertise of the accessibility and quality ( adequacy ) of personal health - care services provided by health - care institutions . It may review ORG requests , applications and complaints .", "The Government submitted details of domestic case - law as regards domestic remedies in cases of medical malpractice .", "They referred , first , to the ruling of DATE in case no . ORG , where ORG pronounced on certain aspects of the legal classification of actions by doctors . With regard to the admissibility of the appeal on points of law , ORG noted that establishment of circumstances proving guilt of a person was a question of fact . However , the legal classification and assessment of such facts constituted a question of law , examining whether or not certain actions of doctors should be found at fault . The court noted that a doctor could not normally guarantee to achieve particular results , that is , that a patient would be cured . Consequently , a patient and a doctor ( or the health - care institution ) were bound by an obligation which encompassed the doctor ’s obligations to do his utmost , namely , to ensure the maximum degree of diligence , care , caution and competence . Moreover , the health - care institutions were liable under the rules of delictual liability if damage was caused by the actions of the institution staff . In that particular case ORG found that a doctor had not been sufficiently diligent , given that he had failed to provide the patient with extensive information about additional risks of complications . In reaching that conclusion the court relied , among other evidence , on a report by ORG .", "In the decision of DATE in case no . ORG has examined the legal acts regulating health care and diagnostics for haemothorax . In this case the court also relied on a report by ORG as evidence .", "In the decision of DATE in case no . CARDINAL ORG examined whether a proper care regime had been assigned to a patient hospitalised owing to a poorly plastered broken hand . The court emphasised that patients should be accorded high quality health care , treated in such manner that assured a respectful attitude towards their diagnosis , and that the selected treatment should be justified from a medical point of view . To substantiate its conclusions , the appellate court relied upon expert findings and , among other pieces of evidence , on a report by ORG ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE ORG convicted the applicant of CARDINAL counts of rape and abduction and of CARDINAL count of attempted rape and deprivation of liberty committed in DATE . It sentenced him to DATE imprisonment and ordered his placement in preventive detention pursuant to LAW ( see paragraphs CARDINAL below ) . The court found that the applicant , acting with full criminal responsibility , had raped CARDINAL young women and had attempted to rape another woman all of whom he had taken with him in his car . It further noted that the applicant had previously been convicted by juvenile courts of attempted rape and of rape ; in respect of the second offence he had been placed in a psychiatric hospital .", "The applicant served his full prison sentence in FAC . He was then placed in preventive detention , executed in that same prison , for the first time on DATE ; he had thus served DATE in preventive detention by DATE .", "The continuation of the applicant 's preventive detention was ordered by ORG on several occasions .", "On DATE ORG , in judicial review proceedings under LAW ( see paragraph CARDINAL below ) , refused to suspend the applicant 's preventive detention and grant probation .", "ORG considered that the applicant 's continued preventive detention was necessary because there was still a risk that the applicant , owing to his criminal tendencies , might commit serious offences resulting in considerable psychological or physical harm to the victims if released ( Article CARDINAL of LAW ; see paragraph DATE below ) . Since the court 's last order of DATE , to the reasoning of which it referred , no circumstances leading to a more positive conclusion had become known .", "ORG had consulted a psychological expert on the question whether there was a risk that the applicant , if released , might commit offences by which his victims would suffer serious physical or mental harm . However , the expert could only submit a view on the basis of the case file as the applicant had refused to talk to her .", "ORG further noted that in his report of CARDINAL DATE a neurologic expert had found that the applicant suffered from a personality disorder which had resulted in his acts of sexual aggression . ORG acknowledged that the applicant had accepted social - therapeutic treatment from DATE until DATE . However , he had then terminated that treatment . In DATE the detention authorities had proposed certain relaxations in the conditions of the applicant 's detention , but the applicant had refused to cooperate . In his report of CARDINAL DATE the neurologic expert had found that the applicant still suffered from the said personality disorder . In DATE the applicant had refused any therapy . Therefore , there was nothing to indicate that the applicant was no longer dangerous . In any event , his release could only be taken into consideration after his conditions of detention had been relaxed , combined with a successful social - therapeutic treatment .", "ORG further stated that it did not consider the new version of Article DATE of LAW of DATE ( see paragraph CARDINAL below ) to breach constitutional law in so far as it applied also to persons convicted prior to that change in the law .", "By a decision of DATE , served on the applicant on CARDINAL DATE , ORG , fully endorsing the reasons given by ORG , dismissed the applicant 's appeal . In particular , contrary to the applicant 's submission , it considered that Article PERSON of LAW , read in conjunction with LAW to LAW ( see paragraph CARDINAL below ) , which entered into force on DATE , were constitutional . The prohibition on retrospective punishment did not apply to orders of preventive detention , which did not constitute a penalty , but a measure of correction and prevention . In view of the fact that there was a risk that the applicant , if released , might commit sexual offences similar to those he had previously committed , his continued detention was not yet disproportionate .", "On DATE the applicant lodged a constitutional complaint with ORG against the decisions ordering his continued preventive detention even on completion of the tenyear period . He argued that these decisions were based on Article CARDINAL of LAW , as amended in DATE , under the terms of which the duration of a convicted person 's first period of preventive detention was extended retrospectively from a maximum period of DATE , applicable prior to the change in the law , to an unlimited period of time . Therefore , this provision violated the prohibition on retrospective punishment under LAW , the prohibition of retrospective legislation enshrined in the rule of law , his right to liberty under LAW , second sentence , of LAW and the principle of proportionality ( see paragraph CARDINAL below ) .", "On DATE ORG declined to consider the applicant 's constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) as it was ill - founded . Referring to its leading decision given on DATE in relation to the case of PERSON ( file no . CARDINAL BvR CARDINAL/CARDINAL ; application no . CARDINAL before this Court ) , it found that Article CARDINAL of LAW , read in conjunction with LAW to LAW , as amended on DATE , were constitutional .", "On DATE ORG , having consulted a psychiatric expert , PERSON , again refused to suspend the applicant 's preventive detention and grant probation under LAW of LAW .", "On DATE ORG dismissed the applicant 's appeal . ORG endorsed ORG view that there was still a risk that the applicant , if released , might commit serious offences resulting in considerable psychological or physical harm to the victims .", "ORG had regard to the report of DATE by psychiatric expert PERSON , who , having examined the applicant and the case file , had considered the applicant liable to reoffend . According to the expert , the applicant still suffered from a personality disorder which had , in the past , manifested itself by violent sexualised behaviour .", "The Court of Appeal observed that the expert 's negative prognosis was based on a limited factual basis in respect of the applicant 's personal development after his offences . The expert had only found that the applicant 's personality disorder had not been cured by therapy , without assessing whether this disorder would still manifest itself in similar offences in the future . It was for the prison authorities and the regional courts to extend the basis for a prognosis by therapeutic measures and by granting relaxations in the conditions of detention . However , such therapeutic measures had not been taken in the applicant 's case in DATE , even though an expert had already made specific proposals for such measures in DATE and again in DATE . The applicant had refused a dialogue with the prison authorities on his therapy , but it was for the prison authorities to make reasonable offers of treatment and to grant relaxations in the conditions of the applicant 's detention , which it had failed to do . However , without testing and preparing the applicant for release in the course of relaxations in his conditions of detention , there was a risk that he would commit serious sexual offences if released .", "On DATE the applicant lodged a constitutional complaint with ORG . He argued that his continued preventive detention violated his right to liberty , the prohibition of retrospective punishment , the prohibition of double punishment for the same offence and the prohibition of inhuman treatment . He argued , in particular , that by the further execution of preventive detention against him , he had been treated as a mere object of ORG action in disregard of his human dignity . Moreover , his right to a fair trial had been breached , in particular in that the criminal courts had failed to decide on his continued preventive detention within the statutory time - limit .", "On DATE ORG declined to consider the applicant 's constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .", "It found that the applicant 's complaint was inadmissible for non - exhaustion of domestic remedies in so far as he had complained about ORG failure to decide on his continued preventive detention already in DATE , as prescribed by LAW § § CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL below ) . The applicant had failed to apply for judicial review of this failure to comply with the statutory time - limit .", "In so far as the applicant had complained about his continued preventive detention for a period exceeding ten years , his complaint was ill - founded . His continued preventive detention on the basis of Article CARDINAL § CARDINAL of LAW , as amended in DATE , was constitutional . The criminal courts had further respected the principle of proportionality in respect of deprivations of liberty in their decisions .", "On DATE ORG , reviewing the necessity of the applicant 's continued detention , decided that the applicant was to remain in preventive detention as , owing to his criminal tendencies , he was still liable to commit serious offences resulting in considerable psychological or physical harm to the victims .", "On DATE ORG quashed that decision and remitted the case to ORG . It found that ORG had not sufficiently established the facts on which it had based its decision and had failed to hear the medical expert , who had submitted a report in writing on its request , also in person at the hearing .", "On DATE ORG dismissed the applicant 's request of CARDINAL DATE that ORG , by way of an interim injunction , request ORG to order the applicant 's immediate release and declare whether the ORG 's findings in its judgment in the case of PERSON GPE , no . CARDINAL , were applicable to other detainees ( file no . CARDINAL BvQ CARDINAL ) . It found that the applicant had failed to explain why he could not be expected to await the decisions to be taken by the courts responsible for the execution of sentences on his further detention .", "On DATE ORG again decided not to suspend the applicant 's preventive detention and grant probation .", "On DATE ORG declared the applicant 's preventive detention terminated and ordered his supervision of conduct . ORG , referring to a leading decision of ORG of CARDINAL DATE ( see paragraph CARDINAL below ) , argued that it was possible to interpret LAW so as to comply with the LAW as interpreted by this ORG in the case of PERSON GPE . Accordingly , it found that in relation to preventive detention the application of a new statutory provision retrospectively to the detriment of the person concerned was prohibited and the law in force at the time of the offence had to be applied . As Article CARDINAL § CARDINAL of LAW , in its version in force at the time the applicant committed his offences , provided that the first period of preventive detention could not exceed DATE , the applicant 's preventive detention was terminated and the applicant was to be released .", "ORG further found that the applicant had no claim for damages under LAW ( Gesetz über die Entschädigung für Strafverfolgungs - maßnahmen ) . A claim for damages under LAW or official liability proceedings had to be brought in the civil courts .", "The applicant was released on DATE and has been submitted to constant surveillance by QUANTITY police officers since then .", "A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG 's judgment in the case of PERSON v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) . The provisions relevant to the present case can be summarised as follows :", "The German Criminal Code distinguishes between penalties ( GPE ) and socalled measures of correction and prevention ( Maßregeln der Besserung und GPE ) to deal with unlawful acts . Preventive detention ( LAW seq . of LAW ) is classified as a measure of correction and prevention . The purpose of such measures is to rehabilitate dangerous offenders or to protect the public from them . They may be ordered for offenders in addition to their punishment ( compare Articles CARDINAL et seq . ) . They must , however , be proportionate to the gravity of the offences committed by , or to be expected from , the defendants as well as to their dangerousness ( Article CARDINAL of LAW ) .", "The temporal applicability of provisions of the Criminal Code depends on whether they relate to penalties or measures of correction and prevention . The penalty is determined by the law which is in force at the time of the act ( LAW ) ; if the law in force on completion of the act is amended before the court 's judgment , the more lenient law applies ( LAW ) . On the other hand , decisions on measures of correction and prevention are to be based on the law in force at the time of the decision unless the law provides otherwise ( LAW ) .", "The sentencing court may , at the time of the offender 's conviction , order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be dangerous to the public ( LAW ) .", "In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to DATE imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW ) .", "Article CARDINALc of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final . Paragraph CARDINAL of the LAW provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention , the court responsible for the execution of sentences ( that is , a special ORG composed of CARDINAL professional judges , see sections ORG and CARDINAL ) of LAW ) must review , before completion of the prison term , whether the person 's preventive detention is still necessary in view of its objective . If that is not the case , it suspends on probation the execution of the preventive detention order ; supervision of the person 's conduct ( GPE ) commences with suspension .", "Pursuant to LAW the court ( i.e. the chamber responsible for the execution of sentences ) may review at any time whether the further execution of the preventive detention order should be suspended on probation . It is obliged to do so within fixed time - limits ( paragraph CARDINAL of Article CARDINAL ) . For persons in preventive detention , this timelimit is DATE ( paragraph CARDINAL of Article CARDINAL ) .", "Under Article CARDINAL § CARDINAL of LAW , in its version in force prior to DATE , the first period of preventive detention may not exceed DATE . If the maximum duration has expired , the detainee shall be released ( Article QUANTITY § CARDINAL ) .", "Article CARDINAL of LAW was amended by the Combating of Sexual Offences and Other LAW of DATE , which entered into force on DATE . Article CARDINAL § CARDINAL , in its amended version , provides that if a person has spent DATE in preventive detention , the court shall declare the measure terminated ( only ) if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the conduct of the offender . The former maximum duration of a first period of preventive detention was abolished . Pursuant to section CARDINAL § CARDINAL of LAW to LAW , the amended version of Article CARDINAL of LAW was to be applied without any restriction ratione temporis .", "By a decision of CARDINAL DATE ( file no . CARDINAL StR CARDINAL/CARDINAL ) ORG ( fourth senate ) , in a decision concerning a retrospective order of preventive detention ( nachträgliche GPE ) , found that LAW was to be and could be interpreted so as to comply with LAW as interpreted by ORG in its judgment in GPE , no . CARDINAL . Under LAW of LAW ( see paragraph CARDINAL above ) , decisions on measures of correction and prevention were to be based on the law in force at the time of the court 's decision unless the law provided otherwise . LAW , in its interpretation by this ORG , was such a law which provided otherwise as the ORG had considered that preventive detention was to be qualified as a penalty for the purposes of LAW to which the prohibition of retrospective punishment applied ( the fifth senate of ORG , in its decision of DATE , file no . CARDINAL StR CARDINAL , disagreed with the fourth senate on that point in relation to a different provision on retrospective preventive detention ) . Therefore , court decisions concerning orders of preventive detention had to be based on the law in force at the time of the offence .", "Referring , in particular , to these findings of ORG , several ORG found in cases comparable , as regards the temporal course of events , to the LAW v. GPE case that the abolition of the maximum period of DATE laid down in Article CARDINAL § CARDINAL of LAW in its version in force before DATE could not be effected retrospectively and therefore still applied to preventive detention ordered in relation to offences committed prior to that date . As a consequence , these courts declared terminated the preventive detention of the detainees concerned whose first period of preventive detention had been executed beyond that maximum period and ordered their release ( see , in particular , GPE am ORG , decision of DATE , file no . CARDINAL GPE CARDINAL/CARDINAL ; ORG , decision of DATE , file no . CARDINAL Ws CARDINAL/CARDINAL ; ORG , decision of DATE , file no . CARDINAL Ws CARDINAL/CARDINAL ; and ORG , decision of DATE , file no . CARDINAL Ws DATE ) .", "On the contrary , several ORG considered that the ORG 's findings in the case of PERSON GPE could not be applied at present by the domestic courts responsible for the execution of sentences as LAW as it stood did not permit its interpretation in compliance with LAW Section CARDINAL § CARDINAL of LAW to LAW had expressly stipulated that the abolition of the maximum duration of DATE for a first period of preventive detention also applied to persons who had committed the offences in question prior to the entry into force of that abolition and had thereby unambiguously authorized the application of the amended law with retrospective effect . It was therefore for the legislator to execute the ORG 's judgment in the PERSON case . ORG accordingly did not terminate the preventive detention of the persons concerned ( see , in particular , ORG , decision of CARDINAL DATE , file no . CARDINAL Ws CARDINAL - CARDINAL/CARDINAL ; ORG , decision of DATE , file no . CARDINAL Ws CARDINAL/CARDINAL ; ORG , decision of DATE , file no . CARDINAL GPE CARDINAL/CARDINAL ; ORG , decision of DATE , file no . CARDINAL Ws CARDINAL/CARDINAL ; and ORG , decision of DATE , file no . CARDINAL Ws CARDINAL/CARDINAL ) . Several of ORG subsequently submitted such cases to ORG for a preliminary ruling under a new provision of LAW ( section CARDINAL § CARDINAL no . CARDINAL ) in force since DATE , which is aimed at securing a uniform case - law of the NORP courts on that issue ( see , for instance , ORG , decision of DATE , file no . CARDINAL Ws DATE ) ." ]

[ "5", "7" ]

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

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[ "The applicant was born in DATE and lives in GPE .", "In DATE the public prosecutor initiated a criminal action against the applicant for homicide and grievous bodily harm . On DATE he was placed in pre - trial detention , where he remained until DATE . On DATE ORG ( “ the ORG ” ) acquitted the applicant , finding that he had not committed the crimes concerned . That judgment became final on DATE .", "On DATE the applicant lodged an action for pecuniary and non - pecuniary compensation for illegal detention .", "On DATE ORG dismissed the request because the applicant had not paid a deposit of PERCENT of the amount claimed , as provided for by Government Emergency Ordinance no . CARDINAL .", "On DATE ORG ( “ the Court of Appeal ” ) allowed an appeal by the applicant , quashed the previous judgment and sent the case back for a fresh examination . The court held that the above - mentioned ordinance applied only to violations of non - pecuniary rights committed through the press .", "On DATE ORG dismissed an appeal by the authorities and upheld that ruling .", "After the retrial , on DATE ORG made awards in respect of pecuniary and non - pecuniary damage .", "On CARDINAL DATE ORG allowed an appeal by the applicant and awarded the whole amount claimed by him for pecuniary and non - pecuniary damage .", "NORP On DATE ORG upheld an appeal on points of law by the authorities , quashed the CARDINAL previous judgments and sent the case back for fresh consideration . It reiterated that a claimant needs to provide proof of damage , but that judges are also obliged to avoid investigative errors , if necessary by ordering certain evidence to be produced even if the parties refuse . The lower courts had estimated the damage without taking into account that damage must be demonstrable and uncompensated and without giving reasons .", "On DATE the case was registered with ORG . The court questioned the applicant , heard a witness , requested information from different institutions , and ordered CARDINAL expert reports .", "After the fresh examination , on DATE ORG awarded the applicant CARDINAL old NORP lei ( ROL ) in respect of pecuniary damage and ORG for non - pecuniary damage . It also awarded costs and expenses .", "On DATE ORG allowed an appeal by the applicant and increased the amount in respect of non - pecuniary damage .", "The parties appealed on points of law . On DATE ORG and ORG received the case file from ORG and fixed the first hearing for DATE .", "On DATE ORG , in a final decision , upheld the appeal by the applicant and awarded him the full amount of ROL CARDINAL claimed in respect of non - pecuniary damage , as well as ROL CARDINAL,CARDINAL,CARDINAL for costs and expenses .", "On DATE it sent the case file back to ORG .", "On DATE that judgment was endorsed with a writ of execution . On DATE the applicant requested ORG to pay the above - mentioned amounts . After securing the official authorisations , the Ministry paid the debt on DATE ." ]

[ "6" ]

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[ "NORP The applicant company , owner of FAC at GPE , also owned CARDINAL sq . m. of land that gave patrons of the hotel direct access to the sea .", "On CARDINAL DATE the GPE municipality passed a resolution approving a road - building scheme . The road was to pass over the applicant company 's land .", "On CARDINAL DATE the mayor of PERSON issued an order , under an expedited procedure , for the possession of the applicant company 's land . On an unspecified date the authorities took physical possession of the land and began the road - building works .", "The applicant company appealed to ORG ( “ the ORG ” ) , contesting , inter alia , the lawfulness of the municipality 's resolution of CARDINAL DATE and of its occupation of the land .", "By a judgment delivered on DATE , ORG allowed the applicant company 's appeal ; it quashed the municipality 's resolution of CARDINAL DATE and ruled that all subsequent action taken by it was invalid . The ORG found that the municipality had approved the road - building scheme without carrying out sufficient technical surveys beforehand . As a result , the approved scheme was unlawful and could not be considered as being in the public interest ( non atto a realizzare un interesse pubblico ) .", "NORP That decision was lodged at the registry on CARDINAL DATE and became final on DATE .", "By letters of CARDINAL DATE , CARDINAL DATE and DATE , the applicant company asked the GPE municipality to reinstate and return the land , pursuant to the judgment of the ORG . However , the municipality took no action .", "The applicant company issued enforcement proceedings ( giudizio di ottemperanza ) in ORG for the reinstatement and return of the land in accordance with the judgment of DATE .", "On DATE the ORG dismissed those proceedings on the ground that the judgment of CARDINAL DATE could not be enforced as there had been a constructive expropriation .", "The ORG observed that although the judgment of CARDINAL DATE had quashed the resolution of the municipality of PERSON for procedural defects during the planning inquiry , that did not prevent the municipality from subsequently restarting the procedure and passing a fresh resolution – though it had not in any event done so . The ORG went on to say that as a result of the constructive - expropriation rule ( occupazione acquisitiva ) , the applicant company was no longer the owner of the land , which had become the property of the municipality of PERSON following completion of the road - building works . Despite its earlier judgment and the fact that the works carried out by the authorities were dangerous and contrary to the public interest , the fact that the authorities had completed the works meant that title to the land had been transferred . Consequently , restitution was impossible . However , as the transfer of property had been unlawful , the applicant company was entitled to claim damages in the civil courts .", "The applicant company appealed against that decision to the Consiglio di Stato , its main contention being that , although the ORG had ruled that the authorities ' conduct was unlawful before they had completed the works , the authorities had ignored the judgment . The fact that the constructive - expropriation rule had been applied in the instant case rendered the judgment devoid of purpose , since the authorities were free to act unlawfully with the sole aim of acquiring title to the land .", "By an order of CARDINAL DATE , Section V of the PERSON , before whom the appeal was pending , decided to refer the appeal to the full court . The order indicates that the section concerned considered that in the instant case the loss of title to the land as a result of the public works being carried out amounted to a denial of justice . If a decision of an administrative court favourable to the owner of the land , such as the decision of CARDINAL DATE , could not prevent the authorities taking possession of the land , the owner would be at their mercy . Furthermore , Section V of the PERSON noted that the municipality of PERSON had not reopened the planning inquiry or passed any further resolutions following the quashing of its resolution by the ORG .", "In a decision of CARDINAL DATE the PERSON , sitting as a full court , dismissed the applicant company 's appeal . It held that the application of the constructive - expropriation rule had not entailed a denial of justice in the instant case . It said that the road - building works had been largely completed by DATE when the ORG had given its judgment . Thereafter , only additional work of minor importance had been carried out , such as the installation of lighting and the completion of the road surfacing . Consequently , CARDINAL DATE had to be considered the date when title to the land was transferred because it was at that point that the change of user of the land had become irreversible , as a result of the completion of the works . The land could no longer be returned owing to the constructive expropriation . That date was also the starting - point of the statutory limitation period for claiming damages .", "This statute governs the expedited expropriation procedure , which permits authorities to start building before expropriation . Once a scheme has been declared to be in the public interest and the plans adopted , the authorities may make an expedited possession order , for a limited period not exceeding DATE , in respect of the land to be expropriated . The order will lapse if physical possession of the land is not taken within DATE after its issue . After the land has been possessed , a formal expropriation order must be made and compensation paid .", "During DATE , a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order . The NORP courts were confronted with cases in which the landowner had de facto lost use of the land as it had been possessed and building works in the public interest had been undertaken . The question arose whether the mere fact that works had been carried out meant that the owner had also lost title to the land .", "There was a substantial divergence in the decisions of ORG over the effects of carrying out building works in the public interest on land where possession had been taken unlawfully . Unlawful possession means possession that is unlawful from the start , in other words obtained without authority , or that is initially authorised but subsequently became unlawful , either because the authority is quashed or because possession continues beyond the authorised period without an expropriation order being made .", "Under CARDINAL line of case - law , the owner of land that had been possessed by the authorities did not lose ownership after the completion of the works in the public interest . However , he could not request reinstatement of the land ; his only remedy was to bring an action in damages for wrongful possession . No limitation period applied to such actions as the unlawful nature of the possession was continuing . The authorities could at any time issue a formal expropriation order . If they did so , the action in damages was transformed into a dispute over the compensation for expropriation , with damages for the loss of enjoyment of the land being due only for the period prior to the making of the expropriation order ( see , among other authorities , the judgments of ORG nos . CARDINAL of DATE ; CARDINAL of DATE ; and DATE and CARDINAL of DATE ) .", "NORP Under a second line , the landowner did not lose property in the land and could request its reinstatement if the authorities had acted other than in the public interest ( see , for example , ORG judgments nos . CARDINAL of DATE and CARDINAL of DATE ) .", "Under a third line , an owner dispossessed by the authorities automatically lost title to the land as soon as it had been altered irreversibly , that is to say on completion of the works in the public interest . He was PERSON entitled to claim damages ( the sole authority is ORG judgment no . CARDINAL of DATE ) .", "In a judgment of CARDINAL DATE , ORG , sitting as a full court , resolved the conflict between the case - law authorities and adopted the third solution . In so doing , it established the constructive - expropriation rule ( accessione invertita or occupazione acquisitiva ) . Under the rule , the public authorities acquire title to the land from the outset before formal expropriation if , after taking possession of the land and irrespective of whether such possession is lawful , the works in the public interest are performed . If , initially , the land is possessed without authority , the transfer of property takes place when the works in the public interest are completed . If the taking of possession was authorised from the outset , property is transferred on the expiry of the authorised period of possession . In the same judgment , ORG stated that , on a constructive expropriation , the owner is entitled to compensation in full as the acquisition of the land has taken place without title ( sine titulo ) . However , compensation is not paid automatically : the owner must lodge a claim for damages . In addition , the right to compensation is subject to a DATE limitation period that applies to actions in tort ; the starting - point is the date the land is irreversibly altered .", "Initially , it was held that no limitation period applied , since possession of the land without title was a continuing unlawful act ( see paragraph CARDINAL above ) . In its judgment no . DATE , ORG stated that the right to compensation was subject to a DATE limitation period ( see paragraph CARDINAL above ) . Subsequently , ORG said that a DATE limitation period should apply ( judgment nos . DATE ) . On CARDINAL DATE the full court of ORG decided the issue finally , holding that the limitation period is DATE and starts to run from the date the land is irreversibly altered .", "Recent developments in the case - law show that the mechanism whereby carrying out building works in the public interest operates to transfer property in the land to the authorities is subject to exceptions .", "In its judgment no . CARDINAL of DATE , the PERSON stated that there was no constructive expropriation where resolutions of the authorities and an expedited possession order had been quashed by the administrative courts , as otherwise the judicial decision would be devoid of purpose .", "In judgment no . DATE , ORG , sitting as a full court , said that the authorities did not acquire ownership of the land if their resolutions and the declaration that expropriation was in the public interest were deemed to have been null and void from the outset . In such cases , the owner retained title to the land and could claim restitutio in integrum . In the alternative , he could seek damages . The unlawful nature of the possession in such cases was continuing and no limitation period applied .", "In judgment no . DATE , ORG , sitting as a full court , said that there was no transfer of property where the declaration that expropriation was in the public interest had been annulled by the administrative courts . In such cases , therefore , the constructive - expropriation rule did not apply . The owner , who retained ownership of the land , was entitled to claim restitutio in integrum . If he brought an action in damages , that entailed a waiver of his right to restitution . The DATE limitation period started to run from DATE when the decision of the administrative court became final .", "In judgment no . CARDINAL of DATE , ORG followed the decision of the full court and held that there was no transfer of property by constructive expropriation where the declaration that the building works were in the public interest was deemed to have been invalid from the outset .", "In this judgment , ORG was called upon to decide firstly whether the constructive - expropriation rule was compatible with LAW . The court declared that question inadmissible on the ground that it had jurisdiction to examine statutory provisions only , not rules established by the courts . Secondly , it held that the application to an action for compensation of the DATE limitation period laid down by DATE of LAW for claims in tort was compatible with LAW . The fact that the authorities had become owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under LAW , since the public interest in the preservation of works for the public good outweighed the individual 's interest in the right of property .", "Under ORG case - law on constructive expropriations , compensation in full , that is to say damages for the deprivation of the land , is due to the owner in consideration for the loss of ownership caused by the unlawful taking of possession .", "The Finance Law of DATE ( LAW no . CARDINAL of DATE ) superseded that case - law by providing that the compensation payable on constructive expropriations could not exceed the amount due on formal expropriations . In judgment no . CARDINAL of DATE , ORG declared that provision unconstitutional .", "Under Finance Law no . CARDINAL of DATE , which amended the provision that had been declared unconstitutional , compensation in full can not be awarded for dispossessions effected before DATE . In such cases , compensation can not exceed such amount , plus PERCENT , but without applying the PERCENT reduction , as would have been payable on a formal expropriation ( CARDINAL of the sum of the market value plus the income from the land , PERCENT ) . In a judgment no . CARDINAL of DATE , ORG held that that provision was compatible with LAW . However , in the same decision , it said that compensation in full , up to the market value of the land , could be claimed where the dispossession and deprivation of the land were not in the public interest .", "The applicant company complained that it had become impossible for it to recover its land as a result of the constructive - expropriation rule , which had been applied despite the decision of ORG ( “ the ORG ” ) quashing the building scheme and the possession order as being unlawful and not in the public interest . It alleged a violation of LAW No . CARDINAL , which provides :", "“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions . No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law .", "The preceding provisions shall not , however , in any way impair the right of a ORG to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties . ”", "The applicant company maintained that the interference with its right to peaceful enjoyment of its possessions was not compatible with LAW No . CARDINAL .", "It contended that constructive expropriation was contrary to the requirement of lawfulness for the following reasons : the authorities became owners of the land through unlawful conduct , namely by taking possession without title ; landowners could not avail themselves of the procedural guarantees available on a formal expropriation ; and the constructive - expropriation rule was not to be found in any statutory provision but had been established by the case - law and was considered to be “ living law ” .", "NORP Subsequent events had led the applicant company to consider that the requirement of lawfulness had not been complied with in the instant case . It observed that it was unable to obtain restitution of the land despite the decision of ORG DATE which had become final – retrospectively quashing all the authorities ' acts , including the declaration that the scheme was in the public interest . The decision of the Consiglio di Stato refusing restitution of the land as a result of the application of the constructive - expropriation rule thus represented an unjustified interference with the applicant company 's right to the peaceful enjoyment of its possessions . The applicant company noted that the constructive - expropriation rule left landowners at the mercy of the authorities , who – with the sole aim of appropriating land DATE could carry out works that were not in the public interest after taking possession of the land wholly unlawfully and then refuse to comply with judicial decisions declaring their conduct unlawful .", "The applicant company added that ORG had been called upon to rule solely on the lawfulness of the authorities ' acts and could not decide the merits of the case , that is to say whether the road - building works had been finished . On the other hand , the PERSON , on an appeal on the issue of enforcement ( ottemperanza ) , had jurisdiction to hear the merits and could therefore determine the date of completion of the works .", "The applicant company observed finally that it was true that the measure of compensation claimable by an owner deprived of his land for works that were not in the public interest was compensation in full ( see paragraph CARDINAL above ) . However , damages could not be considered as compensation for the alleged loss even assuming they could be claimed by the applicant company . The applicant company was not asking the ORG to rule on the authorities ' conduct – ORG had already done so – but to give a decision on the PERSON dismissal of its application for restitution of the land . The applicant company concluded by inviting the ORG to restore legality .", "The Government submitted that the loss of the land by the applicant company did not infringe LAW No . CARDINAL .", "They observed firstly that the interference with the applicant company 's right to peaceful enjoyment of its possessions was “ provided for by law ” , namely a rule established by the courts that had been consistently and unanimously applied since ORG judgment no . DATE ( see paragraph CARDINAL above ) . The Government referred in particular to ORG judgments nos . CARDINAL of DATE and DATE , the PERSON judgment no . CARDINAL of DATE and the case - law of ORG . The rule established by the case - law thus constituted a clear , accessible and adequate legal norm and was an expression of the “ living law ” , that is to say the law effectively in force .", "The Government observed secondly that the applicant company had been deprived of its land “ in the public interest ” . At the outset , the road - building scheme and the authorities ' resolutions had been in the public interest . Although it was true that the authorities ' acts had subsequently been quashed by ORG , the effect of the constructive - expropriation rule was that , once completed , municipal works became de facto a new scheme in the public interest . Completion of the works carried out by the authorities therefore had a dual effect : it entailed recognition that the work carried out was in the public interest and meant that the authorities ' conduct ceased to be unlawful .", "As a result of that mechanism , the land could no longer be returned to the applicant company as it was irreversibly deemed to have become public .", "The fact that the deprivation of possession was unlawful until the works had been completed nevertheless afforded the owner the right to claim pecuniary compensation in the form of damages before the relevant courts . The ORG maintained that it was still open to the applicant company in the instant case to bring an action in damages before the relevant courts , that such an action would enable it to obtain compensation in full and thus constituted a sufficient remedy for the interference with its right to peaceful enjoyment of its possessions . On that point , the Government referred to the judgment of the ORG in the case of PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions PERSON ) .", "An action in damages was possible because , in the ORG 's submission , the DATE limitation period which had started to run on DATE on completion of the works had been interrupted by the enforcement proceedings brought by the applicant company before the PERSON . The ORG added that , when dealing with an application for enforcement ( ottemperanza ) the PERSON had jurisdiction to make findings of fact , including as to the date when the works were completed . Consequently , there was no inconsistency between its finding and the fact that the decision of ORG had become final , as the latter could not decide issues of fact .", "An action in damages would enable the applicant company to obtain compensation in full since the declaration that the works were in the public interest had been quashed by ORG . The Government referred on that point to ORG judgment no . CARDINAL of DATE ( see paragraph CARDINAL above ) .", "Lastly the Government explained that proceedings for pecuniary reparation had to be instituted by the applicant company as it had failed in its attempt to obtain restitution of the land . Damages would compensate it for the interference with its right to peaceful enjoyment of its possessions .", "The ORG reiterates that LAW No . CARDINAL contains CARDINAL distinct rules : “ The first rule , set out in the first sentence of the first paragraph , is of a general nature and enunciates the principle of the peaceful enjoyment of property ; the second rule , contained in the second sentence of the first paragraph , covers deprivation of possessions and subjects it to certain conditions ; the third rule , stated in the second paragraph , recognises that GPE are entitled , amongst other things , to control the use of property in accordance with the general interest ... The CARDINAL rules are not , however , ' distinct ' in the sense of being unconnected . The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule ” ( see , among other authorities , the PERSON and Others v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , pp . CARDINAL , § DATE , partly following the terms of the ORG 's analysis in the PERSON and PERSON v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ; see also the GPE v. GPE judgment of DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE , and GPE v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § DATE , ORG CARDINAL-II ) .", "The ORG notes that it is common ground that there has been a deprivation of possessions .", "In order to determine whether there has been a deprivation of possessions within the meaning of the second rule , the ORG must not confine itself to examining whether there has been dispossession or formal expropriation , it must look behind the appearances and investigate the realities of the situation complained of . Since the ORG is intended to guarantee rights that are “ practical and effective ” , it has to be ascertained whether that situation amounted to a de facto expropriation . ( see the GPE and PERSON judgment cited above , pp . DATE , § CARDINAL ) .", "The ORG notes that in the present case , by applying the constructive - expropriation rule in its decision , the Consiglio di Stato deprived the applicant company of the possibility of obtaining restitution of its land . In the circumstances , the ORG finds that the effect of the judgment of the PERSON was to deprive the applicant company of its possessions within the meaning of the second sentence of the first paragraph of LAW No . CARDINAL ( see ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-VII ) .", "NORP In order to be compatible with LAW No . CARDINAL , such an interference must be “ in the public interest ” , “ subject to the conditions provided for by law and by the general principles of international law ” and must strike a “ fair balance ” between the demands of the general interest of the community and the requirements of the protection of the individual 's fundamental rights ( see the PERSON and PERSON judgment cited above , p. CARDINAL , § CARDINAL ) . Furthermore , the issue of whether a fair balance has been struck “ becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary ” ( see PERSON cited above , § DATE , and ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-I ) .", "The ORG reiterates that the first and most important requirement of LAW No . CARDINAL is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful . The rule of law , CARDINAL of the fundamental principles of a democratic society , is inherent in all the Articles of the Convention ( see PERSON cited above , § DATE ) and entails a duty on the part of the ORG or other public authority to comply with judicial orders or decisions against it .", "The ORG does not consider it necessary to decide in the abstract whether the role in the continental - law system of a rule , such as the constructive - expropriation rule , established by the courts is comparable to that of statutory provisions . However , it reiterates that the requirement of lawfulness means that rules of domestic law must be sufficiently accessible , precise and foreseeable ( see the PERSON v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , pp . CARDINAL , § DATE , and the PERSON and Others v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) .", "In that connection , the ORG observes that the case - law on constructive expropriations has evolved in a way that has led to the rule being applied inconsistently ( see paragraphs CARDINAL to CARDINAL above ) , a factor which could result in unforeseeable or arbitrary outcomes and deprive litigants of effective protection of their rights and is , as a consequence , inconsistent with the requirement of lawfulness .", "The ORG also notes that under the rule established by ORG in its judgment no . DATE every constructive expropriation follows the unlawful taking of possession of the land . The unlawfulness may exist at the outset or arise subsequently . The ORG has reservations as to the compatibility with the requirement of lawfulness of a mechanism which , generally , enables the authorities to benefit from an unlawful situation in which the landowner is presented with a fait accompli .", "NORP In any event , the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention .", "In the instant case , the ORG notes that on DATE the ORG quashed with retrospective effect the resolution passed by the authorities as being unlawful and not in the public interest . However , that finding of ORG , in which it held that the occupation of the applicant company 's land was unlawful and not in the public interest ( see paragraph CARDINAL above ) , did not result in restitution of the land , since the Consiglio di Stato held that the transfer of property to the authorities had become irreversible .", "The ORG considers that the interference in question was not compatible with LAW No . CARDINAL . That conclusion makes it unnecessary for it to examine whether a fair balance was struck between the requirements of the general interest of the community and the need to protect individual rights .", "Consequently , there has been a violation of LAW No . CARDINAL .", "Article CARDINAL of the ORG provides :", "“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”", "The applicant company sought restitution and reinstatement of the land in question , those being the only measures which in its submission would remedy the alleged violation , since they would enable the position obtaining before the violation of LAW No . CARDINAL to be re - established . The applicant company also claimed compensation for pecuniary damage to be determined on an equitable basis or , if appropriate , through the assessment of an expert ; it put the compensation at not less than CARDINAL,CARDINAL,CARDINAL Italian lire ( ITL ) plus interest and index - linking covering at minimum its loss of enjoyment of the land for the period of deprivation of possession until restitution . The applicant company further claimed ORG CARDINAL plus interest and index - linking for the non - pecuniary damage which the ORG 's conduct had caused it . Lastly , it requested reimbursement of the costs incurred before the national courts and of ORG CARDINAL for costs incurred before the ORG .", "The Government stated that restitution of the land was precluded by the constructive expropriation and maintained that the applicant company could obtain compensation for the alleged violation through the action in damages which it could bring in the NORP courts . Referring to the judgments of the ORG in the cases of PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL-C ) , and PERSON , Ooms and PERSON v. GPE ( judgment of DATE ( Article CARDINAL ) , Series A no . CARDINAL ) , the Government argued that the applicant company 's claim for just satisfaction was inadmissible .", "Should the ORG not uphold that objection , the ORG said that it would be impossible DATE for the reasons indicated by the Consiglio di Stato – for the land to be returned . They contended that restitution of the land was beyond the scope of LAW . As regards pecuniary damage , the Government submitted that no sum could be awarded under that head since it was still open to the applicant company to seek damages before the national courts . As to non - pecuniary damage , the Government maintained that a finding of a violation would constitute sufficient just satisfaction . The Government considered that the sum requested for costs was excessive and left the issue to the discretion of the ORG .", "DATE . In the light of the reasons which led it to find a violation of LAW No . CARDINAL , the ORG considers that the ORG 's objection must be rejected . The act of the NORP government which the ORG held to be contrary to the LAW was not an expropriation that would have been legitimate but for the failure to pay fair compensation ; it was a taking by the ORG of land belonging to the applicant company , for which the latter had no redress ( see , mutatis mutandis , the PERSON v. GPE judgment of DATE , Series A no . ORG , pp . CARDINAL , § CARDINAL ) .", "CARDINAL" ]

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[ "The applicant was born in DATE and lives in PERSON .", "The applicant is the father of a daughter born out of wedlock in DATE . The applicant and the mother of the child separated in DATE . Their relationship had lasted DATE . Until DATE , the daughter lived with the applicant , whereas the mother had moved to another flat which was located in the same building . As the parents did not make a joint custody declaration ( gemeinsame GPE ) , the mother obtained sole custody ( alleinige PERSON ) pursuant to LAW of LAW ( Bürgerliches Gesetzbuch , see Relevant domestic law and practice below ) .", "In DATE , the child moved to the mother ’s flat . Subsequently , the parents started to argue about the applicant ’s contact with the child . In DATE they reached an agreement with the assistance of the GPE - Nippes ORG ( GPE ) , according to which the applicant would have contact with the child every DATE TIME until DATE TIME , every DATE from TIME Monday TIME and CARDINAL of each holiday , amounting in total to DATE . In DATE , the applicant applied for a joint custody order , as the mother was unwilling to agree on a joint custody declaration , although otherwise both parents were cooperative and on good terms .", "On DATE , ORG ( ORG ) dismissed the applicant ’s application . It found that there was no basis for a joint custody order . Under NORP law , joint custody for parents of children born out of wedlock could only be obtained through a joint declaration , marriage or a court order under LAW , the latter requiring the consent of the other parent . ORG considered DATE of LAW to be constitutional and referred to a leading judgment of ORG ( Bundesverfassungsgericht ) of CARDINAL DATE ( see § § DATE , below ) . Having regard to the fact that the pertinent legal provisions did not allow for a different decision , ORG did not consider it necessary to hear the concerned parties in person .", "The applicant appealed and on DATE ORG ( ORG ) dismissed the appeal . It reasoned that , as the applicant and the mother were unmarried , the applicant ’s participation in the exercise of custody was only possible in accordance with LAW . The applicant and the mother had , however , not submitted the required joint custody declaration . In its judgment of CARDINAL DATE , ORG had found that LAW was constitutional with regard to the situation of parents of children born out of wedlock who had separated after DATE . ORG noted that the applicant and the mother of the child had separated in DATE . Thus , they had had a period of DATE before they separated in which they could have made a joint custody declaration . ORG of Appeal further noted that the new legislation , which had entered into force on DATE , had received public attention for a considerable period . Unmarried parents might have been expected therefore to have shown an interest in the matter and to have noticed the new legislation .", "On DATE ORG , referring to the pertinent provisions of its Rules of Procedure , declined to consider the applicant ’s constitutional complaint , without giving further reasons .", "The statutory provisions on custody and contact are to be found in GPE ( the “ LAW ” ) . LAW provides that the father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child .", "As regards children born out of wedlock , custody was pursuant to the former LAW automatically obtained by the mother . That provision was however declared unconstitutional by ORG in DATE . On DATE , the amended LAW of DATE ( Reform zum Kindschaftsrecht , ORG , p. CARDINAL ) , entered into force to implement ORG judgment of DATE . The relevant law in LAW was changed as follows : under LAW , the parents of a minor child born out of wedlock may exercise joint custody if they make a declaration to that effect ( joint custody declaration ) or if they marry . Otherwise Article CARDINAL § CARDINAL provides that the mother obtains sole custody .", "If the parents have not merely temporarily separated and if the mother has obtained sole custody in accordance with LAW , LAW provides that the family court may transfer sole custody to the father if he lodges the relevant application with the consent of the mother . The application is to be granted if the transfer serves the child ’s interest . LAW CARDINAL of LAW provides that in the case of a transfer of the right to custody under LAW of LAW , the family court may subsequently order joint custody on the application of CARDINAL parent with the consent of the other parent unless it would be to the detriment of the child . The same applies if the transfer of custody under LAW of LAW is later annulled .", "By contrast , parents exercising joint parental authority before their separation either because the child was born in wedlock , the parents have married following the child ’s birth or they have made a joint custody declaration , retain joint custody following their separation unless the court at the request of CARDINAL parent awards sole custody to the latter in accordance with the child ’s best interest pursuant to LAW .", "Under LAW , the family court may order the necessary protective measures if the child ’s physical , psychological or mental well - being is threatened by negligence and if the parents are unwilling to take those measures themselves . Measures which result in the separation of the child from one parent are admissible only if the child would be at risk otherwise ( LAW CARDINAL of LAW ) .", "On DATE , ORG found that LAW was unconstitutional because it lacked a transitional period for unmarried couples with children who were living together in DATE but who had separated before the amended LAW entered into force on DATE ( that is , those who were unable to make a joint custody declaration before DATE ) . In order to resolve the above - mentioned constitutional flaws , the NORP legislator introduced LAW ( a ) of LAW to LAW ( Einführungsgesetz in ORG ) , on DATE , according to which a court may substitute the mother ’s consent to joint custody if an unmarried couple have a child born out of wedlock , have lived together with the child and were separated before DATE , provided that joint custody would serve the best interests of the child ( PERSON ) .", "In its judgment of DATE , ORG also held that LAW , apart from the lack of a transition period , did not breach the right to respect for the family life of fathers whose children were born out of wedlock . Parents who were married had obliged themselves on marriage to take responsibility for each other and their children . In contrast to this , the legislator could not assume that parents of children born out of wedlock lived together or wanted to take responsibility for each other . There was insufficient evidence that a father of a child born out of wedlock would want to bear joint responsibility as a general rule . The child ’s well - being therefore demanded that the child had a person at birth who could act for it in a legally binding way . In view of the very different life conditions into which those children were born , generally it was justifiable to grant sole custody to the mother , and not to the father or to both parents . This legislation could also not be objected to from a constitutional point of view because the legislature had given both parents of children born out of wedlock the possibility of obtaining custody through a joint declaration .", "The Federal Constitutional Court found that the legislator could legitimately assume that joint custody which was exercised against the will of CARDINAL parent would have more disadvantages than advantages for a child born out of wedlock . Joint custody required a minimum of agreement between the parents . If the parents were unable or unwilling to cooperate , joint custody might run counter to the child ’s well - being . The legislator assumed that the will to exercise joint custody which parents explicitly expressed upon marriage also showed their will to cooperate . Unmarried parents could express this will to cooperate through a joint custody declaration . The father ’s right to custody indeed depended on the mother ’s willingness to exercise joint custody , but the mother in turn could not demand joint custody without the father ’s consent . The parents could thus only exercise joint custody if they both wanted to . That limitation on the father ’s right to respect for his family life was not unjustified , given that the joint custody exercised by a married couple was based on their marriage . The applicable law gave unmarried couples the possibility of exercising joint custody , in particular , if they lived together with the child and not after the couple had separated . The legislator could legitimately assume that , if the parents lived together but the mother refused to make a joint custody declaration , the case was an exceptional CARDINAL in which the mother had serious reasons for the refusal which were based on the child ’s interest . Given this assumption , the applicable law did not infringe the father ’s right to respect for his family life by not providing for a judicial review . In the event of such serious reasons it could not be expected that the courts would consider joint custody to be in the child ’s best interest .", "In view of the fact that this legal structure had only recently been established , it had not been possible to ascertain whether there was a substantial number of similar cases where joint custody was in dispute or crucially , to reach conclusions as to why this should be the case .", "ORG stated that the legislator was obliged to keep developments under observation and to verify whether the assumptions it had made when forming the rules in question were sustainable in the face of reality . If this proved not to be the case , the legislator was obliged to revise the legislation and to provide fathers with the adequate possibility of obtaining custody rights .", "A survey on comparative law taking into account the national laws of a selection of Member States of ORG shows that basically all Member GPE included in the survey provide for joint parental authority by unmarried parents over their children born out of wedlock . The main elements referred to as a basis for allowing joint parental authority for unmarried parents are the establishment of paternity and the GPE agreement to exercise joint authority .", "NORP However , the solutions in the Member GPE vary as regards the attribution of joint parental authority for children born out of wedlock in the event no agreement between the parents can be reached in this respect .", "In only a limited number of countries do the statutory regulations explicitly address this issue . In a few countries , such as GPE , GPE and GPE , the national law stipulates that the exercise of joint parental authority of unmarried parents requires the consent of both parents and thus implies that the non - consenting parent has a right of veto . By contrast , the laws in GPE , GPE and GPE appear to provide for a joint exercise of parental authority even without the GPE consent .", "In some Member GPE such as GPE and GPE , while the law itself is not clear on the subject , the domestic courts have interpreted the applicable provisions so as to allow joint parental authority only with the consent of the parents , whereas for example ORG has held that the national law has to be interpreted so as to enable the father of a child born out of wedlock to request joint parental authority with the mother even though the latter disagrees . A similar approach seems to be followed in GPE .", "With the exception of the few countries where a right of veto of CARDINAL parent is explicitly stipulated in national law , the most common solution put forward by national legislations is that a court decides on the outcome of a corresponding dispute between the parents at the request of CARDINAL of the parents bearing in mind the best interests of the child . All Member GPE emphasise the importance of the child ’s best interest in decisions regarding the attribution of custody . In determining the child ’s best interest in this connection domestic courts commonly take into consideration the positions of the parents and the child , as regards , inter alia , the demonstrable interest in and commitment to the child by the respective parent .", "In summary , and as also pointed out by the ORG , the survey confirms that while different approaches exist in GPE , the majority provide for paternal participation in custody if the parents were not married to each other , either irrespective of the mother ’s will or at least by court order following an evaluation of the child ’s interests ." ]

[ "14", "8" ]

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[ "The applicants , PERSON ( “ the first applicant ” ) and PERSON ( “ the second applicant ” ) , are NORP nationals who were born in DATE and DATE respectively and live in GPE . The respondent Government are represented by their Agent , Mr PERSON .", "In DATE the applicants’ neighbour , PERSON , started reconstruction work on her apartment . The work was completed on an unspecified date in DATE .", "On DATE the applicants instituted proceedings in ORG of GPE ( “ the ORG ” ) against PERSON claiming compensation for pecuniary damage . In particular , the applicants alleged that the work had caused partial peeling of the parquet floor in the apartment and damage to tiles in the bathroom .", "On DATE ORG , following a request by the applicants , ordered a forensic building report to be prepared by ORG ( “ the Institute ” ) . The court ruled that the fee for the examination should be paid by the applicants .", "By a letter of DATE the director of ORG informed ORG that if the fee was not paid within DATE the examination would be cancelled . Since the court failed to inform the applicants about the above letter , on DATE the director of the ORG sent the case file back to the court without examining the request .", "On DATE ORG again ordered a forensic building report to be prepared by the ORG . The court suspended the proceedings pending its conclusions .", "The report reached the court on DATE .", "On DATE the court resumed the proceedings .", "In the period from DATE to DATE the court scheduled some QUANTITY hearings . CARDINAL of them were adjourned because PERSON had failed to appear before the court and one because the judge was involved in other proceedings . CARDINAL hearing was adjourned following an application by the first applicant . ORG sent several requests to the local tax office , the Minister of the ORG and other institutions in order to ascertain PERSON whereabouts .", "On DATE the applicants slightly amended their claims .", "On DATE ORG dismissed the applicants’ claims as unsubstantiated .", "On DATE ORG upheld that judgment .", "The applicants appealed in cassation . On DATE ORG declined to consider the ORG appeal in cassation because the applicants had failed to comply with procedural formalities . The court gave the applicants a time - limit for rectifying the shortcomings . On an unspecified date the applicants rectified the shortcomings and re - submitted the appeal in cassation .", "On DATE ORG refused the ORG request for leave to appeal in cassation as unsubstantiated .", "In DATE the applicants instituted proceedings in ORG against PERSON , seeking compensation for non - pecuniary damage allegedly caused by noise and vibration resulting from the reconstruction work .", "On DATE the court ruled in part for the applicants , awarding CARDINAL NORP hryvnias ( ORG ) to the first applicant and UAH CARDINAL,CARDINAL to the second applicant . The applicants received the sums on DATE and DATE respectively .", "On an unspecified date ORG for ORG instituted proceedings against PERSON , requesting the court to order her to undo the reconstruction work that she had carried out in her apartment .", "On DATE ORG allowed this claim . The judgment remains unenforced .", "On DATE the ORG acquitted Mr Z. of inflicting bodily injuries on the second applicant , holding that there was no corpus delicti .", "On DATE the ORG quashed that decision and remitted the case to ORG , which , on DATE , acquitted Mr Z.", "On DATE ORG upheld that judgment , which therefore became final ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is the owner of a flat in GPE which he had let to G.F.", "In a registered letter of DATE , the applicant informed the tenant that he intended to terminate the lease on expiry of the term on CARDINAL DATE and asked him to vacate the premises by that date .", "In a writ served on the tenant on DATE the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate .", "By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .", "On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter .", "On DATE , the applicant served notice on the tenant requiring him to vacate the LOC .", "On DATE , he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .", "DATE and DATE the bailiff made CARDINAL attempts to recover possession .", "On DATE , the applicant made a second statutory declaration that he urgently required the premises as accommodation for his daughter .", "Each attempt of the bailiff proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .", "On DATE , the applicant served notice again on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .", "On DATE , the tenant asked ORG to set a fresh date for the enforcement of the order for possession pursuant to LAW . CARDINAL .", "On DATE , the bailiff attempted to recover possession of the applicant ’s apartment without success due to the lack of police assistance . He adjourned the enforcement proceedings to DATE .", "On DATE , the applicant recovered possession of his flat .", "The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V." ]

[ "6" ]

[ "6-1" ]

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[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , LOC . He was represented before ORG , a lawyer practising in the town of ORG of LOC .", "ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE local policemen arrested the applicant while he was driving his truck near the border between GPE and GPE in LOC and charged him with smuggling .", "Further examination of the truck in the presence of witnesses proved that the applicant was carrying merchandise bypassing customs checks .", "The applicant was then brought to the local police station for questioning . In a short while his lawyer arrived there . He demanded a meeting with the applicant , but the policemen refused to let him in .", "The applicant alleged that while he was at the police station , officer PERSON beat him up in an attempt to force him to confess . The applicant refused to give any statements . It appears that after some time he was released and the subsequent investigative actions took place in the presence of his lawyer .", "DATE , the applicant was examined by a forensic expert who reached the following conclusions :", "“ ... scratches on the right side of the forehead , small scratches over the right eyebrow , bruises in the area of the right radiocarpal articulation . ”", "On CARDINAL of the following days the applicant requested that the local prosecutor ’s office open criminal proceedings against officer PERSON on account of the alleged beatings .", "On DATE an investigator from the ORG town prosecutor ’s office , having examined the results of the applicant ’s forensic examination and the testimonies of PERSON and the other policemen who had met the applicant on DATE of the event , decided not to open a criminal case .", "On DATE the deputy regional prosecutor of ORG rejected the applicant ’s complaint against the above decision as groundless . It appears that the applicant made no further attempts to appeal against these decisions .", "As indicated above , on DATE the applicant was arrested , brought to the police station and charged with smuggling . The applicant claims that while he was at the police station his lawyer tried to reach him , but he was denied access by other police officers .", "On DATE an investigator allegedly asked the applicant ’s lawyer to sign an undertaking to keep all information concerning the investigation confidential , but he refused to do so .", "The trial commenced on an unspecified date . During the proceedings the applicant submitted that some evidence was inadmissible as he had been subjected to “ physical violence ” at the police station . He gave no further details in that regard .", "At the hearing of DATE the defence lodged the motion seeking to question witness PERSON The same day the trial court refused the request .", "On DATE the ORG found the applicant guilty of smuggling and gave him a suspended sentence of DATE imprisonment .", "On DATE the applicant lodged a statement of appeal drafted with the help of his lawyer . He claimed that the trial court had assessed the facts of his case incorrectly and had applied the domestic law wrongly . He also claimed that the proposal that his lawyer should sign an undertaking to keep the information about the investigation confidential had infringed his right to defence .", "On DATE ORG upheld the judgment on appeal .", "The Code of Criminal Procedure of GPE in force since DATE ( Law no . CARDINAL of DATE , the “ CCrP ” ) , establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual ( Articles CARDINAL and CARDINAL ) . Within DATE of receiving such a complaint , the investigator or prosecutor must carry out a preliminary inquiry and take one of the following decisions : ( CARDINAL ) to open criminal proceedings if there are reasons to believe that a crime has been committed ; ( CARDINAL ) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation ; or ( CARDINAL ) to refer the complaint to the relevant investigative authority . The complainant must be notified of any decision taken . Refusal to open criminal proceedings is amenable to appeal to a higher - ranking prosecutor or a court of general jurisdiction ( Articles CARDINAL , CARDINAL and CARDINAL ) . A prosecutor is responsible for overall supervision of the investigation ( LAW ) . He or she can order specific investigative actions , transfer the case from one investigator to another or order an additional investigation . LAW ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to court ." ]

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[ "The applicant was born in DATE and lives in the town of GPE .", "NORP In DATE the applicant instituted proceedings in the ORG - gorodskoy ORG ( “ the court ” ) against his former employer , a ORG company “ GPE ” ( “ the company ” ) , claiming compensation for damages resulting from his work - related disease .", "On DATE the court awarded the applicant ORG CARDINAL,CARDINAL.CARDINAL . By the same judgment he was entitled to receive an allowance of ORG CARDINAL.CARDINAL , to be paid DATE . On DATE ORG ( “ the Bailiffs’ Service ” ) initiated enforcement proceedings .", "On DATE the judgment was enforced in part ; the applicant received UAH CARDINAL .", "In DATE the applicant instituted proceedings in the court against the company and ORG ( “ the Fund ” ) seeking re - calculation of the DATE allowance paid to him for his work - related disability and claiming payment of losses sustained on account of the erroneous calculation .", "On DATE the court allowed the applicant ’s claims and ordered the company to pay the applicant UAH CARDINAL,CARDINAL.CARDINAL . By the same judgment he was entitled to receive a DATE allowance of UAH MONEY , to be paid by the ORG as from DATE . On DATE ORG initiated enforcement proceedings .", "In DATE the applicant instituted court proceedings against ORG seeking compensation for damages caused to him by the non - enforcement of the judgments . On DATE the court found against the applicant . On DATE ORG upheld this judgment . The applicant did not appeal in cassation .", "On DATE ORG returned the enforcement writs in respect of the judgments of DATE and DATE to the applicant .", "NORP The company failed to enforce the judgments of CARDINAL DATE and DATE in full . The ORG has no judgment debts vis - à - vis the applicant .", "The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ." ]

[ "6", "P1" ]

[ "P1-1" ]

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[ "The applicant was born in DATE and is currently serving a life sentence in prison .", "On DATE the applicant was arrested on suspicion of murder .", "On DATE the ORG of Odessa ( “ the ORG ” ) ordered the applicant to be placed in pre - trial detention for DATE . The applicant was placed in the GPE no . CARDINAL ORG ( “ the GPE ” ) .", "On DATE and CARDINAL DATE ORG extended the applicant ’s pre - trial detention to CARDINAL and DATE respectively .", "On DATE and DATE the NORP Regional Court of Appeal ( “ the ORG of Appeal ” ) extended the applicant ’s pre - trial detention to DATE respectively .", "The applicant was not present at those hearings and he was allegedly not given the investigator ’s submissions so that he could prepare his objections .", "According to the applicant , in the course of investigation he was illtreated , with the purpose of making him confess to the murder .", "On DATE the case was referred to ORG for trial .", "On DATE ORG , acting as a court of first instance , found , inter alia , that the applicant and CARDINAL co - defendants had committed murder with particular cruelty and for financial gain . The court sentenced the applicant to life imprisonment . The judgment was based on various pieces of evidence including an acknowledgment of guilt by the applicant and other defendants during the trial .", "After the hearing the applicant was handcuffed and escorted to the high security wing of the Odessa GPE .", "On DATE ORG upheld the judgment of CARDINAL DATE , following which it was made final . For the period of consideration of the case by ORG the applicant was detained in GPE no . CARDINAL ORG , where he was allegedly not provided with sufficient facilities , such as a table and chair , to prepare his defence .", "Following ORG decision of DATE the applicant repeatedly submitted applications to have his case reviewed on grounds of exceptional circumstances . He also asked the authorities to provide him with a lawyer to assist him with the preparation of these applications . All his applications were rejected as unsubstantiated ; a lawyer was not provided because the criminal proceedings were already finished .", "On several occasions the applicant requested copies of certain material from his criminal case file . The requests were granted , but with delays .", "In DATE the applicant instituted CARDINAL separate sets of court proceedings against , respectively , the judge who had presided over his criminal case before the first - instance court , the ORG chamber on criminal cases , and ORG , claiming that he had been unfairly convicted and that his applications for review of his case on grounds of exceptional circumstances had been arbitrarily rejected . All these proceedings are pending .", "According to the applicant , he was not allowed family visits during his pre - trial detention .", "During his post - conviction detention until DATE the applicant was allowed to see his relatives no more than once DATE . Subsequently , he was granted family visits once DATE .", "The visits lasted no longer than TIME . CARDINAL adult visitors could be present at once . The applicant maintains relations with his wife , mother , adult brother , and his son born in DATE .", "In DATE , upon arrival for the visit , CARDINAL of his CARDINAL relatives was not admitted to see the applicant because of the limitation on the maximum number of adults per visit . Since then , CARDINAL person out of the CARDINAL has had to be excluded when planning a visit to the applicant .", "During the meetings the applicant communicated with the visitors via glass partition . The applicant ’s conversations with the visitors were listened to by a prison officer .", "On DATE the applicant sent a letter to the ORG , the first page of which had been stamped by the detention facility .", "Up to DATE the applicant ’s letters to ORG were accompanied by covering letters from the detention facility briefly stating the nature of the applicant ’s submissions .", "In accordance with ORG CARDINAL and CARDINAL of the Code , short visits from relatives and other persons may last no longer than TIME . Such meetings must be held in the presence of a prison officer . Until the amendment of CARDINAL DATE ( which came into effect on DATE ) , life prisoners were entitled to short visits from their relatives and other persons DATE . Since that amendment , life prisoners have been entitled to such visits once DATE .", "Article CARDINAL of the Code , following amendments made to it on DATE , stipulated that ORG correspondence was to be subject to automatic monitoring by the prison staff except for proposals , applications and complaints addressed to ORG , ORG , other relevant international organisations of which GPE is a member or participant , authorised persons of those international organisations , or prosecution authorities .", "The relevant provisions of the LAW read as follows :", "“ CARDINAL . The role of the administrative justice system shall be the protection of the rights , freedoms and interests of physical persons , and the rights and interests of legal entities in the field of public - law relations , from violations by public authorities ...", "Any decisions , actions or inaction on the part of public authorities may be appealed against to administrative courts , except for cases in which the LAW and laws of GPE provide for a different procedure of judicial appeal against such decisions , actions or inactivity ...", "NORP In cases where the decisions , acts or inactivity of a public authority are being challenged , the courts shall review whether [ the impugned decisions and acts ] have been adopted or taken :", "...", "CARDINAL ) NORP reasonably ;", "...", "CARDINAL) proportionately , in particular , by ensuring a necessary balance between any possible unfavourable outcome for an individual ’s rights , freedoms and interests and the aims the impugned decision or action seeks to achieve ;", "... ”", "“ CARDINAL . When considering a case , a court shall be governed by the principle of the rule of law , which provides , in particular , that a human being and his or her rights and freedoms shall be the highest social value and shall determine the essence and orientation of the activity of the ORG .", "A court shall apply the principle of the rule of law by taking into account the caselaw of ORG . ... ”", "“ CARDINAL . The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by ... public authorities and [ legal relationships arising ] in the course of the public formation of a ... public authority by way of an election or referendum .", "The jurisdiction of the administrative courts shall cover public - law disputes , in particular :", "CARDINAL ) NORP disputes between physical persons or legal entities and ... public authorities concerning the decisions of the latter ( normative legal acts or legal acts of individual effect ) , or their actions or inactivity ; ... ”", "In accordance with paragraph CARDINAL of the above - mentioned rules , prisoners are entitled to visits from CARDINAL adults at once , who may also be accompanied by the prisoner ’s under - age children .", "Annex CARDINAL of the Prison Rules provides for CARDINAL options of equipping a room for short meetings between prisoners and visitors . According to the first option the meeting room is to be equipped with tables along the room separated by free space of QUANTITY in width . The chairs for visitors are not to exceed CARDINAL items ; stools for the prisoners are to be fixed to the floor .", "According to the second option , a meeting room is to be equipped with booths QUANTITY in width and QUANTITY in length . CARDINAL or CARDINAL booths are to be of QUANTITY to accommodate CARDINAL visitors or visitors with children coming to see the same prisoner . The NORP booths and the ORG booths are to be separated by glass partitions . The booths are to be equipped with a loudspeaker and a telephone handset . The table of the supervising officer is to be equipped with a device for listening to the conversations in the booths .", "On DATE ORG , having reviewed the lawfulness of the Prison Rules , included them in the unified register of normative legal acts .", "The relevant extract from the Recommendation read as follows :", "“ Part II Conditions of imprisonment", "Contact with the outside world", "Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .", "Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum level of contact .", "National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted .", "NORP The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible .", "Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so . ”", "The relevant extract from the Report read as follows :", "“ CARDINAL . In many NORP countries the number of life - sentenced and other long - term prisoners is on the increase . During some of its visits , the ORG has found that the situation of such prisoners left much to be desired in terms of material conditions , activities and possibilities for human contact . Further , many such prisoners were subject to special restrictions likely to exacerbate the deleterious effects inherent in long - term imprisonment ; examples of such restrictions are permanent separation from the rest of the prison population , handcuffing whenever the prisoner is taken out of his cell , prohibition of communication with other prisoners , and limited visit entitlements . The ORG can see no justification for indiscriminately applying restrictions to all prisoners subject to a specific type of sentence , without giving due consideration to the individual risk they may ( or may not ) present .", "Long - term imprisonment can have a number of desocialising effects upon inmates . In addition to becoming institutionalised , long - term prisoners may experience a range of psychological problems ( including loss of self - esteem and impairment of social skills ) and have a tendency to become increasingly detached from society ; to which almost all of them will eventually return . In the view of the ORG , the regimes which are offered to prisoners serving long sentences should seek to compensate for these effects in a positive and proactive way .", "The prisoners concerned should have access to a wide range of purposeful activities of a varied nature ( work , preferably with vocational value ; education ; sport ; recreation / association ) . Moreover , they should be able to exercise a degree of choice over the manner in which their time is spent , thus fostering a sense of autonomy and personal responsibility . Additional steps should be taken to lend meaning to their period of imprisonment ; in particular , the provision of individualised custody plans and appropriate psycho - social support are important elements in assisting such prisoners to come to terms with their period of incarceration and , when the time comes , to prepare for release . Further , the negative effects of institutionalisation upon prisoners serving long sentences will be less pronounced , and they will be better equipped for release , if they are able effectively to maintain contact with the outside world . ”" ]

[ "34", "8" ]

[ "8-1" ]

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[ "The applicant was born in DATE . She lives in the village of ORG , in GPE . The applicant is the mother of PERSON , born in DATE .", "The applicant , with her husband and CARDINAL daughters , PERSON and GPE , lived at CARDINAL FAC in the village of GPE , in FAC ( in the submitted documents the district is also referred to as ORG district ) , in GPE . Their house was located near a local hospital . At the material time the village was under the firm control of the federal forces , which maintained manned checkpoints at the entry and exit points to and from the village .", "In TIME DATE ( in the submitted documents the date is also referred to as DATE ) the family was sleeping in their house at the above address .", "At TIME on DATE the applicant and her family members were woken up by someone knocking at the entrance door . The applicant approached the door and asked in NORP : “ Who is it ? ” The answer was given in NORP : “ Passport check ” . When the applicant wondered why the passport check was being conducted so late at night , she was told : “ You better open the door ; we have an order ! ” The applicant opened the door and CARDINAL armed men in camouflage uniforms without insignia entered the house . All but CARDINAL or CARDINAL of the intruders were wearing masks . The applicant and her relatives noticed that the men without masks were of NORP appearance . The intruders spoke unaccented NORP . The applicant inferred that they were NORP servicemen .", "The servicemen asked the applicant whether there were any men in the house . The only man in the household was the applicant 's husband , a disabled person with one leg . The servicemen checked the family 's passports and returned them to the applicant . Then the unmasked servicemen said to their colleagues that they should leave the applicant 's house as no men were to be found there . However , CARDINAL of the masked servicemen told them that they should search the house . The servicemen searched the house , turning everything upside down . It appears that they did not find anything of interest to them other than a few video cassettes which they took away .", "Having searched the house , the servicemen ordered the applicant 's daughters , PERSON and GPE , to put on warm clothing as they were being taken to the vehicles for questioning . The applicant 's younger daughter , DATE GPE , started crying . CARDINAL of the masked servicemen told her : “ Do not be afraid ; we will just question you and will let you go . I promise that nothing will happen to you . ” Before leaving the house , PERSON insisted that she should be the only one to go for questioning . The servicemen let GPE stay in the house ; they took PERSON outside to the vehicles .", "The applicant managed to run outside and saw that PERSON was handcuffed and was standing next to a white GAZ minivan . Beside the minivan the applicant saw a white VAZ-CARDINAL , CARDINAL grey ORG vehicles , CARDINAL military all - terrain UAZ vehicles ( “ таблетка ” ) and a grey VAZ-CARDINAL vehicle , which were all parked around the applicant 's house . The vehicles did not have number plates . According to the applicant , further vehicles belonging to the intruders were parked near her house but she was unable to recall their models or their colour . The applicant shouted at the servicemen and asked them to take her for questioning with her daughter . In response they pushed her away . PERSON was put into the GAZ minivan and the intruders drove away .", "A number of people witnessed the abduction of PERSON . In particular , PERSON , who was a patient in the hospital across the street , was woken up by shouting coming from the applicant 's courtyard and rushed outside . She saw that the applicant 's house was surrounded by armed men in masks and camouflage uniforms . The men did not allow her to approach and pushed her back into the hospital . While they were doing so , she saw them take PERSON away .", "At TIME on DATE the applicant 's neighbours , PERSON and PERSON , were woken up by the noise of armoured vehicles and the applicant 's shouting and saw armoured and other vehicles stationed at the street . PERSON and PERSON were afraid to approach the persons in camouflage uniforms and masks because they were armed . Another neighbour , PERSON . NORP , who was woken up by a woman 's shouting at TIME on DATE , got outside and saw armoured and other vehicles parked on the street at the applicant 's house ; women at the entry gate to the applicant 's house were shouting at several men wearing camouflage uniforms and masks . Afraid of the camouflaged men because of their weapons , PERSON . NORP returned home . When it was quiet he went to see the applicant and learnt from her that PERSON had been kidnapped .", "The applicant has had no news of PERSON since DATE .", "The description of the events above is based on the applicant 's application form and written statements by GPE , ORG PERSON . NORP , made on DATE .", "The Government submitted that on DATE PERSON had been abducted by unidentified persons .", "On TIME the applicant complained about her daughter 's abduction to a number of law - enforcement agencies in LOC . In particular , she complained to ORG of the Interior ( the ROVD ) , to a local department of ORG ( the ORG ) and the security service of the NORP President . The authorities denied having any information about the whereabouts of the applicant 's daughter . However , unspecified officers from the security service of the NORP President suggested to the applicant that her daughter had most likely been abducted by officers of ORG from GPE , GPE .", "The applicant also complained about the abduction of PERSON GPE to GPE , head of the local administration . The latter also suggested that her daughter had been probably taken to GPE .", "DATE the applicant went in person to a number of ORG authorities in ORG , trying to obtain information concerning her daughter 's whereabouts . It appears that her attempts produced no results .", "The applicant also contacted , both in person and in writing , various official bodies , such as the NORP administration , military commanders ' offices and prosecutors ' offices at different levels , describing in detail the circumstances of PERSON abduction and asking for help in establishing her whereabouts . The applicant retained copies of a number of those letters and submitted them to ORG . An official investigation was opened by the local prosecutor 's office . The relevant information is summarised below .", "On DATE the prosecutor 's office of ORG ( “ the district prosecutor 's office ” ) instituted an investigation into the abduction of PERSON under LAW of LAW ( aggravated kidnapping ) . The case file was given number DATE . It does not appear that the applicant was informed about the decision .", "By a decision of DATE the district prosecutor 's office granted the applicant victim status in connection with criminal case no . DATE . The decision stated , among other things , that at TIME on DATE TIME unidentified armed men in camouflage uniforms and masks had arrived at the applicant 's home at CARDINAL FAC in a GAZ minivan , a UAZ vehicle , CARDINAL military all - terrain UAZ vehicles ( “ таблетка ” ) , a VAZ-CARDINAL and a VAZ-CARDINAL and had taken PERSON to an unknown destination . The applicant was accordingly provided with a copy of the decision .", "On DATE the district prosecutor 's office informed the applicant that on that date the investigation in criminal case no . DATE had been suspended for failure to identify the perpetrators ; the operational and search measures aimed at solving the crime were under way .", "On DATE the applicant 's representatives from PERSON wrote to the district prosecutor 's office , complaining about the lack of information concerning the investigation . They requested to be informed about its progress ; the specific actions taken to solve the crime since the opening of the criminal case and during DATE after the decision to suspend the investigation ; the reasons for the suspension of the investigation , and the reasons for PERSON arrest . They further requested to be informed whether the investigating authority had interviewed the witnesses of the abduction and had requested information from various remand centres on PERSON eventual detention . Lastly , they submitted that the applicant had not been provided with the decision to open the investigation and requested that she be provided with a copy .", "On DATE the prosecutor 's office of GPE ( “ the NORP prosecutor 's office ” ) replied to the applicant 's representatives that the district prosecutor 's office had instituted an investigation into the abduction of PERSON and the applicant had been granted victim status in the criminal proceedings ; the operational and search measures aimed at solving the crime were under way . The letter also stated that pursuant to LAW any information about the investigation was confidential and was not to be disclosed .", "On DATE the applicant 's representatives wrote to the NORP prosecutor 's office and to ORG office . Referring to the case - law of ORG , they pointed out that the authorities ' letter of DATE had failed to provide the requested information or any plausible explanations for the authorities ' failure to provide the applicant with copies of basic investigative decisions . The applicant 's representatives repeated their request for information about the progress of the investigation and copies of those decisions .", "On DATE the Prosecutor General 's office informed the applicant 's representatives that their request of DATE had been forwarded to the NORP prosecutor 's office for examination .", "On DATE the applicant wrote to the district prosecutor 's office . In her letter she described the circumstances of her daughter 's abduction by armed persons in camouflage uniforms and masks , who had arrived in “ ordinary ” and armoured vehicles and complained that she had had no information concerning the investigation . She pointed out that her numerous requests to various ORG authorities had failed to produce any results and requested , among other things , to be provided with the following information : the number of the criminal case opened in connection with the abduction of PERSON ; the prosecutor 's office and the name of the person in charge of the investigation ; the investigative measures taken by the authorities ; whether witnesses to the abduction had been questioned by the investigation ; whether the investigation had been suspended ; whether the investigation had established how a convoy of military and civil vehicles with the abducted PERSON had managed to drive through the numerous NORP federal forces checkpoints located in LOC and , in particular , on the road to and from the village of ORG ; whether the investigation had examined the theory of possible implication of NORP servicemen or representatives of NORP special forces in the abduction of PERSON and whether the authorities had obtained information from various detention centres in GPE concerning her eventual detention . Lastly , she requested to be provided with the decision to suspend the investigation , which the authorities had not sent to her .", "On DATE the district prosecutor 's office replied to the applicant . The letter stated that on DATE the district prosecutor 's office had opened criminal case no . DATE into the abduction of PERSON PERSON and that the investigation had undertaken the following measures : examination of the crime scene ; the applicant had been granted victim status ; an unspecified number of the applicant 's relatives , acquaintances and neighbours had been interviewed ; unspecified investigative measures had been undertaken in collaboration with a number of other law - enforcement agencies ; instructions had been given to the ROVD to conduct operational and search measures ; the district prosecutor had issued instructions aimed at solving the crime . According to the letter , the investigation had been examining the thesis of possible involvement of servicemen or members of special forces in the crime . In addition , the investigation was examining the theory that PERSON had been kidnapped for ransom . Finally , the letter stated that the above measures had failed to produce any results and on DATE the investigation in criminal case no . DATE had been suspended for failure to establish the identity of the perpetrators .", "On DATE the applicant 's representatives wrote to the NORP prosecutor 's office . Referring to the case - law of the ORG , they complained about the lack of information concerning the investigation into the abduction of the applicant 's daughter and pointed out that the applicant had not received copies of the decisions to open the criminal case and to grant her the victim status in the criminal proceedings . The letter requested the authorities to provide the applicant with the following information : the status of the criminal investigation ; the reasons for PERSON abduction ; whether witnesses to the abduction had been questioned by the authorities ; measures undertaken by the investigation DATE and DATE and whether the authorities had carried out an examination of detention centres in the region to establish the whereabouts of the applicant 's daughter . Finally , the letter requested that the applicant be provided with copies of basic investigative decisions , including the CARDINAL granting the applicant victim status in the criminal case .", "On DATE the NORP prosecutor 's office forwarded the request of the applicant 's representatives to the district prosecutor 's office for examination .", "On DATE the NORP prosecutor 's office informed the applicant 's representatives that they had examined their request . According to the letter , the investigation had been undertaking measures aimed at solving the crime . Referring to unspecified provisions of NORP legislation the letter stated that copies of basic investigative decisions could not be provided to the applicant 's representatives ; under LAW only the applicant was entitled to receive in person copies of the decisions concerning opening of the criminal proceedings , grant of the victim status and suspension of the investigation .", "On DATE the district prosecutor 's office received from the ORG information concerning the abduction of PERSON .", "On DATE the district prosecutor 's office launched an investigation into the abduction of PERSON under LAW of LAW ( aggravated kidnapping ) .", "On DATE the district prosecutor 's office requested prosecutor 's offices of various levels , departments of the interior in GPE and FAC and Departments of ORG of GPE in LOC ( “ PERSON милиции ORG Временной оперативной группировки органов и подразделений ORG в DATE регионе ” , “ the ORG ” ) to provide information on whether PERSON had been arrested . From the replies of those ORG authorities it appeared that the applicant 's daughter was not being held in the ROVDs of GPE ; she had not applied to medical institutions for assistance ; there were no compromising materials ( “ компрометирующий материал ” ) on her .", "According to a reply from the deputy head of ORG , that authority had not carried out any special operations in ORG on DATE ; PERSON had not been taken to any penal institutions in LOC .", "On DATE the applicant was granted victim status in criminal case no . DATE and her procedural rights and obligations were explained to her .", "Being interviewed as a victim on DATE , the applicant submitted , among other things , that on DATE unidentified persons had told her to open the door for an identity check . Subsequently , several armed men in camouflage uniforms and masks burst into the house . They had asked the applicant in NORP where the men were . The applicant had pointed at her husband , explaining that he was the only man in the household . The intruders had checked the family members ' identity papers and told the applicant 's daughters to get dressed . Meanwhile the intruders had turned everything in the house upside down . They had told PERSON GPE to follow them to their vehicle for questioning . When the applicant protested the armed men replied that they would question PERSON GPE and then let her go . The applicant had wanted to follow her daughter outside but had been held in the house . Having nonetheless managed to get outside , she had seen PERSON , handcuffed , near a white GAZ minivan without number plates . The applicant had also seen CARDINAL vehicles , including an UAZ vehicle , CARDINAL ORG military all - terrain vehicles ( “ таблетка ” ) , a VAZ-CARDINAL and a VAZ-CARDINAL vehicle . Despite the applicant 's attempts to stop them , the abductors had left with her daughter . The applicant also submitted that in DATE , according to local custom , PERSON had been abducted for marriage by a man from ORG . She had only stayed with that man for DATE . When the elders had come to the applicant to pay the bride - price and the family had learnt about PERSON 's whereabouts , they had taken her back home .", "The applicant 's husband and daughter GPE , questioned on DATE , gave similar descriptions of the circumstances of PERSON PERSON 's abduction .", "B.A. , the applicant 's neighbour , interviewed as a witness on DATE , submitted that he had learnt from the applicant that at QUANTITY on DATE TIME armed men in masks and camouflage uniforms had abducted PERSON from her parents ' house in GPE . The intruders had arrived in a convoy of vehicles , including a PERSON minivan , several ORG and ORG and VAZ-CARDINAL vehicles .", "The applicant 's neighbour , GPE , interviewed as a witness on an unspecified date , stated that during TIME DATE she had heard several vehicles in the street . On DATE she had learnt from the applicant about the abduction of PERSON by armed men in camouflage uniforms .", "PERSON , interviewed as a witness on an unspecified date , submitted that she had learnt from fellow residents in GPE that on DATE PERSON had been abducted by armed men in camouflage uniforms , who had arrived in a GAZ minivan and several ORG and ORG vehicles without number plates . Similar submissions had been made by the applicant 's neighbours and acquaintances ORG , PERSON , Kh . PERSON , ORG , DATE , PERSON , GPE , GPE , GPE . , ORG . PERSON . , PERSON , PERSON . , GPE , GPE . , PERSON , PERSON . , PERSON , GPE , GPE , GPE , ORG . NORP , GPE , GPE . , PERSON . , PERSON . PERSON , GPE , ORG GPE , GPE , GPE . , GPE . , PERSON , Sh . A. , GPE . , GPE , GPE . , who were interviewed as witnesses on unspecified dates .", "According to replies from the Operational and Search Bureau of the LOC operational department of ORG of GPE in ORG ( “ LOC управления PERSON управления МВД РФ по ORG федеральному округу ” ) and the ORG department in GPE , those authorities had not arrested PERSON and had no compromising materials on her .", "On DATE the military prosecutor of military unit no . CARDINAL was instructed to verify the following information : whether federal troops had carried out a special operation in GPE on DATE ; whether they had arrested PERSON , and whether the military units stationed in ORG and the GPE settlement were equipped with GAZ minivans , ORG , PERSON and ORG vehicles . According to the military prosecutor 's reply dated DATE , federal forces had not carried out any special operations in the village of GPE on DATE and had not arrested PERSON . The military forces in question were equipped with GAZ minivans , ORG and ORG and VAZ-CARDINAL vehicles . However , in the absence of information about their number plates it was impossible to establish which military unit owned the vehicles mentioned in the district prosecutor 's office ' request for information .", "On DATE heads of unspecified remand prisons in GPE , GPE , GPE , GPE and GPE were requested to provide information as to whether PERSON had been detained in those facilities . No relevant information was provided by those persons .", "On DATE the district prosecutor 's office requested the military commander 's office of ORG , ORG of GPE , ORG internal troops office in ORG , ORG departments in GPE , Ingushetiya , GPE - GPE and PERSON , and the ROVD and police offices of the ORG and ORG , to find out whether those ORG authorities had carried out special operations in ORG on DATE and had arrested PERSON . No relevant information had been received from those ORG bodies .", "The investigation in criminal case no . DATE had been suspended on numerous occasions for failure to identify the culprits and reopened to check the information obtained as a result of operational and search measures .", "The investigation in case no . DATE is pending .", "Despite a specific request by ORG did not disclose most of the contents of criminal file no . DATE , providing only copies of the following documents :", "letter of DATE by ORG deputy prosecutor , addressed to the head of the ROVD and requesting the latter to verify the information on the abduction of PERSON , submitted by ORG on an unspecified date ;", "a report by a police officer of the ROVD , dated DATE to the effect that there were indications that a crime had been committed against PERSON ;", "records of interviews with the applicant , her husband and her daughter GPE , dated DATE and a record of an interview with ORG , dated DATE ;", "a reply from the military prosecutor 's office of military unit no . DATE dated DATE ;", "replies from various ORG authorities to the effect they had not carried out special operations in ORG on DATE , had not arrested PERSON , had not held her in detention and had no compromising materials on her or information on her whereabouts .", "The Government submitted that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information on personal data concerning witnesses and other participants in the criminal proceedings .", "For a summary of the relevant domestic law see PERSON and GPE v. GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) ." ]

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

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[ "On DATE the applicant was arrested by the militia and detained on remand in ORG of ORG of ORG of GPE ( слідчui ізолятор GPE міністерства внутрішніх справ PERSON ) .", "On DATE ORG of GPE ( судoва колегія з кримінальних справ ORG суду ORG ) convicted the applicant of the murder of CARDINAL persons and sentenced him to death .", "On DATE the Administration of the Isolation Block of ORG of ORG of GPE ( адміністрація слідчого ізолятору Головного Управління Міністерства внутрішніх справ PERSON ) decided to move the applicant to a separate cell to await his execution , in accordance with the DATE ORG - trial LAW ( hereinafter “ the Act ” ) .", "On DATE ORG of GPE ( судoва колегія з кримінальних справ ORG суду ORG ) upheld the judgment of the first - instance court .", "On DATE , DATE , CARDINAL May , DATE and DATE the applicant 's mother was permitted to visit her son . On DATE she was again allowed to visit the applicant , together with the latter 's brother .", "On DATE the Vice - President of ORG rejected an application for leave to lodge an extraordinary appeal , introduced by the applicant 's lawyer .", "On DATE the applicant 's mother visited her son again . Her next visit took place on DATE , when she was accompanied by the applicant 's brother .", "A moratorium on executions was declared by the President of GPE on DATE . In judgment no . CARDINAL of DATE ORG held that the provisions of LAW concerning the death penalty were contrary to LAW . The death penalty was abolished and replaced by life imprisonment by Act no . CARDINAL of DATE .", "On DATE ORG of GPE commuted the applicant 's death sentence to life imprisonment .", "Evidence from the applicant was taken by ORG in FAC on DATE . ORG was composed of Judges PERSON , PERSON and PERSON . The evidence taken may be summarised as follows :", "The applicant was admitted to ORG on DATE . On DATE of ORG visit , he confirmed that he had been informed about his rights and obligations . Actually , DATE , he signed a sheet of paper containing these rights and obligations .", "He stated that he had been allowed to have a hot shower every DATE and could shave with an individual razor blade . At the same time , his hair was cut . Until DATE , he could wash himself only once DATE . Since DATE he could use an individual razor . According to him , the death row inmates started having soap and cold water in their cells in DATE . Previously , there had been water taps , but the inmates could not switch them on or off , this being done by a guard for all the prisoners . Small windows had been installed in the cells which the inmates could open to let fresh air in .", "According to the applicant , an iron sheet covered the window in his cell until DATE . He confirmed that , at present , the light was enough to read or write , his cell being equipped by CARDINAL lamps - a normal one and a dimmed one . He said that as far as his cell was concerned , the installation of the lamps , water taps , mirrors , new iron beds and windows had started DATE before the Delegates ' visit .", "The applicant did not have any contacts with other prisoners . When he shared his cell with another inmate , they were taken together to the shower or for a walk . To ORG question : “ What was the longest period for which you did not have any contacts with other prisoners ? ” , he answered : “ That was during the investigation , for DATE . ” He also said that during the investigation , which had lasted DATE , he had been kept in solitary confinement following a ORG 's decision , based on a written complaint about his allegedly inappropriate behaviour towards another inmate . According to him , the prisoners had a choice between being detained in double or single cells . He confirmed that , until DATE , he had been in the double cell .", "He confirmed that since DATE inmates could buy books in the prison shop and since DATE they were allowed to get CARDINAL newspapers . In prison there was a public radio - a loudspeaker , which was switched off at TIME", "To ORG question : “ Do you have any complaints about the food ? ” , the applicant answered : “ How can we complain about the food when people who work do not get their salaries ? ”", "According to the applicant , inmates had been examined by a medical assistant ( фельдшеp ) on a DATE basis , and once DATE by the prison doctor who could also be called in case of emergency .", "The applicant confirmed that when he broke the rules , he was punished by being barred from having visits and receiving parcels . Since the investigation period , he had not broken any rules . As regards the general situation , he had not heard about other inmates being subjected to such treatment .", "He also confirmed that he saw the prison governor on DATE . If he had some questions or complaints , he could lodge an application .", "When the applicant wished to see his lawyer , he sent an application to the lawyer through the prison governor . Prison guards were present during the visits of the applicant 's lawyer . The applicant did not write any detailed complaints or requests , discussing all those issues with his lawyer during their meetings in prison .", "The applicant was allowed to send and receive letters at DATE . During his stay in ORG , he had received CARDINAL letters . He had written to his mother DATE . He did not receive his mother 's letter sent in DATE , but he did not know whether it was due to the prison censorship control .", "The applicant started to receive packages in DATE . He stated that he had been allowed to get CARDINAL parcels ( посилка , передaча ) and CARDINAL small packets ( бандероль ) per year . He considered this number satisfactory even though he would have preferred to receive CARDINAL parcel DATE . He confirmed that his relatives were permitted to send him food .", "The applicant was not allowed to wear any other type of clothes than those provided by the prison officials , except for underwear and socks . In DATE the prisoners had to wear jackets and in DATE they were given a warm coat and fur hats . According to him , the DATE clothes were sufficient for DATE .", "The applicant confirmed that he had started having DATE TIME outdoor walks in DATE . The prison guards had not required the wearing of handcuffs since DATE or DATE .", "The witness was the governor of ORG during the time of the applicant 's detention there .", "The witness said that on DATE of ORG visit , CARDINAL prisoners were serving a sentence in the prison , of whom CARDINAL were on death row .", "According to him , every death row prisoner was aware of his rights and duties . A copy of the list of rights and duties was posted in every cell . He confirmed that there was no secrecy as to the rights and obligations of prisoners and that after the decree about rights and obligations had been published , the prisoners were fully aware of them .", "He also confirmed that he saw the applicant once DATE which was , according to him , regular practice . He said that the applicant had never complained of the conditions of his detention , but disagreed with his sentence to death . He also said that the applicant had been informed about the new instructions and about the new decree concerning the rights and duties of death row inmates .", "The witness considered the heating conditions sufficient . The prison had its own boiler and there was a fresh - air ventilation system in the cells . According to him , the prisoners had a hot shower once DATE , when the bed linen was also changed . He denied the applicant 's allegation that all death row prisoners were using the same razor , which would have created health problems on account of the risk of infection . He said that the prisoners shaved separately with blades given to them by the prison administration .", "He stated that in the daytime there were CARDINAL lamps lit plus natural light from windows in the cells , which he considered sufficient . At TIME , they had CARDINAL lamp lit . He said that every death row inmate had a cell of not QUANTITY . There was a possibility of reading books and literature using both natural and artificial light .", "NORP The witness said that the inmates underwent an X - ray examination twice a year . Once a week the head of the medical division visited them , and every day a medical assistant conducted an inspection .", "The witness said that death row prisoners had the right to communicate with the outside world without any limitation , both to send and receive letters . He further said that this situation had improved since DATE . He admitted that under the existing procedure , inmates ' correspondence was censored , but he did not remember any case when an incoming letter had been stopped without being given to its addressee , including letters from ORG . He confirmed that the applicant 's correspondence had been registered in the journal . Moreover , any death row prisoner could complain of any violation of the right to exchange letters to the governor , to the Prosecutor who supervised the prison , or to any other official in this department .", "According to the witness , the possibilities for receiving parcels improved in DATE . Since then , the prisoners were allowed to receive CARDINAL food parcels ( посилка , передача ) and CARDINAL small packets ( бандероль ) per year . Previously , they had not been allowed to receive any parcel until the judgment in their criminal case had become final . Moreover , the prisoners could buy food in the prison shop . They could spend GPE hryvnas CARDINAL ( ORG ) per month at prices which were the same as in state - owned shops from which the prison bought the food .", "According to the witness , prior to DATE the inmates had not been not allowed to go for DATE outdoor walks . Since then , they had been taken out for TIME without handcuffs .", "The witness was the doctor in ORG , where he had been working since DATE .", "He said that the prison medical staff included CARDINAL doctors ( CARDINAL general practitioners , CARDINAL psychiatrist and CARDINAL radiologist ) , medical assistants ( фельдшер ) , an X - ray laboratory assistant , a pharmacist and a clinical assistant . According to him , medical services were provided TIME a day . Any inmate could apply at any time and get urgent medical assistance . The death row prisoners were seen by a medical assistant every day during their DATE walk . They could ask him for any medical assistance and , if his help was not sufficient , they could request to see the doctor . Besides , they could apply directly to the doctor . Every inmate had a medical file compiled upon his arrival where all details and results of medical examinations were recorded and which was kept during the period of his imprisonment .", "The witness said that on CARDINAL DATE the applicant , upon his arrival at the prison , had complained about having been beaten . In DATE he had requested help because he suffered from a respiratory virus infection .", "He also said that HIV testing of inmates was not obligatory and was only conducted upon individual request . The test was preceded by a confidential interview between the doctor and the prisoner . The witness did not confirm whether there were inmates infected with the HIV virus , claiming that this was confidential information . The only other person who knew about inmates infected by HIV was the doctor responsible for the testing and the preceding consultations .", "As far as complaints about hygienic conditions in the prison were concerned , the witness had received no such complaints . He considered that the changes in regime for the death row prisoners , especially the possibility of having outdoor walks and natural light in their cells , had improved their health conditions .", "The witness was a medical assistant having been working in ORG for DATE . He was responsible for the DATE control of the inmates ' health conditions , while the doctor made visits and attended emergency situations . He considered that there were particular problems with death row inmates and , in fact , he worked mostly with them . He accompanied these prisoners during their DATE outdoor walks .", "He confirmed that the improvement of living conditions in the death row prisoners ' cells had had a positive influence on their health . Since then he had not received any further complaints from them regarding health and hygiene .", "The witness stated that he had never seen any signs of guards ' brutality against the death row inmates or any bodily injuries . He had never heard about such complaints made to other staff in the prison . He examined the inmates on a DATE basis and he reported to his superiors . According to him , the applicant had not complained more than other inmates . He confirmed that he had been observing the applicant for DATE without noticing any changes in his mental state . He had not witnessed any strong symptoms of depression of the applicant .", "The witness was the applicant 's mother . In her letter of CARDINAL DATE to the ORG she complained that her son had been beaten . She confirmed that during his detention in custody , the applicant had been beaten and had not been provided with any medical assistance . He had been interrogated for TIME and , after TIME , he had been taken to hospital . She could still see traces of the beatings on his face during her meeting with him DATE . She had been allowed to meet her son for the first time DATE after the sentence had been pronounced . In this meeting , she had asked her son about the beatings and he confirmed that he had been beaten .", "She did not have any complaints about the administration regarding receiving and sending letters . She rather complained generally about the prison system . She started to correspond with her son in DATE . However , she was unable to give any details in this regard . She had written her last letter to her son in DATE but to date , he had not received it . On the other hand , she confirmed that letters had never been lost .", "To the ORG representative 's questions : “ During DATE , how often did you send letters to your son ? Can you send them DATE ? ” , the witness answered : “ If there is a need , I write him a letter . ” To the Government representative 's questions : “ And how often do you get letters from him ? Can he write to you more than once DATE ? ” , the witness answered : “ DATE we were allowed to send CARDINAL letter DATE , and now there are no limitations , we can write letters as often as we want . ”", "The witness confirmed that she started to send parcels ( посилка ) to her son in DATE . Since then , she had had no complaints against the prison administration in this regard .", "The witness saw the applicant once a month during a visit lasting for TIME at the most . She had not complained about the duration of her visits or that they had been suddenly interrupted by a prison guard who was always present , being happy to have even these short visits . She spoke with her son over the telephone , seeing him through the glass . She could not see whether he was handcuffed .", "To the Government representative 's question : “ And what do you think about the duration of the meetings ? Could you tell , judging by the atmosphere , whether if you had asked for the meeting to be extended to TIME or longer , you would have been allowed ? ” , the witness answered : “ I have never asked to prolong the meetings . I think if the administration says it is over , then it is over . ” To the Government representative 's information : “ You have the right to TIME meetings now ” , the witness answered : “ It is difficult to talk through glass for TIME . ”", "The witness said that the applicant had never complained in his letters about ill - treatment , beatings or about the prison administration . He had complained about parcels , letters and visits . She admitted that the situation was improving , and that the prison administration understood that inmates sentenced to the death penalty were like other inmates .", "On DATE the Delegates visited the prison . The size of the applicant 's cell area was QUANTITY . The cell was in order and clean . There was an open toilet , a washbasin with CARDINAL tap with cold water only , CARDINAL beds fixed on the floor , central heating and a window with bars . There were some books , a newspaper , a stock of soap and toilet paper . The cell was sufficiently heated and ventilated .", "The Delegates were shown the prison shower area , which was reasonably clean . They also visited an exercise yard .", "According to the prison shop records , the applicant bought goods on the following occasions :", "On DATE he bought foodstuffs for CARDINAL ( ORG ) , on DATE he purchased foodstuffs and matches for UAH CARDINAL.CARDINAL , on DATE he bought foodstuffs for UAH CARDINAL , on CARDINAL DATE he purchased foodstuffs paying UAH MONEY , on DATE the applicant bought toiletries and foodstuffs UAH CARDINAL.CARDINAL , and on DATE he bought foodstuffs for UAH CARDINAL , on DATE the applicant purchased different items for UAH CARDINAL.CARDINAL .", "On DATE the applicant purchased foodstuffs and matches spending UAH CARDINAL.CARDINAL , on CARDINAL DATE he bought foodstuffs for UAH CARDINAL.CARDINAL , and on DATE he bought foodstuffs and matches paying UAH CARDINAL .", "From the applicant 's medical file which was created on DATE it appears inter alia that the applicant underwent an X - ray examination on CARDINAL DATE , on DATE and CARDINAL DATE , on DATE and DATE and on CARDINAL May and DATE .", "Under LAW and DATE , the LAW is directly applicable . There is a guaranteed right to lodge an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of LAW .", "Article CARDINAL § CARDINAL provides that international treaties , which are in force and agreed on as binding by the Verkhovna Rada of GPE , are part of the national legislation of GPE .", "Article CARDINAL § CARDINAL prohibits censorship .", "Under LAW the legal order in GPE is based on the principles according to which no one may be forced to do what is not envisaged by the legislation . State authorities and local self - government bodies and their officials are obliged to act only according to these principles , within the limits of their authority , and in the manner envisaged by the LAW and the laws of GPE .", "Article CARDINAL provides that human and citizens ' rights and freedoms are guaranteed and may not be diminished by the adoption of new laws or the amendment of laws that are in force .", "DATE . Under LAW and CARDINAL no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law . Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention , apprised of his rights , and from the moment of detention must be given the opportunity to defend himself in person , or to have the assistance of a defence lawyer .", "Under LAW § CARDINAL and CARDINAL everyone is guaranteed the right to challenge the decisions , actions or omissions of ORG authorities , local self - government bodies , officials and officers of a court of law . After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which GPE is a member or participant .", "Under LAW everyone has the right to legal assistance . Such assistance is provided free of charge in cases envisaged by law . Everyone is free to choose the defender of his rights . In GPE the Bar ( адвокатура ) ensures the right to a defence against charges and the provision of legal assistance in deciding cases in courts and before other ORG authorities .", "Article CARDINAL § CARDINAL provides that a convicted person enjoys all human and citizens ' rights , subject only to restrictions determined by law and established by a court ruling .", "Under LAW human and citizens ' rights and freedoms guaranteed by LAW may not be restricted , except in cases envisaged by LAW .", "Conditions on death row in the NORP prison system were successively governed by an ORG of DATE on conditions of detention of persons sentenced to capital punishment ( hereinafter “ the Instruction ” ) and by Temporary Provisions of DATE on the conditions of detention of persons sentenced to capital punishment in the isolation blocks ( hereinafter “ the Temporary Provisions ” ) .", "The Instruction provided that after the sentence had become final , persons sentenced to death had to be kept in isolation from other prisoners in specially designed cells . Save in exceptional cases , CARDINAL such prisoners were to be detained in one cell . The cell area allocated to CARDINAL prisoner in a single cell had to be not QUANTITY , and in a double cell not QUANTITY . They were provided with an individual sleeping - place and with bed linen . The inmates wore a uniform designed for the category of especially dangerous recidivists . Reference was also made to their legal status and obligations . This determined the frequency of meetings with relatives and the number of letters inmates could send and receive : they were allowed CARDINAL visit per month and could send CARDINAL letter per month . There was no limitation on the mail they could receive . The inmates could receive CARDINAL small packets a year . They were allowed to have a DATE TIME walk in the fresh air . Outside their cells , inmates were handcuffed . They were not allowed to work .", "Prisoners were also allowed to read books , magazines and newspapers borrowed from the prison library and/or bought through the prison distribution network ; they could receive money transfers ; they could keep personal objects and food in their cells , and buy food and toiletries in the prison shop DATE ( up to the value of the statutory minimum wage ) , and play board games . They could meet lawyers . The inmates were also allowed to have visits from lawyers . Medical treatment was provided in accordance with national legislation .", "The prisoners could lodge complaints with state authorities . Such complaints had to be dispatched within DATE . Complaints to ORG were not censored .", "The Temporary Provisions extended the rights of persons sentenced to capital punishment in comparison with the ORG . In particular , prisoners were allowed to have TIME of sleep during TIME , they could receive CARDINAL parcels and CARDINAL small packets per year , buy food and toiletries in the prison shop ( up to the value of PERCENT of the statutory minimum wage ) , pray and read religious literature and have visits from a priest , and write complaints to ORG authorities . They were allowed to send and receive letters without any limits and to have DATE visits of TIME from their relatives . A prison official had to be present during visits .", "DATE . According to LAW , pre - trial detention is a preventive measure in respect of an accused , a defendant or a person suspected of having committed a crime punishable with imprisonment , or a convicted person whose sentence has not yet been enforced .", "In accordance with section CARDINAL ) of the LAW , persons sentenced to capital punishment whose sentence had not become final were held separately from all other detained persons .", "Section CARDINAL(CARDINAL ) of the LAW provides inter alia that detainees have the right ( a ) to be defended in accordance with the rules of criminal law , ( b ) to be acquainted with the rules of detention , ( c ) to take a TIME DATE walk , ( d ) to receive DATE a parcel weighing QUANTITY and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery , ( e ) to buy foodstuffs and toiletries to the value of DATE statutory minimum wage , paying by written order , as well as unlimited amounts of stationery , newspapers and books in prison shops , ( f ) to use their own clothing and footwear and to have with them documents and notes related to their criminal case , ( g ) to use TV sets received from relatives or other persons and board games , newspapers and books borrowed from the library in their previous place of imprisonment or bought at shops , ( h ) individually to perform religious rituals and use religious literature and objects made of semi - precious materials pertaining to their beliefs , provided that this does not lead to a breach of the rules applicable to places of pre - trial detention or restrict the rights of other persons , ( i ) to sleep TIME a night , during which time they are not required to participate in proceedings or to do anything else except in cases of extreme emergency and ( j ) to lodge complaints and petitions and send letters to ORG authorities and officials in accordance with the procedure prescribed by LAW .", "Under LAW , detainees are required to be provided with everyday conditions that meet sanitary and hygiene requirements . The cell area for CARDINAL person may not be QUANTITY . Detainees are to be supplied with meals , an individual sleeping - place , bedclothes and other types of materials and everyday provisions free of charge and according to the norms laid down by the Government . In case of need , they are to be supplied with clothes and footwear of a standard form .", "In accordance with section CARDINAL ) , permission for relatives or other persons to visit a detainee ( in principle , once a month for TIME ) can be given by the administrative authorities of the place of detention , but only with the written approval of an investigator , an investigative authority or a court dealing with the case . Under paragraph CARDINAL , detainees have the right to be visited by defence counsel , whom they may see alone with no restrictions on the number of visits or their length , from the moment the lawyer in question is authorised to act on their behalf , such authorisation being confirmed in writing by the person or body dealing with the case .", "Pursuant to section CARDINAL(CARDINAL ) , detainees can exchange letters with their relatives and other persons and enterprises , establishments and organisations with the written permission of an authority dealing with the case . Once a sentence starts to run , correspondence is no longer subject to any limitations .", "According to LAW ( Main requirements of the regime in detention institutions ) , the main features of the regime in detention establishments are : the compulsory isolation and permanent supervision of sentenced persons , so as to exclude any possibility of the commission of new crimes or other acts against public order ; strict and continuous observance of obligations by these persons ; and various detention conditions dependent on the character and gravity of the offence and the personality and behaviour of the sentenced person .", "Sentenced persons must wear a uniform . They must also be searched ; body searches must be conducted by persons of the same sex as the person searched . Correspondence is subject to censorship , and parcels and packages subject to opening and checking . A strict internal routine and rules must be established in corrective labour establishments .", "Sentenced persons are prohibited from keeping money and valuables , or other specified objects , in corrective labour establishments . Any money and valuables found are to be confiscated and , as a rule , transferred to the ORG in accordance with a reasoned decision of the governor of the institution , sanctioned by a prosecutor .", "A list of objects which sentenced persons are allowed to possess , showing the number or quantity of each item and the procedure for confiscating objects whose use is prohibited in corrective labour establishments , must be established by the internal regulations of such establishments .", "Under the procedure established by the Code , sentenced persons are allowed to buy food and toiletries , paying by written order , to be visited , to receive parcels , postal parcels , packages and money by remittance , to correspond and to send money to relatives by remittance .", "Article CARDINAL § CARDINAL ( Purchase of food and toiletries by sentenced persons ) provides that sentenced persons are allowed to buy food and toiletries , paying by written order , from the money received by remittance .", "Article CARDINAL provides inter alia that a lawyer may be given permission to meet his client on presentation of his licence and identity card . Visits are not limited as to their number and length and , at the lawyer 's request , may be carried out without a prison warder being present .", "Under LAW ( Receipt of parcels and small packets by persons sentenced to imprisonment ) sentenced persons held in corrective labour GPE ( виправнo-тpудова колонія ) are allowed to receive , per year : CARDINAL parcels in GPE subject to the general regime ( колонія загального режиму ) , CARDINAL parcels in colonies subject to the strengthened regime ( колонія посиленого режиму ) and CARDINAL parcels in GPE subject to the strict and special regime ( колонія суворого режиму ) . Sentenced persons held in educational labour GPE ( колонія виховно-трудова ) are allowed to receive per year : CARDINAL parcels in GPE subject to the general regime and CARDINAL parcels in GPE subject to the strengthened regime .", "Convicted offenders serving their sentence in a prison are not allowed to receive parcels .", "Irrespective of the type of regime under which they are held , sentenced persons are allowed to receive not CARDINAL small packets per year , and to buy literature through the sales distribution network without any restrictions .", "The quantity of parcels and small packets of all types is not restricted for sentenced persons held in corrective labour colony camps ( виправнo-тpудова колонія-поселення ) .", "A list of foodstuffs and toiletries which sentenced persons are allowed to receive in postal parcels and small packets , as well as the procedure for their receipt by and delivery to the sentenced persons , is to be established in the internal regulations of corrective labour establishments .", "Under LAW ( Receipt and sending of money by sentenced persons by remittance ) sentenced persons are allowed to receive unlimited amounts of money by remittance , as well as to send money to their relatives and , if this is permitted by the authorities of the corrective labour establishments , to other persons . The money received by remittance is transferred to the personal account of the sentenced person .", "Article CARDINAL § CARDINAL ( Correspondence of persons sentenced to imprisonment ) provides that sentenced persons held in prisons may receive unlimited mail and may send letters as follows : CARDINAL letter per DATE for those held under the general regime and CARDINAL letter DATE for those held under the strengthened regime .", "According to section ORG ) the public prosecutor deals with petitions and complaints concerning breaches of the rights of citizens and legal entities , except complaints that are within the jurisdiction of the courts . Paragraph CARDINAL provides that an appeal lies from the prosecutor 's decision to the supervising prosecutor and , in certain cases , to the court . Paragraph CARDINAL provides that the decision of ORG is final .", "NORP Under section CARDINAL the prosecutor or his deputy has the power to make a request to a court for any materials in a case where a judgment or another decision has come into force . If there are any grounds for reopening the proceedings , the prosecutor challenges the court judgment or any other decision .", "NORP Under section CARDINAL(CARDINAL ) the matters subject to the public prosecutor 's supervision are : adherence to the legal rules on pre - trial detention , and corrective labour or other establishments for the execution of sentences or coercive measures ordered by a court , adherence to the procedures and conditions for holding or punishing persons in such establishments ; the rights of such persons and the manner of carrying out by the relevant authorities of their duties under the criminal law and legislation on the enforcement of sentences . The public prosecutor may at any time visit places of pre - trial detention , establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform , in order to conduct interviews or peruse documents on the basis of which persons have been detained , arrested or sentenced or subject to compulsory measures ; he may also examine the legality of orders , resolutions and decrees issued by the administrative authorities of such establishments , terminate the implementation of such acts , appeal against them or annul them where they do not comply with the law , and request officials to give explanations concerning breaches which have occurred .", "In its ORG , the ORG deplored the executions which , reportedly , had been carried out recently in GPE , GPE and GPE . In particular , it condemned GPE for apparently violating its commitments to introduce a moratorium on executions of the death penalty upon its accession to ORG . It called upon this country to honour its commitments regarding the introduction of a moratorium on executions and the immediate abolition of capital punishment warning it that further violation of its commitments , especially the carrying out of executions , would have consequences under Order No . CARDINAL ( DATE ) .", "The ORG confirmed in this ORG that it had received official information that , in DATE , CARDINAL executions had been carried out in GPE , and regretted that the NORP authorities had failed to inform it of the number of executions carried out in DATE . The ORG was particularly shocked that executions in GPE had been shrouded in secrecy , with apparently not even the families of the prisoners having been informed , and that the executed had been reportedly buried in unmarked graves . It condemned GPE for having violated its commitment to put into place a moratorium on executions , deplored the executions that had taken place , and demanded that it immediately honour its commitments and halt any executions still pending .", "In these texts , the ORG noted that GPE had clearly failed to honour its commitments ( CARDINAL persons had been executed DATE and DATE , according to official sources ) . At the same time , it noted that since DATE a de facto moratorium on executions had been in effect in GPE . The ORG insisted that the moratorium be reconfirmed de jure and that the PERSON Rada ratify LAW No . CARDINAL to the Convention . It stressed the importance of the de facto moratorium on executions and firmly declared that , if any further executions took place , the credentials of the NORP parliamentary delegation would be annulled at the following part - session of the ORG , in accordance with Rule CARDINAL of its Rules of Procedure .", "Delegates of the ORG visited places of detention in GPE in DATE , and DATE . Reports on each of the visits were published on DATE , together with the Responses to the Reports of ORG .", "The visit of the delegation , which took place from CARDINAL to DATE , was the ORG 's first periodic visit to GPE . In the course of the visit the delegation inspected , inter alia , the pre - trial prison ( GPE ) ( “ investigation isolation ” establishment ) No . CARDINAL/CARDINAL in ORG . On the ground floor of building No . CARDINAL of GPE No . CARDINAL were housed at the time of the visit CARDINAL prisoners who had been sentenced to death , although as was recorded in a footnote to the ORG , the delegation had received assurances that since DATE a de facto moratorium on executions had been observed .", "In its ORG ( paragraph CARDINAL ) , the ORG expressed at the outset its serious concern about the conditions under which these prisoners were being held and about the regime applied to them . It was noted that prisoners sentenced to death were usually accommodated CARDINAL to a cell , the cell measuring CARDINAL - CARDINAL m² . The cells had no access to natural light , the windows being obscured by metal plates . The artificial lighting , which was permanently on , was not always sufficiently strong with the result that some cells were dim . To ventilate the cells , prisoners could pull a cord that opened a flap ; despite this the cells were very humid and quite cold ( paragraph CARDINAL ) .", "The equipment in the cells was described in the ORG as being rudimentary , consisting of a metal bed and/or sloping platform ( equipped with a thin mattress , sheets of dubious cleanliness and a blanket which was manifestly insufficient to keep out the cold ) , a shelf and CARDINAL narrow stools . Prisoners were supposed to be able to listen to radio programmes via a speaker built into the wall of the cell , but it had been reported to the delegation that the radio only functioned sporadically ( ibid . ) .", "All the cells had un - partitioned toilets which faced the living - area ; as a result , a prisoner using the toilet had to do so in full view of his cellmate . As regards toiletries , prisoners sentenced to death were in a similarly difficult situation as many of the other inmates ; items such as soap and toothpaste were rarities ( ibid . ) .", "It was further recorded that prisoners sentenced to death had no form of activity outside their cells , not even an hour of outdoor exercise . At best they could leave their cells once DATE to use the shower in the cell - block , and for TIME a month , if they were authorised to receive family visits . In - cell activities consisted of reading and listening to the radio when it worked . Apart from the DATE visits which some inmates received , human contact was limited essentially to the occasional visit by an NORP priest or a member of the health - care staff , who spoke to the prisoners through a grill in the cell - door ( paragraph CARDINAL ) .", "The ORG summarised its findings in this regard as follows :", "“ In short , prisoners sentenced to death were locked up for TIME a day in cells which offered only a very restricted amount of living space and had no access to natural light and sometimes very meagre artificial lighting , with virtually no activities to occupy their time and very little opportunity for human contact . Most of them had been kept in such deleterious conditions for considerable periods of time ( ranging from DATE to over DATE ) . Such a situation may be fully consistent with the legal provisions in force in GPE concerning the treatment of prisoners sentenced to death . However , this does not alter the fact that , in the ORG 's opinion , it amounts to inhuman and degrading treatment . ” ( paragraph CARDINAL ) .", "It was further recorded that the delegation had received numerous complaints from prisoners sentenced to death about the fact that they lacked information with regard to their legal situation , the progress of their cases , follow - up to applications for cases to be reviewed , examination of their complaints etc . ( paragraph CARDINAL ) .", "In its ORG to the DATE Report , ORG recorded that a number of organisational and practical steps had been taken to resolve the problems identified by the ORG . In particular , LAW had been introduced to guarantee to prisoners sentenced to death the right to be visited once DATE by relatives , to be visited by a lawyer to get legal assistance , to be visited by a priest and to receive and send correspondence without limitation . It was further noted", "( i ) that prisoners sentenced to death would have DATE walks in the open air and that for this purpose QUANTITY of the pre - trial prisons had been rebuilt or re - equipped ;", "( ii ) that , in order to improve natural lighting and air of all cells , the blinds and metal peakes over cell windows had been removed ; and", "( iii ) that , for the purposes of informing inmates sentenced to death of their rights and legal status , extracts from LAW had been placed on the walls of each cell .", "A ORG delegation visited GPE from DATE in the course of which they again inspected GPE No . CARDINAL/CARDINAL in GPE where , at the time of the visit , there were detained CARDINAL prisoners who had been sentenced to death . The ORG noted that certain changes had occurred since the previous visit . In particular , the cells had natural light and were better furnished and the prisoners had an hour of exercise per day in the open air , although it was observed that there was insufficient space for real physical exercise ( paragraphs CARDINAL - CARDINAL ) . The ORG further recorded that important progress had been made in the right of prisoners to receive visits from relatives and to correspond ( paragraph CARDINAL ) . However , the ORG noted certain unacceptable conditions of detention including the fact that prisoners continued to spend CARDINAL out of TIME a day in their cells and that opportunities for human contact remained very limited ( paragraph CARDINAL ) .", "A third visit to GPE took place from DATE , in the course of which the delegation inspected , inter alia , the pre - trial prison ( GPE PERSON ) in PERSON . The ORG welcomed the decision of the NORP authorities to abolish the death penalty and noted that most of the CARDINAL prisoners subject to the death sentence had had their sentences commuted to life imprisonment .", "NORP Despite these welcome steps , the ORG recorded that the treatment of this category of prisoner was a major source of concern to ORG ( paragraph CARDINAL ) . It was noted that , further to a provisional instruction issued in DATE and pending the establishment of CARDINAL high - security units specifically intended for life prisoners , such prisoners were subjected to a strict confinement regime ( paragraph CARDINAL ) . While living space in the cells was generally satisfactory and while work had started on refurbishing cells in all the establishments visited , there were major deficiencies in terms of access to natural light and the quality of artificial light and ventilation ( paragraph CARDINAL ) . Moreover , life - sentence prisoners were confined in their cells for TIME a day with no form of organized activities and , by way of activities outside their cells , were entitled to TIME outdoor exercise , which took place in unacceptable conditions . There was virtually no human contact : since the entry into force of the DATE instruction , visits from relatives had been forbidden and prisoners were only allowed to send CARDINAL letter DATE , although there were no restrictions on receiving letters ( paragraph CARDINAL ) .", "In their Response to the Report the Ukrainian Government noted further legal amendments which ensured that life prisoners had TIME of exercise per day and CARDINAL family visits of TIME . Further , to ensure adequate access to light , metal shutters had been removed from windows in all cells ." ]

[ "3", "8" ]

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[ "8" ]

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[ "The applicant was born on DATE and currently resides in GPE .", "On DATE ORG ( “ the GPS ” ) detained the applicant on suspicion of forgery committed by a public official ( державним службовцем ) .", "On DATE the head of a department of the GPS ( “ the Head of Department ” ) ordered that the applicant should be placed in custody since there was a risk that he might abscond and obstruct the investigation of the case .", "On DATE ORG ordered the applicant 's detention pending trial and his transfer to ORG ( SIZO – Слідчий Ізолятор Житомирської області ) .", "On DATE the GPS decided to release the applicant on bail as it was impossible to provide him with the necessary medical treatment in detention . The applicant was released .", "On DATE the ORG , having allegedly found new evidence of the applicant 's involvement in unlawful currency transactions and abuses of power , initiated a criminal investigation into the allegations .", "Furthermore , the GPS decided on DATE that the applicant should be taken into custody on the ground that he was obstructing the investigation of criminal acts . New charges concerning other serious offences were brought against him . The ORG also ordered his transfer to ORG ( “ the ORG SBU ” – Слідчий Ізолятор Служби Безпеки GPE ) . On DATE the applicant was placed in the GPE .", "On DATE the ORG of GPE quashed the ORG 's decision of DATE and changed the preventive measure to an undertaking by the applicant not to abscond . The applicant was released .", "On DATE the Deputy Prosecutor General lodged an application for supervisory review ( протест ) of the decision of ORG , seeking to have it quashed on the grounds that it was not justified by the evidence in the case file and contravened the relevant legislation .", "ORG allowed the Deputy Prosecutor General 's application and quashed on DATE the decision of CARDINAL DATE . On the same date the ORG ordered the applicant 's detention pending trial . As a result , the applicant was immediately arrested and transferred to the SIZO SBU .", "On DATE ORG decided not to release the applicant from detention , but to transfer him from FAC to ORG no . CARDINAL ( “ GPE no . CARDINAL ” ) owing to the need to provide him with specific medical assistance which could not be provided in LOC . The applicant was detained in GPE no . CARDINAL from DATE to DATE .", "On DATE the applicant was transferred to ORG . Apparently , he started serving his sentence on DATE , the date of his arrival at ORG , where he started receiving inpatient treatment in the medical unit .", "On DATE and DATE the applicant 's wife , PERSON , deposited the sum of CARDINAL NORP hryvnyas ( ORG ) in a GPS deposit account as bail with a view to the applicant 's subsequent release .", "On DATE the Deputy Head of the GPS ORG decided to release the applicant on bail as it was impossible to provide him with the necessary medical treatment in detention . That decision was approved by ORG . As a result of the decision the applicant was prohibited from leaving the territory of GPE . On DATE Ms PERSON signed a declaration attesting that she had been informed about the bail conditions and the possibility of the sum being confiscated . The same document was signed by the applicant .", "On DATE the applicant , allegedly by chance , met CARDINAL of the witnesses , Mr O. Bogomolov , at FAC . During the meeting he apparently asked PERSON to tell the investigation that the payment for the flat which the applicant had acquired from him had been made not in foreign currency , but in NORP hryvnyas .", "On DATE an investigator from the GPS received information from Mr O. Bogomolov to the effect that the applicant had met him on DATE and had tried to influence his statement . This was later confirmed by the witness 's wife PERSON , who informed the prosecution that the applicant had threatened to initiate criminal proceedings against her and PERSON for unlawful currency transactions . The investigator made a tape recording of the interview and produced a verbatim record of it and the witness statements by PERSON .", "On DATE the GPS initiated a criminal investigation into the alleged unlawful currency transactions and abuses of power . On DATE the Deputy Prosecutor General ordered that the applicant should be taken into custody on the grounds that he was obstructing the investigation of criminal acts , had breached the obligations entered into at the time of his release from detention and was charged with serious offences . He also stated that new charges concerning other serious offences had been brought against the applicant .", "On DATE the applicant 's lawyers appealed to ORG against the decision to detain the applicant , alleging that it was unlawful and referring to the substantial deterioration of his state of health . They stated that the findings of his previous medical examination had been confirmed on DATE .", "On DATE the ORG quashed the GPS 's order of DATE following the applicant 's appeal . On DATE the ORG changed the preventive measure to an undertaking by the applicant not to abscond . In particular , the court held :", "“ ... On DATE criminal proceedings were instituted against Mr V.G. PERSON on suspicion of his involvement in offences referred to in LAW and on the same date the applicant was charged with offences LAW CARDINAL § CARDINAL , Article CARDINAL § CARDINAL and Article CARDINAL of LAW and questioned as an accused on the basis of the aforementioned provisions .", "On DATE the investigator decided that Mr PERSON should be held in detention .", "As can be seen from the investigator 's decision , the grounds for detaining PERSON ORG were that he was charged with serious offences and that the preventive measure chosen took into account the gravity of these offences , and also that while at liberty he interfered with the establishment of the truth in a criminal case and seriously breached his obligations as to appropriate conduct .", "... The representative of ORG , in the court 's view , has not provided any corroborating evidence that Mr PERSON has evaded requests to appear before an investigator or has tried to interfere with the investigation in the case . There is no evidence of the aforementioned facts in the case file ...", "ORG reference to the fact that Mr PERSON encouraged the witnesses PERSON L.D. Tyshchenko and Mr O.I. Bogomolov to change their witness statements in the part that related to the sale of a flat in foreign currency ... can not be considered by the court to have had any influence on the investigation , as Mr V.G. PERSON had met the aforementioned persons by chance and did not insist on their changing their statements ; his recommendations that they tell the investigator in the case that the payments had been made in national currency , as can be seen from the verbatim records of the interviews of the aforementioned persons , were of a consultative nature .", "The court has not obtained any other corroborating evidence that Mr V.G. ORG influenced the course of the investigation or interfered with the establishment of the truth in the case , or that he violated other obligations he had entered into with regard to appropriate conduct ...", "Also , the court considers that Mr PERSON state of health was not taken into account when the issue of the applicable preventive measure was being decided upon ...", "... on the basis of the foregoing , and in accordance with LAW , the court", "DECIDES", "... to quash the detention order issued by the Deputy Prosecutor General on DATE ... ”", "On DATE the Deputy Prosecutor General lodged an application for supervisory review ( протест ) of the decision of ORG , seeking to have it quashed on the grounds that it was not justified by the evidence in the file and contravened the relevant legislation .", "On DATE the ORG of ORG allowed ORG application and quashed the decision . On DATE the GPS ordered the applicant 's detention pending trial . As a result , the applicant was immediately arrested and transferred to FAC . In particular , ORG held :", "“ ... it can be seen from the witness statement by PERSON that in the period when PERSON was released on bail ( DATE ) PERSON met PERSON and asked him to change his witness statements about the currency which he had used to pay for the flat he had acquired , a fact which could have influenced considerations as to the elements of the offence provided for in LAW of GPE .", "Taking into account the foregoing , and PERSON attempt to influence the course of the investigation in the case and the fact that he was charged with serious offences , on DATE the measure applied to PERSON was changed to detention .", "[ The court accordingly ] DECIDES ...", "To quash the decision of DATE by the judge of the ORG of GPE to declare null and void the warrant issued by ORG for the arrest of PERSON V.G. ORG . ”", "Further complaints by the applicant lodged with the President of ORG with a view to initiating supervisory - review proceedings against ORG decision were dismissed on CARDINAL DATE as being unsubstantiated .", "On DATE the GPS investigator refused to institute criminal proceedings against the applicant for attempting to influence witnesses as his actions did not correspond to the corpus delicti envisaged in LAW . The tape recording of PERSON witness statements was destroyed on DATE on the ground that it was no longer necessary because the criminal proceedings against Mr Bogomolov had ended . That decision was based on Articles CARDINAL and CARDINAL of the Code of Criminal Procedure .", "On DATE , DATE and DATE the applicant , his wife and his lawyers lodged unsuccessful complaints with ORG , seeking to have the preventive measure changed to an undertaking by the applicant not to abscond , and also to have him medically examined . Hearings took place on DATE , CARDINAL , DATE , DATE and DATE and CARDINAL DATE .", "On DATE ORG sentenced the applicant to DATE and DATE imprisonment and ordered the confiscation of his personal property . The court also deprived the applicant of the right to occupy official positions for DATE and stripped him of the rank of Ambassador PERSON and Plenipotentiary , second class , following his conviction for unlawful currency transactions ( LAW – “ the ORG ” ) , abuse of power ( LAW ) , and forgery committed by a public official ( LAW . In the course of the proceedings the applicant requested leave to question particular witnesses who , he maintained , could prove his innocence . This request was refused by ORG , which based its findings of guilt on other corroborating evidence .", "ORG also ordered the forfeiture of the applicant 's bail , a sum of ORG CARDINAL,CARDINAL . In particular , it held :", "“ ... when questioned as an accused Mr PERSON explained that he had changed his witness statement after his conversation with Mr PERSON , who had recommended that , if he did not wish to be held criminally liable , he should say that the agreement had been concluded in hryvnyas and not in MONEY .", "... A witness , PERSON , has explained that Mr PERSON changed his witness statements after a meeting with Mr PERSON , who said that his lawyers would seek to institute criminal proceedings against ORG under LAW .", "... As can be seen from the case file , on DATE it was decided that V.G. ORG should be released on payment of ORG CARDINAL,CARDINAL bail .", "The sum mentioned above was deposited by ... PERSON in the account of ORG .", "Mr PERSON had been informed about his obligations and the consequences of his possible failure to comply with them , and PERSON as surety had been informed about the offences that Mr PERSON was charged with and also that in the event of failure to comply with his obligations bail would be forfeited in favour of the ORG . CARDINAL of the obligations of Mr PERSON related to appropriate conduct .", "In a decision of DATE the preventive measure of release on bail applied to Mr PERSON was amended to detention . This was because he had seriously breached his obligations relating to appropriate conduct , had coerced witness into making false statements with regard to offences committed by him , and had interfered with the establishment of the truth in the case .", "In accordance with LAW , if a suspect , accused and/or defendant breaches his or her obligations , bail shall be forfeited in favour of the ORG .", "The fact that Mr PERSON infringed his obligations with regard to appropriate conduct by coercing the witness Mr LOC into making false statements is proved by the aforementioned witness statements of Mr PERSON and PERSON Tyshchenko , as the Presidium of ORG found in its decision of DATE .", "In such circumstances the court considers it necessary for the bail deposited by Ms PERSON in the amount of UAH CARDINAL,CARDINAL to be forfeited in favour of the ORG .", "On the basis of the foregoing , and having regard to ORG CARDINAL and CARDINAL of the Code of Criminal Procedure , the court", "ORDERS", "... the forfeiture in favour of the State of the sum of bail in the amount of ORG CARDINAL,CARDINAL currently being held in the deposit account of ORG of GPE . ”", "On DATE the applicant appealed to ORG , seeking to have ORG judgment of DATE quashed and the proceedings in the case terminated . He and his lawyers claimed that ORG had unfairly assessed the evidence in the case , having based its finding on evidence that did not prove his guilt and having failed to establish the objective truth in the case .", "On DATE ORG partly allowed the applicant 's appeal and varied the judgment of DATE . In particular , it reclassified the offence of unlawful currency transactions and sentenced him to DATE and DATE imprisonment for aiding and abetting unlawful currency transactions . It also held that the applicant should be regarded as having been sentenced for forgery committed by a public official , as provided in LAW of DATE . It upheld the remainder of the judgment . ORG held in particular :", "“ ... As can be seen from the case file , PERSON was released on bail on DATE for a sum of UAH CARDINAL,CARDINAL .", "The aforementioned sum was deposited by PERSON wife PERSON on CARDINAL and DATE in the account of ORG .", "PERSON was informed about his bail obligations and the consequences of his failure to comply with them , and PERSON was informed about the offences that PERSON PERSON had been charged with , and about the possible forfeiture of the bail in the event of his failure to comply with these obligations . CARDINAL of the obligations imposed on Mr PERSON related to appropriate conduct .", "In accordance with the decision of DATE by the investigator from ORG , the preventive measure of bail chosen in respect of Mr PERSON was changed to detention . CARDINAL of the reasons for this [ change ] was that he had seriously breached his obligations regarding appropriate conduct , and in particular that he had coerced witness into making false statements , thus interfering with the establishment of the truth in the case .", "In accordance with LAW , if a suspect , accused or defendant infringes his obligations , bail is forfeited in favour of the ORG .", "The fact that Mr PERSON breached his bail obligations concerning appropriate conduct by coercing PERSON into giving false evidence has been proved by the witness statements of PERSON and PERSON , as the Presidium of ORG found in its decision of CARDINAL DATE .", "Accordingly , the investigative bodies changed the preventive measure applied to the applicant on lawful grounds .", "The submissions to the effect that that decision was unlawful and that the decision of the Presidium of ORG was unsubstantiated are invalid as it can be seen from the case file that PERSON had tried to influence witnesses to give false evidence .", "The reference to the investigator 's decision to refuse , on the basis of paragraph CARDINAL of Article CARDINAL and LAW , to institute criminal proceedings against Mr PERSON under LAW of GPE is not substantiated as the refusal to institute criminal proceedings was based on allegations of coercing PERSON and Ms Tyshchenko into giving false witness statements . At the same time , the decision in question mentions that PERSON PERSON attempted to coerce witnesses into giving false statements .", "The submissions in the appeal to the effect that PERSON was not examined by the court as a surety , in breach of the law , is unsubstantiated , since in accordance with LAW , paragraph CARDINAL , of LAW , the non - appearance of a surety in court without good reasons does not constitute an obstacle to reviewing the issue of the forfeiture of bail ...", "As can been seen from the case file , neither the defendant nor his lawyers requested Ms PERSON , as surety , to produce witness statements before the court .", "Under these circumstances there are no grounds for holding that there has been a violation of the law on account of the decision to confiscate bail [ in favour of the ORG ] .", "[ The court accordingly ] RULES", "[ that ] ... Mr PERSON shall be regarded as having been sentenced for the offences provided for in paragraph CARDINAL of Article CARDINAL , Article CARDINAL § CARDINAL , Article CARDINAL § CARDINAL , Article CARDINAL § CARDINAL , Article CARDINAL § CARDINAL and Article CARDINAL of LAW of DATE to DATE and DATE imprisonment ... in addition , all of his personal property shall be confiscated , he shall be disqualified from occupying posts relating to managerial functions in government bodies for a period of DATE and shall be stripped of the rank of Ambassador PERSON and Plenipotentiary , second class . ”", "On DATE and DATE the applicant and his lawyers lodged complaints with the President of ORG , seeking to institute supervisory proceedings in the case and to have the above - mentioned decisions quashed . On DATE the Deputy President of ORG dismissed these complaints as being unsubstantiated .", "The applicant and his lawyers lodged further complaints against the above - mentioned decisions with the President of ORG . On the basis of these complaints , on DATE the Deputy President of ORG applied to ORG for supervisory review , seeking to have the decisions quashed , the applicant 's offence reclassified and the case remitted for fresh consideration as regards the forfeiture of his bail .", "On DATE ORG , with CARDINAL judges sitting , partly allowed its Deputy President 's application . It decided to vary the judgment of ORG of DATE and the ruling of ORG of DATE . It also held that CARDINAL of the offences committed by the applicant should be reclassified from abuse of power with serious consequences to abuse of power with no serious consequences . It further decided to sentence the applicant to DATE imprisonment and to prohibit him from occupying government positions for DATE . It ruled that the penalty stripping him of the rank of Ambassador PERSON and Plenipotentiary , second class , should be expunged from the decisions . It also upheld the decision on the forfeiture of his bail , finding that the applicant 's complaints were unsubstantiated and seeing no procedural infringements of the law on criminal procedure in this matter .", "The applicant underwent a medical examination on DATE at ORG of ORG ( “ the ORG ” ) . The expert opinion that assessed the applicant 's health DATE found that his diseases included first - degree myocardial cardiosclerosis ( міокардичний кардіосклероз першого ступеню ) , extensive spinal osteochondrosis ( поширений спинний остеохондроз ) , chronic duodenitis ( хронічний дуоденіт ) , chronic parenchymatitis of the prostate ( хронічний паренхіматозний простатіт ) , internal and external haemorrhoids ( внутрішньо-зовнішній геморрой ) and the residual effects of a small cerebral haemorrhage in the basin of the right middle cerebral artery with left - hand side pyramidal deficiency and general vasomotor neurosis ( залишкові явища малого інсульту в басейні правої середньо-мозкової артерії з лівосторонньою пірамідальною недостатністю на фоні вегето-судинної дистонії ) . It concluded that the applicant could be held in custody in the GPE and was fit to take part in the investigation . He could be provided with urgent medical assistance if necessary .", "On DATE ORG ( “ ORG ” ) conducted a second examination of the applicant . The examination revealed that the applicant was suffering from second - degree hypertension , the residual effects of a stroke , a benign tumour of the occipital part of the head and extensive spinal osteochondrosis .", "On DATE and DATE the applicant was examined by a doctor from ORG . The SIZO SBU medical unit examined blood samples taken from him .", "On DATE , DATE and DATE and CARDINAL and DATE the applicant was examined by ORG and doctors from the SIZO SBU respectively , as he complained about heartache . ORG confirmed that the applicant was suffering from critical second - degree idiopathic hypertension ( гіпертонічна хвороба другого ступеню ) , second - degree cardiosclerosis ( міокардичний кардіосклероз першого ступеню ) and ischaemic heart disease ( ішемічна хвороба серця ) .", "On DATE the applicant was hospitalised with acute hypertension .", "From DATE until DATE the applicant unsuccessfully lodged a number of complaints with the GPS , ORG and the SIZO SBU seeking his release from custody on account of his poor state of health .", "The Government provided no evidence of the applicant 's treatment or the medical assistance provided to him from CARDINAL DATE to DATE . Between DATE and DATE the applicant was visited CARDINAL times by doctors from LOC . These included two visits by a dentist and a surgeon . On CARDINAL and DATE the applicant refused to take cognisance of an indictment and the case file because of his poor health . On CARDINAL ( twice ) , CARDINAL , DATE and DATE , CARDINAL and DATE , CARDINAL May , CARDINAL , CARDINAL , DATE , DATE , DATE and DATE and CARDINAL , DATE , DATE , DATE , DATE ( twice ) and DATE the applicant was examined by doctors from ORG and from the SIZO SBU .", "On DATE , DATE and DATE the applicant , his wife and his lawyers lodged complaints with ORG , seeking to have the applicant medically examined . Hearings took place on DATE , CARDINAL , DATE , DATE and DATE and CARDINAL DATE .", "During the hearing on the merits of the criminal charges brought against the applicant on DATE ORG decided to order his medical examination .", "DATE and DATE the applicant 's state of health was examined in the ORG SBU and the outpatient department of ORG .", "DATE . On DATE the court requested the SIZO SBU to inform it whether it was possible to provide the applicant with the necessary inpatient medical treatment for the diseases from which he was suffering .", "On DATE the Deputy Chairman of ORG replied that it was impossible to provide such treatment . In particular , he mentioned that the only medical staff of ORG were a physician and a paramedic , who provided medical assistance in urgent cases .", "From DATE to DATE a medical examination by a commission of ORG composed of CARDINAL doctors , set up on the basis of a decision of DATE by ORG , concluded that the applicant was not suffering from any life - threatening disease , and that he should be given in - hospital medical treatment should it transpire that he could not be treated adequately during his detention . In particular , the medical examination revealed that the applicant was suffering from critical second - degree idiopathic hypertension ( гіпертонічна хвороба другого ступеню ) , a second - degree circulatory brain disorder ( дисциркуляторна енцефалопатія другого ступеню ) , the residual effects of a small cerebral haemorrhage , asthenovegetative syndrome ( астено-вегетативний синдром ) , a duodenal papillary ulcer ( виразкова хвороба дванадцятиперстної кишки ) , gastritis ( гастрит ) , erosive bulbitis ( ерозивний бульбит ) , hypokinetic dyskinesia of the large bowel ( гіпокінетична дискінезія товстої кишки ) , spastic colitis ( спастичний коліт ) , internal and external haemorrhoids ( зовнішньо-внутрішній геморой ) , fibrolipoma of DATE left rib ( фіброліпома десятого міжреб'я зліва ) , seborrhoeic dermatitis ( себорейний дерматит ) and retinal angiopathy with impairment of visual acuity ( ангіопатія сітчатки із зниженням гостроти зору ) .", "On DATE the governor of GPE no . CARDINAL informed ORG that the applicant could not be provided with the necessary medical treatment at the GPE 's medical unit owing to the lack of necessary medical staff and equipment .", "On DATE ORG , having examined the results of the medical examination conducted DATE and DATE and the evidence produced before it by the parties , decided to transfer the applicant from the ORG SBU to GPE no . CARDINAL on account of his need for medical assistance . In the course of the hearing , the prosecution submitted a different document issued by ORG no . CARDINAL , signed by its deputy governor on DATE , stating that the applicant could be provided with the necessary medical treatment and that it would be possible to use an external doctor 's assistance for that purpose . It also took into account a similar response of CARDINAL DATE from the Head of ORG . The court also ordered GPE no . CARDINAL to inform it about the applicant 's state of health and about his ability to participate in hearings . In a separate decision the court refused to change the applicable preventive measure .", "From DATE , when he was transferred from pre - trial detention to serve his sentence in GPE , the applicant received inpatient treatment in the penitentiary 's medical unit .", "The applicant claimed that the cells of ORG no . CARDINAL had been infested with pests . An elevated , open toilet had been situated not far from the table , opposite the door of the QUANTITY cell inhabited by CARDINAL inmates . There had been no privacy in the cell and everybody had smoked . The conditions in the medical unit , where the applicant had stayed from DATE until DATE , had been practically the same as in the other cells . The cells had been overcrowded , with CARDINAL persons in a space of QUANTITY . Sick detainees who were transferred under guard from other penitentiary institutions or detention facilities , some of them suffering from tuberculosis and venereal diseases , had been held with other detainees in the same detention facilities , thus creating a risk of infection .", "As to the detention conditions in the SIZO SBU , the applicant stated that they were much better , but that the cell had been equipped in such a way that a detainee constantly felt humiliated . The toilet had been situated in the middle of the cell , on an elevated concrete base , absolutely open . It had been placed so as to be seen not only by the cellmates , but also by the prison guards . CARDINAL of the prison guards were women . There was no water in the cell . Cold water was supplied only upon the request of a detainee for a short period of time .", "The applicant maintained , referring to the DATE Report of ORG “ on the results of inspecting the budgetary allocations for the maintenance of ORG for ORG and its facilities and institutions ” , that the detention conditions were of a poor standard because the ORG budget had allocated only ORG CARDINAL to the penitentiary system , which amounted to an average of ORG CARDINAL per detainee a year , or UAH CARDINAL per month . In DATE that sum had been reduced to ORG DATE , that is , UAH CARDINAL.CARDINAL a month . In DATE the ORG budget had provided PERCENT of the sum requested for prisoners ' nutrition requirements , and in DATE this sum had been reduced to PERCENT , which had resulted in the allocation of ORG CARDINAL.CARDINAL a day per person for food . The applicant alleged that , at the time of his incarceration , ORG no . CARDINAL ( ORG no . CARDINAL ) had received only ORG CARDINAL.CARDINAL per day per detainee for expenditure from the ORG budget and that it accordingly had not been possible to treat the applicant for a disease such as his ulcer whilst in detention .", "The Government contended the applicant 's factual submissions as to the conditions in which he had been detained , however , provided no particularities to support their comments on the actual detention conditions in SIZO SBU and GPE no . CARDINAL .", "The relevant provisions of LAW read as follows :", "“ It shall be an offence punishable by DATE imprisonment or by compulsory labour in a penitentiary for a term of DATE to interfere with the appearance of a witness ... before a court or the bodies responsible for the preliminary investigation or inquiry ; to exert unlawful pressure on a witness in order to force him or her to refuse to testify or produce evidence , or to give false evidence under threat of murder , violence , destruction of the witness 's property or that of his or her close relatives , or disclosure of information defaming the witness ; to bribe a witness , ... with the same purpose ; or to threaten to carry out the above - mentioned actions in revenge for evidence produced previously . ”", "The relevant provisions of LAW read as follows :", "“ Preventive measures shall be imposed on a suspect , accused , defendant or convicted person in order to prevent him or her from attempting to abscond from an inquiry , investigation or the court , to obstruct the establishment of the truth in a criminal case or to pursue criminal activities , and in order to ensure the enforcement of procedural decisions .", "Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect , accused , defendant or convicted person will attempt to abscond from investigation and the court , or if he or she fails to comply with procedural decisions , or obstructs the establishment of the truth in the case or pursues criminal activities .", "If there are insufficient grounds for the imposition of preventive measures , the suspect , accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer , investigator , prosecutor or the court , and shall also undertake to notify them of any change in his place of residence .", "If a preventive measure is applicable to a suspect , he or she shall be charged within DATE from the time of imposition of the measure . In the event that the indictment is not issued within that time , the preventive measure shall be annulled . ”", "“ The preventive measures are as follows :", "( CARDINAL ) a written undertaking not to abscond ;", "( CARDINAL ) a personal surety ;", "( CARDINAL ) a surety provided by a public organisation or labour collective ;", "( DATE ) NORP bail ;", "( CARDINAL ) NORP remand in custody ;", "( CARDINAL ) NORP supervision by the command of a military unit .", "As a temporary preventive measure , a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles CARDINAL , CARDINAL and CARDINAL of this Code . ”", "“ In resolving the issue of imposing a preventive measure , in addition to the circumstances specified in LAW , such circumstances as the gravity of the alleged offence , the person 's age , state of health , family and financial status , type of employment , place of residence and any other circumstances relating to the person shall be taken into consideration . ”", "“ Bail consists in the deposit , by the suspect , accused , defendant or any other natural or legal persons , of money or other assets with the body responsible for the preliminary investigation or with a court for the purpose of ensuring the proper conduct of the person with respect to whom the preventive measure has been applied , his or her fulfilment of the undertaking not to leave his or her place of permanent or temporary residence without the permission of the investigator or the court , and his or her appearance upon a summons before the investigative body or the court .", "'s tax - exempt minimum income with regard to a person who is accused of committing a serious crime punishable by deprivation of liberty for a term of DATE ; CARDINAL times the citizen 's tax - exempt minimum income with regard to a person accused of committing another serious crime or a person with a previous conviction ; and CARDINAL times the citizen 's tax - exempt minimum income with regard to any other persons . In all cases the amount of bail shall not be less than the amount of the civil claim , substantiated by sufficient evidence .", "On the payment of bail , the suspect , accused or defendant shall be apprised of his or her obligations and the consequences of their non - fulfilment , and the person who stands surety shall be apprised of the offence of which the person in respect of whom bail is applied is suspected or accused , and informed that , in the event that this person fails to fulfil these obligations , the bail will be forfeited in favour of the ORG .", "Before the case has been referred to the court , a preventive measure in the form of bail may be imposed on a person who is held in custody only with the permission of the prosecutor who authorised the detention and , after the case has been referred to the court , such a measure may be imposed only by the court .", "The person who stands surety may refuse to perform the obligations entered into prior to the emergence of the circumstances requiring the forfeiture of the bail in favour of the ORG . In this case he or she shall ensure the appearance of the suspect , accused or defendant before the investigative body or the court with a view to having the preventive measure imposed on him or her replaced by a different one . Bail shall be returned only after a new preventive measure has been chosen .", "In the event that a suspect , accused or defendant breaches his or her obligations , bail shall be forfeited in favour of the ORG . The issue of forfeiture of bail to the ORG shall be determined by the court at a hearing during the consideration of the case or in separate proceedings . The surety shall be summoned to the court in order to give explanations . Failure of that person to appear before the court for a hearing without good reason shall not obstruct the examination of the issue of the forfeiture of bail in favour of the ORG .", "The issue of returning the bail to the surety shall be resolved by the court during the trial of the case . Bail deposited by the suspect , accused or defendant may be withheld by the court for the purpose of executing the judgment in the form of compensation for damage . ” ( As amended by LAW , in accordance with LAW DATE , р. N CARDINAL/CARDINAL-ВР )", "“ With regard to the application , annulment or modification of a preventive measure , the investigative body , investigator , prosecutor or judge shall make an order , and the court shall give a ruling . ”", "“ At the stage of the pre - trial investigation , a non - custodial preventive measure shall be selected by the investigative body , investigator or prosecutor .", "In the event that the investigative body or investigator considers that there are grounds for selecting a custodial preventive measure , with the prosecutor 's consent he shall lodge an application with the court . The prosecutor is entitled to lodge an application to the same effect . In determining this issue , the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody , and to verify that the evidence was received in a lawful manner and is sufficient for charging the person .", "The application shall be considered within TIME of the time at which the suspect or accused is detained .", "In the event that the application concerns the detention of a person who is currently not deprived of his liberty , the judge shall be entitled , by means of an order , to give permission for the suspect to be detained and brought before the court under guard . Detention in such cases may not exceed TIME ; and in the event that the person is outside the locality where the court is situated , it may not exceed TIME from the moment at which the detainee is brought within the locality .", "Upon receiving the application , the judge shall examine the material in the criminal case file submitted by the investigative bodies or investigator . A prosecutor shall question the suspect or accused and , if necessary , shall hear evidence from the person who is the subject of the proceedings , shall obtain the opinion of the previous prosecutor or defence counsel , if the latter appeared before the court , and shall make an order :", "( CARDINAL ) refusing to select the preventive measure if there are no grounds for doing so ;", "( CARDINAL ) selecting a preventive measure in the form of taking of a suspect or accused into custody .", "The court shall be entitled to select for the suspect or accused a non - custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her .", "The judge 's order may be appealed against to the court of appeal by the prosecutor , suspect , accused or his or her defence counsel or legal representative , within DATE from the date on which it was made . The lodging of an appeal shall not suspend the execution of the judge 's order . ”", "The relevant extracts from the Resolution of the Plenary Supreme Court read as follows :", "“ ...", "NORP In accordance with paragraph CARDINAL of Article CARDINAL - CARDINAL of the Code of Criminal Procedure , a breach by the suspect , accused or convicted person of his or her bail obligations shall lead to the forfeiture of the bail . [ Forfeiture ] shall be decided upon at the trial stage of the proceedings ( substantiated by the judgment , and , before its delivery , by an order or ruling of the court ) , or in the course of separate judicial proceedings . ”", "The relevant extracts from the reports are cited in the judgment of GPE v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL and CARDINAL , ORG CARDINALII ) ." ]

[ "13", "3" ]

[]

[]

[ "6" ]

[ "6-1" ]

[]

[ "The first and second applicants were born in DATE and DATE respectively .", "The applicants are of GPE origin . The first applicant is the mother , the second applicant the wife , and the third and fourth applicants the brothers of Mr PERSON , also of GPE origin , born in DATE .", "In TIME CARDINAL DATE Mr PERSON and CARDINAL other persons of GPE origin , PERSON , PERSON and PERSON , were digging out coal in an abandoned opencast coal mine in GPE . The area was open , with little vegetation , and accessible by a dirt road .", "At CARDINAL point another man , Mr B.I. , to whom Mr M.G. apparently owed money , passed by on horseback . He asked PERSON when he would pay back the debt and the CARDINAL of them entered into a short argument . Mr PERSON intervened in defence of Mr M.G. After that Mr B.I. left .", "NORP Some time later Mr Gerasimov and his companions finished digging out the coal and were getting ready to leave . At this moment Mr B.I. returned , accompanied by CARDINAL friends of his , PERSON , PERSON and PERSON , in CARDINAL cars . A fight flared up between the CARDINAL groups . The parties disagree as to who started it . Some time later Mr V.V. , PERSON and PERSON went to a nearby petrol station , where they asked the staff to call the police , explaining that a friend of theirs had been beaten up . When the police officers reached the scene of the fight they found only Mr Gerasimov , lying on the ground . As he was seriously injured , he was taken to hospital .", "DATE the police initiated a search for Mr B.I. and PERSON , suspecting that they had beaten up PERSON , but could not find them .", "Mr Gerasimov was admitted to the hospital in a coma , with a severe cerebral contusion and CARDINAL wounds to the head . He died in hospital on DATE .", "A criminal investigation was opened on CARDINAL DATE by the NORP regional public prosecutor 's office .", "An inspection of the scene of the fight was carried out on CARDINAL DATE . The record of the inspection stated that the site had not been preserved . The police officers found the van which had been used by the Mr PERSON and his companions abandoned at the site . The windscreen was cracked , the side rear - view mirrors were broken and one of the doors had marks of blows from a hard object . Traces of blood were found near the van . Subsequent analysis showed that the blood might have been Mr Gerasimov 's . Traces of blood were also found inside the van . Subsequent analysis showed that it might have been Mr B.I. 's .", "The police also inspected the cars Mr B.I. and his companions had been travelling in . Traces of blood were found in CARDINAL of them . Subsequent analysis showed that the blood might have been Mr GPE .", "On DATE the police inspected Mr GPE 's car ( not one of those which had been used DATE ) and seized CARDINAL bats and a knife .", "On DATE Mr B.I. , PERSON , PERSON and PERSON were examined by a doctor , who found that Mr B.I. had a small knife wound on the lower part of the back and several bruises on the face and body . The other men also had bruises .", "The clothes worn by Mr B.I. on DATE were also examined by an expert , who found matching cuts in his T - shirt and jacket , most likely caused by a knife .", "A post - mortem examination of PERSON body , carried out on DATE , concluded that the death had been caused by a severe cerebral trauma . It found a multi - fragment fracture of the parietal bone , with fragments of the bone depressed to QUANTITY in depth on an area measuring QUANTITY . It also found CARDINAL wounds to the head , a wound on the right arm and CARDINAL parallel stripe - like bruises on the back , measuring QUANTITY . There were other bruises on the face and body . The examination concluded that the injuries had been caused by blunt objects and could have been caused in connection with a beating . The CARDINAL bruises on the back had been caused by long narrow objects .", "Mr PERSON 's companions were questioned by an investigator on DATE . They were once again questioned before a judge on DATE .", "Mr GPE stated that the CARDINAL of them had gone in his van to dig coal . They had had a pick but not a knife . At the time when Mr B.I. had arrived with his friends , they had been getting ready to leave . Mr Gerasimov had been sitting in the back part of the van , on the sacks of coal . As soon as he had got to the site PERSON had started hitting PERSON legs with a bat . At the same time Mr B.I. had been shouting “ Where do you think you are going , you , where will you run , you damn gypsies , who is going to pay ? ” PERSON had attempted to stop PERSON attack . While the CARDINAL of them were wrestling , Mr B.I. approached Mr PERSON from behind and hit him on the back of the head with another bat . Mr PERSON fell to the ground . Thus freed , PERSON turned to PERSON and hit him with his bat , aiming for the head but missing it . PERSON then ran away .", "Mr I.I. also stated that when Mr PERSON and Mr GPE had arrived they had been carrying wooden bats . Mr GPE had attacked Mr PERSON and while the CARDINAL of them had been wrestling , Mr B.I. had approached and hit PERSON head , holding the bat with CARDINAL hands . PERSON had not seen other blows because he had run away , but before doing so he had seen Mr PERSON and Mr GPE also approaching Mr PERSON . He and his companions had not been carrying knives and had not provoked the others ' attack .", "Mr PERSON stated that he had run away immediately after the other men had arrived , because he had known that they were going to beat them .", "CARDINAL employees of the petrol station where Mr V.V. , Mr I.I. and Mr M.G. had pulled into after the attack were questioned on DATE . They confirmed that the men had been acting nervously and had said that someone had been beaten up .", "Mr B.I. was questioned on DATE . He explained that when he had first seen Mr PERSON , Mr GPE , Mr I.I. and Mr M.G. they had threatened and sworn at him . Later , he and his friends had gone out to look for a horse , owned by Mr GPE , which had got lost . When they arrived at the place where the GPE had been , the latter had attacked them . PERSON had had a knife and a pick and had stabbed him in the back . He had fallen to his knees . Someone had hit him with the wooden handle of a tool . He had managed to grab the handle and hit PERSON back .", "Mr B.I. was again questioned on CARDINAL and DATE . This time he denied hitting PERSON and said that he had seen someone else hit him in the scuffle .", "Mr GPE , Mr PERSON and Mr GPE were questioned by the investigator on DATE and DATE . On DATE they were questioned before a judge .", "Mr GPE stated that he and his friends had indeed gone to look for PERSON GPE 's horse . He had been in one of the cars with Mr B.I. He did not know why Mr PERSON had approached the GPE men , but supposed that he had intended to ask them if they had seen the horse . Immediately after he and Mr B.I. got out of the car the GPE men attacked them . Mr PERSON and PERSON GPE , who had been following close behind them in the other car , came to their aid , but ran away after the GPE men attacked them too . He and his friends had got into their cars and driven away . In the car he realised that Mr B.I. had been stabbed . He did not know how Mr PERSON had ended up fatally injured .", "Mr GPE said that on CARDINAL DATE he had been in Mr GPE house when Mr GPE had come and said that his horse had got lost . The CARDINAL men , together with PERSON , had taken CARDINAL cars and gone looking for the horse . At CARDINAL point they had approached the GPE men . Mr GPE and Mr PERSON had stopped and got out of their car and had immediately been attacked by the GPE . He and Mr GPE got out of their car as well . He saw someone stab Mr B.I. and was himself attacked by CARDINAL of the GPE men , who had a bat and a knife . Then he and Mr GPE got back into their car and drove away , while all GPE men had gathered around Mr B.I. and Mr PERSON GPE did not know why the others had attacked them . He stated that none of his friends had been carrying knives or bats .", "Mr GPE also stated that he and his companions had been looking for his horse . At CARDINAL point he and PERSON had seen the other men beating Mr B.I. and PERSON and had went to separate them . He admitted that they had been carrying wooden bats in the cars in case they were attacked .", "Mr GPE 's brother was questioned on DATE and confirmed that on DATE the family 's horse had got lost . In the course of the interview the investigator asked him : “ Were you there when the gypsies stabbed [ Mr B.I. ] and do you know what they stabbed him with ? ” Mr GPE 's brother responded that he had not seen the attack . Examined again on DATE , he confirmed that there had been wooden bats in the family 's car , but he did not know who had put them there .", "Mr GPE , who worked in the area , was interviewed on DATE . He stated that he had seen the fight from the road , while driving to a nearby shop to buy food . He had not stopped the car but had slowed down to watch . He estimated that the distance between him and the fighting men had been CARDINAL . He had recognised Mr B.I. , whom he knew , and had seen him grappling with someone else , who had then struck him with a knife . Then all the others gathered together and someone had a wooden bat or tool . Mr GPE did not see anything in Mr B.I. 's hands .", "Mr B.I. was arrested on an unspecified date .", "On DATE an investigator from ORG ordered the arrests of PERSON , PERSON and PERSON , finding that there existed reasonable grounds for suspicion that they had acted as accessories in the attempted murder of PERSON and noting that they had attempted to abscond . It appears that on DATE the CARDINAL of them were briefly arrested . However , they were never charged or investigated any further .", "On DATE Mr B.I. was charged with attempted murder committed in an especially cruel manner and with extreme ferocity ( Article CARDINAL of LAW , see paragraph DATE below ) .", "On DATE the ORG remanded him in pre - trial custody . Referring to the testimony of PERSON companions ( see paragraphs CARDINAL above ) , and also taking into account the fact that the charges against Mr B.I. were serious and he had previous convictions , it found that there existed grounds for reasonable suspicion against him and a danger that he might abscond or reoffend .", "On DATE this decision was upheld by ORG .", "Mr B.I. was released on bail on DATE .", "On DATE Mr B.I. was charged under LAW ( see paragraph DATE below ) with causing PERSON death by a disproportionate reaction to an attack . On DATE he was questioned again . He stated that during the fight on CARDINAL DATE CARDINAL of the GPE men had “ almost ” stabbed him , the knife only cutting through his clothes , and that , in the general scuffle when he had tried to defend himself , he might have hit PERSON . He had not however meant to injure him badly .", "In a decision of CARDINAL DATE a prosecutor from the NORP regional public prosecutor 's office partially discontinued the criminal proceedings against Mr B.I. , dropping the initial charge under LAW of LAW of attempted murder committed in an especially cruel manner and with extreme ferocity , brought on DATE ( see paragraph CARDINAL above ) and retaining the charge under LAW of causing death by a disproportionate reaction to an attack .", "NORP In that decision , the prosecutor noted that there were CARDINAL conflicting versions of the events – the first one maintained by PERSON companions , namely that they had been attacked without provocation , and the second one maintained by Mr B.I. and his companions , namely that the GPE men had attacked them with shovels and knives immediately after their arrival at the scene . Taking into account other evidence , namely the reports of the medical examinations of Mr B.I. and his companions , which showed that they had all sustained injuries ( see paragraph QUANTITY above ) , the report of the examination of Mr B.I. 's T - shirt and jacket , showing matching knife cuts ( see paragraph CARDINAL above ) , and the medical reports establishing that some of the blood found at the scene of the fight might have been Mr B.I. 's ( see paragraphs CARDINAL - CARDINAL above ) , he concluded that the version presented by Mr B.I. and his companions was tenable and the other one not . He also relied on the testimony of PERSON , who had stated that he had seen nothing in Mr B.I. 's hands and had seen someone stab him ( see paragraph CARDINAL above ) . On the basis of this evidence , the prosecutor concluded that there had been a fight , in the course of which Mr B.I. had been injured and , acting in self - defence , had hit PERSON head only once , with a wooden bat .", "The parties disagreed as to whether this decision of the NORP regional public prosecutor 's office had been served on the applicants . The applicants alleged that they had never been formally notified of it . The Government contested this assertion . They presented a list of the documents contained in the investigation file , drawn up by the NORP regional public prosecutor 's office and mentioning a receipt signed by the second applicant when the decision was served . However , the Government said that they could not submit the receipt itself , which had been lost . They also presented a request by the prosecuting authorities , addressed to the GPE municipality , to be informed of the names and addresses of PERSON lawful heirs , with a view to serving documents on them , and the certificate containing that information , issued by the municipality .", "The applicants submitted that they had on numerous occasions visited the investigator in charge of the case to inquire about the investigation 's progress , but had not been provided with any meaningful information .", "On an unspecified date Mr B.I. entered into a plea bargain with the prosecution . He confessed to killing PERSON in a disproportionate reaction to an attack ( LAW ) and accepted a suspended sentence of DATE imprisonment . On DATE the ORG approved the agreement , finding that it “ did not run counter to the law and public morals ” , and discontinued the criminal proceedings .", "Apparently , the applicants became aware of the ORG decision of DATE in DATE , from publications in the local media .", "On DATE the first applicant requested ORG to apply for the criminal proceedings to be reopened . On DATE she was informed that this was not possible , as the DATE time - limit for the prosecuting authorities to make such an application had expired on DATE , and that her request of DATE had not been submitted far enough in advance to allow it to be duly examined and an application for reopening prepared .", "In a letter dated CARDINAL DATE the applicants ' initial representative before ORG , PERSON , informed the ORG that in DATE his car had been damaged by unknown persons , which had posed a risk to his life when he had later travelled in it . On DATE the premises of the non - governmental organisation he heads had been entered by order of the NORP municipality and numerous documents , including some connected with the present application , had been seized .", "Article CARDINAL § CARDINAL ( CARDINAL ) of LAW of DATE provides that anyone committing murder in an especially cruel manner and with extreme ferocity is liable to DATE imprisonment or life imprisonment with or without a right to parole .", "Under LAW , causing death by a disproportionate reaction to an attack is punishable by DATE imprisonment .", "The provisions of the Criminal Code relating to racially motivated offences have been summarised in the ORG 's judgment in the case of ORG v. GPE ( no . CARDINAL , § § DATE , ECHR CARDINALIX ) .", "By LAW , in force at the material time , the prosecuting authorities could in certain circumstances discontinue criminal proceedings . Pursuant to LAW , victims of crimes had to be notified of any decision to discontinue the proceedings and could appeal against the decision to the competent district or regional court .", "Article CARDINAL § CARDINAL of the Code , as worded between DATE and DATE , provided that the prosecuting authorities were not to adopt any formal decision to discontinue partially criminal proceedings in cases where the charges against the same person and in respect of the same facts were only being amended . That provision was in line with an earlier interpretative decision of ORG of ORG ( ORG decision no . CARDINAL of DATE , PERSON решение № CARDINAL от CARDINAL октомври DATE г. на ORG по т. PERSON д. № CARDINAL г. , ORG ) , which said :", "“ A charge brought at the stage of the investigation is intended to define a general , initial , “ working ” objective of the proceedings . It can be adjusted depending on the evidence gathered and examined in the course of the investigation . In that sense the charge ... is unstable , varying in accordance with the operative developments . The different wording of the charge in respect of the same act and the adjustment of its legal qualification prior to indictment follow the dynamics of the investigation process and any changes in the circumstances resulting from the evidence gathered . ”", "ORG went on to conclude that", "“ [ w]here , in the course of the pre - trial proceedings , the factual basis of the charges changes substantially and new charges are brought against the accused , requiring a more severe , the same or a more lenient punishment ... , the prosecutor is to amend the charges and does not have to adopt a decision discontinuing the criminal proceedings in respect of the initial charges . ”", "Until DATE Article CARDINAL § QUANTITY of the Code of Criminal Procedure entitled victims of crime to participate in all stages of the criminal proceedings as civil parties . Civil parties were entitled to exercise their procedural rights to the extent necessary for the substantiation of their civil claim .", "Following an amendment to LAW DATE , the participation of victims as civil parties was restricted to the trial stage of the criminal proceedings . That provision remained in force until DATE .", "Plea bargaining was provided for in Articles MONEY of LAW . The procedure was applicable in respect of certain categories of offences .", "NORP The prosecution and the defence could enter into a plea agreement after the investigation had been concluded . The parties had to agree , inter alia , whether an offence had been committed and on the type and severity of the punishment . The prosecutor would then submit the agreement to the competent district or regional court which would examine it in the presence of the prosecutor , the accused and the latter 's counsel . If satisfied that the agreement did not run counter to law or morality , the court would adopt a decision approving the agreement and discontinuing the criminal proceedings . No appeal lay against this decision . A plea agreement approved by a competent court had the same binding force as a final conviction and sentence .", "Prior to DATE the participation of victims in plea bargaining was obligatory and they had to consent to the plea agreement . Following amendments to the Code in DATE , in cases where the agreement had been made at the pre - trial stage of the proceedings victims ' participation and consent were no longer obligatory ; however , the court examining the agreement could on its own initiative decide to hear their representations .", "On the contrary , if a plea agreement had been reached at the trial stage of the proceedings , all parties had to consent to it , including the victims , if they had joined the proceedings as civil parties or private prosecutors .", "Article CARDINAL of the Code provided that criminal proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator . The offences referred to in paragraphs CARDINAL above are publicly prosecutable ones ." ]

[ "2" ]

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[ "14" ]

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[ "The applicant was born in DATE and lives in LOC .", "The applicant worked in the ORG administration of the school system . He occupied a leading post that fell within the purview of LAW No . LAW Coll . ( “ the LAW ” ) which defined some supplementary requirements for holding certain posts in public administration .", "In DATE the applicant ’s employer requested , pursuant to section CARDINAL of LAW , that ORG of the NORP and GPE ( “ the ORG ” ) issue a clearance ( lustračné osvedčenie ) concerning the applicant under section CARDINAL of LAW ( see below ) .", "On DATE ORG issued a negative security clearance . It stated that it was based on section CARDINAL ( CARDINAL ) of LAW and certified that the applicant “ [ was ] registered as a person referred to in LAW b ) of LAW ” . This provision defined CARDINAL categories of collaborators of the [ former ] ORG ( ORG bezpečnosť , “ StB ” ) who , if registered as such in the ORG ’s files in the period from DATE to CARDINAL DATE , were disqualified from holding certain posts in public administration . The document was served on the applicant on DATE .", "NORP The applicant resigned from his post . In DATE he left his employer completely , having felt compelled to do so . Since then the applicant has been commuting to work in a location remote from his place of residence .", "The information about who was registered in the ORG files in the categories referred to in section CARDINAL ( CARDINAL ) ( b ) of LAW has been made public in newspapers and , unofficially as well as officially , on the internet .", "On CARDINAL DATE the applicant lodged an action against ORG for protection of his good name and reputation under LAW seq . of LAW with the GPE ( GPE ( PERSON ) . He claimed that his registration as a collaborator of the ORG was wrongful and unjustified . He requested that the ORG issue a new clearance to the effect that he was not registered as a person referred to in DATE ( CARDINAL ) ( b ) of LAW .", "ORG subsequently sent a copy of the action to the defendant , invited the applicant to pay the court fee and listed a hearing for DATE .", "On DATE the applicant filed a request under LAW and CARDINAL of LAW for a transfer of his action to ORG ( PERSON súd ) . On DATE he demanded that the hearing scheduled for DATE be cancelled in view of his request for transfer of the action .", "On DATE , after the applicant had paid the court fee , ORG sent a copy of the request of DATE to the defendant for comments . On DATE the latter objected to the transfer .", "On DATE ORG submitted the case file to ORG ( Najvyšší súd ) of the NORP and GPE for a determination as to which court was to entertain the action at first instance .", "On DATE ORG ruled that the action fell to be determined by ORG . The case file was sent to it on CARDINAL DATE .", "On DATE ORG requested the defendant ’s observations in reply . In a letter of CARDINAL DATE the defendant replied that it had already filed its observations with ORG . On DATE ORG transferred those observations to ORG .", "On DATE ORG invited the applicant to specify which public body possessed the powers conferred by LAW in the area of security screening after the dissolution of the NORP and GPE on DATE . On DATE the applicant responded that the body currently responsible for security screening in GPE was ORG of GPE ( “ the NORP Ministry ” ) . It was thus understood that the action was directed against the said Ministry .", "On DATE and DATE ORG invited the applicant to submit within DATE second copies of the action and of the submissions of CARDINAL DATE .", "On DATE ORG invited ORG to present its observations in reply to the action . In its response of DATE the NORP primarily contested its standing to be sued in the case , arguing that it had not assumed the authority of ORG under LAW . Relying on Resolution no . CARDINAL of ORG DATE ( “ Resolution no . CARDINAL ” ) , the defendant asserted that the body which had taken over those powers under LAW was ORG ( PERSON informačná služba – “ the SIS ” ) . ORG also maintained that under the said resolution the Prime Minister of GPE was entrusted with the task of preparing jointly with the Minister of Justice of GPE a petition to ORG ( Ústavný súd ) for a review of the constitutionality of LAW .", "On DATE the applicant amended his submissions of CARDINAL DATE on the ground that ORG powers under LAW had devolved to the ORG , against which the action was accordingly directed .", "On DATE ORG invited the ORG to present its observations in reply . The defendant submitted the observations on DATE and on DATE ORG sent their copy to the applicant .", "On DATE ORG held a hearing at which the applicant modified the subjectmatter of the action in that he sought a judicial ruling declaring that his registration as a person referred to in LAW b ) of LAW was wrongful . The applicant further informed the court that he wished to call ex - StB agents P. , PERSON and PERSON as witnesses . He submitted the addresses of PERSON and PERSON and stated that he would submit the address of PERSON later . The defendant consented to the modification of the action and maintained that the relevant ex - StB documents were held in the archives of ORG . The hearing was adjourned with a view to obtaining these documents .", "On DATE ORG sent a letter to ORG inviting it to submit copies of the relevant ex - StB documents . The letter was returned unanswered as “ undelivered ” .", "On DATE , on the basis of a treaty of CARDINAL DATE between GPE and GPE on mutual legal assistance ( “ the mutual legal assistance treaty of DATE ” ) , ORG sent a letter rogatory to ORG requesting that it obtain from ORG of GPE ( “ the NORP Ministry ” ) copies of all ex - StB documents in its possession concerning the applicant .", "On DATE ORG advised ORG that the request had been submitted to ORG , which would reply directly to ORG .", "In a letter of CARDINAL DATE ORG informed ORG that all ex - StB documents concerning GPE had been transmitted to ORG and that , accordingly , the documents concerning the applicant had to be searched for there .", "On DATE ORG requested that ORG submit within DATE copies of all ex - StB documents concerning the applicant .", "The request of CARDINAL DATE was answered on DATE by the ORG to the effect that , apart from a database in which the applicant was listed as an ex - StB agent , there were no ex - StB materials concerning him in its possession . The defendant relied on a treaty between the governments of GPE and GPE on joint usage of information and archives generated by ministries of the interior in the area of internal order and security which had been signed on DATE and promulgated in LAW under No . CARDINAL ( “ the treaty of DATE ” ) . The ORG submitted that under this treaty the relevant documents were with ORG . The ORG again contested its standing to be sued in the case , arguing that the powers in the area of security screening which had been conferred on it under ORG no . CARDINAL were limited to DATE . As this period had already expired , there was presently no official body entrusted with these powers in GPE .", "On DATE ORG reiterated its request to ORG for copies of ex - StB documents concerning the applicant . On DATE it also addressed a request to ORG of GPE for information as to which authority was currently vested with the powers under LAW as regards security screening . As no answer had been received , ORG repeated the requests in DATE .", "On CARDINAL DATE ORG informed ORG that the question of legal succession in respect of the powers under LAW was not currently addressed in the existing legislation . However , by analogy , the powers of ORG had been assumed by ORG .", "In a letter of CARDINAL DATE the NORP Ministry informed ORG that there were no documents concerning the applicant in its archives . Considering the relevant part of the letter of the ORG of CARDINAL DATE to be confused , it relied on the LAW to the treaty of DATE and maintained that the documents searched for were stored in GPE .", "On DATE ORG ordered that the ORG deliver within DATE copies of all ex - StB documents concerning the applicant which were in its possession . The SIS complied on DATE and proposed that the proceedings be discontinued on the grounds of its lack of standing to be sued . The ORG also pointed out that the documents submitted were top secret and that the applicable confidentiality rules had to be observed .", "Another hearing was held on DATE . The applicant extended the action by directing it also against the Government of GPE , as a collective constitutional body with distinct legal personality . The hearing was adjourned in order for the applicant to resubmit the extended action in writing . He did so on DATE .", "On DATE the ORG filed its observations in reply to the extended action .", "At an unspecified later point the Vice - President of ORG exercised his power under section CARDINAL § CARDINAL of ORG of DATE and assigned the case to another ORG of that court on the ground that the original ORG had an excessive workload .", "NORP On DATE ORG allowed the extension of the action against ORG . On DATE it invited the applicant to disclose the address of witness M.", "In a written submission of DATE ORG asserted that the Government was not the legal successor of ORG and possessed no powers under LAW . It was thus not the correct defendant to the action .", "On DATE the applicant informed ORG that he had no information as to the address of PERSON and requested that the court itself make an inquiry as to the address .", "The hearing called for DATE had to be adjourned as the representatives of the applicant and the Government did not appear .", "On DATE ORG held another hearing . It made a formal ruling allowing the modification of the subject matter of the action , as sought by the applicant on DATE . ORG then heard the parties and examined the ORG file concerning the applicant .", "On DATE the SIS informed ORG of M. ’s address .", "On DATE the applicant submitted a pleading in which he commented on the documentary evidence submitted by the defendant .", "By letters of DATE , DATE and DATE ORG requested that ORG discharge witnesses PERSON , PERSON and PERSON from the obligation of confidentiality in respect of the subject matter of the proceedings . ORG agreed on DATE .", "On DATE ORG held another hearing at which witnesses PERSON , PERSON and PERSON failed to appear . Witness PERSON apologised for his absence and submitted in writing that he had “ no recollection of the applicant and no knowledge that the StB would have ever had any file in respect of him ” .", "The applicant admitted having met PERSON and PERSON several times before and after his journeys abroad when they had , respectively , instructed him on how to behave abroad and asked for information about his stay . Their discussions were of a general nature and included the situation at the applicant ’s workplace . The applicant also admitted having obtained and provided to PERSON a list of students who had been preparing for studies abroad , information he considered public in any case . He had never had the impression that he was considered a collaborator and had never been asked to keep his contacts with PERSON and PERSON secret .", "The hearing was adjourned until DATE with a view to calling the witnesses again .", "DATE . At the hearing of CARDINAL DATE ORG heard PERSON and PERSON confirmed that he had been in charge of recruiting the applicant as a collaborator . However , if there had ever been any act of formal undertaking to cooperate ( viazací akt ) on the part of the applicant , PERSON had not been present at it . He had received the impression that the applicant had not been interested in meeting him . Their conversation had concerned ordinary affairs and the applicant had not submitted any documents . The reports mentioned in the StB file had been drawn up by PERSON on the basis of his conversation with the applicant . According to PERSON , the applicant had never given any information that was capable of harming any specific person . There had been norms as to how many new agents were to be recruited . As a result , new “ recruitments ” had frequently been only formal , with the new “ agents ” conceivably having no knowledge of them .", "Witness PERSON claimed to know the applicant only by face . He did not remember having ever met him and denied having ever received any information or documents from him . The applicant ’s StB file was partially created by PERSON In the given period the situation in the ORG had been such that , in order to meet their statistical objectives , it was possible for officers to run a file in respect of an “ agent ” by filing information from their own sources and declaring them as having been obtained from that “ agent ” .", "The witness P. did not appear and the court observed that it had been impossible to deliver the summons to him . In response to the court ’s request , the parties stated that they intended to adduce no further evidence apart from hearing PERSON and examining the relevant Internal Guideline of the Federal Ministry of DATE ( “ the DATE guideline ” ) concerning secret collaboration .", "On DATE ORG ordered that the summons for the forthcoming hearing be served on P. by the police . No service was however actually effected .", "At a hearing held on DATE the ORG submitted the DATE guideline . As this document was classified , the applicant had no access to it . Apart from proposing to hear P. the parties adduced no other evidence .", "ORG listed a hearing for DATE and ordered that the summons be served on P. by the police . At this hearing PERSON finally appeared and gave evidence . He acknowledged that he had been the chief district police officer during the relevant period and that he remembered the applicant . However , he could not recollect clearly the details of their collaboration . PERSON pointed out that the ORG ’s organisation had been very strict and considered that , if something had been recorded , it must have been true . In contradiction to PERSON considered that it was not possible that the applicant had not known that he was acting for the StB as an “ agent ” .", "The applicant submitted that the majority of his foreign travel had taken place before DATE , when he was allegedly acquired as an agent . The contention that he had agreed to collaborate in return for the ORG ’s support in connection with travel was therefore unfounded .", "On DATE , following another hearing held on DATE , ORG dismissed the action .", "First of all , ORG found that the Government of GPE had no standing to be sued in the proceedings and that the correct entity to defend the action was the ORG . ORG considered that the crucial criterion for establishing standing was which entity de facto possessed the ex - StB archives .", "On the basis of the StB file pertaining to the applicant , ORG established that the applicant had been listed since DATE as a “ candidate for secret collaboration ” and as an “ agent ” of the ORG since DATE . For tactical reasons it had been decided not to have the applicant sign a formal undertaking to collaborate . This was permitted under the DATE guideline . The applicant ’s StB file contained only an index indicating which reports and documents he had provided . There was a note that the reports and documents themselves had been officially destroyed in DATE when , according to the file , cooperation with the applicant had been terminated .", "ORG also noted that the applicant had on CARDINAL occasions travelled abroad to western LOC at the relevant time and that it was then usual for a person to be interviewed by the ORG prior to and after such travel . The applicant himself acknowledged having met the StB in connection with his travels . He also admitted having been in contact with PERSON and having unwillingly met with them . However he categorically denied ever having given them any intelligence information .", "The other witness evidence was contradictory . ORG based its finding on the testimony of P. , holding it to be credible and consistent with the case file , and did not accept the testimony of PERSON , observing that it contradicted the applicant ’s own submissions . In the light of all the information in its possession , including what was known of the applicant ’s intellectual capacity , ORG found that he must have known that he had been meeting ORG agents and that their contact had actually amounted to formal collaboration . In so far as the applicant had disputed such a conclusion and asserted that his registration in the ORG files had been unjustified , he had failed to prove his case ; in particular , he had failed to show that the registration was contrary to the applicable rules .", "On DATE the applicant lodged an appeal with ORG . He challenged the credibility of witness P. , objected that he had had no access to the DATE guideline , which was a crucial piece of evidence , and argued that ORG had erred in its factual assessment of the case .", "On DATE the ORG filed its observations in reply to the appeal . On DATE ORG transmitted the case file to ORG for a decision on the appeal .", "On DATE , following a hearing held on DATE , ORG upheld ORG judgment .", "It found that ORG had adequately established the facts of the case and found no logical or other errors in ORG assessment of the evidence .", "ORG held that the fact that the applicant was registered in the StB files as a person referred to in section CARDINAL ( CARDINAL ) ( b ) of LAW did not by any means constitute evidence that he had been a conscious collaborator of the ORG", "In line with established judicial practice , ORG pointed out that the procedure concerning the issuance of a security clearance under LAW could not amount to a violation of an individual ’s good name and reputation . Only unjustified registration in the StB files would amount to such a violation .", "ORG considered that it was crucial for the applicant to prove that his registration had been contrary to the rules applicable at the material time and concurred with ORG conclusion that the applicant had failed to do so . No appeal lay against this decision .", "Article CARDINAL § CARDINAL provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .", "Pursuant to LAW , as applicable at the relevant time , courts were to work together with the parties to ensure that contentious facts were established reliably and that the parties’ rights were protected speedily and effectively .", "Under LAW , once proceedings commence , the court is to act without further procedural motions so that the matter is examined and determined as expeditiously as possible .", "Under LAW , a hearing is to be prepared by the President of the Chamber so that the matter can be decided , usually ( spravidla ) in a single session .", "Article CARDINAL § CARDINAL provides that the parties to the proceedings are to adduce evidence in support of their assertions . The court may also take and examine ( vykonať ) evidence which has not been adduced [ by the parties ] . The court decides on the facts as established on the basis of the evidence taken and examined .", "The mechanism of legal protection of personal integrity under LAW seq . of LAW has primarily found its practical application in defamation proceedings . Certain judicial decisions ( see the judgments of ORG file nos . CARDINALCo CARDINAL and ORG CARDINAL/CARDINAL ) and academic views ( see PERSON , PERSON , GPE , a.s . , DATE , p. CARDINAL and J : PERSON ; PERSON právo na ORG , ORG , DATE , p. CARDINAL ) seem to suggest that , in actions of that type , the burden of proving that an interference with the plaintiff ’s good name and reputation was justified lies with the defendant .", "Under LAW , natural persons have the right to protection of their personality rights ( personal integrity ) , in particular of their life and health , civil and human dignity , privacy , name and personal characteristics .", "Under LAW , natural persons have the right to request that unjustified infringement of their personality rights be ended and that the consequences of such infringement be eliminated . They also have the right to appropriate just satisfaction .", "Article CARDINAL § CARDINAL provides that , in cases where the satisfaction obtained under LAW is insufficient , in particular because the injured party ’s dignity or social standing has been considerably diminished , the injured party is also entitled to financial compensation for non - pecuniary damage .", "The Act laid down supplementary requirements for the holding of certain important posts and functions in ORG organs and institutions which were filled by election , designation or appointment . The LAW prevented persons mentioned in section CARDINAL ( CARDINAL ) under letters ( a ) through ( h ) from exercising the functions enumerated in section CARDINAL .", "DATE . Under LAW ( CARDINAL ) ( b ) , the functions covered by the LAW could be exercised only by persons who were not registered in the [ former ] StB files in the period between DATE and CARDINAL DATE as “ resident ” , “ agent ” , “ holder of a conferred flat ” , “ holder of a conspiratorial flat ” , “ informer ” or “ ideological collaborator of the StB ” .", "Under LAW ( CARDINAL ) ( c ) , the functions covered by the LAW could only be exercised by persons who had not been conscious collaborators of the StB in the above period . On DATE ORG of the NORP and GPE ( Ústavný súd Českej a PERSON ) found that this condition was in contradiction with LAW základných práv a slobôd ) and with LAW . Accordingly , this condition was repealed as from DATE .", "The fact that a person met the requirements of section CARDINAL of the Act was to be proven by means of a security clearance issued by ORG under section CARDINAL of the LAW . Under paragraph CARDINAL of that section the security clearance was to be delivered into the hands of the person concerned alone .", "Under LAW ( CARDINAL ) , if a person does not meet the requirements of LAW , the employer is to terminate that person ’s employment by notice within DATE unless the employment terminates earlier by agreement or otherwise or the person concerned is transferred to another post outside the scope of QUANTITY .", "Under section CARDINAL ( CARDINAL ) , such termination of employment can be challenged before the courts within DATE from the date on which the employment purportedly ended .", "Section CARDINAL provides that any disclosure of the clearance or of the information contained in it is prohibited , save with the consent of the person concerned .", "The temporal application of the LAW is governed by its section CARDINAL , under which the LAW ceased to have effect in GPE on DATE .", "It has been established by judicial doctrine and the relevant case law that persons who consider themselves adversely affected by their registration in the former StB files can seek redress before civil courts by means of an action for protection of their personal integrity under LAW seq . of LAW .", "DATE . Since DATE the keeping of files generated by the StB in respect of its collaborators , purported or real , has been regulated by the Act on the Disclosure of Documents regarding ORG in DATE and on Founding ORG ( LAW ) ( PERSON o sprístupnení dokumentov o činnosti bezpečnostných zložiek štátu DATE a o založení GPE pamäti národa ) .", "The Act regulates ( a ) the establishment of ORG ; ( b ) the recording , collecting , disclosing , publishing , managing and use of documents created by defined security forces in the period from DATE to DATE in respect of crimes committed against persons of NORP nationality or citizenship ; ( c ) the manner of detecting and prosecuting such crimes ; ( d ) the protection of the personal data of persecuted persons ; and ( e ) activity in the area of public education .", "“ CARDINAL . The ORG welcomes the opening of secret service files for public examination in some former communist totalitarian countries . It advises all countries concerned to enable the persons affected to examine , upon their request , the files kept on them by the former secret services .", "...", "Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph CARDINAL , but who nevertheless held high positions in the former totalitarian communist regimes and supported them , the ORG notes that some states have found it necessary to introduce administrative measures , such as lustration or decommunisation laws . The aim of these measures is to exclude persons from exercising governmental power if they can not be trusted to exercise it in compliance with democratic principles , as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now .", "The ORG stresses that , in general , these measures can be compatible with a democratic state under the rule of law if several criteria are met . Firstly , guilt , being individual , rather than collective , must be proven in each individual case - this emphasises the need for an individual , and not collective , application of lustration laws . Secondly , the right of defence , the presumption of innocence until proven guilty , and the right to appeal to a court of law must be guaranteed . Revenge may never be a goal of such measures , nor should political or social misuse of the resulting lustration process be allowed . The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy .", "The ORG thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law , and focus on threats to fundamental human rights and the democratisation process . Please see the \" Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law \" as a reference text . ”" ]

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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 Court by PERSON , a lawyer pracitisig in GPE . The respondent Government were represented by their Agent , Mr PERSON , Director in ORG .", "The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .", "On DATE , the applicant had an accident in the street and suffered injuries to her head and right shoulder . An insurance company granted her a DATE allowance ( päiväraha , dagpenning ) for PERCENT reduction of her working capacity until DATE and an accident pension ( tapaturmaeläke , olycksfallspension ) for PERCENT reduction of her working capacity from DATE to CARDINAL DATE .", "By its decision of DATE the insurance company granted the applicant a further accident pension for PERCENT reduction of her working capacity for DATE . As to the period DATE onwards , it considered that the injuries sustained in the accident reduced the applicant ’s working capacity by PERCENT . The company considered that other medical problems rendering the applicant incapable of working had not been caused by the said accident . It also rejected the application for disability compensation ( haittaraha , menersättning ) as it considered that the accident had not caused a permanent disability of the minimum level required for compensation .", "The applicant appealed to ORG ( tapaturmalautakunta , olycksfallsnämnden ) , which received the insurance company ’s observations and communicated them to the applicant . She submitted a further written medical opinion of DATE .", "On DATE ORG rejected the appeal , giving the following reasons :", "“ Section CARDINALa ( CARDINAL ) of LAW ( tapaturmavakuutuslaki , lagen om olycksfallsförsäkring , DATE ) provides that disability compensation shall be paid to an employee , who is not entitled to a DATE allowance and who as a result of an accident has suffered a permanent general disability due to injury or illness . A general disability is to be considered as permanent when the injury or the state of illness will not improve according to medical probability .", "According to ... section CARDINAL ( CARDINAL ) , the lowest level CARDINAL disability is applicable only to eye and finger injury and illness . As to other kinds of injury , disabilities that do not attain level CARDINAL can not be assessed due to their minor nature .", "According to the medical information on the applicant ’s injuries presented in the case , she is not suffering from a permanent general disability attaining level CARDINAL .", "According to the information presented in the case , the scratches on the applicant ’s forehead , the strain in her right shoulder , forearm and shoulder joint reduced working capacity by PERCENT after DATE . Thus , the applicant is not entitled to an accident pension after that date . As for the injuries sustained in the accident , she is to be considered to be fit to work as a typist and a salesperson in her own company as from DATE .", "The applicant ’s incapacity to work and the medical expenses from DATE have been caused by a chronic symptom complex , depression , insomnia and scoliosis , which do not relate to the accident and which do not give rise to an entitlement to accident compensation .", "... ”", "The applicant appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) , claiming , inter alia , an accident pension from DATE . She underlined , referring to several medical reports , that the chronic symptom complex had been caused by the accident . She adduced further medical evidence and filed further submissions on DATE , DATE , DATE , DATE and DATE .", "ORG received the insurance company ’s observations , which were communicated to the applicant for comment .", "According to the applicant PERSON , on DATE , sent a written medical opinion directly to ORG upon her request . In DATE she found out by chance that the opinion submitted to the court had included the diagnosis PERSON . The copy , which PERSON sent to the applicant ’s representative , did not contain that diagnosis .", "In its decision of CARDINAL DATE ORG noted that the applicant had submitted photographs , an article in a periodical and several fresh written medical opinions as evidence . The court upheld ORG decision , giving the following reasons :", "“ The reasons are mentioned in ORG decision . The submitted new evidence does not give rise to different conclusions . ORG finds , having regard to the evidence , that the displacement of the shoulder blade did not result from the accident and therefore it does not give rise to an entitlement to compensation based on LAW . ”", "The applicant sought leave to appeal from ORG , which received observations from ORG and observations in reply from the insurance company and the applicant . At this point the applicant requested that ORG hold an oral hearing with a view to hearing her physician PERSON She also wanted to be heard in person . The applicant filed several further submissions , on DATE , CARDINAL DATE and DATE .", "By its decision of DATE ORG refused leave to appeal .", "Subsequently , apparently in DATE , the applicant lodged an application for an annulment , inter alia , on the strength of evidence that had not been at the courts’ disposal during the previous proceedings . She requested on oral hearing with a view to hearing medical doctors as witnesses . She also wanted to be heard in person . By its decision of CARDINAL DATE ORG transferred the application to ORG .", "By its decision of DATE ORG , refusing the request for an oral hearing as manifestly unnecessary having regard to the character of extraordinary appeal proceedings , rejected the application for an annulment as it considered that there were no grounds for a re - examination of the case . ORG reasoned , inter alia :", "“ ... the mere fact that the treating doctors and ORG have reached different conclusions in their assessments of the causality between the accident and the [ applicant ’s ] health problems does not mean that ORG decision was based on incorrect or insufficient information or that it was contrary to the law , and that the decision should be annulled or that it would prevent [ this court from ] examining the case on the documents . ”", "The applicant sought leave to appeal , maintaining that she had the right to an oral hearing . On DATE ORG refused leave to appeal .", "Section CARDINAL ( CARDINAL ) of the then LAW ( Suomen hallitusmuoto , ORG ; CARDINAL ) provided that a decision must be reasoned . A new similar provision can be found in section CARDINAL ( CARDINAL ) of LAW ( NORP perustuslaki , PERSON grundlag ; GPE ) .", "At the relevant time chapter CARDINAL , section CARDINAL ( CARDINAL/CARDINAL ) of LAW ( oikeudenkäymiskaari , rättegångsbalken ) provided that a judgment must be reasoned , indicating the facts and the legal argumentation on which it was based and the grounds which have led the court to hold a disputed issue established or unsubstantiated .", "Section CARDINAL of the then LAW ( laki vakuutusoikeudesta , lagen om försäkringsdomstolen ; CARDINAL ) provided that proceedings in ORG were written . When there were exceptional reasons , ORG could however decide to hold an oral hearing . It also provided that the provisions concerning proceedings in general courts were , mutatis mutandis , applied to those before ORG .", "Section CARDINAL of the Decree on ORG ( asetus tapaturmalautakunnasta , förordningen om olycksfallsnämnden ; CARDINAL/CARDINAL ) provides that ORG functions as the first appellate body in matters concerning obligatory accident insurance .", "Section CARDINAL of LAW ( tapaturmavakuutuslaki , lag om olycksfallsförsäkring ; DATE ) provides that appellate bodies in accident insurance matters are ORG , ORG and ORG .", "On ORG there are a full - time president , CARDINAL vice - presidents and CARDINAL lawyer and medical doctor members as well as CARDINAL members representing labour market organizations . They all bear the responsibility of a judge . The president , the vice - presidents and the lawyer members must be qualified to sit as a judge and they must have a good knowledge of accident insurance . The medical doctor members must be registered and have a good knowledge of insurance medicine . All the members and their personal substitutes were at the relevant time appointed by ORG for a fixed term of DATE . The labour market members were appointed on a proposal by the ORG and GPE organizations ." ]

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[ "NORP The applicant is a NORP national who was born in DATE and is currently in GPE .", "CARDINAL .", "On DATE the applicant arrived in GPE and applied for asylum and a residence permit . During her interviews before ORG ( Migrationsverket ) she claimed that her husband had been taken away from their home by CARDINAL men on DATE and had been found dead DATE by GPE . On DATE CARDINAL men dressed in civilian clothes had broken into her home and had cut her with a knife . She had recognised CARDINAL of her assailants as X. , a member of ORG and her husband ’s business partner . She had been hospitalised and , when she had returned home , she had discovered that all her husband ’s documents and money had disappeared . On DATE CARDINAL men had again broken into her home and had abducted her . They had raped her and forced her to sign a document without being allowed to see the content of the document . She had managed to escape DATE . Even though she had reported the events to the police and identified X. , the police investigation had come to nothing . Moreover , she alleged that neighbours had thrown stones at her house and had asked her maid threatening questions about her daily routines . Finally , on DATE , her house had burnt down following an explosion . She did not know why all of this had happened to her but she suspected that it might have been related to her husband ’s political involvement with the ORG ( ORG pour la Défense de la Démocratie ) or the ORG ( Forces Nationales pour la ORG ) because she had heard one of her assailants mention this in passing , or because X. had wanted access to her husband ’s bank account for the business .", "On DATE ORG rejected the application . It first noted that the applicant had not proved her identity but that there were no indications in the case that she was from a country other than GPE . It then considered that the applicant ’s story lacked credibility as she had given remarkably vague information about the events and had shown a lack of knowledge of why she and her husband had been the victims of the alleged attacks . Moreover , although it did not question the scars on her body , the ORG observed that the applicant had not been able to substantiate that they were the result of the violence she had described . Furthermore , she had failed to show that her husband had died as she alleged , that he had been involved either with the ORG or the ORG , or that he had had a business with X. and a bank account . In this respect , the ORG observed that the applicant knew nothing at all about her husband ’s alleged political involvement or whether he had actually been active for the ORG or the ORG . ORG also noted that the applicant had claimed that X. had wanted to obtain access to her husband ’s bank account while at the same time stating that X. had continued to run the business after her husband ’s death . Hence , in the ORG ’s view , X. already had access to the bank account relating to the business , for which reason the applicant ’s statement in this respect did not ring true . In any event , ORG considered that the QUANTITY attacks of which the applicant claimed to have been the victim were criminal acts and for the PERSON authorities to deal with . The circumstance that the authorities had not acted upon her report due to lack of evidence did not imply that they were unwilling or unable to help and protect her . In this respect , it stressed that the applicant had not in any way been able to show that the alleged events had been politically motivated . Thus , it concluded that the applicant was not a refugee or otherwise in need of protection in GPE . Moreover , it considered that there were no other special reasons to grant her exceptional leave to remain in GPE .", "The applicant appealed to ORG ( Migrationsdomstolen ) relying on the same grounds as before ORG and adding the following . Her husband had been an important person within “ the party ” and , before the elections in DATE , he had had an important role in mobilising people . In connection with the election , he had left the party as he had felt that he could not support activities which included eliminating NORP . Since he knew the party ’s secrets , he had been seen as a threat and therefore eliminated . No one had investigated his death even though she had sought help from various authorities and it was not possible for her to obtain proof that he had been killed . The applicant further claimed that she believed that she had been attacked in DATE because her assailants had thought that her husband had told her “ party secrets ” and she had therefore become a threat . Also , her neighbours had thrown stones at her home and harassed her because she was NORP and they were NORP and wanted her to leave . Some of her employees had seen them throw stones and they had also asked her employees questions about her daily routines .", "The applicant further submitted a copy of a search warrant ( ORG ) which stated that the applicant and another person were sought by the judicial police for an attack on the interior security of the ORG ( Atteinte à la Sûreté Intérieure de l’Etat ) . It was dated DATE and issued by an officer at the judicial police station in ORG , of ORG and ORG . The applicant claimed that a NORP man , with whom she had become acquainted in GPE and who had travelled to GPE , had given it to her . He in turn had obtained it from the girl who took care of her CARDINAL children in GPE and whom he had met when he had been there . The applicant also submitted a copy of a hospital bill , dated DATE and addressed to the applicant . It stated that she had arrived at the hospital on DATE and left on DATE and that she had been treated in the surgery section of the “ PERSON Regent PERSON in GPE . It also contained the details of the bill and the total amount due .", "On DATE ORG rejected the appeal . It noted that the copy of the document called “ Avis de Recherche ” was of poor quality and that her account of how she had come by it was not credible . Moreover , the court considered that the alleged threats against her were vague and that she had not shown that she would risk persecution upon return to her home country . For the rest , it shared the ORG ’s reasoning and conclusion that the applicant was not in need of protection in GPE and that there were no special reasons to grant her leave to remain in GPE .", "Upon further appeal , ORG ( Migrationsöverdomstolen ) refused leave to appeal on DATE .", "On DATE the ORG rejected a request from the applicant for reconsideration of her case . ORG found that she had invoked no new reasons for her request and that the preparation for the enforcement of her deportation order should continue .", "On DATE , upon request by the applicant , the ORG decided to indicate to ORG under Rule CARDINAL of ORG a suspension of the applicant ’s deportation to GPE until further notice . Moreover , it invited the applicant to provide some more information surrounding her husband ’s activities and his death as well as her kidnapping and , if possible , to submit some evidence in support of these events . In addition , the ORG requested her to furnish some concrete evidence that she was sought by the PERSON authorities , since the copy of the alleged search warrant was of poor quality .", "By letter received by ORG DATE the applicant submitted a death certificate for her husband which stated that he had died on DATE in GPE as a result of “ blows and injuries ” ( coups et blessures ) . She further added , inter alia , the following . Her husband was NORP and had been a businessman and a member of the CNDD - FDD ( ORG pour la Défense de la ORG ) . He had been responsible for mobilising and recruiting people to the party . During the elections in DATE , he had decided to leave the party as he had discovered that there was a hidden agenda of ethnicity , arbitrary arrests and assassinations . Moreover he had been asked , together with colleagues , to organise the assassination of NORP and certain NORP in opposition , which he had refused . He had instead joined the ORG . However , the CNDD - ORG had won the elections and had then started to persecute and eliminate all persons who had not supported them , including the applicant ’s husband , as he knew its secrets and even held certain party documents . Hence , on DATE , CARDINAL persons had come to their home , QUANTITY of whom wore a formal police uniform . They had shown her husband a warrant for his arrest and he had had to go with them . She had not been allowed to accompany them but had gone to the police station to ask for him and also to various detention centres in GPE . She had not managed to obtain any information but DATE he had been found dead by GPE . DATE after the funeral , the applicant had gone to the police station to complain , since CARDINAL of the CARDINAL men had been wearing a police uniform . She had been told that an investigation would be carried out but nothing had been done . Later , when she had insisted , she had been told to stop or she would meet the same fate as her husband , as would the entire family .", "As to the attacks on her , the applicant stated that she had first been attacked in her home on DATE by CARDINAL persons in civilian clothes . She had heard them enter by force through the main door and she had tried to escape with her children . She had recognised CARDINAL of them as being X. They had caught her and stabbed her in the chest with a knife and she had lost consciousness . She had regained consciousness at the hospital , where she had then spent DATE recovering . She had several injuries to her face and arms and had also broken her left collar bone . When she had returned home she had found the house in disorder , their valuables had been stolen and a suitcase in which her husband had kept documents had also disappeared . The applicant submitted CARDINAL photos showing the scars from her injuries , namely a scar on the right side of her chest , a scar by her left armpit , a scar on her right lower arm and a scar over her left eyebrow . She further produced a copy of a certificate dated DATE , issued by QUANTITY GPE , head of psychosocial care at FAC in GPE . It stated that the centre was specialised in helping victims of sexual violence and that the applicant had been treated there and had received medical , psychological and social care . The author of the certificate had met with her on DATE at the FAC and heard her account of having been the victim of sexual violence and other forms of torture .", "NORP The applicant further added that the second attack against her had occurred on DATE because the party had wanted to eliminate her as she knew some of their secrets through her husband . Thus , she had been kidnapped from her home by QUANTITY persons and taken to an unknown place where she had been locked up . She had been guarded by men who had raped her one after the other . She had been told that she would be interrogated and then killed . However , TIME the guard outside her room had left and she had taken the opportunity to jump out of the window and escape . She had broken her front teeth when she had jumped . As she had managed to escape the assassination attempt , someone had come during TIME CARDINAL DATE and had set fire to her house . She had been asleep , but had woken up and she and her children had managed to escape from the fire . All their belongings had been destroyed except for the applicant ’s handbag which she had managed to take with her . She and her children had then stayed with a friend of hers and they had received clothes and food from kind people around them .", "The applicant ended her account to the ORG by claiming that the party ( CNDD - ORG ) remained in power and thus was still looking to eliminate her in order to erase all evidence of their atrocities .", "The basic provisions applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) .", "LAW , of the CARDINAL Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) .", "NORP Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) to allow him or her to remain in GPE ( LAW , section DATE CARDINAL Act ) . During this assessment , special consideration should be given to , inter alia , the alien ’s health status . In the preparatory works to this provision ( Government Bill CARDINAL , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien ’s home country could constitute a reason for the grant of a residence permit .", "As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .", "Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .", "NORP Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) .", "GPE is a constitutional republic with an elected government and a population of CARDINAL . PERCENT of the population are of NORP ethnic origin , PERCENT of the remaining population are NORP and PERCENT are GPE .", "NORP The political landscape of GPE has been dominated in DATE by the civil war and a long peace process and move to democracy . The country has a multi - party system where the parties are usually based on ethnic background . Parties of relevance to the present case are :", "- Conseil National pour la Défense de la Démocratie ( ORG ) ; it is a smaller faction of the former main NORP rebel group . It is now a political party led by PERSON . At the legislative elections in DATE , the party won PERCENT of the votes and CARDINAL out of CARDINAL seats in the ORG .", "- Conseil National pour la Défense de la Démocratie – Forces pour la Défense de la Démocratie ( CNDD - ORG ) ; it is the largest faction of the former main NORP rebel group . The ORG was the political wing of the organisation , while the ORG was the military wing . The ORG - FDD split from DATE . In DATE the group registered as a legal political party , led by PERSON . At the legislative elections in DATE the party won CARDINAL PERCENT of the votes and CARDINAL out of CARDINAL seats in the ORG and PERSON was elected President .", "- Forces Nationales de Libération ( ORG ; formerly ORG pour la ORG du PERSON or “ LOC ” ) ; it is a rebel group which fought in the GPE Civil War for the NORP ethnic group . The armed wing of ORG was the ORG , led by PERSON . FAC was the last NORP rebel group to sign an agreement with the GPE government , in DATE . A final agreement was signed in DATE , according to which it also changed its name to simply ORG ( as NORP political parties may not refer to ethnicities in their names ) . In DATE it began disarming and became a registered political party .", "ORG , in its DATE Country Reports on ORG ; GPE , dated DATE , noted that the Burundian government ’s human rights record remained poor and that the government security forces continued to commit numerous serious human rights abuses . Members of the army , the police , and ORG were responsible for killings , torture and beatings of civilians and detainees , although there had been fewer such reports than in DATE . It further observed that civilian authorities generally maintained effective control of the security forces , although there were instances when elements of the security forces acted independently . Moreover , while government security forces , especially the army , took some steps to prosecute the perpetrators of human rights abuses , most individuals acted with impunity . Security forces also continued to harass members of the opposition . Furthermore , a large number of weapons circulated throughout the general population and many violent incidents and killings were considered the result of vigilante abuse and personal score - settling . Despite the cease - fire , abuses by the ORG against civilians continued , primarily in the FAC traditional strongholds of GPE and the LOC provinces . These abuses included killings , kidnappings , rapes , theft , extortion and the looting and burning of houses .", "According to ORG of the Secretary General on ORG in GPE ( document S/CARDINAL/CARDINAL ) , dated CARDINAL DATE , the period under review ( DATE to DATE ) witnessed significant breakthroughs in the peace process which led to some improvements in the security situation in GPE , especially in the north - western provinces . Accordingly , the ORG security phase was adjusted from GPE in GPE and ORG , bringing the entire country under security phase III . Criminal activities perpetrated by alleged ORG elements , former combatants , members of the security forces and unidentified armed individuals persisted , however , throughout the country . These included killings , abductions , rapes , lootings , armed robberies , grenade attacks , ambushes and violent incidents related to land conflicts . Moreover , despite limited improvement in the overall human rights situation during the reporting period , impunity continued to be a source of serious concern , in particular for sexual and gender - based crimes .", "Amnesty International reported in its Report DATE GPE , that there continued to be a high incidence of rape and other sexual violence against women and girls during DATE . For example , a centre run by ORG in GPE received an average of CARDINAL rape victims DATE ." ]

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[ "The applicants , PERSON and Mr Tobiáš Loyka , are NORP nationals , who were born in DATE and DATE respectively and live in GPE . They are represented before the ORG by PERSON , a lawyer practising in PERSON . The respondent Government are represented by PERSON , their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants set up a commercial limited liability company ( “ the company ” ) with a seat in GPE . Under LAW of LAW in conjunction with the applicable provisions of LAW the company has a distinct legal personality . The company was later transformed into a joint stock company , its name was changed and its seat was moved to PERSON and than back to GPE . Since DATE the name of the company has been ORG , a.s .", "The applicants each own PERCENT of shares in the company and the first applicant is the chairperson of its board of directors and the second applicant is the chairperson of its supervisory board .", "On DATE the ORG ( Krajský súd ) made an insolvency order against the company . The order was however quashed on appeal by ORG ( Najvyšší súd ) on DATE .", "On DATE a new insolvency order was made . Under Article CARDINAL § CARDINAL ( a ) and ( l ) of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) , the declaration of insolvency entailed an automatic transfer of the right to make any dispositions in respect of the company ’s estate and its operational affairs to the bankruptcy trustee . Pursuant to subparagraph CARDINAL ( d ) in conjunction with subparagraph CARDINAL of LAW , any pending judicial or other proceedings involving the company were automatically stayed and could only continue on the trustee ’s request .", "The insolvency proceedings are still pending .", "In DATE the company bought certain real property including a peat plant . The property was subject to a claim by a group of original owners and legal successors of original owners for restitution of their ownership title under LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) .", "The restitution claim was granted by ORG úrad , odbor pozemkový , poľnohospodárstva a lesného hospodárstva ) in DATE and by ORG in DATE .", "The decisions of DATE and DATE were quashed on the company ’s administrativelaw appeals by ORG on DATE and ORG on DATE respectively .", "In the proceedings leading to the judgment of DATE the bankruptcy trustee informed ORG by a letter of DATE that she was the person entitled to act in the name of the company . By a letter of DATE she requested under LAW that the proceedings continue .", "In the meantime , on DATE and DATE , respectively , ORG had again granted the restitution claim in so far as brought by CARDINAL categories of claimants . The trustee challenged these decisions by an administrativelaw appeal which is still pending in ORG .", "On DATE ORG dismissed the whole of the restitution claim . Several of the claimants challenged the dismissal by an administrativelaw appeal which is also still pending in ORG ." ]

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[ "The applicant was born in DATE and lives in Striama .", "The applicant was convicted of a number of crimes committed DATE . The cases were given the case numbers CARDINAL , DATE , CARDINAL/CARDINAL , CARDINAL , CARDINAL , ORG and DATE .", "On DATE a plea bargain agreement in case no . CARDINAL was approved by ORG , under the terms of which the applicant pleaded guilty to robbery and was sentenced to DATE imprisonment .", "The applicant started serving that sentence on DATE .", "By a decision of DATE in case no . ORG , ORG imposed an overall sentence of CARDINAL years’ imprisonment , which included imprisonment for CARDINAL of the applicant ’s other convictions ( cases nos . CARDINAL , ORG , ORG and CARDINAL ) .", "Following an appeal lodged by the applicant , by a decision of CARDINAL DATE ORG set aside the lower court ’s decision . It imposed an overall sentence of DATE imprisonment solely for the applicant ’s convictions in cases CARDINAL . CARDINAL and ORG . From that prison term , the court deducted DATE which had been served by the applicant following his conviction in case no . CARDINAL . It also held that the period served by the applicant following his conviction in case no . ORG was also to be deducted from the overall sentence . The court did not specify when the DATE prison term was to expire . In respect of the convictions in cases nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , PERSON and PERSON ( the applicant had already served the sentence imposed in case no . CARDINAL and the sentences in the remaining CARDINAL cases were suspended ) , it concluded that imposing a separate overall sentence would be to the applicant ’s benefit but that another regional court was competent in this respect .", "Following the decision of CARDINAL DATE the applicant , relying on LAW , applied for the suspension of his sentence . On DATE the regional prosecutor rejected the application , reasoning that an overall sentence for CARDINAL other convictions was yet to be imposed .", "NORP The applicant was released on DATE , when it would appear that the decision of CARDINAL DATE , not having been appealed by either the applicant or the prosecution authorities , became final .", "On an unspecified date in DATE a new set of proceedings in which an overall sentence would be imposed started on account of the applicant ’s conviction in case no . DATE , which had not been taken into consideration during the previous set of proceedings .", "By a decision of CARDINAL DATE ORG imposed an overall sentence of DATE and CARDINAL months’ imprisonment for the applicant ’s convictions in cases ORG . CARDINAL , CARDINAL/CARDINAL and ORG . On DATE ORG upheld that decision .", "It is not clear from the documents in the case file whether an overall sentence in cases QUANTITY . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL and PERSON was imposed .", "On DATE , the applicant brought an action for damages under the ORG and Municipalities’ LAW DATE ( “ the DATE LAW ) against ORG and public prosecutor ’s office . He claimed that under the decision of CARDINAL DATE he had been sentenced to DATE imprisonment but that he had actually served DATE , DATE and DATE .", "By a judgment of CARDINAL DATE ORG held that , after deducting time served and reducing the sentence to take account of DATE the applicant had worked in prison , he had served DATE and DATE over the prison term imposed by the decision of DATE . However , the court found that proceedings in which an overall sentence for some of the applicant ’s convictions would be imposed were pending , and that the period of time served in excess of the sentence imposed by the decision of CARDINAL DATE would be taken into consideration when an overall sentence was imposed for the remaining convictions . The court consequently dismissed the action and ordered the applicant to pay the sum of MONEY ( ORG ) in court fees .", "The applicant appealed against the judgment . He stated that by adding another conviction and imposing a higher overall sentence , the decision of DATE had contradicted that of CARDINAL DATE . By a judgment of DATE ORG upheld the lower court ’s finding and ordered the applicant to pay an additional ORG CARDINAL in court fees . The court reasoned that his detention had been lawful because the applicant ’s conviction in case no . CARDINAL/CARDINAL had not been taken into consideration by the decision of CARDINAL DATE as it should have been – a shortcoming rectified by the decision of DATE and that consequently in DATE the proceedings in which an overall sentence would be imposed had not yet been completed .", "The applicant subsequently appealed on points of law , claiming that the amount of court fees he had been ordered to pay had breached amendments to LAW which had come into force on CARDINAL DATE .", "By a decision of CARDINAL DATE ORG ( “ SCC ” ) refused to grant the applicant ’s appeal on points of law , thus upholding the lower court ’s judgment . In respect of the complaint against the court fees , the SCC ordered that separate proceedings be initiated .", "By a final decision of DATE ORG upheld the applicant ’s complaint in respect of the court fees . The court applied section CARDINAL and paragraph CARDINAL of the concluding provisions of LAW ( see paragraph CARDINAL below ) and determined that a flat court fee of ORG CARDINAL should apply .", "Article CARDINAL § QUANTITY of the Criminal Code DATE provides that when an individual is convicted pursuant to CARDINAL or more separate judgments , CARDINAL overall term of imprisonment shall be imposed if all of the crimes were committed prior to the first conviction . Paragraph CARDINAL of that provision states that time served following conviction pursuant to CARDINAL of the judgments shall be deducted from the time to be served under the overall term of imprisonment . Paragraph CARDINAL provides that in the event that a sentence imposed in CARDINAL or more of the judgments is suspended , the court imposing the overall prison term shall decide whether it is , in fact , to be served effectively .", "Article CARDINAL of the Code of Criminal Procedure DATE ( “ the DATE LAW ) ( in force until DATE when it was replaced by a new Code ) provided that judgments and decisions were enforced after they become final . A copy of the judgment is sent to the prosecutor who is competent to take the necessary measures for its execution ; in the case of a custodial sentence the prosecutor orders the prison authorities to detain the prisoner in execution of the sentence ( LAW of LAW ) .", "Article CARDINAL of the DATE Code provided , inter alia , that the service of a sentence of imprisonment could be interrupted on compelling grounds of a family or social nature . LAW stipulated that a prison governor could recommend such an interruption , which might then be ordered by the competent public prosecutor .", "The relevant provisions of the ORG and Municipalities’ LAW DATE ( “ the DATE LAW ) in respect of court fees are summarised in paragraphs CARDINAL of the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , ECHR CARDINALVIII ) .", "The CARDINAL Act was amended with effect from DATE , introducing , in new section CARDINAL , a flat court fee in cases brought under LAW , irrespective of the amount of claim . According to paragraph CARDINAL of the concluding provisions of LAW , section CARDINAL applied to proceedings pending at the time of its introduction ." ]

[ "5" ]

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

[ "5-1-a" ]

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[ "NORP The applicant , PERSON GPE . , is a NORP commercial company based in GPE . It was represented by Mr M. Bir , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent .", "On DATE the applicant company brought civil proceedings against a private individual ( ORG ) before ORG , claiming unjust enrichment .", "The first hearing scheduled for DATE was postponed for administrative reasons . At the next hearing , which was held on DATE , both parties requested an adjournment to present their evidence .", "At the following hearing on DATE the applicant company explained that it wished to adduce as evidence the entire case - file of a pending claim for reimbursement it had lodged against ORG The court therefore decided to await the outcome of the proceedings concerning the reimbursement claim and adjourned the case to DATE . The case - file indicates that the judgment in respect of the applicant company ’s reimbursement claim was delivered on DATE , in accordance with an agreement that had been reached between the applicant company and ORG This judgment was served on the applicant company on DATE and became final in the absence of any appeal .", "As neither party attended the following CARDINAL hearings on DATE and CARDINAL DATE the court decided to discontinue the proceedings unless asked to reinstate them . Following a request to that effect by the applicant company the case was reinstated on DATE and a hearing was scheduled for DATE .", "Of the CARDINAL subsequent hearings that were held DATE and DATE , the applicant company failed to attend CARDINAL and requested adjournments in a further CARDINAL .", "On DATE an expert report was requested by the court . The report was submitted on DATE .", "ORG held CARDINAL hearings in DATE before it delivered its judgment on DATE . The court awarded the applicant company MONEY . Both parties appealed . On DATE ORG quashed that judgment on the ground , inter alia , that the applicant company had not presented material evidence as proof of its alleged loss . The applicant company ’s rectification request was dismissed on DATE .", "The case was remitted to ORG , which abided by the decision of ORG and dismissed the case on DATE . The applicant company appealed . On DATE ORG upheld the judgment .", "The applicant company then sought rectification . On DATE ORG refused the applicant company ’s request .", "The decision was lodged with the first - instance court ’s registry on DATE and served on the applicant company on DATE ." ]

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[ "At the relevant time the applicant was the head of ORG division responsible for the financial and logistical support for the judicial system . In this capacity , he sometimes attended the meetings of ORG – the body responsible for , inter alia , allocating the judicial budget . ORG consists of CARDINAL members , including the chairpersons of ORG and ORG , and ORG . Its meetings are presided over by the Minister of Justice .", "ORG held a meeting on DATE , at which the issue of the endofyear bonus for judges , prosecutors , and investigators was discussed . The applicant attended the meeting , as he usually did in cases when budgetary matters were considered . The deputy ORG , PERSON , who was a member of the ORG , was also present .", "At some point during the meeting , after commenting the provisions of LAW , the applicant said : “ You have decided to have financial matters dealt with by PERSON For me he is not a clean person ... ” . He then added : “ I can prove this ” . The Prosecutor - General reacted vehemently , asking the applicant to leave the room . The applicant tried to continue but was interrupted by PERSON who asked him to clarify what he meant by “ unclean person ” . The Minister of ORG intervened and requested the applicant to retract the words “ unclean person ” . The Prosecutor - General reacted immediately : “ There is no retraction , there are prosecution authorities . This is already a problem , this is already a crime ” . The Minister insisted on the applicant apologising for the words “ unclean person ” . Thereupon the applicant said : “ Alright , I apologise ” . Because of the tense situation all financial matters which were due to be discussed at the meeting were adjourned .", "NORP Immediately after the meeting the ORG requested a copy of TIME . He received it on DATE and on CARDINAL DATE sent it to ORG with instructions to carry out a preliminary inquiry with a view to opening criminal proceedings against the applicant . On DATE ORG transmitted the case file to GPE ORG with instructions to open criminal proceedings against the applicant for insult . The investigation was to be performed not by an investigator , as would usually be the case , but by a prosecutor .", "On DATE the ORG instituted criminal proceedings against the applicant for “ having said publicly ‘ for me he is not a clean person’ in respect of [ Mr S. ] in his presence ... which was degrading for the latter ’s dignity ” , contrary to Article CARDINAL § CARDINAL ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) in conjunction with LAW .", "On DATE the applicant was charged .", "The investigation was concluded on DATE and the applicant and his counsel were allowed to consult the case file . After having done so , counsel for the applicant requested that all members of ORG who had been present at the meeting be questioned and that an expert report be prepared to compare the audio tape of the meeting with the written TIME . The prosecutor in charge of the investigation refused , reasoning that the facts of the case had been elucidated by the evidence already gathered , which supported the accusation .", "The applicant was indicted . The trial against him took place on CARDINAL DATE at ORG . The court heard CARDINAL witnesses : the alleged victim of the insult , PERSON , and another member of ORG . PERSON stated that it was difficult for him to say whether the applicant ’s remark had changed ORG opinion of him . The other witness stated that sometimes the discussions in the ORG were quite heated but that no one had ever used such words or made such remarks . CARDINAL other witnesses called", "After that the court heard the parties’ closing argument . Counsel for the applicant pleaded for a verdict of not guilty , relying , inter alia , on LAW . She argued that the words “ for me he is not a clean person ” were only an expression of the applicant ’s personal opinion about Mr S. The applicant ’s words were objectively not rude , vulgar or insulting . He had simply exercised his right to voice what he thought about another person , in purely neutral terms . To equate this with an insult would mean that only those who had a favourable opinion of PERSON would be allowed to express it . In her view , the entire case had been sparked by the ORG ’s vindictiveness .", "In a judgment of CARDINAL DATE the GPE ORG found the applicant guilty as charged and sentenced him to a fine of CARDINAL old NORP levs ( ORG ) and to a public reprimand . The court held as follows :", "“ The actus reus consisted of uttering words which were humiliating and disparaging for [ Mr S. ] in his presence . It is not disputed ... that the accused ... said in respect of [ Mr S. ] ‘ For me he is not a clean person’ . The expression has an insulting character , because it dishonours [ Mr S. ] . It contains a disapproval of his ethical and moral qualities , which is irreconcilable with his being in charge of the budgetary funds of the judiciary . In this fashion the personality of [ Mr S. ] and his authority in front of the other members of the [ ORG ] were disparaged . ‘ Not a clean person’ has CARDINAL interpretation , that the person concerned has a tainted consciousness and lacks morality . Even if this is the [ applicant ’s ] personal opinion about the qualities of [ Mr S. ] , the remark was aimed at affecting the honour and the dignity of [ Mr S. ] . Criticism ... , especially when it comes to the public manifestations of persons who represent state institutions , has to be consistent with the rules of society , ethics and the common rules of decency and morality . These must not be trampled on under the pretence that the personal opinion about another is a matter of perception and [ represents the exercise ] of the constitutional right to freedom of expression ... It is unconstitutional and criminal to criticise in an insulting form , as in the case at hand ...", "The offence was intentional ... It was committed in public , in front of CARDINAL members of ORG and the deputyMinister of ORG . This increases the gravity of the offence , because the offensive words were heard not only by the victim , but also by a large group of persons ...", "The fact that the [ applicant ] apologised to the victim after being invited to do so by the [ Minister of ORG ] does not remove the criminal character of his act or its harmful consequences . By uttering words which were humiliating for the victim , [ the applicant ] completed the offence and the harmful consequences arose . The derogation of the victim ’s reputation was irreversible . The fact [ that the applicant apologised ] must , however , be taken into consideration for the purpose of assessing the gravity of the offence ... and for the purpose of sentencing .", "The defence ’s argument that the [ applicant ’s ] act was not criminal because it was in fact the expression of a personal criticism by a person exercising his freedom of expression ... can not be sustained . The right to freedom of expression carries the duty , set out in LAW , not to exercise this right to the detriment of the reputation of another . The present case represents an abuse of this right , because the personal disproval of [ Mr S. ] which the [ applicant ] expressed publicly had a humiliating content . The negative opinion was expressed indecently , in an insulting and humiliating manner , which is contrary to the law . This implies that the [ statement ] was contrary to both LAW and LAW ... , which enshrine the right to freedom of expression , but in the bounds of decency , respect for the rights of every member of society , tolerance and respect for the reputation of the others ... ”", "The applicant appealed to ORG . His counsel again argued that the applicant ’s remark had not been couched in offensive terms , that he had expressed his personal views in an entirely acceptable way and that a penalty imposed on him for having voiced an opinion ran counter to his freedom of expression .", "The prosecution appealed as well , requesting an increase of the applicant ’s sentence .", "The Sofia City Court held a hearing on DATE .", "In a judgment of DATE ORG dismissed the applicant ’s and the prosecution ’s appeals . It held , inter alia , as follows :", "“ The [ court below ] correctly concluded that the [ applicant ’s ] words had an insulting content . The expression was examined by the district court in accordance with the meaning which was put in it – a disapproval of the ethical and moral qualities of [ Mr S. ] , which was incompatible with his being in charge of the budgetary funds of the judiciary ; a disapproval aiming to impinge on the victim ’s personal dignity . The [ words ] were analysed by the firstinstance court in view of their objective potential to impinge on the dignity of the victim , because they exceeded the bounds of ethical communication and the generally accepted rules of decency .", "The defence ’s arguments ... that the [ words ] in issue were in fact the [ applicant ’s ] personal opinion , the expression of which is protected by the rule of LAW , are unfounded . The district court was correct in concluding that the expression of a personal opinion about someone , even though a constitutionally protected right , should not exceed the bounds set out in paragraph CARDINAL of [ LAW ] . In other words , the right to freely express one ’s opinion may not be used to infringe the rights and reputation of another ...", "In its reasoning the district court examined all arguments of the defence , relying on the ORG constant caselaw under LAW and LAW . ... ”", "On DATE the applicant lodged a petition for review with ORG , claiming that the lower courts’ judgments were unfounded and in breach of the law .", "On DATE ORG accepted the petition for examination and listed the case for hearing .", "NORP The court held a hearing on DATE . It heard the parties’ argument and reserved judgment . Prior to the hearing the applicant ’s defence presented written observations , in which it argued that the lower courts’ judgments were unfounded and unlawful . In particular , the courts’ holding that the applicant ’s words were offensive was arbitrary . On the opposite , they were not rude , vulgar or cynical , but completely neutral . The defence also reiterated its submissions in respect of the applicant ’s right to voice personal opinions .", "ORG delivered its judgment on DATE , dismissing the petition in the following terms :", "“ [ The words ] used by [ the applicant ] in the presence of [ Mr S. ] were humiliating and it can not be accepted that this was in line with the rule of LAW , which guarantees to all NORP citizens the possibility to express their personal opinion and criticise other persons . This possibility is subject to and dependent on the limitations of paragraph CARDINAL [ of this LAW ] , according to which this right should not be used for impinging on the reputation of another . In the case at hand there has been an abuse of the right under paragraph CARDINAL [ of this Article ] , because the personal opinion , expressed by [ the applicant ] in respect of [ Mr S. ] has a disparaging content . The negative opinion is expressed in an indecent , insulting and humiliating manner ... As such it falls under the prohibition of Articles CARDINAL [ and ] CARDINAL of LAW , because it not only goes against LAW , but also against LAW ... which enshrine the right to freedom of expression , but within the bounds of decency , respect for the rights of the person , tolerance , and protection of the reputation of the others . These rules are valid in all civilised and democratic societies .", "It is unconstitutional and criminally liable to ‘ criticise’ in an insulting manner , as has been done in the case at hand . The words which were used had an insulting content , because they debased the victim ’s dignity and his authority before the other members of the [ ORG . They contained a disapproval of his moral and ethical qualities which is incompatible with his function as a person disposing with budgetary funds . What was said could be interpreted in CARDINAL manner only : that the person in question has a tainted consciousness and lacks morality ; it was aimed at impinging the honour and dignity of [ Mr S. ] . ... ”", "The applicant paid the fine on DATE . He was not publicly reprimanded and on DATE a prosecutor of ORG ordered that his sentence was not to be enforced because the relevant limitation period had expired .", "Article CARDINAL of the LAW of DATE provides :", "“ CARDINAL . Everyone is entitled to express an opinion or to publicise it through words , written or oral , sound , or image , or in any other way .", "NORP This right shall not be used to the detriment of the rights and reputation of others , or for the incitement of a forcible change of the constitutionally established order , the perpetration of a crime , or the incitement of enmity or violence against anyone . ”", "Article CARDINAL § CARDINAL of LAW , as in force at the relevant time , provided :", "“ Whoever says or does something degrading for the honour or the dignity of another in his presence shall be punished for insult by CARDINAL months’ imprisonment or a fine of MONEY . The court may also impose a public reprimand . ”", "If an insult has been made in public , or against an official in the performance of his duties , or by an official in the performance of his duties , it was punishable by DATE imprisonment or a fine of up to ORG CARDINAL,CARDINAL ( LAW ) , ( CARDINAL ) , and ( CARDINAL ) of LAW , as in force at the relevant time ) .", "At the relevant time insult was privately prosecutable in all cases , save when perpetrated in respect of or by an official , in which case it was publicly prosecutable ( LAW , as in force at the relevant time , in conjunction with LAW and LAW ) and ( CARDINAL ) thereof ) . At present insult is privately prosecutable in all cases without exception ( LAW , as amended in DATE and presently in force ) .", "By LAW , the victim of a criminal offence may make a civil claim in the context of the criminal proceedings , and request compensation for the damage sustained as a result of the offence . He or she may also take part in the criminal proceedings as a private prosecuting party alongside the public prosecutor ( LAW ) ." ]

[ "10" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the GPE and GPE Regional Pension Insurance Directorate established the applicant ’s service DATE and the amount of his old age pension . The applicant appealed , challenging the amount of service DATE recognised . The second - instance administrative authority accepted the claim in part on DATE . This decision was later modified slightly ex officio to the applicant ’s advantage on DATE .", "On DATE the applicant sought judicial review against ORG decision before ORG . The court dismissed his action on DATE .", "The applicant lodged a petition for review with ORG , which quashed ORG judgment and remitted the case to the first - instance court on DATE .", "In the resumed proceedings ORG again dismissed the applicant ’s action on DATE . ORG upheld the first - instance judgment on DATE , which was served on the applicant on DATE .", "The domestic courts relied on documentary evidence , the opinion of CARDINAL forensic accountant experts and testimonies of the parties ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicants are gypsies by birth . As children , the applicants lived and travelled with their respective families in and around the area known as GPE in GPE . From DATE , the LOC was a designated area pursuant to section CARDINAL of LAW DATE ( see paragraphs CARDINAL below ) .", "NORP In DATE , the applicants married . When the second applicant became pregnant , the applicants decided to search for a permanent site on which to site their caravan . There remained few stopping places upon which they could lawfully park their caravan whilst travelling in the area and they faced the threat of continual eviction . The applicants wished for their children to be brought up in a stable environment which would facilitate the continuity of their education . The applicants now have CARDINAL children , PERSON born in DATE , PERSON in DATE , Jessica in DATE and PERSON in DATE .", "The applicants stated that they were refused a place on any local authorised site . They camped outside one official site for DATE hoping to be offered a plot . No place was offered and court proceedings were brought against them by the LOC to secure their eviction from the land . The Government stated that the LOC has no knowledge or record of any request by the applicants for a pitch in DATE .", "With the imminent birth of their first child , the applicants moved into the caravan occupied by the first applicant ’s mother on a permitted gypsy site and sold their own caravan . The caravan was however small and conditions became intolerable . Having nowhere else to go , the applicants in or DATE reluctantly applied for permanent accommodation and accepted the offer of a council flat . They commenced a tenancy in a fourth floor flat on DATE . Though they were moved to a first floor flat after DATE , they found the flats totally unsuitable and alien to their traditional gypsy lifestyle . On DATE , they requested a transfer to a house on the grounds of the second applicant ’s health but were informed that there was a waiting list and that a move would be conditional on payment of outstanding rent . The applicants disputed that they owed any rent and suggested that the GPE has mistaken them for the tenants of a different flat , there being some confusion as to the addresses involved . In DATE , the applicants requested a site on an official caravan site or more suitable accommodation but were told this was not possible . The ORG stated that they did not wish to be placed on the waiting list .", "In DATE , the applicants purchased land known as ORG in NORP , GPE and moved onto it , living in a caravan .", "On DATE , the second applicant made a retrospective planning application for permission to station a caravan on their site . Permission was refused by the GPE on DATE .", "On DATE , an enforcement notice was issued requiring discontinuance of the unauthorised use .", "In DATE , the applicants were convicted for failure to comply with the enforcement notice .", "On DATE , a public enquiry was held by way of appeal against the refusal of planning permission . The appeal was dismissed . The Inspector accepted that the applicants were gypsies for whom conventional residence in permanent accommodation would lead to illness and problems of adjustment . They had therefore not lost their status as gypsies as a result of their residence in a flat . He found however that the development on a site , well outside built - up areas , was clearly visible and would constitute a significant intrusion into the attractive rural surroundings and seriously harm the character and appearance of the countryside contrary to the aims of the local development plans . The proximity of another established gypsy site a short distance along the same road was a further consideration for rejecting the application , since there would be a cumulative effect . Though there were hedges and trees providing partial screening , these would have less effect in the DATE and the site was still a significant intrusion in the landscape . While he expressed his concern for the serious consequences of a refusal for the applicants and their CARDINAL children , since they had nowhere to live for the foreseeable future apart perhaps from unauthorised camping sites , he concluded :", "“ It is all a matter of weighing opposing considerations , and although both national and local policies envisage circumstances where the special needs of gypsies can outweigh the general objective of protecting the countryside , my view is that , because of such factors as the quality of this countryside , they do not prevail here . ”", "The applicants made a further application for planning permission which was refused on DATE , seeking inter alia to argue that they had resited the caravan and provided more screening to minimise any visual impact on the landscape and that their site was less harmful than the CARDINAL poorly screened sites nearby which were authorised by the LOC .", "A public enquiry was held before a Planning Inspector on DATE . The ORG refused their appeal on DATE and the applicants were penalised in costs on the basis that it was identical to the previous application . The Inspector did not find the granting of permission for caravans for CARDINAL gypsy families CARDINAL metres away along the same road could be regarded as a material difference .", "“ On the contrary , in my opinion CARDINAL gypsy caravan sites within QUANTITY of the length of FAC would amount to an overconcentration of caravan sites in these rural surroundings . ”", "The Inspector went on :", "“ CARDINAL . As to … alleged intentional homelessness , Counsel for GPE , on instructions , assured the inquiry that the < applicants’ > family would be offered short - term housing . This is the position the family have faced for a long time . < The applicants > conceded that the only action taken since the DATE decision by or on behalf of the family to find another site or accommodation , was a telephone call … to GPE > in DATE . …", "I have given sympathetic consideration to all of < the applicants > case . I accept that the family have a pressing local need for a caravan site . The provision of private sites should be encouraged . ORG support the provision of private sites . So does Government policy . There should be a flexible attitude to such planning applications . As was said in a Parliamentary answer in DATE , well - run gypsy sites , once established , seldom give cause for serious complaints . ‘ Designated’ authorities like GPE may still need to make extra provision in their area if the demand for gypsy accommodation increases . There are still gypsy families parked on unauthorised sites in LOC , including < the applicants > … No new gypsy sites have been opened in GPE since DATE .", "In spite of < the applicants > planting and intended further planting , however , I find as a fact that the mobile home would remain intrusively visible from FAC and PERSON lane . The only way in which it could be made virtually invisible , … , would be to provide physical screening which would in itself be an intrusive feature in the countryside . From the point of view of passers - by , the visual impact of the mobile home is made especially serious because of this being a corner site , with CARDINAL long road frontages through which the site can be seen by the public . Having regard to the quality of the rural landscape , I consider that this development seriously damages the appearance and character of the surroundings . As this land is between the CARDINAL authorised sites , this development results in an incipient loose ribbon of suburban - type development strung out along FAC . This conflicts with generally well - respected policies aimed at protecting the landscape and at limiting residential development mainly to towns and villages .", "Whilst the position towards the eastern corner is an improvement on the previous siting in the northern corner , the mobile home still causes demonstrable harm to countryside interests of acknowledged importance . There is nowhere within the site at which a mobile home or caravan could be positioned without causing equally serious harm .", "I have taken into account the extent to which this site could satisfy the site - selection criteria … Rather than introducing minimum conflict with planning policies , this development is in serious conflict with the Structure Plan policies … aimed as protecting the character of the open countryside from development not demonstrated to be necessary for agriculture etc . There is also serious conflict with Policy CCARDINAL of the draft ORG , aimed at ensuring that permitted gypsy sites should not be intrusive features in the countryside . ”", "On DATE , the applicants were convicted for breach of enforcement notices and ordered to pay GBP CARDINAL each as a fine and contribute GBP CARDINAL to the LOC ’s costs .", "In DATE , the ORG stated that the applicants made enquiries from the LOC about rehousing but no formal application was made until DATE . On DATE , the applicants were formally informed by the Borough that they were considered as intentionally homeless since they had terminated their council tenancy to move onto land not permitted for residential use contrary to the advice of ORG .", "In DATE , the applicants enquired about alternative accommodation on a private site but were informed that they were excluded due to the size of their family .", "On DATE , the applicants stated that they were told that there was a waiting list for places on official sites but that since they were intentionally homeless they could not put their names on it for DATE . According to the Government , in DATE , the applicants applied to the Borough for housing on the grounds of homelessness and that contrary to the policy of refusing registration within DATE after a finding of intentional homelessness the GPE agreed to re - register them as homeless on condition that they paid their arrears of rent for the council tenancy . The applicants did not pay the arrears .", "The records of the LOC noted that , at a meeting on DATE , its officials repeated offers of temporary accommodation to give the applicants time to find permanent accommodation . The applicants were recorded as stating that they would not accept a place on an official site and that they would only accept temporary accommodation in their own caravan , which the Borough could not provide . The applicants state that they have no recollection of making the former statement .", "A third prosecution resulted in conviction and sentence was deferred to enable the applicants to move . On DATE , a fine of GBP CARDINAL was imposed on each applicant .", "The PERSON took the decision to seek an injunction in the High Court restraining the applicants from stationing their caravan on their land and gave notice to the applicants . On DATE , the applicants left their land and travelled to GPE , GPE close to where some of the second applicant ’s family had stationed their caravans . On the site there was no sanitation or electricity and there was an infestation of rats . The applicants contacted the GPE ’s housing officer in the hope that he could offer more suitable alternative accommodation but he could not . He suggested that they apply for ORG accommodation which they did but were told that nothing would be available for DATE . The applicants heard nothing after that . The ORG stated that the applicants’ names were placed on the waiting list at DATE but they removed their names from that list in DATE . The applicants disputed that they removed their names .", "On DATE , the applicants returned to their land , where the children could resume their education at their previous school .", "The LOC commenced its proceedings for an injunction by summons dated DATE .", "On DATE , the second applicant was convicted and fined for a continued breach of the enforcement notices .", "The applicants applied for judicial review to quash the injunction proceedings on the basis that the decision to pursue the injunction against them was unreasonable . Leave was refused by ORG . On DATE , ORG dismissed the ORG appeal .", "In DATE the applicants applied to the GPE for accommodation and were again offered temporary accommodation . The applicants stated that this was unsuitable bed and breakfast accommodation which would have entailed separating the first applicant from the rest of the family . The applicants were informed , the Government stated , of vacant plots on council and private gypsy sites in the county . The applicants recalled that these vacancies related to areas outside the LOC . CARDINAL site which they visited at ORG was infested with rats and a dangerous place for children .", "On DATE , the applicants received notice that the Borough had decided to withdraw the injunction proceedings commenced in DATE and to enter their land and enforce the enforcement notice using its powers under section CARDINAL of ORG DATE . The applicants lodged an application for judicial review of that decision . On or DATE the applicants withdrew their application on the basis that they would be given DATE to vacate their land .", "The applicants stated that they looked for an alternative private or official site on which to station their caravan but no such site could be found . In DATE , the applicants sold their land . They also sold their caravan at a substantial undervalue . They went to live temporarily in the caravan occupied by the second applicant ’s brother , which involved a family of CARDINAL sharing with a family of CARDINAL . This became intolerable . The applicants stated that they were faced with the choice of returning to the road , with the risk of further criminal sanctions or abandoning their traditional way of life by accepting the provision of conventional NORP accommodation . On DATE , the applicants reluctantly decided to take the latter course , moving into conventional housing in the form of rented accommodation supplied by ORG CARDINAL FAC , GPE , GPE . As a result , their CARDINAL younger children had to change schools . The CARDINAL older children gave up school and began working . While the move disrupted the children ’s education , it did not appear to have affected their health . The applicants suffered headaches , anxiety , claustrophobia and depression requiring them to seek medical treatment . They were both prescribed medication which did not however resolve their physical sense of confinement . The applicants bought a touring caravan , which they stationed on the land of the second applicant ’s brother . They took every opportunity they could to travel in the traditional style during school holidays , attending traditional gypsy fairs to continue horse trading activities and for the first applicant to find work landscaping and tree - felling . They have bought another plot of land in GPE , PERSON , with the intention of resuming their traditional life and intend to apply for planning permission .", "ORG statistics for gypsy caravan sites for DATE indicated that in the GPE area there were CARDINAL local authority sites comprising CARDINAL pitches . In addition , there were CARDINAL caravans on authorised private sites and CARDINAL caravans on unauthorised sites , CARDINAL of which were tolerated by the local authority . The DATE gypsy count showed that the number of unauthorised encampments had remained at CARDINAL , while the number of public authorised sites had decreased from CARDINAL to CARDINAL and the number of authorised private sites had decreased from CARDINAL . The DATE figures showed that there were CARDINAL unauthorised sites , CARDINAL authorised public sites and CARDINAL authorised private sites .", "ORG DATE ( as amended by LAW DATE ) ( “ the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of LAW ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .", "An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) .", "The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE ) . There is a further appeal to ORG on the ground that the Secretary of ORG ’s decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .", "If a development is carried out without the grant of the required planning permission , the local authority may issue an “ enforcement notice ” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .", "There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .", "Again there is a further right of appeal “ on a point of law ” to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector ’s decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .", "Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice , the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .", "Part II of LAW DATE ( “ the DATE LAW ) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to gypsies as a result of planning and other legislation and social changes in DATE , in particular the closure of commons carried out by local authorities pursuant to section CARDINAL of GPE and ORG DATE . LAW of LAW defined “ gypsies ” as :", "“ persons of nomadic habit of life , whatever their race or origin , but does not include members of an organised group of travelling showmen , or of persons engaged in travelling circuses , travelling together as such ” .", "Section CARDINAL of the DATE Act provided that it should be the duty of local authorities :", "“ to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area ” .", "NORP The Secretary of ORG could direct local authorities to provide caravan sites where it appeared to him to be necessary ( section CARDINAL ) .", "Where the Secretary of ORG was satisfied either that a local authority had made adequate provision for the accommodation of GPE , or that it was not necessary or expedient to make such provision , he could “ designate ” that district or county ( section CARDINAL of the DATE Act ) .", "The effect of designation was to make it an offence for any gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway , on any other unoccupied land or on any occupied land without the consent of the occupier ( section CARDINAL ) .", "In addition , LAW gave to local authorities within designated areas power to apply to a GPE court for an order authorising them to remove caravans parked in contravention of section CARDINAL .", "By DATE it had become apparent that the rate of site provision under section CARDINAL of the CARDINAL Act was inadequate , and that unauthorised encampments were leading to a number of social problems . In DATE , therefore , the Government asked Sir PERSON to carry out a study into the operation of LAW . He reported in DATE ( Accommodation for Gypsies : A report on the working of GPE DATE , “ the Cripps Report ” ) .", "Sir PERSON estimated that there were CARDINAL NORP living in GPE and GPE . He found that :", "“ DATE after the coming into operation of Part II of LAW , provision exists for CARDINAL of the estimated total number of gypsy families with no sites of their own . CARDINAL of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law : when they stop for TIME they have no alternative but to break the law . ”", "The report made numerous recommendations for improving this situation .", "Circular CARDINAL/CARDINAL was issued by ORG . Its stated purpose was to provide local authorities with guidance on “ statutory procedures , alternative forms of gypsy accommodation and practical points about site provision and management ” . It was intended to apply until such time as more final action could be taken on the recommendations of ORG .", "Among other advice , it encouraged local authorities to enable self - help by gypsies through the adoption of a “ sympathetic and flexible approach to [ Gypsies’ ] applications for planning permission and site licences ” . Making express reference to cases where gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming , it recommended that in such cases enforcement action not be taken until alternative sites were available in the area .", "Circular CARDINAL/CARDINAL , which was issued on DATE , stated , inter alia , that “ it would be to everyone ’s advantage if as many gypsies as possible were enabled to find their own accommodation ” , and thus advised local authorities that “ the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions ” .", "In addition , MONEY was spent under a scheme by which MONEY grants were made available to local authorities to cover the costs of creating gypsy sites .", "Section CARDINAL of ORG LAW DATE ( “ the DATE LAW ) , which came into force on DATE , repealed sections CARDINAL of LAW and the grant scheme referred to above .", "Section CARDINAL of the DATE Act gives to a local authority power to direct an unauthorised camper to move . An unauthorised camper is defined as", "“ a person for the time being residing in a vehicle on any land forming part of the highway , any other unoccupied land or any occupied land without the owner ’s consent ” .", "Failure to comply with such a direction as soon as practicable , or re - entry upon the land within DATE , is a criminal offence . Local authorities are able to apply to a GPE court for an order authorising them to remove caravans parked in contravention of such a direction ( section CARDINAL of the DATE Act ) .", "In the case of NORP v. ORG , ex parte Atkinson ( DATE ) , PERSON referred to the DATE Act as “ Draconic ” legislation . He commented that :", "“ For DATE the commons of GPE provided lawful stopping places for people whose way of life was or had become nomadic . Enough common land had survived DATE of enclosure to make this way of life still sustainable , but by s.CARDINAL of ORG and ORG DATE local authorities were given the power to close the commons to travellers . This they proceeded to do with great energy , but made no use of the concomitant powers given them by s.CARDINAL of the same Act to open caravan sites to compensate for the closure of the commons . By DATE , therefore ORG legislated to make the s.CARDINAL power a duty , resting in rural areas upon county councils rather than district councils … For DATE there followed a history of non - compliance with the duties imposed by the Act of DATE , marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty , to apparently little practical effect . The default powers vested in central government to which the court was required to defer , were rarely , if ever used .", "The culmination of the tensions underlying the history of non - compliance was the enactment of … the Act of DATE … ”", "New guidance on gypsy sites and planning , in the light of LAW , was issued to local authorities by the Government in Circular CARDINAL/CARDINAL ( DATE ) , which cancelled ORG CARDINAL/CARDINAL ( see above ) .", "Councils were told that :", "“ In order to encourage private site provision , local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development . ... The aim should be as far as possible to help gypsies to help themselves , to allow them to secure the kind of sites they require and thus help avoid breaches of planning control . ” ( para . CARDINAL )", "However :", "“ As with other planning applications , proposals for gypsy sites should continue to be determined solely in relation to land - use factors . Whilst gypsy sites might be acceptable in some rural locations , the granting of permission must be consistent with agricultural , archaeological , countryside , environmental , and LOC policies ... ” ( para . CARDINAL ) .", "It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted , for example Areas of Outstanding Natural Beauty , Sites of Special Scientific Interest . Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt ( paragraph CARDINAL ) .", "Further guidance issued by the Secretary of ORG dated DATE concerned the unauthorised camping by gypsies and the power to give a direction to leave the land ( LOC above ) . Paragraphs CARDINAL - CARDINAL required local authorities to adopt “ a policy of toleration towards unauthorised gypsy encampments ” :", "“ CARDINAL . ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which can not be effectively controlled , an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance . Accordingly , authorities should consider tolerating PERSON presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites , for example by providing basic services for gypsies e.g. toilets , a skip for refuse and a supply of drinking water .", "Where gypsies are unlawfully camped on Government - owned land , it is for the local authority , with the agreement of the land - owning ORG , to take any necessary steps to ensure that the encampment does not constitute a hazard to public health . It will continue to be the policy of the Secretaries of ORG that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance .", "The Secretaries of ORG continue to consider that local authorities should not use their powers to evict gypsies needlessly . They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land . ”", "Paragraphs CARDINAL further require local authorities to consider their obligations under other legislation before taking any decisions under LAW . These obligations include their duties concerning pregnant women and newly - born children , the welfare and education of children and the housing of homeless persons . In a judgment of CARDINAL DATE ( NORP v. ORG , ex parte Atkinson , NORP v. ORG , ex parte GPE and NORP v. ORG , ex parte GPE , unreported ) , ORG held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages .", "In a letter dated CARDINAL DATE , ORG drew to the attention of all local planning authorities in GPE that Circular CARDINAL/CARDINAL required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications . The Government was concerned that this guidance had not been taken up . ORG research ( see below ) had showed that PERCENT of local authorities ( CARDINAL ) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision . It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and the detailed policies should be provided . Compliance with this guidance was essential in fulfilling the ORG ’s objective that gypsies should seek to provide their own accommodation , applying for planning permission like everyone else . It was necessary , therefore , that adequate gypsy site provision be made in development plans to facilitate this process .", "ORG for ORG and Other Travellers ( ACERT ) , which carried out research sponsored by ORG , noted in this report that since DATE private site provision had increased by CARDINAL caravans per year while the pace of public site provision had declined by CARDINAL caravans , disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision . Noting the increase of gypsies in housing and the increased enforcement powers under LAW , it questioned , if these trends continued , the extent to which the ethnic , cultural and linguistic identity of ORG people would be protected .", "The research looked , inter alia , at CARDINAL refused private site applications , which showed that PERCENT related to land within the countryside and that PERCENT were refused on grounds relating to the amenity value ( e.g. Green Belt , conservation area locations ) . Of the CARDINAL gypsy site applicants interviewed , for most acquiring permission for their own land was an important factor in improving the quality of life , gaining independence and providing security . For many , the education of their children was another important reason for private site application . All save CARDINAL had applied for permission retrospectively .", "NORP The report stated that the figures for success rates in CARDINAL planning appeals showed that before DATE the success rate had averaged PERCENT but had decreased since . Having regard however to the way in which data was recorded , the actual success rate was probably PERCENT as given as the figures in DATE and DATE by the gypsy groups and ORG respectively . Notwithstanding the objectives of planning policy that local authorities make provision for gypsies , most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land - use criteria in the particular case . It was therefore not surprising that most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development . Granting of permission for private sites remained haphazard and unpredictable .", "In DATE , ORG figures on gypsy caravans disclosed that of CARDINAL caravans counted , CARDINAL were accommodated on local authority pitches , CARDINAL on privately owned sites and CARDINAL on unauthorised sites . Of the latter , CARDINAL gypsy caravans were being tolerated on land owned by non - gypsies ( mainly local authority land ) and CARDINAL gypsy caravans tolerated on land owned by gypsies themselves . On these figures , CARDINAL caravans were therefore on unauthorised and untolerated sites while over PERCENT of caravans were stationed on authorised sites .", "DATE . Local authority duties to the homeless were contained in Part VII of LAW , which came fully into force on DATE . Where the local housing authority was satisfied that an applicant was homeless , eligible for assistance , had a priority need ( e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age , physical disability , etc . ) , and did not become homeless intentionally , the authority was required , if it did not refer the application to another housing authority , to secure that accommodation was available for occupation by the applicant for a minimum period of DATE . Where an applicant was homeless , eligible for assistance and not homeless intentionally , but was not a priority case , the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation .", "This Convention , opened for signature on DATE , provides inter alia :", "“ Article CARDINAL", "The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights , and as such falls within the scope of international co - operation .", "Article CARDINAL", "The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law . In this respect , any discrimination based on belonging to a national minority shall be prohibited .", "NORP The parties undertake to adopt , where necessary , adequate measures in order to promote , in all areas of economic , social , political and cultural life , full and effective equality between persons belonging to a national minority and those belonging to the majority . In this respect , they shall take due account of the specific conditions of the persons belonging to national minorities .", "The measures adopted in accordance with paragraph CARDINAL shall not be considered to be an act of discrimination .", "Article CARDINAL", "The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture , and to preserve the essential elements of their identity , namely their religion , language , traditions and cultural heritage .", "Without prejudice to measures taken in pursuance of their general integration policy , the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation . ”", "The Convention entered into force on DATE . GPE signed LAW it opened for signature and ratified it on DATE . It entered into force for GPE on DATE . By DATE , it had been signed by CARDINAL of ORG ’s CARDINAL member states and ratified by CARDINAL .", "The Convention did not contain any definition of “ national minority ” . However GPE in its Report of DATE to ORG concerned with the ORG accepted that gypsies are within the definition .", "Recommendation CARDINAL(CARDINAL ) of ORG on NORP in LOC included the recognition that gypsies as one of the very few non - territorial minorities in LOC , “ need special protection ” . In its general observations , the ORG stated inter alia :", "“ CARDINAL . Respect for the rights of NORP , individual , fundamental and human rights and their rights as a minority , is essential to improve their situation .", "Guarantees for equal rights , equal chances , equal treatment and measures to improve their situation will make a revival of PERSON language and culture possible , thus enriching the NORP cultural diversity . ”", "Its recommendations included :", "“ xiv . NORP member states should alter national legislation and regulations which discriminate directly or indirectly against NORP ; …", "xviii . further programmes should be set up in the member states to improve the housing situation , education … of those NORP who are living in less favourable circumstances . … ”", "In DATE , ORG against Racism and Intolerance issued General Policy Recommendation No . CARDINAL : Combating Racism and Intolerance against ORG . Its recommendations included :", "“ … to ensure that discrimination as such , as well as discriminatory practices , are combated through adequate legislation and to introduce into civil law specific provisions to this end , particularly in the fields of … housing and education . …", "… to ensure that the questions relating to ‘ ORG within a country , in particular , regulations concerning residence and town planning , are solved in a way which does not hinder the life of the persons concerned ; … ”", "On DATE , ORG passed a ORG on the situation of NORP in the Community , calling on the governments of member states “ to introduce legal , administrative and social measures to improve the social situation of NORP and Travelling People in LOC ” ; and recommending that “ the ORG , the ORG and the governments of Member GPE should do everything in their power to assist in the economic , social and political integration of GPE , with the objective of eliminating the deprivation and poverty in which the great majority of LOC ’s Gypsy population still lives at the present time . ”", "Protection of minorities has become one of the preconditions for accession to ORG . In DATE , ORG adopted “ Guiding Principles ” for improving the situation of GPE in candidate countries , based expressly on the recommendations of ORG of Roma / Gypsies and the OSCE High Commissioner on ORG recommendations .", "DATE . The situation of GPE and PERSON has become a standard item on FAC the agenda of ORG . CARDINAL structural developments – ORG ( ORG ) and the appointment of a High Commissioner for ORG also concern protection of GPE and PERSON as minorities .", "On DATE , the High Commissioner ’s Report on ORG and PERSON in LOC was published . Part PERSON of the ORG deals with the living conditions of GPE , noting that while nomadism had been central to NORP history and culture a majority of GPE were now sedentary ( CARDINAL estimation gave PERCENT as nomadic , PERCENT as semi - nomadic , moving DATE , while PERCENT were sedentary ) . This was particularly true of LOC , where there had been in the past policies of forced sedentarization :", "“ It must be emphasised that whether an individual is nomadic , semi - nomadic or sedentary should , like other aspects of his or her ethnic identity , be solely a matter of personal choice . The policies of some ORG participating GPE have at times breached this principle , either by making a determination of a group ’s fundamental lifestyle that is inconsistent with its ORG choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity . ” ( pp . CARDINAL - CARDINAL )", "The ORG stated that for those GPE who maintained a nomadic or semi - nomadic lifestyle the availability of legal and suitable parking was a paramount need and precondition to the maintenance of their group identity . It observed however that even in those countries that encouraged or advised local authorities to maintain parking sites , the number and size of available sites was insufficient in light of the need :", "“ … The effect is to place nomadic GPE in the position of breaking the law – in some countries , committing a crime – if they park in an unauthorized location , even though authorized sites may not be available . ” ( pp . CARDINAL - CARDINAL )", "The Report dealt specifically with the situation of NORP in GPE ( pp . CARDINAL ) . It found :", "“ Under current law , NORP have CARDINAL options for lawful camping : parking on public caravan sites – which the ORG acknowledges to be insufficient ; parking on occupied land with the consent of the occupier ; and parking on property owned by the campers themselves . ORG has issued guidance to local authorities aimed at encouraging the last approach . In practice , however , and notwithstanding official recognition of their special situation and needs , many NORP have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property … ” ( pp . CARDINAL - CARDINAL ) .", "Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans , it stated :", "“ … This scheme allows wide ply for the exercise of discretion DATE and that discretion has repeatedly been exercised to the detriment of NORP . A DATE report by ORG described the prospects of applying for planning permission for a Gypsy site as ‘ a daunting one laced with many opportunities for failure’ . In DATE , DATE in which the success of application rates was evaluated , it was ascertained that MONEY of applications for planning permission by NORP were denied . In contrast , MONEY of all planning applications were granted during DATE . It is to be noted that , as a category , Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities . As such , virtually all Gypsy planning applications are highly contentious . Nonetheless , the fact remains that there is inadequate provision or availability of authorized halting sites ( private or public ) which the high rate of denial of planning permission only exacerbates . Moreover , there are indications that the situation has deteriorated since DATE . … In face of these difficulties , the itinerant lifestyle which has typified the GPE is under threat . ” ( pp . CARDINAL )", "NORP The report ’s recommendations included the following :", "“ … in view of the extreme insecurity many GPE now experience in respect of housing , governments should endeavour to regularize the legal status of GPE who now live in circumstances of unsettled legality . ” ( pp . CARDINAL and CARDINAL )" ]

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[ "14", "8" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "The applicant is a lawyer and serves in the Police .", "In a disciplinary order of CARDINAL DATE the Head of ORG of ORG in ORG found the applicant had committed a disciplinary offence ( disciplinárne previnenie DATE see below ) in that , in DATE , she had failed to discharge her duties prior to taking her DATE leave and had arbitrarily left for holiday without prior authorisation . The applicant was sanctioned by reducing her DATE salary by PERCENT for DATE .", "On DATE the applicant lodged an appeal against the order to the Head of ORG . She argued that the order was illegal and unjustified and that there were several flaws in the procedure leading to it . She maintained inter alia that the facts had not been established objectively , that she had not been given adequate time and facilities to defend herself and that the order lacked appropriate reasoning .", "On DATE the Head of ORG dismissed the appeal and upheld the order of CARDINAL DATE .", "On DATE the applicant requested that the Minister of the Interior review the decisions of CARDINAL DATE and DATE in a special extra - appellate procedure ( mimo odvolacieho konania ) .", "In a letter of DATE the Minister informed the applicant that he had reviewed the contested decisions and concluded that they were lawful .", "Part ( Časť ) CARDINAL governs the administrative judiciary . LAW this Part lays down the rules for a review of the lawfulness of decisions taken by administrative authorities on the basis of administrative law actions .", "Article CARDINAL defines situations in which administrative tribunals have no jurisdiction to review administrative decisions on the basis of administrative law actions . Pursuant to its paragraph CARDINAL ( f ) , as worded at the relevant time and until DATE , administrative tribunals did not have the power to review administrative decisions imposing sanctions on members of the armed forces unless such sanctions restrained the latter 's personal liberty or resulted in termination of their service .", "The LAW regulates the service ( section CARDINAL ( CARDINAL ) ) in the Police , ORG , ORG , ORG and ORG and legal relations concerning commencement , changes and termination of such service ( section CARDINAL ( CARDINAL ) ) .", "The disciplinary authority ( disciplinárna právomoc ) is vested in superior officers who have the power to make disciplinary awards ( disciplinárne odmeny ) and to impose disciplinary measures ( disciplinárne opatrenie ) on their inferiors .", "The term disciplinary offence is defined in LAW ( CARDINAL ) as a culpable breach of a police officer 's duties which does not constitute a criminal offence ( trestný čin ) or a minor offence ( priestupok ) .", "Pursuant to section CARDINAL ( CARDINAL ) in conjunction with section CARDINAL ( CARDINAL ) disciplinary offences can be sanctioned by disciplinary measures of ( i ) a written admonishment ; ( ii ) reduction of salary by PERCENT for a period of DATE ; and ( iii ) stripping of rank by one degree for a period of one year .", "Section CARDINAL concerns judicial review of decisions . It stipulates that a policeman or policewoman has the right to challenge final and binding decisions of their superiors in court ." ]

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[ "The applicants are fishermen operating in the coastal region of LOC on the basis of leases contracted with the ORG in DATE and renewed in DATE ( for a further period ending in DATE ) as well as in DATE ( for the period DATE ) .", "By virtue of section CARDINAL , subsection CARDINAL , of the CARDINAL LAW ( kalastuslaki , lag om fiske CARDINAL/CARDINAL ) ORG may restrict fishing , inter alia , if this is deemed necessary in order to safeguard future fish stocks . Since DATE the ORG has imposed such restrictions by issuing decrees . The restrictions have varied to some degree as regards their timing , territorial scope , the fish species in question and the prohibited fishing gear . The restrictions may also extend to private waters .", "In DATE PERSON and others challenged the lawfulness of Decree no . CARDINAL/CARDINAL ( “ the DATE Decree ” ) , whereby fishing with certain gear had been prohibited , inter alia , in waters leased by him . In its judgment of DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) declined to examine the merits of the appeal , considering that it lacked jurisdiction to consider the appellants ' demands that the decree be revoked and the implementation thereof stayed .", "By Decree no . DATE , which entered into force on DATE ( “ the DATE Decree ” ) , the Ministry prohibited salmon fishing with certain gear during certain periods in the main basin of LOC , in LOC and in LOC . The restrictions concerned the fishing of salmon between certain latitudes in the open sea and in coastal waters as well as in certain rivers and their estuaries , and extended to the fishing waters which the applicants were leasing from the ORG . The decree was later repealed and replaced by Decree no . CARDINAL/CARDINAL ( “ the DATE Decree ” ) . The date of entry into force of the last - mentioned decree ( DATE ) was specified by Decree no . CARDINAL/CARDINAL . In so far as the restriction concerned the applicants , it was maintained on substantially similar terms by Decree no . DATE , which entered into force on DATE ( “ the DATE Decree ” ) .", "On DATE , in response to a petition lodged by the applicants and others , ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) found no indication that ORG had , in restricting the salmon fishing in certain waters , acted contrary to , inter alia , ORG decision of CARDINAL DATE ( see paragraph CARDINAL below ) or otherwise incorrectly .", "On DATE the applicants and the ORG extended their respective leases up to DATE . In so far as relevant to the present case , the leases referred back to the terms of the DATE leases .", "In a further decision of CARDINAL DATE , in response to a petition by others , the ORG considered that , in issuing LAW , the Ministry had not exceeded the powers which LAW had conferred upon it . After hearing submissions from the Ministry he concluded that the restrictions set forth in the decree had been justified in order to safeguard the fish stocks . In so far as the petitioners had complained of discriminatory treatment , the ORG noted that the restrictions had differed from area to area in order to take into account the spawning routes of the salmon . He therefore accepted that there had been sufficient justification for the different timing of the prohibition in the respective water areas and for prohibiting different fishing gear in different areas .", "Having reviewed the territorial scope of the restrictions , the ORG considered , however , that the ORG had not sufficiently taken into account the need for equal treatment of fishermen in different areas . He noted that the decree had been based on a report of ORG on salmon fishing in the open sea which ORG had appointed in DATE ( avomerilohityöryhmä , havslaxarbetsgruppen CARDINAL:CARDINAL ) . ORG had found certain fishing restrictions necessary so as to enable the salmon to reach the northernmost rivers and thereby to safeguard the fish stocks . It had been of the further opinion that in order to be non - discriminatory in character the restrictions should apply equally to fishing in the open sea and to coastal fishing ( within village boundaries ) within the whole of the areas located between certain latitudes . The ORG noted that the terms of the decree had differed from the opinion of ORG , without any convincing reasons having been given therefor . The resultant differential treatment , without any generally acceptable grounds , of certain water owners and fishermen who had contracted leases , was therefore in violation of section CARDINAL of the LAW .", "On DATE the GPE District for ORG ( maaseutuelinkeinopiiri , landsbygds - näringsdistrikt ) granted PERSON CARDINAL NORP markkas ( FIM ) ( MONEY ( ORG ) ) and Mr PERSON FIM CARDINAL ( EUR CARDINAL ) in compensation for losses suffered as a result of the fishing prohibition imposed by LAW . Their average salmon catch per year during the periods in DATE when a fishing prohibition had been in force was estimated at QUANTITY and QUANTITY respectively , at the price of FIM QUANTITY . The applicants ' average catch of whitefish was estimated at QUANTITY and QUANTITY respectively , at the price of FIM CARDINAL per kg . The overall compensation amounts were reduced by PERCENT in order to accommodate the awards within the funds foreseen in the ORG budget . An appeal lay to ORG but the applicants did not avail themselves of that possibility .", "On DATE the applicants ' respective leases were further prolonged until DATE . The leases stipulated , inter alia , that salmon fishing was allowed within the leased areas “ in so far as prescribed in the ... decree on salmon fishing or other provisions ” .", "According to LAW ( NORP hallitusmuoto , NORP för GPE CARDINAL/CARDINAL ) , as in force up to DATE , everyone was to be equal before the law and his or her property was to be protected ( sections CARDINAL and CARDINAL ) . A judge or other officer was under an obligation not to apply a provision in a decree which conflicted with constitutional or other laws of ORG ( section CARDINAL , subsection CARDINAL ) . The LAW has been incorporated into NORP law by an ORG with the status of ordinary law ( Law no . CARDINAL/CARDINAL ) .", "Under LAW of DATE , anyone who had suffered an infringement of his rights , or damage , through an illegal act or negligence on the part of a civil servant was entitled to demand that the civil servant be convicted and held liable for damages , or to report him for the purpose of having charges brought ( section CARDINAL , subsection CARDINAL ) . A similar provision appears in section CARDINAL , subsection CARDINAL , of LAW ( NORP perustuslaki , PERSON grundlag CARDINAL/CARDINAL ) . LAW ( “ Basic rights and liberties ” ) of LAW of DATE was amended by PERSON no . PERSON , which entered into force on DATE . The new LAW includes , inter alia , the right to property ( section CARDINAL ; as from DATE section CARDINAL ) and has been incorporated as such into LAW . Under LAW a court of law must give precedence to a provision therein if the application of a provision of ordinary law would be in evident conflict with LAW . If a provision in a decree or any other statute of lower rank than an Act of Parliament is in conflict with the LAW or ordinary law , that provision shall not be applied by a court of law or any other public authority ( sections CARDINAL - CARDINAL ) .", "Under LAW ( vahingonkorvauslaki , skadeståndslag CARDINAL ) proceedings for damages may be initiated against the ORG on the basis of its vicarious liability for mistakes or omissions in the exercise of public authority . The ORG 's vicarious liability comes into play only if the responsible official fails in his or her duty to take a measure or perform a task that could reasonably be required in the light of the nature and purpose of the activity in question ( Chapters CARDINAL and CARDINAL ) . The claim for damages must be made within DATE from the date when the damage occurred , unless a shorter limitation period applies ( LAW , section CARDINAL ) .", "According to LAW ( vesilaki , vattenlag CARDINAL/CARDINAL ) , the holder of a building permit relating to a water area may , if the construction would clearly damage the fish stocks , be ordered to restock the area and take other necessary measures in order to safeguard the fish stocks in the affected waters ( LAW , section CARDINAL , subsection CARDINAL ) .", "An application concerning a measure alleged to be in violation of LAW whereby it is sought to have such a measure prohibited , the previous conditions re - established or damage compensated may be lodged with the competent water court ( LAW , section DATE , subsection CARDINAL ) .", "The general right to fish in public water areas and within the NORP fishing zone does not include the right to fish for salmon and sea trout ( see , for example , section CARDINAL , subsection CARDINAL , and section CARDINAL of LAW ) . According to LAW , provisions restricting fishing with certain gear may be introduced by decree . Restrictions on fishing within or outside the territorial waters of GPE may likewise be imposed by decree for the purpose of fulfilling obligations set in an international agreement binding on GPE , for safeguarding fish stocks or for any other comparable special reason ( section CARDINAL ) . The decrees of DATE which are of relevance to the present case ( see paragraph CARDINAL above ) were issued on the basis of section CARDINAL . Non - compliance with a fishing restriction may be subject to prosecution ( sections CARDINAL ) .", "The provisions concerning the ORG 's fishing waters and fishing rights can now be found in LAW ( no . DATE ) .", "On DATE ORG ( Pohjois - Suomen vesioikeus , PERSON vattendomstol ) ordered that certain companies permitted to construct hydroelectric power stations in LOC should DATE restock its estuary with an average of CARDINAL young salmon . This compensation order aimed at safeguarding the future salmon stocks in the waters affected by the construction . ( The LOC flows into LOC at Kemi , not far from ORG . ) ORG decision was upheld by ORG on DATE .", "In a judgment of CARDINAL DATE ( no . CARDINAL/CARDINAL ) ORG ( vesiylioikeus , vattenöverdomstolen ) found that since time immemorial the owners of fishing waters in LOC and its estuary had been engaged in fishing for salmon and sea trout without any ORG interference and with its de facto consent . Compensation for the loss of fishing benefits resulting from permitted construction should therefore be awarded to all individuals who had been engaged in such fishing in the area , provided they had been using legal fishing gear . ORG further found that the ORG too was entitled to compensation for the permanent loss of the use of its limited right in rem in respect of the fishing waters . In addition , compensation was awarded to the ORG for its loss of income from leasing out those waters .", "ORG ( korkein oikeus , högsta domstolen ) found in its decision of CARDINAL DATE ( no . DATE ) that the damage which a company had caused by setting up timber floating routes in LOC had caused the private owners of water areas to suffer losses which were to be compensated under LAW . The State , which traditionally had the right to fish for salmon in the river , had not used that right for DATE , either by leasing out its waters or in any other way .", "By a judgment of DATE ( no . CARDINAL ) ORG upheld a decision of ORG of DATE which had dismissed various fishery associations ' claim for compensation for the alleged failure to restock the estuary of LOC as ordered on DATE . ORG had found that the defendants had complied with the obligations imposed on them in DATE for the purpose of safeguarding the relevant fish stocks . In such circumstances the defendants could not be held responsible for the reduction in catches for which compensation had been sought .", "In its precedent CARDINAL:CARDINAL ORG examined an action for damages which a hydroelectric power company had brought against the ORG on the grounds that a contract between the CARDINAL with a view to establishing CARDINAL power plants along LOC could not be implemented in full , as ORG had enacted legislation for the protection of the river ( CARDINAL/CARDINAL ) . The company had sought compensation for wasted planning costs in so far as those had exceeded the amount paid out following the assessment procedure provided for in the LAW on ORG and Special Rights ( PERSON ) . ORG declined to examine this part of the claim , as the costs to be compensated had already been finally determined in the procedure under LAW .", "In so far as the company had claimed compensation for projected profit and related losses , ORG dismissed the action after having examined its merits . ORG reasoned , inter alia , as follows :", "“ ... The contract did not bind the legislative arm . Possible legislative changes and the possibility that no building permit would be granted were specifically taken into account in the contract . The government is therefore under no obligation to compensate the company for the economic losses it suffered on account of the fact that the contract for the construction of the power plant was never implemented . The company is therefore not entitled to any compensation ... other than that stipulated in [ Law no . DATE on the protection of the river ] . ... ”" ]

[ "6" ]

[ "6-1" ]

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[ "14", "P1" ]

[ "P1-1" ]

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[ "The first applicant 's daughter , who is the second applicant , was born on DATE .", "On DATE the first applicant took the second applicant to see their general practitioner because he and his wife were concerned about what appeared to be bruising on her legs . A clotting test was carried out but it showed no abnormality .", "On DATE the first applicant took the second applicant back to the general practitioner because her swimming teacher had expressed concern about the marks on her legs . The first applicant asked for a referral to hospital and an appointment was made for CARDINAL DATE with PERSON , a consultant paediatrician .", "On DATE the second applicant hurt herself in the genital area while riding her bike . She complained to her mother of hurting between her legs . Her mother did not examine her and she did not tell the first applicant of the incident .", "On DATE the first applicant took the second applicant to the appointment with Dr PERSON said that the bruising did not appear to be a skin disease and admitted the second applicant to hospital for further examination . The first applicant had to go to work but before leaving the hospital he told Dr PERSON that his wife would arrive soon and there should be no further examination or tests until she came and gave any necessary consent .", "When the first applicant 's wife arrived TIME , she found that a sample of the second applicant 's blood had been taken for testing , photographs had been taken of her legs and the local authority had been notified . A social worker informed her that Dr PERSON thought the second applicant had been abused . The first applicant 's wife then gave consent for a further examination . Dr PERSON and a police surgeon examined the second applicant 's legs and genitalia . The second applicant was given no explanation for the examinations and she was not questioned about the allegations of abuse . Following the examination , Dr PERSON informed the first applicant 's wife that the second applicant had been sexually abused and that it had probably been going on for DATE on account of the bruising . The social worker interviewed the second applicant generally , but asked no direct questions about sexual abuse . No record was made of the interview . During the interview the social workers told the first applicant 's wife to ask the first applicant and their eldest son to move out of the family home until further investigations had taken place . At this point she recalled that the second applicant had “ hurt between her legs ” while on her bicycle . She informed the social worker , who said that she would pass the information on to the doctor .", "At TIME , when the first applicant and his wife attempted to visit the second applicant on the ward , a nurse told them that there were orders that the first applicant should not be allowed to see her . This exchange was witnessed by other people on the ward . News was passed through the community and reached acquaintances in GPE . The following day , hospital staff were correctly informed that there could be no restrictions on visitors . The first applicant was thereafter permitted to visit the second applicant in hospital , although all visits were supervised on account of the suspicion that she had been sexually abused .", "On DATE the first applicant 's wife informed PERSON that the second applicant had “ hurt between her legs ” on her bicycle . Dr PERSON told her that there was no doubt the second applicant had been sexually abused and advised her that if she did not accept it , there was a risk that her other children would be taken into care .", "On DATE social workers visited the applicants ' home . The applicant 's wife asked for a second opinion on the cause of the bruising but the social workers told her that they saw no point in obtaining a second opinion . They did not , however , insist that the first applicant should leave the family home ; instead it was arranged that the first applicant 's wife should sleep in the room with her daughters .", "On DATE the first applicant 's wife noticed that the second applicant had marks on her hands . An appointment was made for the second applicant to see a dermatologist .", "On DATE the dermatologist reported that the marks on the second applicant 's legs were caused by vasculitis .", "On DATE the second applicant was diagnosed with PERSON 's disease , a rare condition of the capillaries which is manifested by the eruption of purple patches on the skin . She was discharged from hospital . PERSON wrote a letter to the first applicant and his wife which stated that there was insufficient evidence to say that the second applicant had been sexually abused and that the first applicant should no longer be considered to be implicated in the sexual or physical abuse of his daughter .", "The first applicant and his wife were unhappy with what had happened and made a formal complaint to ORG . ORG set up ORG with CARDINAL Assessors who were consultant paediatricians experienced in child abuse cases . The Panel report concluded that Dr PERSON had been right to admit the second applicant to hospital but found that she had acted too quickly in carrying out examinations . The report further noted that examinations and photographs should not have been taken while no parent was present ; that while Dr PERSON was not to blame for misdiagnosing the bruises , she should have monitored them and obtained a dermatologist 's opinion as a matter of urgency ; that the first applicant should have been properly consulted and interviewed ; and that Dr PERSON had attached far too much importance to the bruising , neglecting other relevant information available from the first applicant , his wife and the family doctor . Finally , the report noted that Dr PERSON had , without convincing explanation , failed to write to the first applicant with an explanation and an apology .", "On DATE the applicants brought proceedings in negligence against the local authority and hospital trust claiming compensation for personal injury and financial loss . Both were legally aided .", "On DATE ORG judge struck out the claims , finding that no duty of care arose between the local authority and the first applicant and that the hospital but not the local authority had owed a duty of care to the second applicant . The applicants appealed . Their appeals were joined to those of a number of other appellants .", "On DATE ORG granted the second applicant 's appeal and allowed her claim to proceed against the local authority as well as the hospital . ORG , however , withdrew the second applicant 's legal aid certificate on the basis that it was no longer reasonable for her to receive legal aid because the likely costs were disproportionate to the value of the claim . On DATE the second applicant 's appeal against the withdrawal was dismissed by an independent ORG , which agreed that the costs of pursuing the claim considerably outweighed any likely award of damages .", "On DATE ORG dismissed the first applicant 's appeal together with the appeals of the other appellants . The first applicant and the other appellants were granted leave to appeal to ORG .", "ORG gave judgment in DATE ( see ORG v ORG and Ors [ DATE ] CARDINAL AC CARDINAL ) . The question before ORG in ORG was whether the parent of a minor child falsely and negligently said to have abused or harmed the child could recover common law damages for negligence against a doctor or social worker who , discharging professional functions , made the false and negligent statement , if the suffering of psychiatric injury by the parent was a foreseeable result of making it and such injury had in fact been suffered by the parent . ORG concluded ( Lord PERSON of NORP dissenting ) that there were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents and it would not be just or reasonable to impose such a duty .", "Section CARDINAL of LAW DATE provides as follows :", "“ Consent by persons DATE to surgical , medical and dental treatment", "( CARDINAL ) The consent of a minor who has attained DATE to any surgical , medical or dental treatment which , in the absence of consent , would constitute a trespass to his person , shall be as effective as it would be if he were of full age ; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian .", "( CARDINAL ) In this section “ surgical , medical or dental treatment ” includes any procedure undertaken for the purposes of diagnosis , and this section applies to any procedure ( including , in particular , the administration of an anaesthetic ) which is ancillary to any treatment as it applies to that treatment .", "( CARDINAL ) Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted . ”", "NORP In relation to children under the age of sixteen , ORG has held that such minors have the right to consent on their own behalf to a variety of medical procedures , as long as they fully understand what is involved . Until the child achieves the capacity to consent , however , the parental right to make the decision continues save only in exceptional circumstances ( see FAC v GPE and ORG [ DATE ] ORG CARDINAL ) .", "ORG ( “ GMC ” ) guidelines for doctors in relation to obtaining consent for the treatment of children provide as follows :", "“ CARDINAL . You must assess a child 's capacity to decide whether to consent to or refuse proposed investigation or treatment before you provide it . In general , a competent child will be able to understand the nature , purpose and possible consequences of the proposed investigation or treatment , as well as the consequences of non - treatment . Your assessment must take account of the relevant laws or legal precedents in this area . You should bear in mind that :", "At DATE a young person can be treated as an adult and can be presumed to have capacity to decide ;", "Under DATE children may have capacity to decide , depending on their ability to understand what is involved ;", "Where a competent child refuses treatment , a person with parental responsibility may authorise investigation or treatment which is in the child 's best interests . The position is different in GPE , where those with parental responsibility can not authorise procedures a competent child has refused . Legal advice maybe helpful on how to deal with such cases .", "Where a child under DATE is not competent to give or withhold their informed consent , a person with parental responsibility may authorise investigations or treatment which are in the child 's best interests . This person may also refuse any intervention , where they consider that refusal to be in the child 's best interests , but you are not bound by such a refusal and may seek a ruling from the court . In an emergency where you consider that it is in the child 's best interests to proceed , you may treat the child , provided it is limited to that treatment which is reasonably required in that emergency .", "The statutory framework for civil legal aid is contained within Parts IV and I of LAW .", "A civil Legal Aid Certificate can only be issued where the case has sufficient merit to justify public funding . With limited exceptions , every application for civil legal aid is subject to CARDINAL statutory tests : first , section CARDINAL(CARDINAL ) of the CARDINAL Act requires that the applicant have reasonable grounds for taking , defending or being a party to the proceedings ( “ the legal merits test ” ) ; secondly , section CARDINAL(CARDINAL)(a ) of the DATE Act provides that civil legal aid might be refused if is unreasonable that the applicant should be granted legal aid ( “ the reasonableness test ” ) .", "Factors relevant to determining the reasonableness of a grant of legal aid include , inter alia , a cost benefit analysis , the importance of the case to the applicant , and whether the case is in the public interest .", "Once an applicant is granted legal aid , the merits are kept under review throughout the case . Under ORG ( General ) Regulations DATE , ORG has the power to discharge or revoke a ORG .", "If a certificate is discharged or revoked , the assisted person may appeal to ORG . If they remain dissatisfied with the decision , they may seek to have ORG decision quashed by ORG by way of judicial review . It is possible to appeal against a decision of ORG on judicial review to ORG and ( with leave ) to ORG .", "ORG Convention for the Protection of Human Rights and Dignity of the Human Being with regard to ORG ( opened to signature at GPE on DATE ) contains the following principles regarding consent :", "“ LAW", "DATE General rule", "An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it .", "This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks .", "The person concerned may freely withdraw consent at any time .", "DATE of persons not able to consent", "Subject to Articles CARDINAL and CARDINAL below , an intervention may only be carried out on a person who does not have the capacity to consent , for his or her direct benefit .", "Where , according to law , a minor does not have the capacity to consent to an intervention , the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law .", "The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity .", "Where , according to law , an adult does not have the capacity to consent to an intervention because of a mental disability , a disease or for similar reasons , the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law .", "The individual concerned shall as far as possible take part in the authorisation procedure .", "NORP The representative , the authority , the person or the body mentioned in CARDINAL above shall be given , under the same conditions , the information referred to in LAW .", "The authorisation referred to in DATE and CARDINAL above may be withdrawn at any time in the best interests of the person concerned .", "DATE Emergency situation", "When because of an emergency situation the appropriate consent can not be obtained , any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned . ”" ]

[ "13", "8" ]

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[ "The applicants are :", "( CARDINAL ) PERSON ( also spelled PERSON ) , born in DATE ;", "( CARDINAL ) Mr PERSON , born in DATE ( died in DATE ) ;", "( CARDINAL ) PERSON , born in DATE ;", "( CARDINAL ) Mr PERSON , born in DATE ;", "( CARDINAL ) PERSON , born in DATE ;", "( CARDINAL ) Mr PERSON , born in DATE .", "The applicants are NORP nationals and live in GPE , in the village of PERSON , in LOC , except for the fourth applicant , who lives in PERSON .", "The applicants submitted that CARDINAL the federal troops had conducted a “ sweeping ” operation ( “ зачистка ” ) in the neighbouring villages of PERSON and PERSON . TIME on DATE the federal forces blocked the roads leading into PERSON and stopped the traffic on the PERSON to GPE highway , which is the main road leading into and out of the village . They then disarmed and blocked the local police and cut off their communications . After that they proceeded to carry out house - to - house searches and identity checks .", "The military operation was allegedly in response to the kidnapping on DATE of a ORG sans GPE humanitarian worker , PERSON PERSON , which had occurred on the road outside GPE Atagi . The operation was well documented by human rights NGOs , such as ORG . The applicants submitted numerous affidavits about the events of DATE produced by members of the families of the detained persons and by neighbours . They suggested that CARDINAL men had been detained in PERSON and PERSON during that operation , including their relatives PERSON , PERSON and PERSON .", "The first and second applicants are the mother and father of PERSON ( also spelled PERSON ) PERSON , born in DATE . Both applicants retired and lived at CARDINAL FAC . The first applicant suffers from epilepsy and diabetes and the second applicant had advanced tuberculosis ( he died in DATE ) . Their son PERSON was a cattle - breeder , and after finishing his army service in DATE he lived in GPE . He was married and had CARDINAL minor children ; his family resided in GPE . He was also suffering from tuberculosis . In DATE PERSON came to his home village of PERSON to visit the first and second applicants , whom he also supported financially . Immediately upon arrival he registered with the village administration . PERSON Magomed Debizov was described by the head of the village administration as a good member of the community and part of a large and hard - working family , who had not taken part in unlawful activities .", "The third and fourth applicants are the mother and brother of PERSON , born in DATE . PERSON was the youngest of the third applicant ’s CARDINAL children , and lived with her at CARDINAL FAC in GPE . He was married and the father of CARDINAL minor children . After completing his service in the NORP army in DATE , he graduated from university with a degree in economics . However , he could not find work in this field , and supported his family by working as a car mechanic in PERSON . PERSON was described by the head of the village administration as a respectful and honest man , who had no connections with the illegal fighters .", "Said - Magomed Debizov and Iznovr PERSON had been friends since childhood . TIME on DATE they both went to the car repair shop where Mr PERSON worked . They were both carrying identity documents . When the electricity was cut off , they decided to close the workshop and to return home . At TIME they went out into FAC , along which CARDINAL armoured personnel carriers ( APCs ) and an LOC military truck were passing . Several witnesses testified that the CARDINAL men had been accompanied by servicemen , who had not been wearing masks and were described as “ contract soldiers ” , to CARDINAL of the trucks and put into the back . The vehicles had then driven off towards ORG , in the direction of the military checkpoint on the main road .", "The fifth and sixth applicants are the mother and father of PERSON , born in DATE . They lived at CARDINAL FAC in GPE . The fifth applicant is a bookkeeper and the sixth applicant is unemployed . PERSON graduated from the CARDINALth grade of ORG school no . CARDINAL . He was described by the head of the village administration as a modest , good - natured young man , who had mostly stayed at home and had never participated in illegal activities .", "According to the applicants , on DATE PERSON was washing the family car , a GPE , near a stream , QUANTITY from his home . At TIME he saw APCs entering the village and started driving back towards home . An ORG , driving at high speed , chased his car and smashed into it . Mr PERSON was not hurt and climbed out of the car . The fifth applicant , who was at home , ran out because of the noise and the bursts of submachine - gun fire . She saw the servicemen beating her son with rifle butts and tried to intervene . The soldiers beat her , and she fell to the ground . PERSON was forced into an ORG with an obscured hull number and driven away . The neighbours who witnessed the scene were prevented from interfering by armed soldiers .", "NORP The families of LAW , PERSON and PERSON have had no news of them since DATE .", "The Government in their observations did not challenge the facts as presented by the applicants . They stated that it had been established that on DATE during the daytime , unidentified persons wearing camouflage uniforms and masks , armed with automatic weapons and using armoured vehicles , had arrived in the village of PERSON in LOC , apprehended PERSON , PERSON and PERSON and taken them away in an unknown direction .", "NORP Immediately after the detention of their family members the applicants started to search for them . Until DATE PERSON remained sealed off , and the applicants could not travel and search for their relatives .", "Most of the men detained during the sweeping operation were released within DATE , except CARDINAL men , CARDINAL of them the applicants’ relatives . On DATE the bodies of CARDINAL detainees were discovered in the Novye Atagi quarry . According to witness statements and a PERSON report , the bodies bore clear signs of torture and violent death : fingers and ears were cut off , there were scars from electric shocks , and knife and gunshot wounds . The Government disputed this information ( see below ) .", "The applicants applied to numerous official bodies , both in person and in writing , trying to find out the whereabouts and the fate of the CARDINAL disappeared men . Among other authorities they applied to the departments of the ORG , to the military ORG offices , to ORG ( the ORG ) , to the civil and military prosecutors at various levels , to administrative authorities and public figures , and to the OSCE mission in GPE . The applicants also personally visited detention centres and military bases . On DATE the applicants completed ORG Human Rights Centre individual reports about cases of forced disappearance .", "The applicants received no substantive information about the fate of their family members and about the investigation . On several occasions they were sent copies of letters by which their requests had been forwarded to the different ORG services . Below is a summary of the letters kept by the applicants and the replies they received from the authorities .", "On DATE the first and third applicants , PERSON and PERSON , wrote letters to the military prosecutor of GPE , the head of ORG , the military commander of GPE and the Special Envoy of the NORP President in GPE for rights and freedoms , asking for help in finding their sons .", "DATE after their sons had been detained , the first and third applicants wrote to ORG , the head of the ORG and the Minister of the ORG . In the letters they recounted the details of their ORG detention and stated that PERSON , the deputy mayor of ORG in charge of the release of illegally detained persons , had unofficially told them that ORG and Iznovr PERSON had been detained at “ CARDINAL LOC ( special mission brigade no . CARDINAL ) and that a criminal charge had been brought against them . The applicants asked to be informed of the charges against their sons and to receive confirmation of the place of their detention .", "On DATE the applicants wrote to the member of ORG for GPE , Mr PERSON , and asked for his assistance in finding their family members .", "On DATE ORG ( “ the district prosecutor ’s office ” ) informed the third applicant that on DATE that office had instituted criminal proceedings ( case file no . ORG ) in respect of the kidnapping of PERSON and PERSON , and that she could review the relevant documents in that office .", "On DATE the third applicant submitted a petition to the head of ORG , the military prosecutor and the military commander of GPE to help her find her son .", "On DATE the office of ORG ( “ ORG Office ” ) forwarded the first and third ORG complaint to the district prosecutor ’s office with a request to open a criminal investigation under LAW ( kidnapping ) following the “ disappearance ” of their CARDINAL relatives after “ unknown persons dressed in camouflage uniform had conducted an identity check in the village of GPE ” . Similar letters were sent on DATE .", "On DATE the district prosecutor ’s office informed the first and third applicants that on DATE it had instituted criminal proceedings under LAW into their ORG kidnapping , and that the file had been assigned no . CARDINAL .", "On DATE the first and third applicants requested the district prosecutor ’s office to inform them about the progress in the investigation .", "On DATE ORG forwarded the applicants’ letter to the district prosecutor ’s office for action and requested that office to transfer the investigation file to it .", "On DATE ORG stated in reply to the applicants’ letters that it had examined the investigation files opened in respect of the kidnapping of Said - Magomed Debizov , PERSON and PERSON , and that the proceedings had been suspended on account of the failure to identify the culprits . The district prosecutor had been instructed to reopen the investigation and to take further steps in order to identify the culprits and to establish the missing ORG whereabouts .", "On DATE the district prosecutor ’s office informed the first and third applicants that the criminal investigation in case no . PERSON had been reopened and that they should report to the office for questioning .", "On DATE the first and third applicants asked the district prosecutor ’s office to inform them about the progress in the investigation and to grant them victim status in the proceedings .", "On DATE the district prosecutor ’s office informed the applicants that the proceedings in criminal case no . CARDINAL had been adjourned and reopened on CARDINAL occasions . In DATE the investigation had forwarded a number of requests for information to the military commander of the district , to all the local departments of the interior in GPE , to all pre - trial detention centres in GPE and to the ORG . These measures had produced no results and the investigation had been adjourned on DATE . The measures aimed at finding their sons would continue .", "On DATE the district prosecutor ’s office reminded the first applicant that in DATE she had been questioned and had been granted victim status in the criminal proceedings regarding her son ’s abduction .", "On DATE the district prosecutor ’s office informed the third applicant that on DATE it had questioned Iznovr PERSON ’s wife and granted her victim status in the proceedings .", "On DATE the district prosecutor ’s office again informed the first and third applicants about the adjournment of the proceedings and the absence of relevant information from the law - enforcement authorities in GPE .", "On DATE the district prosecutor ’s office informed the applicants that the investigation in cases nos . ORG and DATE had been adjourned , but that steps aimed at finding their relatives continued . The applicants were informed of the possibility of appealing against the decisions to a higher - ranking prosecutor or to a court .", "The fifth applicant , PERSON , submitted that in DATE immediately following her son ’s detention , the military commander of the village , whose name she did not recall , had told her that PERSON had been in a hospital in GPE and that he had been “ registered on a computer as an illegal fighter ” .", "In DATE the fifth applicant wrote to the district prosecutor ’s office , the military commander and the military prosecutor of GPE , the head of the district administration and the head of the district department of the interior , stating the circumstances of her son ’s detention and asking for help in finding him .", "At some point in DATE the fifth applicant wrote to the Deputy Prosecutor General in charge of ORG and asked for assistance in finding her son .", "On DATE the fifth applicant wrote to the head of ORG , the military prosecutor and the military commander of GPE , requesting them to help her find her son .", "On DATE the military prosecutor of military unit no . CARDINAL , based in GPE , the main NORP military base in GPE , informed the fifth applicant that her complaint about the alleged kidnapping of her son by military servicemen had been forwarded to the military prosecutor of military unit no . DATE , based in LOC .", "On DATE the district prosecutor ’s office informed the fifth applicant that a criminal investigation ( file no . DATE ) had been opened into her son ’s kidnapping .", "On DATE the military prosecutor of military unit no . CARDINAL forwarded the fifth applicant ’s complaints to ORG for further investigation , since there were no grounds to conclude that military servicemen had been involved in Mr PERSON ’s abduction .", "On DATE ORG forwarded the fifth applicant ’s letter to the district prosecutor ’s office .", "On DATE ORG stated in reply to the applicants’ letters that it had examined the files opened in respect of the kidnapping of Said - Magomed Debizov , PERSON and PERSON , and that the investigation had been suspended on account of the failure to identify the culprits . The district prosecutor had been instructed to reopen the investigation and to take further steps to identify the culprits and to establish the missing ORG whereabouts .", "On DATE the district prosecutor ’s office informed the applicants that the investigation of cases nos . ORG and DATE had been adjourned , but that measures aimed at finding their relatives were being taken . The applicants were informed of the possibility of appealing against the decisions to a higher - ranking prosecutor or to a court .", "The applicants referred to the report “ ORG ” produced by ORG , which in LAW described the sweeping operation in NORP DATE and the detention of PERSON , PERSON and PERSON . They also referred to the ORG report of DATE entitled “ The ‘ GPE War’ in GPE : Forced Disappearances , Torture and Summary Executions ” , which listed PERSON , PERSON and PERSON among the victims of “ forced disappearances ” after their detention by the NORP servicemen .", "In their observations the Government did not dispute the information concerning the investigation of the abduction of LAW , PERSON and PERSON as presented by the applicants . Relying on information obtained from ORG , they referred to a number of other procedural steps taken by the investigation which had not been mentioned by the applicants . However , despite specific requests from ORG , the Government did not submit copies of any documents to which they referred ( see below ) .", "On DATE the district prosecutor ’s office opened a criminal investigation ( file no . CARDINAL ) under LAW , paragraph CARDINAL ( a ) and ( g ) , into the kidnapping of PERSON , acting upon a complaint submitted by the fifth applicant , his mother . On DATE the investigation of the case was assigned to an operational investigative group within the prosecutor ’s office .", "DATE . On DATE the fifth applicant was questioned and was granted victim status in case no . DATE . She stated that at TIME her son had been washing his car in the street near their house . The car had been hit by an ORG , from which armed persons in masks had jumped out and taken her son away .", "Also on DATE the sixth applicant , the father of the kidnapped man , was questioned and was granted victim status . He stated that he had not been an eyewitness to the events , but he was certain that the crime had been committed by military servicemen . He could not name the source of that information and did not submit any pecuniary claims for the damaged car .", "According to the Government , within the same period the investigation had questioned CARDINAL relatives of Mr PERSON and the head of the village administration . It had also carried out on - site examinations and taken other relevant steps . A question had been put to the local military commander .", "On DATE the investigation was adjourned on account of the failure to identify the culprits . On DATE the investigation was resumed . In DATE and DATE the investigator forwarded requests to ORG of the ORG , asking that office to take measures to solve the crime . On DATE the investigation was adjourned . On DATE that decision was quashed by ORG . On DATE the investigation was resumed and new information requests were sent to the “ competent bodies ” . On DATE the investigation was adjourned .", "On DATE the investigation was resumed . On DATE the investigator in charge of the case again examined the site of the crime and drew up a plan . On DATE the investigation was adjourned . On DATE the investigation of criminal case no . DATE was resumed , and on DATE it was again adjourned .", "In the meantime , on DATE the district prosecutor ’s office had opened another criminal investigation ( file no . ORG ) , acting upon a complaint by PERSON about the kidnapping of her cousin PERSON and his friend PERSON , also under LAW , paragraph CARDINAL ( a ) and ( g ) .", "On DATE the first applicant was questioned and granted victim status in case no . DATE , concerning the kidnapping of her son PERSON Debizov . On DATE ( in some documents DATE the investigation questioned the wife of PERSON and granted her victim status in the proceedings . On DATE the third applicant was questioned about her son ’s abduction . On DATE the third applicant was also granted victim status in case no . DATE .", "On DATE the investigation questioned CARDINAL neighbours of the applicants . The witnesses stated that on DATE at CARDINAL TIME a number of unknown persons had arrived at the car repair shop where Mr PERSON and Mr PERSON worked and had taken them away .", "On DATE the investigation was adjourned on account of the failure to identify the culprits . On DATE that decision was quashed and the investigation was resumed . The investigator forwarded requests for information to the local department of the interior . On DATE he informed the fourth applicant that the investigation into his brother ’s abduction was ongoing . On DATE the investigation was adjourned .", "On DATE ORG examined the case file and quashed the decision to adjourn the proceedings . On DATE the investigation was resumed . On DATE the first and third applicants were informed about the resumption of the proceedings , and information requests were forwarded to the competent authorities . On DATE the investigation was adjourned on account of the failure to identify the culprits . On DATE the proceedings in case no . CARDINAL were reopened .", "The Government submitted in their observations that on DATE the CARDINAL criminal investigations had been joined by the district prosecutor ’s office , because the crimes had been committed at the same time and the same place . The proceedings were assigned case no . DATE .", "On DATE and DATE the investigation again examined the site of the crime , questioned the third applicant and forwarded requests for information about the missing persons to the pre - trial detention centres in LOC . On DATE the investigation was adjourned .", "On DATE ( or DATE according to CARDINAL document ) the investigation was again reopened . The applicants were informed of this . The investigator instructed the local police service to identify and question witnesses to the abduction . On unknown dates the police questioned CARDINAL persons , who testified that on DATE CARDINAL persons driving an ORG , allegedly military servicemen , had entered PERSON and driven PERSON away . CARDINAL other persons testified that on DATE a group of unidentified persons wearing masks and camouflage uniforms , armed with automatic weapons and moving about in ORG and UAZ vehicles , had taken away ORG and PERSON from the car repair workshop in PERSON .", "The Government stated , in summary , that the investigation had questioned CARDINAL relatives and neighbours of the abducted persons , as well as the head of the ORG administration , PERSON , who had given similar accounts of the events . None of the persons questioned had stated that PERSON , Mr PERSON and Mr PERSON had been ill - treated while being apprehended .", "Furthermore , the ORG stated that on DATE ORG had opened a criminal investigation ( file no . DATE ) following the discovery on DATE on the outskirts of PERSON of CARDINAL male bodies with firearm wounds . The CARDINAL men had been identified as PERSON . , residents of another village , who had left home in TIME of DATE and had not been seen alive afterwards . The investigation had not obtained information to confirm that ORG . had been tortured before their deaths . The investigation had not obtained any clues to link the case to the abduction of the applicants’ relatives and was ongoing .", "The Government further admitted that the investigation into the kidnapping of the applicants’ CARDINAL relatives had been unable to establish their whereabouts . It found no evidence to support the involvement of the “ special branches of the power structures ” ( специальных подразделений силовых структур ) in the crime . The law - enforcement authorities of GPE had never arrested or detained Mr PERSON , Mr PERSON and PERSON PERSON on criminal or administrative charges and had not carried out a criminal investigation in respect of any of them . ORG of the ORG , ORG of the ORG and the LOC military circuit stated that no special operations had been carried out in respect of the CARDINAL men and that they had never been detained by them . Furthermore , the Government stressed that the criminal investigation had obtained no information to confirm the applicants’ allegations that the village had been “ sealed off ” by servicemen or that a special operation had been carried out there at the time . The possibility could not be excluded , in their view , that the crime had been committed by members of the illegal armed groups who had entered the village .", "Despite specific requests by ORG on QUANTITY occasions , the Government did not submit any documents from the file in criminal case nos . CARDINAL and DATE , except for a copy of the list of documents contained in it . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings and could prejudice the success of the investigation .", "For a summary of the relevant domestic law , see PERSON and GPE v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ." ]

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

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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 multiple gang rape ( including statutory rape ) , of inducing the victims to take intoxicants and of persuading the victims not to inform the police about those crimes .", "On DATE the applicant was remanded in custody by ORG . The decision was based on a reasonable suspicion , confirmed by testimonies of the victims and of other suspects , that the applicant had committed the offences with which he had been charged , the severity of the sentence he faced and the need to secure the proper conduct of the investigation . The court pointed to a serious risk that the applicant , if not detained , might attempt to influence the co - accused and the victims .", "Subsequently , CARDINAL other persons were charged with participation in the crime and CARDINAL of them were remanded in custody .", "On DATE the prosecutor decided to obtain an expert opinion on the mental state of CARDINAL witnesses , who were minors , and on their ability to appreciate and recollect things they had witnessed . The psychologist submitted his opinions on CARDINAL and DATE .", "On DATE the public prosecutor decided to prolong the investigation .", "The applicant 's detention was extended on DATE , DATE and DATE , CARDINAL DATE , DATE and CARDINAL DATE , DATE , CARDINAL DATE , CARDINAL May , DATE and DATE , CARDINAL DATE , DATE , CARDINAL DATE and CARDINAL DATE , QUANTITY DATE and CARDINAL DATE . The court found that the grounds for detention on remand were still valid and owing to the fact that the crimes had been committed in co - operation with other persons , there remained a high risk that the applicant might interfere with the course of justice and exert pressure on witnesses and victims . The courts also pointed to the necessity of separating the suspects . As the investigation continued , the court stated that there had been exceptional circumstances which precluded the termination of the preparatory proceedings , such as the complexity of the case , the need to obtain further evidence and the multiplicity of plots , accused and charges . The court also found that the applicant 's case had not disclosed any of the grounds for release provided for by LAW .", "On DATE and DATE the prosecutor decided to include in the case file the case files of other proceedings conducted against the suspects .", "NORP In DATE the public prosecutor ordered expert opinions on the kind of injuries the victims had suffered and whether these might have resulted from the circumstances described by them , and on the ability of the suspects to understand the meaning of their acts and to control their behaviour at the time when the offences had been committed . The opinions were submitted on DATE .", "On DATE the NORP Regional Prosecutor charged the applicant , in addition to the previous charges , with participation in an organised criminal gang .", "By decision of CARDINAL DATE the investigation was prolonged until DATE .", "The preparatory proceedings , during which the prosecutor examined a total of CARDINAL witnesses and obtained over CARDINAL other items of evidence , were closed on DATE . On the same date the public prosecutor lodged a bill of indictment comprising CARDINAL charges and CARDINAL victims . The applicant was charged with CARDINAL offences : participation in an organised criminal gang , gang rape ( including statutory rape ) committed with extreme cruelty and in conjunction with deprivation of liberty , and with threatening the victims and persuading them not to inform the police about the crimes .", "In DATE the first - instance court held CARDINAL hearings during which the evidence of the witnesses and defendants was heard : on DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE and DATE . CARDINAL other hearings scheduled in DATE were cancelled or adjourned for reasons not attributable to the court , in particular the absence of the defendants , including the applicant , or their representatives . The court remanded in custody CARDINAL of the defendants who had failed to appear at a hearing and lifted the detention of another . It also dismissed from his function a legal - aid lawyer who had failed to appear and appointed a new CARDINAL in his place . The court also decided to examine the case against CARDINAL of the co - accused separately since it was felt that his psychiatric observation could lead to a delay in the proceedings .", "At the hearing of CARDINAL DATE the court prolonged the applicant 's detention until DATE . The court emphasised that the absence of CARDINAL of the defendants prevented the hearing of the other accused and that detention was the only preventive measure which could in those circumstances secure the proper conduct of the proceedings .", "The hearing scheduled for DATE was adjourned in order to have CARDINAL of the victims heard with the assistance of a psychologist . On DATE the psychologist submitted an opinion in which he considered that it was inadvisable to hear the victim , since this would oblige her to re - live her traumatic experience .", "NORP In DATE CARDINAL hearings were held and CARDINAL had to be adjourned or cancelled because of the illness of a judge , the absence of a witness or the fact that the case file was with ORG which was deciding on the prolongation of the detention . The court requested the police to determine the whereabouts of CARDINAL witnesses . Fines were imposed on CARDINAL absent witnesses .", "From DATE until DATE the applicant served a DATE prison sentence imposed in separate proceedings .", "On DATE ORG prolonged the applicant 's detention until DATE . It held that there had been a serious risk that the applicant might try to hinder the proper course of the proceedings . It was proved that CARDINAL of the defendants had exerted improper pressure on witnesses and thus caused them to alter significantly their versions of the events . The court noted that the case involved CARDINAL defendants and CARDINAL witnesses . Owing to the considerable amount of evidence to be taken , it was inevitable that the proceedings had been prolonged , given the need to ensure that the right to a fair trial was fully respected . At this point the court emphasised that the defendants had been making extensive use of their rights to question witnesses . Several witnesses had changed their testimonies and the reading out of their earlier statements had been justified . TIME witnesses remained to be heard at that stage of the proceedings and there was a need to summon further witnesses and to cross - examine them .", "On DATE ORG prolonged the applicant 's detention until DATE . The court endorsed the reasoning of the first - instance court in the latter 's decision of DATE . In addition , it dealt with the length of the proceedings . The court noted that , since DATE , the first - instance court had held CARDINAL hearings and examined CARDINAL witnesses . The absence of other witnesses was the major reason for the prolongation of the proceedings ; however , the trial court had taken proper measures to speed up the trial . The appellate court also pointed to the fact that the examination of the witnesses had been very time - consuming owing to the complexity of the case and the mental state of the victims . The parties had also requested additional witnesses to be heard .", "Three hearings were held in DATE , despite the absence of some of the defendants at CARDINAL of the hearings . A number of absent witnesses were ordered to be brought to court .", "CARDINAL further hearings were held in DATE . The third hearing , scheduled for DATE , had to be adjourned because of the absence of a key witness . The court fixed a time - limit for submission of the parties ' motions for evidence . Consequently , the defendants ( among them the applicant ) made CARDINAL applications for the examination and cross - examination of witnesses , the ordering of expert opinions and inspections of the crime scene .", "On DATE and CARDINAL DATE ORG decided to prolong the applicant 's detention . The court held that the considerable length of the proceeding was due to the complexity of the case coupled with the large number of accused and witnesses . The court concluded that the prerequisites for detention provided for by LAW applied .", "On DATE the court held a hearing despite the absence of CARDINAL defendants . A witness was ordered to come to the hearing . The court also obliged the defendants to specify their reasons for requiring the cross - examination of witnesses .", "CARDINAL further hearings were held in DATE and QUANTITY in DATE . The court dismissed CARDINAL motions for evidence , having found them irrelevant for proving the facts alleged .", "From DATE until DATE the applicant was serving a prison sentence imposed on him in separate proceedings .", "Up to DATE QUANTITY hearings had been held during which the court took evidence from further witnesses and an expert . CARDINAL witness was examined at his place of residence and the testimonies of CARDINAL other witnesses , who were abroad , were read out . The court dismissed the defendant 's request to summon other absent witnesses , having found that their examination would not add anything to the case . The police were ordered to determine the whereabouts of CARDINAL defendants .", "On DATE the ORG found the applicant guilty as charged and sentenced him to DATE imprisonment and a DATE period of deprivation of his civic rights . The time spent in pre - trial detention was deducted from the sentence . All the accused appealed .", "On DATE the court prolonged the applicant 's detention until DATE .", "On DATE ORG upheld the judgment with respect to the applicant . The applicant appealed .", "On DATE ORG rejected the applicant 's complaint of DATE about the excessive length of the proceedings before the Opole ORG , finding that it had been lodged after the termination of the proceedings .", "On DATE the applicant lodged a new complaint about the undue length of the proceedings , referring to his application pending before the ORG . On DATE ORG dismissed the complaint as ill - founded . The court admitted that the proceedings had lasted a considerable period of time but stated that this fact alone could not lead to the conclusion that the applicant 's right to a trial within a reasonable time had been violated . The court examined solely the part of the proceedings conducted before the Opole ORG .", "On DATE ORG dismissed the applicant 's cassation appeal .", "The relevant domestic law 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 ) is set out 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 judgment PERSON GPE , no . CARDINAL/CARDINAL , § § DATE , DATE , addresses more specifically the issue of domestic practice in the area of pre - trial detention and organised crime .", "For the relevant domestic law and practice concerning the available remedies against excessive length of proceedings , see Ratajczyk v. GPE DATE . ) , no . CARDINAL , ECHR DATE ; PERSON v. GPE , no . CARDINAL , judgment of DATE , and ORG v. GPE , no . CARDINAL/CARDINAL , judgment of DATE ." ]

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[ "5", "6" ]

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

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant and CARDINAL other persons , all members of the collective enterprise PERSON , lodged a claim with ORG ( “ the ORG ” ) against this enterprise and its director seeking the annulment of decisions on the PERSON ’s re - organisation . The applicant had worked in this enterprise for DATE .", "On DATE ORG decided to leave the claim without examination .", "On DATE the ORG of Appeal quashed that ruling and remitted the case to the first - instance court for an examination on merits .", "Meanwhile the enterprise PERSON was liquidated , and the liquidator became a party to the proceedings .", "As a result , on DATE ORG restarted its examination of the case .", "On DATE it found against the claimants .", "In the course of the proceedings ORG adjourned hearings on CARDINAL occasions in allowing requests of the claimants , who needed additional time for amending their claims , or given their failure to appear . There were also CARDINAL adjournments requested by the defendant enterprise or caused by the absence of its representative . On CARDINAL or CARDINAL occasions hearings were adjourned because the judge was busy or following procedural measures ordered by the court .", "On DATE ORG found that the case fell under the jurisdiction of commercial courts and sent it for examination to ORG , which on DATE upheld the judgment of ORG .", "On DATE the Higher Commercial Court found that the dispute was to be examined by the courts of general jurisdiction , quashed the ruling of CARDINAL DATE and remitted the case back to ORG .", "On DATE ORG discontinued the proceedings in part concerning the claims against the enterprise PERSON , as it had been liquidated by that time , and rejected the remainder of the claims as unsubstantiated .", "On DATE ORG upheld that ruling .", "On DATE the applicant , as well as the other claimants ( see paragraph CARDINAL above ) , lodged an additional claim against the enterprise PERSON for recovery of a share .", "The claimants supplemented and specified their initial claims on a number of occasions .", "On DATE ORG stayed the examination of the case pending the outcome in the first set of proceedings .", "On DATE ORG quashed the above ruling , and the first - instance court resumed the proceedings .", "On DATE ORG allowed the applicant ’s request for an expert assessment of the value of a share in the enterprise PERSON , which it entrusted to ORG for Forensic Expert Examinations .", "NORP In DATE the aforementioned expert institution informed the court that it did not have the required expertise capacities . The proceedings were then resumed , without the evaluation in question having been undertaken .", "On DATE ORG found against the claimants .", "On DATE by ORG upheld that judgment .", "On DATE the Higher Commercial Court found that the case was to be examined by courts of general jurisdiction , quashed the ruling of CARDINAL DATE and sent the case for examination to ORG .", "On DATE ORG discontinued the proceedings in the part concerning the claims against the enterprise PERSON due to its liquidation and upheld the judgment of DATE in the remaining part .", "On DATE ORG upheld that ruling ." ]

[ "6" ]

[ "6-1" ]

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[ "The first applicant was born in DATE and lives in GPE . The second applicant was born in DATE and died in DATE .", "By decision no . CARDINAL of DATE , ORG of ORG ( регіональне відділення ORG державного майна України в PERSON області ) transformed a ORG enterprise , PERSON , into a joint - stock company , which resulted in its privatisation . An audit of ORG ’s assets carried out on DATE revealed that the company ’s immovable property included several hostels .", "On DATE M. was reorganised into CARDINAL companies including S. , to which ownership of the hostels was transferred .", "On DATE ORG declared S. insolvent .", "NORP By letter of DATE , the liquidator in the S. insolvency proceedings informed the mayor of Malyn and the Head of ORG that S. had been declared insolvent . As the sale of the hostels owned by S. would , according to the liquidator , create social tensions in the town , it was proposed that the town would take over their ownership .", "By letter of DATE the mayor informed the liquidator that the hostels were not owned by the ORG and it was for the board of creditors to decide what to do with them .", "On DATE the board of creditors agreed to sell CARDINAL of the hostels to the applicants .", "On DATE a contract of sale was signed . The applicants paid CARDINAL NORP hryvnias ( ORG ) ( at the material time MONEY ( ORG ) ) for the hostel and became owners of a CARDINAL share each .", "On DATE the applicants informed a local electricity supply company that they were the new owners of the hostel . They requested the company to cut off the electricity supply until a new contract had been signed with them . The applicants discovered that the power cables and electricity meters serving the property needed to be replaced , and that the hostel occupants had not been paying rent .", "On DATE the electricity supply company informed the hostel occupants that the electricity would be cut off on DATE .", "On DATE a prosecutor ordered the electricity in the hostel not to be cut off since he had been preparing to institute legal proceedings on behalf of the hostel occupants .", "NORP By letter of DATE , the applicants informed ORG , the mayor , the company S. , at that time allegedly in liquidation , and the hostel occupants , that they had bought the hostel in order to live there themselves . The applicants stated that when the hostel was being sold , the occupants had refused to participate in the sale process . Despite the hostel ’s change of ownership and need for refurbishment , its occupants had not been paying rent or communal charges for DATE . The applicants requested PERSON to provide new housing to those occupants , who were requested to vacate the hostel by DATE .", "On DATE , PERSON , a DATE hostel occupant , sought the assistance of ORG as she had a young child and had been requested to leave the hostel .", "On DATE a prosecutor instituted proceedings at the Malynsky ORG on behalf of PERSON , requesting that the decision of CARDINAL DATE and all subsequent transfers of ownership be declared invalid . The prosecutor noted that in DATE the hostel occupants had lodged previous complaints with his office . After examining the case the prosecutor concluded that the hostel ’s privatisation in DATE had been unlawful . He argued that section CARDINAL(CARDINAL ) of ORG ( ORG « Про приватизацію державного житлового фонду ORG ) prohibited the privatisation of rooms in hostels . The transfer of ownership of the hostel and its subsequent sale breached the LAW , other legal provisions and the “ moral principles of society ” , since the occupants’ constitutional rights to housing had been violated . It also adversely affected the economic interests of the ORG and the housing rights of PERSON , who was a single mother with a young child and was therefore unable to lodge a claim herself . Lastly , the prosecutor requested that ownership of the hostel be transferred to ORG ( “ the ORG ” ) .", "On DATE the applicants lodged a counterclaim . They reiterated that the hostel occupants had refused to participate in the hostel sale process and had not been paying rent and communal charges which had resulted in S. ’s insolvency . The applicants submitted that they had informed the prosecutor ’s office of the matter and requested PERSON to provide housing to the hostel occupants . The prosecutor ’s office had failed to protect the rights of the new owners despite the fact that the hostel was in an alarming state , the drainage and water supply systems were not functioning and the rooms were being heated by stoves . Moreover , the LOC could no longer be classed as a hostel as it had become a normal multi - family apartment building . Its occupants were no longer employed by the company which had provided them with housing . Lastly , the applicants requested the court , in the event of finding against them , to award them ORG CARDINAL,CARDINAL in compensation , to be paid by the ORG , representing the hostel ’s value and the administrative costs relating to the contract of sale .", "On DATE ORG returned the counterclaim to the applicants and provided them with a deadline of CARDINAL DATE to correct errors in their application . In particular , the court noted that the counterclaim “ lacked logical consistency ” , in that there was no clear evidence of causation and loss . The decision was posted to the applicants on DATE . It is unclear when they received it . It appears that the applicants did not re - lodge their claim .", "On DATE the second applicant sent ORG a copy of a decision of CARDINAL DATE taken by ORG in which it had rejected a prosecutor ’s application to declare as invalid decisions taken in DATE and DATE by ORG to privatise a certain hostel . The court found that there were no legal provisions prohibiting the privatisation of hostels , as section CARDINAL(CARDINAL ) of ORG prohibited the privatisation of rooms within hostels but not hostels per se . The court did not refer to section CARDINAL of LAW , which prohibited the privatisation of State housing stock .", "On DATE , in the applicants’ case , the court rejected the prosecutor ’s request as unsubstantiated . Again , the court did not refer to section CARDINAL of LAW . In reply to the applicants’ objection that the prosecutor had missed the DATE time - limit for lodging his claim , the court noted that the prosecutor had only learned about the situation in question following PERSON ’s complaint .", "On DATE ORG quashed that decision and declared the decision of DATE and all subsequent transfers of ownership invalid . The court held that section CARDINAL of LAW provided that State housing stock , including hostels , was not amenable to privatisation . Since , at the material time , the hostel in question was owned by the ORG , it had been privatised unlawfully . Referring to LAW , the court awarded the applicants ORG CARDINAL,CARDINAL , to be paid by S. It further held that ownership of the hostel should be transferred to the ORG .", "The applicants appealed on the grounds that the court ’s decision of DATE contradicted another decision taken in an analogous case by ORG , that the court had disregarded the time - limits for lodging claims and that PERSON had been declared insolvent .", "On DATE ORG , acting as a court of cassation , rejected the ORG appeal on points of law by finding , without any further explanation , that there had been no breaches of law .", "On DATE the ORG agreed to take over ownership of the hostel .", "On DATE , in the case of T. and PERSON v. ORG of GPE , PERSON , and ORG , ORG found , referring to decision no . CARDINAL of CARDINAL DATE of ORG , that a transfer of ownership of another hostel in DATE had been lawful , since hostels did not form part of State housing stock .", "The applicants submitted that PERSON had failed to comply with the court decision of DATE requiring it to pay them compensation .", "DATE , CARDINAL out of the CARDINAL apartments at the hostel were privatised by their occupants pursuant to the amended ORG ( see paragraph CARDINAL below ) .", "Article CARDINAL of the Code provided , in so far as relevant , as following :", "“ ... In the event of a transaction being declared null and void , each party shall return to the other party the proceeds received for the transaction in question . In the event of such restitution being impossible , ... it shall return to the other party its current value .", "If a party or a third party has suffered pecuniary or non - pecuniary damage as a result of a transaction being declared null and void , the liable party shall pay compensation . ”", "Articles CARDINAL and CARDINAL of the Code provide that the time - limit for lodging a civil claim is DATE . The calculation of the relevant time - limit starts from DATE a person learns , or could have learned , of a breach of his or her rights .", "LAW of LAW provides that ORG housing stock can not be privatised .", "DATE LAW provides that the ORG housing stock includes dwelling houses and residences in other buildings belonging to the ORG .", "Sections CARDINAL and QUANTITY provide that , as regards privatisation of apartments ( or houses ) , QUANTITY of living space per person and QUANTITY per household should be transferred to tenants free of charge . The remaining living space should be available for purchase .", "In DATE the Act was amended so as to allow the privatisation of rooms within hostels .", "NORP The decision , which entered into force on DATE , provided that , in the event of insolvency , liquidation or the transfer of ownership of a company , any properties belonging to ORG housing stock but being managed by the said company were to be given to a municipality . Before being amended in DATE , the provision did not apply to hostels .", "LAW provides that the prosecutor can join proceedings at any given time if it is in the interests of the ORG or for the protection of ORG constitutional rights ." ]

[ "P1" ]

[ "P1-1" ]

[ "P1-1-1" ]

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[ "The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and both live in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE a certain PERSON applied for permission to build a shed for his agricultural tools on his farm .", "Earlier , on DATE the GPE Mayor had given planning permission ( decyzja o warunkach zabudowy i zagospodarowania terenu ) for PERSON land . In accordance with a local master plan ( miejscowy plan zagospodarowania przestrzennego ) the permit provided for a shed to be built .", "On DATE the GPE Mayor informed the applicants that he had instituted the proceedings .", "On DATE the applicants raised an objection against the proceedings .", "On DATE the GPE Mayor informed the parties that he had obtained the evidentiary material in the case .", "On DATE the applicants raised an objection against the proceedings .", "On DATE the GPE Mayor gave permission for the construction .", "On DATE the applicants appealed , alleging that as PERSON farm bordered theirs , the shed would inevitably block their access to a road . They requested to have the decision of DATE declared null and void .", "On DATE the ORG ( urząd wojewódzki ) quashed the decision and remitted the case .", "On DATE filed a cassation complaint with ORG .", "On DATE PERSON complaint was admitted for examination . The court ruled that the case should be remitted to the first - instance authority for reconsideration .", "On DATE the applicants lodged a complaint under LAW , alleging inactivity on the part of the administrative authorities and that they had not had their case examined within the prescribed time - limits .", "On DATE the PERSON Governor ( wojewoda ) found the ORG complaint to be well - founded and fixed a DATE time - limit for GPE ( which had taken over the functions of the GPE Mayor ) to examine their case .", "On DATE the GPE refused to give permission for the construction .", "On DATE the applicants filed an appeal with the PERSON Governor against the decision of DATE .", "On DATE the applicants withdrew their appeal . In consequence on CARDINAL DATE the PERSON Governor discontinued the appeal proceedings .", "For a presentation of the relevant domestic law see the cases of PERSON v. GPE , no . CARDINAL , DATE , and PERSON v. GPE , no . 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 ORG v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL" ]

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[ "NORP The applicant , Mr PERSON , is a GPE national born in DATE who lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Deputy Agent , PERSON , of ORG .", "NORP The facts of the case , as submitted by the parties and as apparent from documents available to the public , may be summarised as follows .", "NORP In response to a rise in violent crime in the city of GPE the GPE ( PERSON ) of that city gave an order designating certain areas as security risk areas ( veiligheidsrisicogebieden ) . Relying on section CARDINALb of LAW ( PERSON ) , the PERSON designated most of the old centre of GPE as a security risk area for DATE on DATE . By virtue of such a decision , a public prosecutor ( PERSON ) was empowered , in accordance with section PERSON ) of LAW ( LOC en GPE ) , to order that for a randomly selected period of TIME any persons present in the designated area might be subjected to a search for the presence of weapons . The process came to be known as “ preventive searching ” ( preventief fouilleren ) .", "The reasoning on which the order was based referred to statistics of incidents involving the use of weapons ( shootings , knifings , robberies , fatal and non - fatal casualties ) in each of the areas concerned . It was observed that such incidents occurred most often in the old centre of the city , especially around the PERSON ( the red - light district ) , the central station and around the concentrations of restaurants , bars and places of entertainment .", "By order of CARDINAL DATE the PERSON designated the same area as a security risk area for DATE based on the fact that weapons were still being confiscated during searches and there had been insufficient decrease in the number of violent crimes .", "On DATE the applicant , while in the designated security risk area , was stopped by police acting on orders of the public prosecutor to conduct searches of every person present in the security risk area . The applicant refused to submit to a search . He was then arrested ( aangehouden ) and taken to a police station , where he refused to give a statement ( verklaring ) .", "On DATE a single - judge chamber ( politierechter ) of ORG ( rechtbank ) convicted the applicant of failing to obey a lawful order under LAW ) . He was sentenced to a fine of CARDINAL ( ORG ) .", "The applicant lodged an appeal with ORG ( gerechtshof ) , which acquitted him of all charges on DATE . ORG considered that section CARDINALb of LAW imposed stringent requirements with regard to the decision to designate an area as a security risk area , especially in the light of NORP freedom of movement and respect for the right to privacy . The PERSON ’s decisions ( including the CARDINAL dated DATE ) did not meet the requirements of section CARDINALb as the PERSON had failed to give any reasons why the security risk area had to be designated for such lengthy periods and cover such a large area . Accordingly , the decisions were not in conformity with LAW either .", "The Advocate General ( PERSON ) at ORG lodged an appeal on points of law ( cassatie ) with ORG ( PERSON ) against the judgment of ORG .", "After the applicant submitted his application to the ORG , ORG , on DATE , granted the appeal lodged by ORG . ORG held that in considering the validity of the designation order the criminal judge should follow the approach of administrative courts in the matter . On that basis , and quoting from a judgment of ORG of ORG ( GPE bestuursrechtspraak PERSON ) of DATE ( Administrative Law Reports ( ORG ) DATE , no . CARDINAL ) , it found that the PERSON had a wide margin of appreciation ( beoordelingsmarge ) in assessing the need for any such order after consultation with the public prosecutor . It was for him or her to balance the interests involved , including public order and individual private life , against each other . The designation order should be limited in time and in area to what was necessary ( noodzakelijk ) to maintain public order . The PERSON ’s choices had to be properly reasoned and proportionate to the interference with the private life of anyone present in the area concerned . The role of the criminal courts was limited to assessing the lawfulness and reasonableness of the PERSON ’s decision .", "Considering the case in this light , ORG held that ORG had correctly considered that the PERSON ’s decision of DATE had to be read in conjunction with his original decision of DATE . Nevertheless , in finding that insufficient reasons had been given for the decision of CARDINAL DATE ORG had failed to take into account the extensive report which had formed the basis for the DATE decision . ORG therefore quashed the judgment of ORG and remitted the case to ORG for re - hearing .", "NORP In a judgment of CARDINAL DATE , ORG found that the PERSON had given sufficient reasons for his decision of DATE by referring to the considerations contained in the original decision of DATE . ORG further considered that any interference with the applicant ’s rights under LAW had taken place in the interests of the protection of public order and in accordance with the margin of appreciation awarded to GPE . For those reasons ORG found the applicant guilty of failing to obey a lawful order , but imposed no sentence on him .", "The applicant did not lodge an appeal on points of law against this judgment .", "By decision of DATE the PERSON again designated the same area as a security risk area for DATE as weapons were still being confiscated even though the number of violent crimes had decreased significantly .", "On DATE the PERSON again designated the same area of the centre of GPE as a security risk area , this time for a period of DATE .", "On DATE , the PERSON , taking into account the judgment of ORG ( see paragraph CARDINAL above ) , issued a decision altering the original decision of DATE by designating the same area as a security risk area for DATE instead of the original CARDINAL . The PERSON also set out more extensive reasons for his decision , including a breakdown of the decrease in weapon - related crimes following the introduction of preventive searching in the security risk areas . For GPE city centre alone , it was noted that numbers of weapons - related incidents had dropped to CARDINAL DATE and DATE , down from CARDINAL ; DATE and DATE , from CARDINAL to CARDINAL ; DATE and DATE , from CARDINAL to CARDINAL . In PERCENT of all preventive search operations until then CARDINAL weapon had been found .", "On DATE the applicant lodged an objection ( bezwaar ) against the decision of the PERSON of DATE . The applicant submitted that the designated security risk area was too large and that there were insufficient reasons for including the different districts , considering the impact on people ’s right to respect for their privacy and freedom of movement . The applicant further alleged that the percentages used by the PERSON to support his decision had been calculated in such a way as to make his policy seem more effective than it really was .", "On DATE , whilst awaiting the outcome of his objection , the applicant also applied for a provisional measure ( voorlopige voorziening ) on the same grounds as his objection .", "On DATE the provisional - measures judge ( voorzieningenrechter ) of ORG declared the applicant ’s request inadmissible on the ground that the applicant did not appear to have a direct interest in the decision of the PERSON dated DATE and that presumably the applicant ’s objection would be declared inadmissible for the same reason .", "On DATE the PERSON declared the applicant ’s objection inadmissible as the applicant could not be regarded as a person with a direct interest ( belanghebbende ) as required by article CARDINAL:CARDINAL of LAW ( Algemene wet bestuursrecht ) . The PERSON held that a person could only be said to have a direct interest if that interest was strictly personal , real and direct and could be identified objectively . According to the PERSON , the applicant neither lived in the security risk area nor had a paid job which required him to be in the area at regular set times . The fact that the applicant claimed to be engaged in volunteer work and paid social visits to friends in the designated area did not suffice to give him a direct interest .", "The applicant did not appeal against this decision to ORG ; the reason he gives is that the designation order of DATE was due to expire on DATE .", "The municipality of GPE commissioned ORG ( ORG Instituut voor Veiligheids- en ORG ) , a body based in GPE , to produce a series of evaluation reports on preventive searches in the security risk areas . The ORG has studied CARDINAL of these , which contain data pertaining to the time of the events complained of .", "On CARDINAL DATE ORG published a report entitled “ Evaluation of preventive body searches in GPE : The current situation ” ( Evaluatie Preventief Fouilleren in GPE : PERSON stand van zaken ) . It covered the period DATE .", "NORP In GPE city centre , DATE and DATE CARDINAL weapon had been found for every CARDINAL persons searched . DATE and DATE one weapon had been found for every CARDINAL persons searched ; DATE and DATE , again , CARDINAL weapon for every QUANTITY persons searched ; and DATE , CARDINAL weapon for every CARDINAL persons searched . In GPE , which has a far more modern and open layout than the old city centre , there were generally far fewer weapons found until the search operations were planned to cover times and places at which the risk of violent incidents was highest ; the number of weapons found then rose to CARDINAL per CARDINAL persons searched . The report mentioned that the operations that had had the greatest effect in relation to the police manpower invested had lasted for TIME or less , which could be explained by the loss of the advantage of surprise as an operation dragged on for longer .", "The number of incidents involving the use of weapons had dropped during this period . In GPE city centre , DATE and DATE there had been CARDINAL such incidents ; DATE , only CARDINAL , or PERCENT fewer . The number of muggings in this area dropped from CARDINAL to CARDINAL , a reduction of PERCENT . In GPE , the number of weapons - related incidents had dropped by PERCENT in comparison of the same periods . Within the area of jurisdiction of the GPE - Amstelland Police Force as a whole , the total decrease had been PERCENT ; if the security risk areas were excluded , it had been PERCENT .", "The evaluation report mentions the applicant ’s case , which at the time the report was published was still pending before ORG .", "NORP The report recommended that random searches be continued in the same CARDINAL areas , given their obvious effectiveness . It also made further proposals aimed at increasing efficiency .", "In DATE the ORG published a report entitled “ Evaluation of preventive body searches in GPE : Gains , incidents involving weapons and hot spots ” ( Evaluatie Preventief Fouilleren in GPE : Opbrengsten , wapenincidenten en hot spots ) . It was noted that searches had become more efficient , which had allowed more persons to be searched within a given time . DATE and DATE CARDINAL weapon had been found for every CARDINAL persons searched in GPE centre ; in GPE , the corresponding figure was one weapon for every CARDINAL persons searched .", "Numbers of weapons - related incidents had continued to decline . As compared to the period from DATE until DATE , DATE there were PERCENT fewer such incidents ( CARDINAL , down from CARDINAL ) ; in GPE , PERCENT fewer ( CARDINAL , down from CARDINAL ) .", "The frequency of weapons - related incidents had increased by PERCENT in GPE outside the security risk areas ; within the area of jurisdiction of the GPE - Amstelland Police Force as a whole , there had been a reduction of PERCENT .", "The report identified CARDINAL “ hot spots ” outside the existing security risk areas where incidents involving the use of weapons were frequent . In CARDINAL of them the problem was so serious that preventive searches should be carried out there too .", "By letter dated CARDINAL DATE the applicant informed the ORG that the same area had been designated as a security risk area for the seventh consecutive time .", "Article CARDINAL of LAW , in its relevant part , provides :", "“ CARDINAL . Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose , and any person who intentionally obstructs , hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation , shall be liable to a term of imprisonment not exceeding DATE or a second - category fine . ... ”", "Section CARDINALb of LAW provides :", "“ CARDINAL . The local council ( raad ) may by municipal bye - law authorise the PERSON to designate an area , including buildings open to the public ( and their grounds ) situated therein , as a security risk area in the event of a public order disturbance caused by the presence of weapons , or if there is a serious fear of such a disturbance occurring . In a security risk area a public prosecutor may exercise the powers referred to in LAW , subsection CARDINAL , section CARDINAL , subsection CARDINAL and LAW , subsection CARDINAL of LAW .", "NORP The PERSON shall not designate a security risk area without first consulting with the public prosecutor in the consultations referred to in section CARDINAL of the DATE LAW ( Politiewet DATE ) .", "The designation of a security risk area is of a limited duration and covers a geographical area that is no greater than strictly necessary for maintaining public order .", "NORP The decision to designate a security risk area must be recorded in writing and state both the area to which it applies and its period of validity . If the situation is so urgent that the PERSON is unable to record the decision in writing in advance , he or she must both record the decision in writing and make it public as quickly as possible .", "The PERSON shall notify the local council and the public prosecutor referred to in subsection CARDINAL of the designation of a security risk area as quickly as possible .", "As soon as the public order disturbance caused by the presence of weapons or the serious fear of such a disturbance occurring as referred to in subsection CARDINAL has abated , the PERSON shall revoke the designation of the security risk area . Subsection CARDINAL applies mutatis mutandis . ”", "Section QUANTITY of LAW , in its relevant part , provides :", "“ CARDINAL . Any member of the council may put questions orally or in writing to the LOC and Aldermen or the PERSON as the case may be ( PERSON lid van de raad kan het college of de burgemeester mondeling of schriftelijk vragen stellen . ) ... ”", "Section CARDINALa of LAW , in its relevant part , provides :", "“ CARDINAL . The council may , at the proposal of CARDINAL or more of its members , order an investigation into the administration carried out by the LOC and Aldermen or the PERSON as the case may be ( het door het college of de burgemeester gevoerde bestuur ) . ... ”", "Section DATE LAW provides :", "“ The PERSON and the public prosecutor shall hold regular consultations with the head of the territorial unit of the regional police force within whose territory the municipality or part of it is located , and if necessary with the regional police force commander ( korpschef ) , about the discharge by the police of their duties . ”", "Section CARDINAL(CARDINAL ) of LAW provides :", "“ In areas that have been designated by the PERSON as security risk areas in accordance with section CARDINALb , subsection CARDINAL of LAW , the public prosecutor may order that any individual can be subjected to a search of his clothing to establish whether he has firearms , ammunition or offensive weapons in his possession . The public prosecutor ’s order shall describe the designated area and state the order ’s period of validity , which may not exceed TIME . The order shall also explain the facts and circumstances that form the basis for concluding that it is necessary to exercise the power to subject any individual to a search of his clothing to establish whether he has weapons or ammunition in his possession . ”", "At the relevant time , the DATE general municipal bye - law ( PERSON ) of GPE applied . Its section CARDINAL.CARDINALA provided :", "“ In the event of a public order disturbance caused by the presence of weapons , or if there is a serious fear of such a disturbance occurring , the PERSON may designate public highways and buildings ( and their grounds ) situated along them as a security risk area . ”", "According to section CARDINAL:CARDINAL of LAW ( PERSON ) , anyone with a legal interest may challenge an administrative decision before ORG , provided that he or she has first lodged an objection with the administrative body that has taken the decision in issue ( section CARDINAL ) . A further appeal lies to ORG of ORG ( at the relevant time , section CARDINAL of ORG ( Wet op de Raad van State ) ) .", "ORG has held that a conviction under LAW is possible only if the order disobeyed by the accused was given by an official within the limits of his or her lawful authority ( see its judgment of DATE , ORG ( PERSON ) DATE , no . CARDINAL ) . From this it follows that the criminal court has a responsibility of its own to determine whether the statutory regulation on which the order is based is actually binding , and whether the order has been lawfully given ; if the issue is raised by the defence , the criminal court must answer it , irrespective of whether or not the accused has first addressed these matters before the competent administrative tribunals ( see ORG judgment of DATE , GPE Law Reports DATE , no . CARDINAL ) .", "In a decision of DATE , Administrative Law Reports DATE , no . CARDINAL , ORG of ORG dismissed an appeal lodged against the designation of much of the centre of the town of PERSON as a security risk area on DATE and DATE TIME . Identifying the designation order as delegated legislation ( besluit van algemene strekking ) , it held that persons wishing to contest such an order had to demonstrate an individual interest which sufficiently distinguished them from others . It noted that the appellant did not reside , or work , or carry on a business in that area ; was not compelled for any other reason to remain there for any length of time ; and had no rights to immovable property there either . In view of , in particular , the times at which the designation order was in force , the stated fact that the appellant had been a resident of PERSON for DATE ; went out in the area concerned ; and was wo nt to visit friends and family there was insufficient to distinguish her individual interest from that of others .", "NORP Moreover , no violation of LAW No . CARDINAL to the Convention could be found since there was no certainty that the appellant would ever actually be searched , and since in any case there was no particular need for the appellant to be within the area concerned with any regularity ; any interference with her rights was therefore so uncertain that it could not be considered a reasonably foreseeable consequence of the designation order . That being so , there was no “ arguable claim ” for the purposes of LAW either .", "In its above - mentioned decision of CARDINAL DATE ( Administrative Law Reports DATE , no . CARDINAL ) , ORG allowed an appeal brought by the PERSON of GPE against the suspension of a designation order by the provisional measures judge ( voorzieningenrechter ) pending reconsideration of the order on its merits . It found that the PERSON had a wide margin of appreciation in assessing the need for any such order after consultation with the public prosecutor . It was for him or her to balance the interests involved , including public order against individual private life , against each other . The designation order should be limited in time and in area to what was necessary to maintain public order . The PERSON ’s choices had to be properly reasoned and proportionate to the interference with the private life of anyone present in the area concerned .", "In the particular case , these requirements had been met , given the frequency of incidents involving the use of firearms in the area and the number of weapons found during earlier searches . Although searches constituted an interference with the right to respect for “ private life ” within the meaning of LAW , given the margin of appreciation of the domestic authorities the PERSON could reasonably consider such measures in pursuit of the interests of public safety and the prevention of disorder or crime to answer a “ pressing social need ” and to meet the requirement of proportionality ." ]

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[ "The NORP national , Mr PERSON , ( “ KFM ” ) , was born in DATE and died on DATE . His estate is the applicant in the present case , represented by his son , PERSON PERSON , ( “ N ” ) , who was represented before the Court by Mr FAC , a lawyer practising in PERSON .", "ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , of ORG , and their co - Agent , PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "At the time of ORG ’s death , he was divorced and had CARDINAL legitimate son , N , born on DATE .", "During his marriage , KFM had a relationship with a married woman , J , who gave birth to CARDINAL sons , B and P , in DATE and DATE respectively . From DATE until her death in DATE , J lived with ORG , who had by then divorced his first wife .", "Following ORG ’s death in DATE , B and P requested ORG ( ORG ) , under LAW ( Retsplejeloven ) , to establish their paternity , since in their view their father was KFM and not the man to whom their mother had been married .", "At a hearing before ORG on DATE , B and P testified that they had been told by their mother , PERSON , that ORG was their biological father as opposed to their legal father . Their legal father testified that he had divorced J because he suspected her of adultery and that J ’s family had told him that he was not the father of B and ORG testified that ORG had never said anything to him about having children with J and that when PERSON died in DATE , ORG had remarked that things were now settled “ with ORG family ” .", "By decision of DATE ORG decided , in view of the evidence adduced , that it could not be ruled out that ORG was the biological father of B and P , and that the estate of ORG should therefore be a party to the paternity proceedings in accordance with LAW . Moreover , in accordance with the said provision , forensic genetic tests should be carried out , as they might be expected to produce evidence of considerable weight for or against ORG being the biological father of B and ORG estate appealed against both decisions before ORG of Western Denmark ( ORG ) , which found against it on DATE .", "Accordingly , blood samples were taken from B and P , their legal father , CARDINAL of J ’s siblings , and a sister of ORG . N did not wish to participate in the genetic tests .", "Subsequently , on the basis of the samples provided , ORG ( ORG ) found it established that B and P ’s legal father , with a probability that exceeded PERCENT , was not their biological father . Moreover , it found that the results suggested that ORG , rather than some random man , was B and P ’s biological father , with probability ratios of ORG and CARDINAL respectively .", "CARDINAL testimonies were submitted before ORG by KFM ’s siblings , colleagues and acquaintances , all of whom endorsed the notion that ORG was B and P ’s father .", "On DATE B died .", "On DATE ORG answered CARDINAL questions put by ORG as to the likelihood of obtaining valid DNA results from the tissue of a deceased person .", "On DATE ORG decided , in accordance with section PERSON ) of ORG , that ORG body was to be exhumed for the purpose of taking DNA samples , as such samples were assumed to be of significant , and probably decisive , importance in establishing paternity , and were the only remaining option .", "ORG estate appealed against the decision before ORG which , by decision of DATE , amended ORG decision . It stated that the estate of the deceased was party to the paternity suit and that it was therefore obliged , pursuant to section CARDINAL ( k ) of ORG , to participate in tests which entailed providing blood samples or similar , if the court decided that such tests were necessary . Furthermore , it followed from section CARDINAL ( l ) of the LAW that the court could decide to use the various measures mentioned in LAW to compel parties to participate in such tests if they refused to do so voluntarily . ORG found , however , that in paternity cases neither ORG nor any other provision of NORP law provided a basis for taking body samples by the use of physical force , as opposed to measures to compel living persons to give samples . Hence , ORG found that tests of the kind ordered by ORG constituted interference with the sanctity of the grave and that such interference was comparable with the measures to compel living persons to give samples . ORG concluded that such interference could not be effected by force for the purpose of obtaining evidence in a paternity suit without an explicit legal basis , which ORG found did not exist in domestic law . Accordingly , ORG refused to order the exhumation of ORG and the taking of samples from his corpse for use in the paternity suit .", "P was granted leave to appeal against the judgment before ORG ( Højesteret ) , which on DATE permitted the taking of biological material from ORG ’s corpse . In reaching its decision , ORG stated as follows :", "“ By decision of DATE ORG upheld ORG decision that the estate of [ KFM ] was a party to the paternity suit . That decision is not under review by ORG in the present case .", "Since [ P ] was born in DATE , it is the provisions inserted into ORG . CARDINAL of CARDINAL DATE in chapter CARDINAL ( a ) concerning the proceedings in paternity suits that are applicable , pursuant to the provisions on the entry into force of the Act contained in section CARDINAL(CARDINAL ) of Act No . CARDINAL of CARDINAL DATE amending ORG . The provisions of the said LAW concerning the court ’s duty to elucidate the case which are relevant in the present case are broadly similar to the provisions of ORG ( chapter DATE ( a ) ) currently in force . Hence , if the court considers forensic genetic testing of the parties to the case to be necessary , it may order such tests under section CARDINAL ( l ) of LAW , sections CARDINAL ( k ) and CARDINAL ( l ) of the DATE Act and section CARDINAL ( h ) ( CARDINAL ) of the current LAW . The reference therein to the provisions of ORG on measures to require witnesses to comply must be understood as specifying the measures which can be taken against a party who is alive , and are therefore without relevance if the test is to be carried out on a party who is deceased . ”", "The majority of ORG ( CARDINAL judges ) went on to state :", "“ The fact that ORG does not contain any specific rules on forensic genetic testing of deceased persons should not lead to the existing rules , according to which [ in a paternity case ] the court may decide to compel the parties to undergo genetic testing , being narrowly construed to mean that the [ existing ] legal basis does not cover testing of deceased persons .", "Pursuant to section CARDINAL ( CARDINAL ) of the LAW on PERSON ’s Inquests , Post - Mortem Examinations and Transplantation , etc . ( PERSON om ligsyn , obduktion og transplantation m.v . ) , interference with a corpse , other than the kind mentioned in LAW ( on post - mortem examinations ) and in chapter CARDINAL ( on transplantation ) , may be carried out only if the deceased person , having turned DATE , consented thereto in writing . According to the preparatory notes ( GPE DATE , tillæg A , spalte CARDINAL ) , the above provision concerns interference with a scientific or educational purpose which is not carried out in connection with a post - mortem examination . It is not mentioned , however , whether the provision applies to other forensic tests under chapter DATE ( a ) of ORG [ that is , to paternity cases ] or to other civil proceedings involving the estate or a surviving relative in which it becomes necessary to carry out forensic tests on a deceased person in order to gather evidence .", "In these circumstances we consider that section CARDINAL of the Act on Coroner ’s Inquests , Post - Mortem Examinations and Transplantation does not restrict the legal basis provided by chapter CARDINAL ( a ) of ORG [ to the effect ] that , if deemed necessary , the court may decide that forensic genetic tests should be carried out , even on a deceased party . In its assessment , however , having regard to the principle of proportionality , the court must balance the extent of such interference with the need to elucidate the particular case .", "[ N ] having refused to participate in forensic genetic testing , tests have been carried out on all possible living persons [ in the case ] . In view of the fact that these tests , and the information submitted in the case , have confirmed [ P ’s ] allegation that [ KFM ] is his father , and in the light of the content of ORG letter of DATE , we uphold ORG decision of DATE authorising the taking of tissue samples from the deceased [ KFM ] . ”", "The minority of ORG ( CARDINAL judges ) found :", "“ Without the existence of clear support in section CARDINAL ( g ) and CARDINAL ( l ) of ORG [ No . CARDINAL of CARDINAL DATE , in force at the relevant time , when P was born ] or the preparatory notes , we find it insufficiently established that these provisions confer authority to take blood samples or carry out other tests on the deceased .", "In our opinion it is a matter for the legislator to decide whether it should be possible to carry out such testing , and in the affirmative to indicate the specific conditions governing it . Accordingly , we vote in favour of upholding ORG decision . ”", "Following ORG decision , ORG ’s corpse was exhumed and tissue samples were taken . However , ORG was unable to make a typological classification of the samples , apparently owing to the time that had elapsed since ORG ’s burial .", "On DATE ORG of Holstebro delivered the following judgment :", "“ The forensic genetic tests carried out and the content of the written statements corroborate the claim that [ KFM ] is the father of [ B and P ] . The court does not find , however , that the test results and the statements can be given such weight as to prove with sufficient certainty that [ KFM ] had intercourse with the mother at the time of conception . Therefore , the court finds in favour of the defendant [ the estate of KFM ] . ”", "Accordingly , N , as the only legitimate son of KFM and sole heir , inherited the estate .", "ORG was amended by Act No . CARDINAL of DATE when a special chapter DATE ( a ) on paternity suits was inserted . The relevant provisions of this chapter read as follows :", "“ The court shall ensure of its own motion that the [ paternity ] case is elucidated . Anyone who , according to information which emerges during the proceedings , could have made the woman in question pregnant shall be made a party to the case by the court .", "The court itself shall decide on the calling of parties and witnesses to give testimony , and the obtaining of expert statements and other evidence . ... ”", "If , in order to elucidate the case , the court finds it necessary to require blood - type determination of the mother , the child or the respondent(s ) , it shall ensure that the necessary tests are carried out . When the circumstances strongly support such action and it can be taken without significant disturbance to the person in question , the court may also take steps to have other tests carried out on these persons , who shall be required to present themselves for tests , provide blood samples , etc . If they refuse , the measures in sections CARDINAL and CARDINAL shall be applicable . ”", "The above - mentioned provisions of ORG were amended by Act No . CARDINAL of CARDINAL DATE . This Act contains the following section CARDINAL concerning scope and transitional period :", "“ This Act shall enter into force on DATE . It shall not apply to LOC or GPE . The Act shall apply only to cases concerning children born after its entry into force [ ... ] . ”", "Sections CARDINAL ( k ) and CARDINAL ( l ) of the current ORG read as follows :", "“ If , in order to elucidate the case , the court finds it necessary to require blood - type determination or other tests to be carried out on the parties , it shall ensure that such tests are carried out . The persons concerned shall be required to undergo the tests , give blood samples , etc . ”", "“ The measures set out in section CARDINAL shall be applicable with regard to the parties’ obligations set out in the present chapter . ”", "The measures to ensure compliance referred to in section CARDINAL ( l ) above of ORG as amended in DATE ( sections CARDINAL and CARDINAL ) are broadly similar to those found in the current ORG , section CARDINAL , which reads as follows :", "“ If for no legitimate reason a witness fails to appear ... or for no legitimate reason refuses to testify , the court may", "impose a fine on the witness", "fetch the witness with the assistance of the police", "order the witness to reimburse costs occasioned by him or her", "impose a DATE fine , for a period not exceeding DATE in the same case , continuously or in total", "impose police detention or impose on the witness the measures prescribed in section CARDINAL , until the person appears before the court to give testimony or until the witness agrees to testify . Such measures may not be applied for a period of DATE in the same case , continuously or in total .", "Section CARDINAL ( CARDINAL ) of the Act on Coroner ’s Inquests , Post - Mortem Examinations and Transplantation , etc . , reads as follows :", "“ Interference with a corpse , other than that mentioned in chapters DATE , may take place only if the deceased person , having turned DATE , gave his or her consent in writing . ”" ]

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[ "The applicant was born in DATE and currently lives in GPE . At the relevant time , he was employed as a tax inspector and has , CARDINAL , been the Vice President of the local branch of ORG stranka ORG ) .", "On DATE ORG ( PERSON ) in GPE convicted the applicant of criminal defamation ( kleveta ) and ordered him to pay a fine in the amount of MONEY ( “ ORG ” ) plus an additional YUD CARDINAL in costs .", "In the operative part of this judgment the court established : ( i ) that on DATE the applicant had taken part in a “ public gathering ” ( javni skup ) in FAC ; ( ii ) that this “ gathering ” was attended by the Deputy Prime Minister of GPE , the Deputy Minister for ORG and ORG , as well as CARDINAL municipal councillors and other leading local figures ; and ( iii ) that on this occasion the applicant had publicly stated that Mr PERSON , at that time the Mayor of Babušnica , “ was not the right person for this job ” , given that he had already “ embezzled CARDINAL NORP Marks ” ( jer je proneverio CARDINAL CARDINAL DM ) . The court then concluded that this statement was “ untrue ” and , as such , capable of “ damaging the reputation and honour ” of Mr PERSON , a well - known and respected local businessman and public servant ( društveno - politički radnik ) , and proceeded to find the applicant guilty as charged .", "In its reasoning , inter alia , ORG relied on CARDINAL witnesses who , “ though members of different political parties ” , had heard the applicant state that the Mayor had “ embezzled ” CARDINAL,CARDINAL NORP Marks ” in DATE , as director of a major ORG - owned company , but dismissed , as unconvincing , the testimony of CARDINAL others who had stated that the applicant had said that the Mayor had “ deprived ” ( oštetio ) the State of the same amount in revenue . The court further held that the official TIME of the meeting in question , containing language to the same effect , were of “ no greater probative value ” because they were composed by a person who was himself merely a “ witness ” , and , finally , that a criminal complaint filed against the Mayor for tax evasion in DATE had not ultimately resulted in his conviction ( see paragraphs CARDINAL and CARDINAL below ) .", "On DATE ORG ( Okružni sud ) in PERSON rejected the applicant 's appeal and , on the same facts , found him guilty of the crime of insult ( uvreda ) , rather than criminal defamation ( kleveta ) , holding that the meeting at issue could not be deemed a “ public gathering ” within the meaning of LAW . The sentence imposed by ORG , however , was upheld in its entirety and thereby became final .", "On an unspecified date in DATE , the Mayor filed a separate civil compensation claim with ORG in GPE , seeking MONEY ( “ ORG ” ) for the mental anguish suffered due to the applicant 's statement referred to above .", "On DATE ORG ruled partly in favour of the Mayor , without having heard him in person , and , in so doing , ordered the applicant to pay ORG CARDINAL in compensation , together with default interest , plus costs in the amount of ORG CARDINAL . At that time , this was equivalent to MONEY ( “ EUR ” ) , or , in more concrete terms , the applicant 's total net salary for DATE .", "NORP In its reasoning , the court relied on the applicant 's criminal conviction , as well as the findings of the criminal courts , and held that the Mayor 's reputation had indeed been harmed , causing him serious and continuing mental anguish . The court noted that the plaintiff in this case was both a Mayor and a leading local businessman and concluded that adequate financial compensation was called for .", "On DATE ORG in PERSON rejected the applicant 's appeal and , in so doing , fully accepted the reasoning of ORG , whose judgment thereby became final . The applicant received a written copy of ORG decision on DATE .", "On DATE the applicant paid a total of ORG CARDINAL in respect of the compensation awarded against him , the interest accrued and the costs of the civil proceedings .", "According to the official TIME of the meeting held in FAC on DATE , the Deputy Prime Minister stated that the purpose of this meeting was to “ asses the functioning of the municipality ” as a whole . He invited the participants to openly share their “ critical views ” in this respect and explained that , if needed , the ORG would consider imposing specific measures aimed at tackling any serious issues .", "The minutes , thereafter , reflected that the applicant had accused the Mayor of not being “ the right person for the job ” and that “ this ... country deserved someone better ” . He then added that in DATE , in his capacity as a tax inspector , he had found “ numerous irregularities ” with respect to “ PERSON , a major ORG - run company headed by the Mayor , and that he had thus filed a criminal complaint , alleging that the Mayor had “ deprived the ORG of CARDINAL NORP Marks ” in revenue .", "The applicant provided the ORG with the said criminal complaint , dated DATE , as well as CARDINAL separate decisions issued by ORG ( ORG uprava javnih prihoda ) : CARDINAL of CARDINAL DATE and DATE , respectively , ordering “ PERSON to pay its overdue taxes , and the third , of DATE , fining the company for its failure to do so .", "Article CARDINAL defines different grounds for claiming civil compensation .", "Article CARDINAL § CARDINAL provides that a legal entity , which includes the ORG , is liable for any damage caused by CARDINAL of “ its bodies ” .", "Articles CARDINAL and CARDINAL , inter alia , state that anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may , depending on its duration and intensity , sue for financial compensation before the civil courts and , in addition , request other forms of redress “ which may be capable ” of affording adequate non - pecuniary satisfaction .", "Articles CARDINAL and CARDINAL provide , inter alia , that a domestic court may decide to reduce the compensation award taking into account , ex officio , the specific financial circumstances of the respondent .", "Article CARDINAL provided that a civil court was bound by a final decision of a criminal court in respect of whether or not a crime had been committed , as well as the criminal responsibility of the defendant .", "A civil court dealing with a compensation claim shall be bound by the criminal court 's assessment of the defendant 's criminal responsibility . It “ shall not [ however ] be bound ” by any of its other findings ( Rev. CARDINAL ) and shall be entitled to “ assess independently ” the defendant 's civil liability ( Gž . CARDINAL/CARDINAL ) .", "Articles CARDINAL § CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL provide that the Public Prosecutor shall , ex officio or in response to a party 's specific proposal , within DATE , have the right to lodge a ORG against a final civil court decision , if it transpires that the decision in question was “ based on the parties ' unlawful dispositions ” ( nedozvoljeno raspolaganje stranaka ) , i.e. those undertaken in breach of the “ binding provisions of domestic law , public order or the rules of morality ” ( prinudni propisi , javni poredak i pravila morala ) . Should the Public Prosecutor refuse to lodge a request of this sort within the prescribed deadline , the party who had urged him to do so shall , within DATE , have the right to file its own ORG with ORG .", "LAW entered into force on DATE , thereby repealing LAW DATE . LAW and CARDINAL of LAW , however , provides that the DATE Act shall remain in force , inter alia , in respect of all proceedings where the first instance judgment was rendered prior to DATE and , further , that any pending Requests for ORG shall be dealt with on the basis of LAW .", "Article CARDINAL of LAW ( Ustav PERSON ) published in ORG of GPE - OG SRS - no . CARDINAL provided as follows :", "“ Everyone shall be entitled to compensation for any pecuniary and non - pecuniary damages suffered due to the unlawful or improper conduct of a ORG official , a ORG body or a public authority , in accordance with the law .", "Such damages shall be covered by GPE or the public authority [ in question ] . ”", "This LAW was repealed on DATE , which is when LAW , published in ORG no . CARDINAL , entered into force .", "The substance of LAW of the “ new LAW corresponds , in its relevant part , to the above - cited text of DATE LAW .", "The relevant provisions concerning the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § DATE , DATE ) ." ]

[ "10" ]

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[ "Mr PERSON and his wife PERSON , née PERSON , are NORP nationals who live at Pomigliano d’Arco , near GPE .", "On DATE they bought a CARDINAL - room flat in GPE from Mr PERSON and his wife ( their aunt ) for a down payment of MONEY ( ORG ) followed by DATE payments of ORG CARDINAL to the vendors during their lifetimes and to the survivor of the CARDINAL , without any reduction on the death of the first . The amount of the DATE payments was to be increased if the national family consumer price index rose by PERCENT or more . If a single instalment was not paid on the due date and a formal notice to pay remained without effect DATE , the contract would automatically be rescinded if those to whom the payments were due so wished .", "On DATE the applicants were served with a formal notice to pay arrears and co - ownership service charges , about FRF CARDINAL in all , but they did not act on it .", "On DATE Mr and PERSON summoned PERSON and PERSON before the GPE tribunal de grande instance . They asked the court to declare that the sale was automatically rescinded through the fault of the defendants . The latter filed pleadings on CARDINAL DATE and the plaintiffs - who had been granted CARDINAL extensions of time by the judge responsible for preparing the case for trial - did so on DATE .", "On DATE the applicants filed pleadings in reply . Their lawyer died and they instructed another one .", "On DATE Mr PERSON died . On DATE his widow asked the court to formally acknowledge her wish to continue with the proceedings . On DATE the judge responsible for preparing the case issued an order certifying that it was ready for trial .", "The public hearing took place on DATE . In a judgment of DATE the court refused to declare that the contract of sale was rescinded .", "On DATE CARDINAL PERSON appealed to the FAC - en - ORG of Appeal and the case was entered in the court ’s list on DATE . The respondents filed their pleadings on CARDINAL DATE and the appellant filed hers on DATE and DATE . The order certifying that the case was ready for trial was made on DATE , and the hearing took place on DATE .", "On DATE the Aix - en - Provence Court of Appeal reversed the decision of the court below and granted a declaration that the sale was rescinded through the fault of the applicants .", "On DATE , this judgment having been notified to them , PERSON and PERSON appealed to ORG .", "On DATE they filed their supplementary pleadings , and on DATE these were served on the respondent , who replied on DATE . DATE , the case was allocated to ORG and the reporting judge appointed . The latter produced his report on DATE and ORG to be responsible for the case was assigned on DATE .", "On DATE ORG dismissed the appeal on the following grounds :", "\" ...", "Having found that PERSON and PERSON had not within DATE complied with the formal notice to pay of DATE , which ontained a reminder of the clause providing for automatic rescission of the contract , and had not within the same period made any genuine , serious offers to pay at least the sums which they acknowledged they owed , the court below , in response to the submissions and except for the misinterpretation of the detailed figures produced by PERSON and PERSON , legitimately decided that the sale was rescinded .", "Moreover , having noted that by the terms of the contract of sale ny instalments due or other sums paid by DATE of the formal notice to pay would , in the event of rescission of the sale , remain the property of the beneficiaries by way of compensation , without prejudicing their right to sue for recovery of any amounts due , the court below applied these contractual provisions without misinterpreting them .", "For these reasons , ORG decision was justified in law .", "... . \"", "ORG The Government relied on the following CARDINAL provisions of LAW :", "\" The proceedings may be voluntarily resumed in the manner prescribed for the submission of the grounds of defence .", "If they are not resumed voluntarily , they may be recommenced by way of summons . \"", "\" If counsel for CARDINAL of the parties has not carried out the procedural steps within the time allowed , referral of the case to the court and termination of the preparation of the case for trial may be ordered by the judge [ responsible for preparing the case for trial ] of his own motion or on an application by another party ; in the latter case the judge shall have a discretion to refuse the application in an order setting out his reasons and which shall be final . \"", "\" The case shall be prepared for trial under the supervision of a judge of the division of the court to which it has been allocated , as provided in Articles CARDINAL - CARDINAL and in the following provisions .", "( D[ecree ] no . CARDINAL , DATE , Art . CARDINAL , with effect from DATE ) Where a case appears to be urgent or to be ready for trial within a short time , the presiding judge of the division to which it has been allocated shall fix the date and time at which it will be called ; on DATE , matters shall proceed as provided in LAW . \"", "By LAW ,", "\" The ORG shall be under an obligation to compensate for damage caused by any malfunctioning of the system of justice . This liability shall be incurred only in respect of gross negligence or a denial of justice .", "... . \"", "This provision can be relied on not only in a non - contentious application ( recours gracieux ) to the Minister of ORG , but also - subsequently or at the outset - for the purpose of instituting contentious proceedings .", "According to ORG statistics , ORG received CARDINAL applications DATE . CARDINAL of these were successful ; CARDINAL were refused ; no action was taken on CARDINAL of them ; and CARDINAL were still under consideration at DATE . In CARDINAL applications - of which CARDINAL had failed and CARDINAL was pending - the complaint concerned the length of proceedings .", "During the same period , likewise according to ORG , CARDINAL cases came before the courts . The plaintiffs were unsuccessful in CARDINAL cases and successful in DATE , the compensation awarded totalling ORG CARDINAL . CARDINAL claims had been settled and CARDINAL applications remained to be heard .", "In a bankruptcy case which had lasted for DATE ( Fuchs c. Agent judiciaire du Trésor public ) ORG ordered the ORG to pay ORG CARDINAL in damages . Its judgment of CARDINAL DATE contained the following reasons :", "\" The court ’s delay in giving judgment and the persistent silence maintained by the bankruptcy judge and the court vis - à - vis the receiver of the PERSON company amounted to a breach of duty , and the decision subsequently given on DATE stemmed from an error in assessing the situation as submitted to the court .", "The breach of duty and the error in assessment are particularly serious on account of the factual and procedural circumstances with which the court was fully acquainted and which clearly made it imperative to terminate rapidly a bankruptcy that was no longer justified . These were flagrant breaches amounting to gross negligence in the functioning of the system of justice and they entail the ORG ’s liability ;", "... . \"" ]

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[ "The applicant was born in DATE and lives in PERSON , GPE .", "In DATE he requested , pursuant to newly adopted legislation , that a flat in which he lived and which was located in a block of flats in Dubnica nad Váhom , GPE should be sold to him .", "The applicant alleged that his neighbours and other individuals subsequently disturbed him by their noisy behaviour , mockery and threats . On several occasions the door and windows of his flat and his letter box were damaged . The applicant considers that the purpose of those interferences was to dissuade him from buying the flat .", "On several occasions the applicant asked the police department in Dubnica nad Váhom to investigate the disturbances and to prosecute the persons responsible . He cited , inter alia , family B. The police informed him that the facts he had complained of could not be established and that accordingly the investigation of his complaints had been closed . On DATE the police department , acting pursuant to section CARDINAL of the DATE LAW , notified the Dubnica nad Váhom local office ( ORG úrad ) about the complaints brought by the applicant ( see paragraph CARDINAL below ) .", "On DATE the local office found that the applicant had committed a minor offence ( priestupok ) under section CARDINAL ) of LAW in that without justification he had accused family B. of causing a nuisance . The decision was based on the evidence submitted by the police department in Dubnica nad Váhom and on the facts which were established in the course of the proceedings before the local office .", "The applicant was fined CARDINAL NORP korunas ( SKK ) and ordered to pay SKK CARDINAL in respect of the costs of the proceedings . The decision of the local office was signed by the head of its legal department . The applicant appealed against that decision to the LOC district office ( ORG úrad ) .", "On DATE the district office dismissed the appeal and upheld the decision of the local office . The applicant 's case was examined by the legal department of the district office which rejected his appeal in a decision signed by the head of that department .", "On DATE the applicant brought a complaint before ORG ( Ústavný súd ) . In his submissions to that court he alleged , inter alia , a violation of LAW in that there had been no fair and public hearing in his case and that the administrative authorities dealing with it had not been impartial .", "On DATE ORG dismissed the applicant ’s complaint as being manifestly ill - founded . It held , inter alia :", "“ A minor offence is characterised , in general , by a wrongful breach of law or legal obligations in different spheres of public administration which represents a minor danger to the society . Because of its character , a minor offence is not subject to examination by a court ... In accordance with LAW , the examination of minor offences falls within the competence of administrative authorities . Pursuant to section CARDINAL of LAW , in conjunction with Articles CARDINAL et seq . of ORG , the lawfulness of administrative organs ' decisions on minor offences can be reviewed by courts only in cases where a fine exceeding SKK CARDINAL has been imposed , the exercise of a certain activity has been prohibited for a period exceeding six months or an object of a value exceeding SKK CARDINAL has been confiscated . The aforesaid provision of the special Act governing minor offences is fully binding also on ORG of GPE . ”", "On DATE ORG rejected the applicant 's request for the review of its decision of DATE .", "DATE LAW guarantees to everyone who claims to have been denied his rights as a result of a decision made by a public administrative authority the right to appeal to a court of law and have the legality of the decision reviewed , unless otherwise provided by law . The review of decisions on matters of fundamental rights and freedoms may not be excluded from the jurisdiction of courts of law .", "Article CARDINAL entitles the government to grant pardons in matters concerning minor offences .", "Pursuant to LAW ORG decides on complaints concerning final decisions made by , inter alia , local government authorities and local self - governing bodies in cases concerning violations of the fundamental rights and freedoms of citizens , unless the protection of such rights falls under the jurisdiction of another court .", "At the time of the offence the legislation read as follows .", "Section CARDINAL of LAW defines its purpose in the following terms :", "“ Administrative authorities of GPE and municipal organs shall encourage citizens to respect legal rules and the rights of other citizens . They shall ensure , in particular , that citizens do not impede the conduct of the administration ... and contravene public order and civic propriety . ”", "Section CARDINAL(CARDINAL ) provides the following definition of a minor offence :", "“ A minor offence is a wrongful act which interferes with or causes danger to the public interest and is expressly classified as a minor offence in this LAW or another law , unless such an act represents a separate administrative offence punishable under special legal rules or a criminal offence . ”", "Section CARDINAL entitles the competent authorities to impose sanctions ( sankcie ) on the perpetrators of minor offences . It reads as follows :", "“ ( CARDINAL ) The following sanctions may be imposed for a minor offence :", "( a ) reprimand ,", "( b ) fine ,", "( c ) prohibition to exercise a certain activity ,", "( d ) confiscation of an object .", "( CARDINAL ) A sanction can be imposed either separately or in combination with another sanction ; a reprimand can not be combined with a fine .", "( CARDINAL ) It is permissible to decide not to impose a sanction if the mere fact that the minor offence was examined is sufficient to reform its perpetrator . ”", "Section CARDINAL(CARDINAL ) , as relevant , provides :", "“ When determining the type and amount of the sanction , the seriousness of the minor offence and , in particular , the way and the circumstances in which it was committed , its consequences , the degree of guilt , the motive and the character of the perpetrator including whether or not he or she has already been punished for the same act in ... disciplinary proceedings should be taken into account . ”", "Section CARDINAL of the Act governs minor offences against civic propriety . Pursuant to section CARDINAL(CARDINAL)(d ) a minor offence is committed by a person who deliberately offends against civic propriety by threat of bodily harm , by causing minor bodily injury , by unjustifiably accusing another person of a minor offence , by annoyances or other rude behaviour . Under section CARDINAL ) such a minor offence is punishable with a maximum fine of SKK CARDINAL .", "According to section CARDINAL the proceedings concerning minor offences are governed , unless otherwise provided , by LAW .", "Section CARDINAL provides that the following administrative authorities are entitled to examine minor offences : ( i ) local offices , ( ii ) police authorities if a minor offence was committed in breach of the generally binding legal rules relating to the security of road traffic and ( iii ) other organs of ORG administration if a special law so provides .", "Pursuant to section CARDINAL(CARDINAL)(b ) cases involving minor offences against civic propriety , which are directed against the security of persons , are investigated by the police authorities subordinated to ORG .", "Section CARDINAL ) provides that minor offences are to be investigated either on the basis of an investigation carried out by the competent police authority or upon a notification submitted by an individual , an organisation or an authority .", "Under section CARDINAL(CARDINAL ) the police authority should submit to the competent administrative organ a report on the outcome of its investigation of a case . Such a report ought to comprise , inter alia , a description of the relevant facts and specify which minor offence they are alleged to constitute .", "Section CARDINAL reads as follows :", "“ ( CARDINAL ) A citizen is accused of a minor offence as soon as the administrative authority has taken the first procedural step against him or her . Such a person shall be considered innocent until his or her guilt has been established by a final decision .", "( CARDINAL ) A person accused of a minor offence has the right to comment on all facts that are imputed to him or her as well as on the evidence related to these facts , to present facts and evidence in his or her defence , make submissions and have recourse to remedies . He or she can not be forced to make statements or to plead guilty . ”", "Section CARDINAL , as relevant , provides :", "“ The operative part of a decision by which an accused of a minor offence is found guilty shall comprise also the description of the act including the place and time when the minor offence was committed , the finding of guilt , the type and amount of the sanction or , as the case may be , the decision not to impose a sanction ... ”", "According to section LOC decisions on minor offences imposing a fine exceeding SKK CARDINAL , prohibiting the exercise of a certain activity for a period exceeding six months or confiscating an object having a value exceeding SKK CARDINAL can be reviewed by the courts . In such cases the provisions of Articles CARDINAL et seq . of ORG on administrative jurisdiction are applied .", "Section CARDINAL(CARDINAL ) of PERSON no . PERSON on ORG , as amended , empowers district offices and local offices to carry out local administration falling within the competence of the ORG . The exercise of local administration by the aforesaid authorities is managed and controlled by the government .", "Under section CARDINAL ) the head of a local office is appointed and dismissed by the head of a district office .", "According to section CARDINAL(CARDINAL ) the head of a district office is appointed by the government on the proposal of ORG .", "The officers of local and district offices are subordinated to the heads of those offices and their contracts of employment are governed , as in the case of other salaried employees , by the provisions of LAW .", "In DATE this PERSON was repealed and replaced by PERSON no . ORG .", "NORP Under the terms of LAW are bound , inter alia , by the decisions of the competent authorities that a criminal offence , a minor offence or another administrative offence punishable under special rules has been committed .", "Article CARDINAL § CARDINAL of LAW defines a criminal offence as an act which is dangerous to society and whose characteristics are laid down in LAW . However , according to LAW , an act whose dangerousness is negligible is not a criminal offence even if it has its attributes .", "According to LAW the degree of dangerousness of an act is determined , in particular , by the importance of the protected interest affected by that act , by the circumstances and the way in which the act was committed and its consequences as well as by the character of its perpetrator , the degree of his guilt and his motives .", "The Criminal Code refers to repressive measures imposed for committing a criminal offence as penalties ( tresty ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lived until his arrest in GPE .", "On DATE a statue of GPE ’s last Tsar , PERSON , was blown up near the village of GPE in LOC of LOC .", "On DATE the mass media reported that an organisation called “ ORG ” ( « Революционный Военный Совет DATE hereafter “ the ORG ” ) had claimed responsibility for the destruction of the monument . In TIME of DATE newspapers published a statement by the ORG , which claimed that its members were planning to perform “ a conditional destruction ” of the statue of another Russian Tsar , PERSON . According to the ORG , packets of plastic explosives had been planted inside the statue to protest against plans to bury ORG leader PERSON ’s body . The ORG had planned to explode the bombs at TIME but had eventually dropped its plans for fear of injuring innocent victims .", "Responding to the ORG ’s warning , the police found CARDINAL explosive devices planted under PERSON the Great ’s monument near the FAC in GPE . On DATE , following the discovery of the explosive devices , ORG of ORG ( “ the ORG ” ) instituted criminal proceedings .", "According to the applicant , since DATE he and his wife had been under surveillance by the ORG .", "On DATE , at TIME , a group of armed ORG officers arrested the applicant in his office in ORG for the Fight against Organised Crime of the Ministry of Internal Affairs of GPE and brought him to ORG in GPE where he was questioned about his participation in the bombings on DATE and DATE . An investigator apprised the applicant of his rights as a defendant , including the right to remain silent , and insisted that the applicant should not testify . However , the applicant considered that his silence could be interpreted as “ a confession ” and decided to make a statement . He claimed that he had nothing to do with the bombings .", "On DATE the applicant was charged with terrorism and unlawful production of weapons and explosive devices . His detention on remand was authorised and he was escorted to the FAC remand prison , run by ORG . The applicant ’s detention was subsequently extended on several occasions . His office and flat were searched and his personal belongings and money were seized .", "On DATE the applicant was additionally charged with organising a criminal undertaking , abuse of position , unlawful possession of weapons , abetting forgery of documents and actions aimed at a violent overthrow of the ORG .", "On DATE the pre - trial investigation was completed and the applicant and his lawyers were granted access to the case file . They finished examining the file on DATE .", "On DATE a deputy prosecutor of GPE approved the bill of indictment and the case file was sent to ORG for trial .", "On DATE ORG fixed the first hearing for DATE . That hearing was postponed until DATE because the presiding judge was involved in other unrelated proceedings . The following CARDINAL hearings were adjourned because a co - defendant , PERSON , failed to attend .", "On DATE ORG remitted the case to ORG office for additional investigation . ORG held that the investigating authorities had violated the right of the applicant ’s co - defendant to present his defence . That decision became final on DATE , following an appeal to ORG of GPE .", "On DATE ORG in GPE received the case file . On DATE the applicant was released on his own recognisance .", "On DATE the new round of pre - trial investigation was completed . Between CARDINAL May and DATE the applicant and his lawyers studied the case file . On DATE ORG approved the bill of indictment and the applicant was committed to stand trial before ORG . According to the Government , the case file contained information classified as ORG secrets .", "On DATE ORG , relying on Article CARDINAL of LAW and without giving any reasoning , decided to hold the trial in camera . ORG also dismissed the applicant ’s request for a jury trial because other defendants had objected to that request .", "DATE and DATE no hearings were held because the presiding judge , PERSON , was involved in other unrelated proceedings .", "On DATE ORG appointed a new presiding judge , PERSON , and CARDINAL lay judges , PERSON and PERSON , to sit in the applicant ’s case . According to the applicant , he unsuccessfully asked ORG to hear a PERSON , who allegedly could have testified that the applicant had not been aware of the ORG ’s activities .", "At the hearing on DATE the applicant and his lawyer asked ORG to open the trial to the public . As shown in a copy of the court hearing record , submitted by the Government , the prosecutor objected , noting that the mass media had already misrepresented the facts in the case , that separate criminal proceedings were pending against another defendant and that the case file contained classified information . ORG dismissed the applicant ’s motion , holding as follows :", "“ ... the court does not find grounds for accepting [ the motion ] because the decision to hold the trial in camera does not violate the requirements of LAW and because the examination of the case in camera will guarantee security to the victims , witnesses and other parties to the proceedings , taking into account the character of the charges . ”", "No hearings were held DATE and DATE because the applicant ’s co - defendants and their lawyers were ill . The ORG noted that during that period the proceedings were also stayed for DATE because the applicant ’s lawyer was ill .", "On DATE ORG found the applicant guilty as charged and sentenced him to TIME years’ imprisonment . According to the applicant , the judgment was not pronounced publicly . The Government submitted a videotape containing news reports by CARDINAL major TV companies , ORG , ORG and ORG , which had covered the story on the applicant ’s trial . The TV reports showed a crowded courtroom during the footage of the pronouncement of the judgment . It appears that a number of reporters and persons supporting the applicant and his co - defendants were present when the judgment was pronounced .", "The applicant and his lawyers appealed against the conviction , arguing , in particular , that the trial had been held in camera although no evidence examined by ORG could have been considered to contain ORG secrets .", "On an unspecified date ORG of GPE scheduled an appeal hearing for DATE . The applicant alleged that he had not been allowed to have a meeting with his lawyer before the appeal hearing and that he had only been notified of that hearing TIME before it had started . As shown in material submitted to ORG , on DATE the lawyer visited the applicant and notified him that the appeal hearing had been listed for CARDINAL DATE . On DATE the applicant ’s lawyer lodged with ORG an amendment to the statement of appeal .", "On DATE ORG held the appeal hearing by way of video conference . The applicant was represented by CARDINAL counsels , Mr V. GPE and Mr PERSON . At the beginning of the appeal hearing the presiding judge read out a letter addressed to ORG by a co - defendant of the applicant , PERSON latter alleged that the applicant had threatened him and his family members and that PERSON V. ORG had represented Mr S. at the trial and , thus , should not have acted as the applicant ’s counsel . ORG dismissed PERSON V. ORG from the proceedings .", "On DATE ORG delivered the judgment . It excluded the charge of forgery of documents because the statutory limitation period had expired , upheld the remaining conviction and reduced the applicant ’s sentence by DATE . In response to the applicant ’s complaint about the trial in camera , ORG noted only that the proceedings had been held in accordance with the requirements of Article CARDINAL of LAW .", "The applicant alleged that from DATE of his arrest on DATE until his release on DATE he had been detained in appalling conditions in the FAC remand prison . On a number of occasions he was placed in a solitary confinement cell . ORG often humiliated and threatened him .", "On DATE , at TIME , the applicant was taken to detention facility no . IZ-CARDINAL/CARDINAL ( commonly known as “ LOC ” ) in GPE . He remained in that facility until DATE when he was transferred to a correctional colony in LOC .", "According to certificates issued on DATE by the director of the facility and produced by the ORG , from DATE the applicant was kept in cell no . CARDINAL which measured QUANTITY and accommodated CARDINAL inmates . After DATE he stayed in cells CARDINAL . CARDINAL and CARDINAL which measured QUANTITY . The cells had CARDINAL sleeping places and housed from CARDINAL to CARDINAL detainees . The Government further submitted that at all times the applicant had had an individual bunk and bedding .", "The applicant did not dispute the cell measurements . He alleged , however , that he had shared cell no . CARDINAL with QUANTITY detainees and that bigger cells had housed CARDINAL inmates . At some point , for DATE the applicant shared a cell with CARDINAL other detainees . Given the lack of beds , inmates had slept in shifts . No bedding or blankets were provided .", "The Government , relying on the information provided by the director of the facility , submitted that all cells were equipped with a lavatory pan , a tap , a sink and ventilation shaft . The lavatory pan was separated from the living area by a QUANTITY - high partition . Cell no . CARDINAL had a window which measured QUANTITY in length and QUANTITY in width . The bigger cells had CARDINAL windows with the same measurements . The windows had a casement . Inmates could request warders to open the casement to bring in fresh air . However , until DATE the windows were covered with metal shutters blocking access to natural light and air . The cells were equipped with lamps which functioned day and night . Inmates were allowed to take a shower once DATE for TIME . The cells were disinfected once DATE . A central - heating system was installed in the building . The Government further stated that the applicant was given food CARDINAL times a day “ in accordance with the established norms ” . Medical personnel at the facility checked the quality of the food CARDINAL times a day and made entries in registration logs . The applicant had CARDINAL TIME walk DATE .", "According to the Government , detainees , including the applicant , were provided with medical assistance . They had regular medical check - ups , including X - ray examinations , blood tests , and so on . On his admission to the detention facility the applicant was examined by a doctor who noted that the applicant was healthy . On DATE the applicant complained to the prison doctor of a severe skin itch . The doctor diagnosed dermatitis and prescribed treatment . On DATE the applicant again complained of skin rash on the back , stomach and hips and was diagnosed with disseminated dermatitis and scabies . He was transferred to the venereal department of the facility hospital , where he was treated for DATE . The Government gave a detailed description of the treatment administered to the applicant , including the type of medicine , dose and frequency . They also furnished a copy of the applicant ’s medical record and medical certificates .", "The applicant disagreed with the ORG ’s description and submitted that the sanitary conditions had been unsatisfactory . The cells were infested with insects but the administration did not provide any insecticide . The windows were covered with metal blinds which blocked access to natural light and air . The applicant pointed out that the Government did not dispute that the blinds had only been removed some time at DATE , that is after he had already been detained in that facility for DATE . It was impossible to take a shower as inmates were afforded TIME and CARDINAL men had to use CARDINAL shower head at the same time . Inmates had to wash and dry their laundry indoors , creating excessive humidity in the cells . Inmates were also allowed to smoke in the cells . The lavatory pan was separated from the living area by a partition affording no privacy to inmates . No toiletries were provided . The food was of poor quality and in scarce supply . The applicant further argued that he had not been adequately treated after he had been discovered to be suffering from skin diseases . His skin condition deteriorated so severely that he was transferred to the prison hospital . Following several complaints to various officials , the applicant started to receive treatment . The applicant further alleged that he had not been allowed to have meetings with his wife and child .", "In DATE , DATE and DATE newspapers published a number of articles covering criminal proceedings against the applicant . He was called “ a criminal ” and “ a terrorist ” in the articles .", "In DATE a press office of ORG held CARDINAL press conferences . Another press conference was held by a higher ranking ORG official , PERSON At the press conferences officials described the applicant as “ a criminal who had committed the offence ” . Mr PERSON also gave an interview to a TV company . During that interview PERSON called the applicant “ a perpetrator ” and “ a criminal ” .", "DATE ( in force until DATE , “ the CCrP ” ) provided for public hearings in all cases “ unless the interests of the protection of ORG secrets required otherwise ” . A hearing in camera was also allowed on the basis of a reasoned court decision in cases concerning crimes committed by individuals under DATE , in cases concerning sexual criminal offences , and in other cases in order to prevent dissemination of information on the intimate spheres of lives of persons participating in such cases . Pronouncement of a judgment was to be made publicly in every case .", "The LAW of DATE provides :", "“ CARDINAL . Laws shall be officially published . Unpublished laws are not to be applied . No legal acts interfering with the rights , freedoms and obligations of a man and citizen may be applied unless they are officially published and publicly available ” .", "“ CARDINAL . Everyone has the right to freely search , obtain , impart , generate and disseminate information by all lawful means . The list of information constituting ORG secrets shall be laid down in a federal law . ”", "NORP On DATE the State Secrets Act ( Law no . CARDINAL - CARDINAL ) was enacted . Section CARDINAL provided as follows :", "“ The following information may be classified as a ORG secret :", "( CARDINAL ) information in the military field ...", "( CARDINAL ) information in the field of the economy , science and engineering ...", "( CARDINAL ) information in the field of foreign policy and trade :", "( CARDINAL ) information in the field of intelligence and counter - intelligence services and investigating activities ... ”", "Section CARDINAL described the procedure for classification of information as ORG secrets . ORG to classify information was delegated to the heads of ORG agencies . The LAW did not contain a list of such officials , which was to be approved by the President . The President was also to approve a List of information classified as ORG secrets , which was to be officially published .", "On DATE ORG examined the compatibility of LAW with the LAW and found as follows :", "“ CARDINAL ... The ORG may classify as ORG secrets information in the field of defence , economic and other activities , disclosure of which may undermine national defence and the security of the ORG . In this connection LAW of the LAW provides that the list of information constituting ORG secrets is to be adopted in the form of a federal law . The ORG may also determine provisions and measures for the protection of ORG secrets , including by means of establishing criminal liability for its disclosure and communication to a foreign ORG .", "....", "The requirements of LAW are fulfilled by LAW of DATE , which defines the concept of ORG secrets and indicates the information that may be classified as ORG secrets . ”", "Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .", "ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :", "“ b. temporary holding facilities for criminal suspects ( ORG )", "According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .", "The actual conditions of detention in the ORG establishments visited in DATE varied considerably .", "...", "It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .", "When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .", "...", "The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .", "...", "As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “ because they know that all complaints usually pass through the colony ’s administration ” .", "In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”" ]

[ "3", "6" ]

[ "6-1" ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE .", "In DATE the heirs of the pre - nationalisation owners of an apartment , purchased by the first applicant 's husband from the ORG in DATE , brought an action for restitution against the latter , seeking a declaration that the DATE transaction had been null and void and that therefore the apartment should be restored to its original owners before the nationalisation .", "On DATE the ORG granted the restitution claim .", "On appeal , on DATE the ORG quashed ORG judgment and dismissed the claim of the pre - nationalisation owners ' heirs .", "The heirs of the pre - nationalisation owners submitted a petition for review ( cassation ) .", "By a final judgment of CARDINAL DATE ORG quashed ORG judgment and upheld ORG judgment . As a result , the title of the first applicant 's husband to the apartment at issue was declared null and void .", "The number of hearings held in the course of the proceedings is not clear .", "On DATE the first applicant 's husband died . The first applicant and her CARDINAL sons ( the second and third applicants ) were his heirs .", "On DATE the first applicant , who had not been a party to the DATE proceedings , submitted a request for reopening , stating that in accordance with LAW she should have been cited as a party since she was the owner of CARDINAL of the apartment at issue and the judgment of CARDINAL DATE was binding on her .", "The second and third applicants also became parties to these proceedings as they replaced their deceased father , being his heirs .", "By a judgment of DATE ORG quashed the judgment of DATE , reopened the case and remitted it to another panel of ORG . The court found that , in violation of the relevant provisions of LAW , the first applicant had not taken part in the DATE proceedings .", "CARDINAL hearings were held before ORG on CARDINAL DATE and CARDINAL on DATE , the first of them was adjourned upon the first applicant 's request .", "By a judgment of CARDINAL DATE ORG quashed the judgment of DATE and remitted the case to ORG for new examination .", "The first hearing before ORG was scheduled for DATE and was adjourned upon the first applicant 's request . The following hearing was held on DATE . CARDINAL more hearings were held - on DATE , DATE and DATE , the first of which was adjourned because the third applicant had not been properly summoned as his address had changed .", "On DATE the ORG quashed ORG judgment of DATE and decided to refer the case for renewed examination by ORG .", "On an unspecified date in DATE or in DATE the heirs of the pre - nationalisation owners appealed before ORG , which held a hearing on DATE . By judgment of CARDINAL DATE ORG quashed the lower court 's judgment , as the reopened case fell to be examined by ORG .", "The Sofia City Court held a hearing on DATE .", "On DATE the ORG found that the DATE transaction was null and void , having regard to the fact that the apartment at issue had largely exceeded the applicants ' family 's needs as determined by the relevant housing regulations .", "On DATE the applicants appealed . The first hearing was scheduled for DATE but was adjourned upon the first applicant 's request . Another hearing was held on DATE .", "By a judgment of CARDINAL DATE ORG upheld the previous court 's judgment .", "Until DATE NORP law did not provide for any remedies in respect of length of civil proceedings .", "A new procedure , “ complaint about delays ” , was introduced in DATE , by virtue of Article CARDINALa of the Code of Civil Procedure CARDINAL , in force until DATE . Pursuant to this procedure , a litigant aggrieved by the slow examination of the case could file a complaint before the president of the higher court . The latter had the power to issue mandatory instructions for faster processing of the case ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP citizen who was born in DATE and is at present living in GPE ( GPE ) . Until DATE the applicant lived in the village of PERSON , attached to the ORG district in the province of GPE . DATE the applicant was the imam ( religious leader ) of the village . As a result of his involvement with a number of political organisations , including ORG ( ORG ) , ORG ( ORG ) and ORG ( DEP ) , of which he became the local leader , he was imprisoned on a number of occasions . The applicant left and had never returned to his village prior to the alleged events in question , since he had been threatened with death . The application concerns the applicant 's allegations that ORG security forces destroyed his house .", "The facts surrounding the destruction of the applicant 's house are in dispute between the parties .", "In DATE CARDINAL young women from the village , all of whom were related to the applicant 's extended family , decided to join the ORG .", "On DATE the gendarme unit commander of ORG came to the village and threatened to burn the village to the ground if the women were not brought to him within DATE .", "The applicant 's family and the families of the young women , frightened by this threat , loaded up their possessions and fled . However , the gendarmes , accompanied by special teams , forced them to return to the village and to unload their possessions . They gathered the families into a house by force , where they assaulted certain of them , including the applicant 's wife . They withdrew from the village telling the villagers to take good photographs of their houses , as that was all they would have to remember them by .", "On DATE , at TIME , special gendarme teams and village guards came to the village . Villagers were ordered to go into their homes and to turn off their lamps . The security forces then took diesel oil from the villagers ' tractors and barrels and set fire to the houses of the applicant and his family . The applicant was out of the village , in GPE , when his house was burned down .", "On DATE the applicant filed a criminal complaint with the PERSON public prosecutor in GPE for submission to the ORG public prosecutor , calling for an on - site investigation and the institution of proceedings against the perpetrators . This document was registered as no . CARDINAL by the PERSON public prosecutor 's office .", "On DATE the applicant made a press statement through a human rights body , ORG , which was carried DATE in the pro - NORP newspaper PERSON .", "On DATE the public prosecutor ( no . DATE ) sent a letter to ORG in ORG requesting a report on the matters raised in the applicant 's allegations . He repeated his request in letters of CARDINAL DATE ( no . DATE ) and DATE ( no . DATE ) .", "By letter of DATE , ORG in ORG replied to the prosecutor 's letter of DATE by submitting the records of the statements they had taken . The prosecutor took further statements in DATE , and the gendarme commander PERSON in DATE and DATE . Since DATE , there has been no development in the investigation .", "The applicant left the village of PERSON of his own free will , together with his spouse and children . He settled first in Adapazarı and then in GPE or GPE . The Government submitted various records of the statements taken by the authorities in relation to the burning of the applicant 's house .", "Mr PERSON , the mayor ( muhtar ) of the village of PERSON , stated to the public prosecutor that on the night of the incident , he had seen some persons setting fire to the applicant 's house but as they had their faces covered , he had not been able to recognise them . He did , however , recognise one of them , PERSON ( PERSON ) , a village guard from the village of GPE .", "The statement by the applicant 's fellow villager , PERSON , revealed that the applicant had not been in the village during the incident , but that his family had been .", "Mr PERSON claimed that although he had seen the applicant 's house burning , he had not seen who had set fire to it , as it was dark .", "Mr PERSON and PERSON from the same village made identical statements .", "Mr PERSON declared before the same gendarme commander that the applicant had always acted in a subversive manner towards the ORG , that his house had indeed been burned , that he had not seen who had set fire to it , but it had definitely not been the security forces . He also added that all the villagers were pleased that the applicant had left the village . In a further statement , Mr PERSON told GPE that the applicant had always been a ORG supporter , that the applicant and his family had not been in the village on TIME of the incident , that he had not seen who had set fire to the house , but that he was sure that it was not the security forces . He also stated that the applicant himself might perhaps have done it .", "Mr Abdulcebbar Sezen was recorded as having declared to the police officer that the applicant was a member of the ORG , that he used to be a source of trouble in the village and that the villagers were pleased that he had left the village . He also stated that the applicant 's house had definitely not been burned by the security forces or the gendarmes and that the security forces had always helped the villagers .", "Mr PERSON recalled having declared that the applicant was collaborating with the ORG , that on TIME of the incident he had seen the applicant 's house burning but had been afraid to go out , as he knew that the ORG were in the region at the time . He added that the security forces had not set fire to the applicant 's house .", "As to PERSON , he declared that the applicant had not been in the village when the incident had occurred , that DATE before the fire his spouse and children had left the village as well , taking the furniture , and that although DATE before the incident security forces had been in the village , they had not been there during the incident . He finally stated that he did not know who had set fire to the applicant 's house but was sure that it had not been the gendarmes .", "The investigation could not continue in the applicant 's absence . According to a letter of DATE from ORG in ORG , the applicant had left PERSON for an unknown place , probably Adapazarı .", "The documents contained under this heading concern the applicant 's statement letters and his petitions to the authorities about his complaints as well as the statements made by several witnesses in support of the applicant 's allegations .", "The documents listed below pertain to the applicant 's complaints about the destruction of his house by the ORG gendarmerie forces .", "( i ) Petition by the applicant dated DATE to the PERSON public prosecutor 's office for submission to the ORG public prosecutor 's office ;", "( ii ) Letter from the applicant to PERSON of ORG ( “ ORG ” ) in GPE , containing his complaints about the destruction of his property ;", "( iii ) A report dated DATE , signed by the applicant , setting out the sequence of the impugned events and the details of the property destroyed ;", "( iv ) Letter of DATE from the applicant to PERSON and PERSON of the ORG , in which he set out his efforts to exhaust domestic remedies in regard to his complaints ;", "( v ) Letter of DATE from the applicant to the ORG concerning the statements taken by the gendarmerie from the muhtar , PERSON .", "( vi ) Letter dated DATE from the applicant to PERSON of the ORG , containing his comments about the statements taken by the gendarmes from his fellow villagers .", "The witnesses mentioned below alleged in their statements that gendarmes had burned the applicant 's house along with some other houses in Dirimpınar on DATE .", "( i ) Statements dated DATE by Dilsa , NORP , PERSON , PERSON , GPE and PERSON ( Esma ) PERSON and PERSON ;", "( ii ) An undated statement by PERSON and statements dated DATE and DATE by PERSON ;", "( iii ) Statement of DATE by PERSON ;", "( iv ) Statement of DATE PERSON Daş together with his statement to ORG , also dated DATE .", "The applicant produced press releases and articles concerning the alleged destruction of his property by ORG security forces as well as the general situation in south - east GPE at the relevant time .", "( i ) A ORG article dated DATE ;", "( ii ) Statement of DATE by the applicant to the press complaining about the destruction of his property and explaining the general situation in south - east GPE ;", "( iii ) ORG newspaper articles dated DATE concerning the burning of the applicant 's house along with other houses in villages in the PERSON and PERSON districts .", "( i ) A copy of a plan of the village of Dirimpınar ;", "( ii ) A copy of the applicant 's title deed , to his house , land and buildings in Dirimpınar ;", "( iii ) Guiding Principles on Internal Displacement issued by ORG High Commissioner for Human Rights .", "The documents listed below concern the statements taken from various witnesses in regard to the applicant 's allegations and the investigation conducted by the national authorities into the impugned events as well as the criminal proceedings against the applicant for having been involved in the ORG .", "The witnesses mentioned below alleged in their statements to the authorities that they did not know or had not seen who had burned the applicant 's house . They deny the applicant 's allegations that the gendarmes burned his house . They claimed that the applicant was involved in the ORG and that for this reason nobody had wanted him in the village .", "( i ) Report dated DATE , containing statements by ORG , taken by the gendarmes , about the applicant 's allegations ;", "( ii ) Statements dated DATE , taken by ORG , and made by GPE and GPE , ORG and PERSON and PERSON ;", "( iii ) Statements dated DATE , taken by ORG , and made by PERSON , PERSON , GPE and GPE , PERSON , GPE , PERSON , Bahattin and PERSON and ORG and PERSON .", "( iv ) Statement dated DATE by PERSON ;", "( v ) Statements of CARDINAL DATE and DATE by PERSON ;", "( vi ) Statements of DATE and DATE and DATE by PERSON ;", "( vii ) Statements of CARDINAL DATE , DATE , CARDINAL and DATE by PERSON ;", "( viii ) Statements of DATE and DATE , CARDINAL DATE and DATE and DATE by PERSON ;", "( ix ) Statements of DATE , CARDINAL DATE , DATE and DATE , CARDINAL DATE , DATE and DATE by PERSON ;", "( x ) Statements of DATE , CARDINAL DATE , DATE and DATE , CARDINAL DATE , DATE and DATE by PERSON .", "The documents below concern the authorities ' investigation into the applicant 's allegations of the destruction of his property by the gendarmes .", "( i ) Duty schedules of DATE ;", "( ii ) Letters of DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE and DATE from the ORG public prosecutor to ORG in ORG ;", "( iii ) Letters of DATE , DATE and CARDINAL DATE from ORG Commander to the public prosecutor 's office in ORG ;", "( iv ) Report dated DATE drafted by the gendarmes ;", "( v ) Assessment report of the scene of the incident , dated DATE and drafted by the gendarmes ;", "( vi ) Report dated DATE drafted by the gendarmes ;", "( vii ) Letter of DATE from public prosecutor no . DATE to ORG in Malazgirt ;", "( viii ) Letter of DATE from LOC Governor to PERSON PERSON , an agricultural engineer , who was appointed as an inspector by ORG ;", "( ix ) Letter of DATE from LOC Governor to ORG ;", "( x ) Letter of DATE from LOC Governor to ORG ;", "( xi ) Letter of DATE from the ORG public prosecutor to the GPE ;", "( xii ) Letter of DATE from the ORG Deputy ORG to ORG ;", "( xiii ) Investigation report of DATE by PERSON for submission to the District Governor 's office ;", "( xiv ) Letter of DATE from PERSON to LOC ;", "( xv ) Decision of DATE by ORG to discontinue the proceedings against the gendarme officers accused of destruction of the applicant 's property ;", "( xvi ) On - site report of DATE by the ORG ;", "( xvii ) Inspection report of DATE concerning the burned buildings in the village of Dirimpınar ;", "( xviii ) Expert report and sketch maps dated DATE on the burning of houses in Dirimpınar ;", "( xix ) Letter of DATE from the ORG Deputy Mayor to the public prosecutor 's office in ORG ;", "( xx ) Investigation report by ORG for submission to ORG office in GPE ;", "( xxi ) Letter of DATE from LOC Governor to ORG ;", "( xxii ) ORG decision of DATE to uphold the decision given by ORG on DATE ;", "( xxiii ) Letter of DATE from ORG to ORG and the latter 's letter of DATE in reply ;", "( xxiv ) Letter of DATE from ORG to ORG and the latter 's letter of DATE in reply ;", "( xxv ) Decision of non - jurisdiction by ORG , dated DATE ;", "( xxvi ) Report dated DATE signed by the Dirimpınar village muhtar , Mr PERSON , and CARDINAL of his fellow villagers ;", "( xxvii ) Permanent search warrant dated DATE issued by the ORG public prosecutor to find the perpetrators of the burning of the applicant 's house ;", "( xxviii ) Reports dated DATE , CARDINAL DATE , DATE , DATE and CARDINAL DATE signed by the Dirimpınar village muhtar , PERSON , and QUANTITY gendarmes ;", "( xxix ) Letters of CARDINAL DATE , DATE and DATE from the ORG Deputy ORG to the ORG public prosecutor ;", "( xxx ) Letters of DATE , DATE , DATE , CARDINAL DATE and DATE from ORG to ORG ;", "( xxxi ) Letters of DATE and DATE from the ORG public prosecutor to ORG ;", "( xxxii ) Report dated DATE , drafted and signed by CARDINAL gendarmes ;", "( xxxiii ) Letter of DATE from ORG to ORG office in GPE ;", "( xxxiv ) Undated documents indicating that ORG and PERSON were no longer resident in the village , drafted by the village muhtar , PERSON .", "These documents concern the criminal proceedings brought against PERSON , the applicant 's fellow villager , for allegedly setting the applicant 's house on fire . PERSON was acquitted of the charges in a judgment of DATE by ORG .", "( i ) Copy of a birth certificate belonging to PERSON dated DATE ;", "( ii ) Letter of DATE from ORG to ORG ;", "( iii ) Letter of DATE from the ORG Director to ORG office ;", "( iv ) Report dated DATE drafted by police officers in ORG ;", "( v ) Arrest warrant in absentia , issued by ORG on DATE , against PERSON ;", "( vi ) Report dated DATE for the arrest of PERSON ;", "( vii ) Body search report concerning PERSON ;", "( viii ) Petition of DATE by PERSON filed with the ORG public prosecutor 's office for submission to the ORG public prosecutor 's office ;", "( viii ) Letters of DATE and CARDINAL DATE from the ORG public prosecutor to ORG office in Adapazarı ;", "( ix ) Letter of DATE from the ORG Director to ORG ;", "( x ) Petition of DATE filed by PERSON with ORG on duty , for submission to ORG , which includes his request for release ;", "( xi ) Petition of DATE from the representative of PERSON to ORG office in GPE for submission to ORG office in ORG ;", "( xii ) Decision of nonjurisdiction by ORG , dated DATE , addressed to ORG ;", "( xiii ) Decision of DATE by ORG to sever the criminal proceedings against the gendarmes from the criminal proceedings against PERSON ;", "( xiv ) Indictment of DATE by ORG against PERSON charging the latter with setting the applicant 's house on fire ;", "( xv ) Decision of DATE by ORG ordering the continued detention of PERSON , who was accused of setting the applicant 's house on fire ;", "( xvi ) Minutes of the preliminary hearings before ORG concerning the trial of PERSON , dated DATE and DATE ;", "( xvii ) Judgment of DATE by ORG which acquitted PERSON of burning the applicant 's house .", "The documents under this heading concern the criminal proceedings instituted against the applicant on account of his alleged involvement in the ORG .", "( i ) Judgment of DATE by ORG which acquitted the applicant of the charges of having been involved in subversive activities and of membership of the ORG ;", "( ii ) Supplementary decision of DATE by ORG to discontinue the criminal proceedings against the applicant on charges of involvement in the ORG ;", "( iii ) Supplementary decision of DATE by ORG to discontinue the criminal proceedings against the applicant on charges of membership of the ORG ;", "( iv ) Decision of DATE by ORG to discontinue criminal proceedings against the applicant ;", "( v ) Decision of DATE by ORG to uphold the first instance court 's decision to refuse the applicant 's request to change his family name ;", "( vi ) Decision of DATE by ORG at ORG to discontinue the proceedings against the applicant on charges of aiding and abetting the ORG .", "The facts of the case being in dispute between the parties , the ORG conducted an investigation with the assistance of the parties . In this connection , CARDINAL Delegates of the Court ( Mr A. Pastor PERSON , Mr PERSON and PERSON ) took oral evidence from DATE from CARDINAL witnesses . A further CARDINAL witnesses had been summoned but did not appear for various reasons . The Delegates took evidence from the following witnesses [ ORG : The verbatim records of the evidence given by the witnesses are available to the public at the ORG 's archives . ] :", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL) PERSON ;", "( CARDINAL ) PERSON ( PERSON ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON ;", "( CARDINAL ) PERSON .", "LAW provides :", "“ All acts or decisions of the administration are subject to judicial review ...", "The administration shall be liable to indemnify any damage caused by its own acts and measures . ”", "The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .", "The principle of administrative liability is reflected in the additional LAW no . CARDINAL of DATE on ORG , which provides :", "“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON shall be brought against the administration before the administrative courts . ”", "The Criminal Code makes it a criminal offence", "( a ) to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;", "( b ) to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ;", "( c ) to issue threats ( LAW ) ;", "( d ) to make an unlawful search of an individual 's home ( ORG CARDINAL and CARDINAL ) ;", "( e ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or in case human life is endangered aggravated arson ( Article CARDINAL ) ,", "( f ) to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; or", "( g ) to damage another 's property intentionally ( Articles CARDINAL et seq . ) .", "For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .", "If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of the Military Code . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected persons ' hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .", "If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . An appeal against the local council 's decisions lies to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .", "Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .", "Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .", "Damage caused by terrorist violence may be compensated out of ORG .", "Extensive powers have been granted to state of emergency the regional governor by decrees enacted under PERSON no . CARDINAL on ORG ( DATE ) , especially Decree no . CARDINAL , as amended by Decrees nos . CARDINAL and CARDINAL , and Decree no . CARDINAL .", "Decree no . CARDINAL modifies the application of PERSON no . ORG , ORG ( DATE ) , in those areas which are subject to the state of emergency , with the effect that the powers to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils . These councils are made up of civil servants and are under the authority of the provincial governors who also head the security forces .", "DATE of Decree no . CARDINAL of DATE provides :", "“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”", "According to the applicant , this Article grants impunity to the governors and reinforces the powers of the regional governor to order the permanent or temporary evacuation of villages , to impose residence restrictions and to enforce the transfer of people to other areas . Damage caused in the context of the fight against terrorism would be “ with justification ” and therefore immune from suit ." ]

[ "13", "3", "8" ]

[]

[]

[ "14", "18" ]

[]

[]

[ "ORG The applicant , a NORP citizen , is a Lieutenant - Colonel in ORG . He is Commanding Officer of FAC and is currently serving as full Colonel in ORG in GPE , GPE .", "ORG In DATE the applicant served as Commander of ORG ( \" the Station \" ) on GPE island in LOC , which is part of GPE .", "On DATE the captain of a shrimp trawler , M / S Polarbas , radioed the Station , asking it to receive for treatment a fisherman , who had injured his arm . On DATE the applicant agreed to this request and , on the same date , he and a colleague rowed out in a rubber dinghy to meet the trawler 's lifeboat bringing the fisherman closer to shore . Shortly after the injured fisherman had been taken aboard , a breaker capsized the dinghy , leaving all CARDINAL passengers in the sea , which on DATE had a temperature of -CARDINAL.CARDINAL ORG . The applicant was the only CARDINAL of the CARDINAL who managed to reach the shore and who survived .", "ORG A military board of inquiry , set up inter alia to establish the facts of the incident and to express an opinion on whether any regulations had been violated , concluded in a report of CARDINAL DATE that relevant instructions had been violated and that the applicant , as Head of Station , was responsible .", "ORG On DATE the public prosecutor of ORG , under an expedited non - judicial procedure ( forelegg ) , proposed to the applicant a suspended sentence of DATE military custody ( vaktarrest ) and a fine of MONEY ( ORG ) for the offence of neglect or carelessness in the performance of official duties ( Article CARDINAL para . CARDINAL of the DATE LAW , Law no . CARDINAL of CARDINAL DATE ) . As the applicant refused to accept the proposal , the public prosecutor instituted proceedings against him in ORG ( byrett - \" ORG \" ) , charging him with the aforementioned offence .", "ORG The trial before ORG took place from DATE . The applicant was heard and CARDINAL witnesses and CARDINAL expert witnesses gave evidence . GPE evidence , including the military board of inquiry 's report of CARDINAL DATE ( see paragraph CARDINAL above ) , was submitted . Furthermore , on DATE ORG held an inquiry on GPE island at the site of the accident , where a number of witnesses testified .", "ORG In its judgment of CARDINAL DATE , ORG described the relevant facts as follows :", "\" In TIME of CARDINAL DATE [ the applicant ] was informed by PERSON , nurse [ at the Station ] , that the captain of M / S Polarbas had been in contact with PERSON radio and requested that Mr PERSON [ the injured fisherman ] be taken ashore at DATE so that the nurse could have a look at his wrist injury . The [ applicant ] responded in a positive manner to the request , but said that they would have to ascertain conditions in [ the bay of ] PERSON before receiving Mr PERSON . The nurse and the Chief PERSON , PERSON , were willing to participate in the operation . Mr Svendsen went down to PERSON to check the conditions and reported back to [ the applicant ] that they were satisfactory . [ The applicant ] then contacted the PERSON and agreed that the patient should be brought by a launch close to the beach in PERSON and that a rubber dinghy ... would meet them there . It was further agreed that the transfer of the patient would take place TIME after the conversation between the PERSON and the FAC . They also agreed on a radio frequency on which the parties would communicate .", "...", "While driving to PERSON , the [ applicant ] discovered that he had forgotten his camera . He wondered whether he should return to pick it up , but the nurse insisted that they had no time to lose and that they should therefore drive on . She then offered to collect the camera later , but the [ applicant ] told her that she should not do so .", "On arriving at PERSON they found the [ rubber dinghy ] already there , the Maintenance Chief Officer having fetched it and driven it down to the beach . The Maintenance Chief Officer said that the dinghy ought to be pumped up . The Chief PERSON , however , thought that it was better to leave the dinghy as it was and so do nothing to it . The [ applicant ] and PERSON sat down in the dinghy after having put on survival suits . However , neither of them put on their hoods . They took no radio equipment with them in the dinghy , but PERSON had a radio for the purpose of communicating with the PERSON and its launch .", "As they left the beach , the Polarbas launch with the injured fisherman on board was far out in the approaches to PERSON . Some time after the dinghy had left , the nurse ... returned to the beach with the [ applicant 's ] camera which she had gone back to collect at the administration building ...", "Mr Svendsen rowed the dinghy out from the beach . After having rowed QUANTITY from the shore they waited a while , trying to get the launch to approach them . However , they did not obtain any response from the persons in the launch .", "[ Mr Svendsen ] was tired and he and [ the applicant ] changed places , the [ applicant ] taking over the rowing . They tried several times to contact the launch , but to no avail . They realised that something had gone wrong . They therefore rowed further towards the launch which was still lying far out in the approaches to PERSON . As they came up to the launch they were told that the engine had broken down and that a sea anchor had been deployed . The men in the launch were anxious since , despite the sea anchor , the launch was drifting towards the rocks . None of the persons in the launch were wearing life - jackets or survival suits . Nor was such equipment available in the launch .", "The injured fisherman ... was taken on board the [ rubber dinghy ] . The dinghy was then rowed away from the launch . A breaker capsized the dinghy and the CARDINAL people on board were thrown into the sea . They were not attached to the dinghy with lines nor did they have any lines with them . They did not have life - jackets .", "PERSON , who was standing on the beach , had a portable radio set , but did not have first - aid equipment , such as a stretcher , blankets or the like . \"", "ORG acquitted the applicant . Its judgment includes the following observations . Although the applicant was in principle under no duty to receive the injured fisherman , such a duty arose from the fact that he agreed to do so . In determining whether the applicant had been guilty of neglect or carelessness in the landing operation or in its preparations , it had to be ascertained whether he had breached any applicable instructions . PERSON breaches or several recurring breaches of instructions could amount to neglect or carelessness within the meaning of Article CARDINAL para . CARDINAL of LAW . The public prosecutor had argued that the applicant had acted in breach of his duties in CARDINAL instances , of which those indicated below were the subject of argument in the present case :", "\" CARDINAL . ORG It was the duty of the defendant to use the dory once he had decided to receive a patient .", "...", "ORG It was his duty to ensure that the nurse brought along medical equipment and was present throughout the operation .", "...", "ORG It was his duty , once he had chosen to use the rubber dinghy , to ensure that the chief engineer was attached to it by a line . Moreover he ought to have returned to the beach earlier , once he realised that the launch did not intend to approach them . \"", "ORG was of the view that the instructions imposing duties on military and civilian personnel on PERSON , in particular Instruction C CARDINAL containing ORG on and around PERSON , were for various reasons unclear . Moreover , many of the provisions in question were designed for the loading and discharging of supply vessels . The relevant instructions could therefore apply to rescue operations only in so far as was appropriate .", "As to the above - mentioned item CARDINAL of the prosecutor 's allegations , ORG held :", "\" ... the [ applicant ] can not be blamed for the fact that the nurse did not remain on the shore throughout the operation . The ORG is satisfied that Botten did not know that she had returned to the Station to fetch his camera . Moreover , the ORG is satisfied that he did not order her to fetch the camera . Anyway , her absence was quite short , lasting TIME . The [ applicant ] knew , however , that [ the ] nurse ... did not bring along first - aid equipment to the shore . In that respect therefore , there is a breach of Instruction B CARDINAL , section CARDINAL . The ORG points out , however , that there are no serious violations of the instructions . The object of the operation was merely to fetch a fisherman who was only suffering from a wrist injury and it would moreover take only a short time to go up to the Station buildings to collect the necessary equipment . \"", "With regard to item DATE , ORG made , inter alia , the following observations :", "\" ... ORG agrees in principle with the prosecutor that it was unsafe to row the rubber dinghy right out to the launch . However , the [ ORG takes into account the fact that the [ applicant ] and [ Mr Svendsen ] , while on their way , admittedly after they had passed the point where they had intended to meet the launch , but while they were still in fairly calm waters , discovered that there were problems on board the launch . Accordingly , the [ ORG can not see here either that the [ applicant ] committed any breach of the instructions since it was highly probable , and gradually became quite obvious , that the launch was in a critical situation . \"", "Finally , with regard to item CARDINAL , the members of ORG were divided :", "\" Assessor PERSON considers that section CARDINAL of Instruction C CARDINAL lays down an obligation for the defendant to use the dory , since the penultimate paragraph of section CARDINAL ... provides that this rule applies to all personnel on GPE . The President of the ORG considers that ... section CARDINAL , which applies to sea traffic , must be applied wherever appropriate . Regarding this special case , where the [ applicant ] was to take ashore a fisherman with an injured wrist , the President can not find any circumstances which could justify setting aside the general obligation to use the dory . The operation was not conducted under such heavy pressure that this provision could be disregarded . PERSON is of the opinion that the provision does not apply in a rescue operation of the kind in issue and that the matter must therefore be assessed in terms of general requirements of care .", "Assessor PERSON considers that the breach of this provision under the very special weather conditions which exist in the ocean area off Jan Mayen is so serious that it qualifies as ` neglect or carelessness ' within the meaning of Article CARDINAL para . CARDINAL of LAW . He has therefore arrived at the conclusion that the defendant should be convicted for violation of Article CARDINAL para . CARDINAL ...", "The President ... is of the opinion that even if this instruction has been disregarded , it must nevertheless be considered in applying Article CARDINAL para . CARDINAL ... whether the choice made by [ the applicant ] made the situation worse than would have been the case had he chosen the dory . If it did not , a violation of this instruction can not be described as neglect or carelessness . The majority of ORG and the President ) have found that the use of the dinghy instead of the dory did not lead to reduced safety , having regard to the purpose which the boat was originally supposed to serve . Particular weight is attached to the fact that the parties had agreed to meet close to the beach . Although the precise meeting point had not been agreed , it must at least be accepted that they did not intend to go much further out than QUANTITY from the beach . In this area the waters are calm . Moreover , reference is made to the testimony of the prosecution expert witness , Mr Alv Håkon Klepsvik , Commander . He testified in court that he saw no safety problems in using the rubber dinghy in , or just outside , PERSON provided it was kept away from breakers or wave peaks . He considered that , if one stayed in the middle of PERSON or on the PERSON side , using the dinghy did not give rise to any problems . Nor would he have had any hesitation in using the dinghy to receive a person from another boat . He further testified that there was less risk of injury in transferring a person from a boat to another when the second was a rubber dinghy , and he thought that it would be preferable to use a rubber dinghy rather than a dory for that purpose . As regards the fact that the dinghy was not fully pumped up , he stated that it was better to use a dinghy that was not fully inflated . Nor did this reduce the dinghy 's seaworthiness .", "The majority of the ORG agrees with the minority that the essential point in this case is whether there was a duty to use the dory and whether any breach of this duty led to reduced safety . The ... majority has accordingly come to the conclusion that such is not the case and that the defendant should therefore be acquitted , ... finding him not guilty of neglect or carelessness as described in the charge . \"", "ORG On DATE the public prosecutor appealed from the judgment of ORG to ORG ( PERSON ) . In the first place he maintained that ORG decision was flawed in that it had applied too narrow an interpretation of the statutory offence of neglect in the performance of official duties . In the view of the prosecution , the breach of the duty to use a dory was so serious that it amounted to neglect . ORG view that using a rubber dinghy instead of a dory did not lead to reduced safety was not a sufficient reason for holding otherwise . The instructions had been laid down on the basis of DATE experience and with a view to the particular conditions at PERSON and the fact that the Station officers are not necessarily accustomed to the sea and are only stationed there for a limited period . These considerations suggested that , save in exceptional circumstances , the FAC officer was strictly required to exercise care and to follow the instructions . In the prosecution 's opinion , the instruction could be departed from only if there was an emergency or if the service might thereby be carried out in a better or safer manner ; that , however , was not the situation in the applicant 's case .", "The prosecutor further submitted that the facts as established by ORG were sufficiently clear to allow ORG to give a new judgment under LAW para . CARDINAL of the DATE LAW ( see paragraph CARDINAL below ) convicting and sentencing the applicant , as opposed to quashing ORG judgment and referring the case back for fresh examination .", "In his alternative submission , he argued that ORG judgment should be quashed on the ground of a procedural defect , its reasoning being incomplete . The judgment failed to describe the sea conditions prevailing at the time when the applicant set out in the dinghy and also when he realised that the lifeboat would not arrive at the agreed meeting point , and the distance between the lifeboat and the shore at those times . Nor did the judgment mention what the applicant thought had gone wrong with the lifeboat , which alternatives he had to taking the dinghy further out or how much time it would have taken to prepare the dory for the operation .", "ORG On DATE ORG of ORG ( Høyesteretts Kjæremålsutvalg ) granted leave to appeal . By letter of DATE ORG informed the applicant of its decision and that it had appointed as his counsel the lawyer who had represented him in ORG . Moreover , ORG invited the applicant to contact his counsel as soon as possible if he possessed any information of relevance to the case which was not apparent from the case file . In addition , ORG stated that it intended to deal with his case in the near future without giving him further notice ( LAW as applicable at the relevant time ) .", "ORG After the prosecutor and counsel for the applicant had been consulted , ORG , by letter of CARDINAL DATE , advised counsel that it had set the oral hearing for DATE , at TIME", "Subsequently , counsel informed the applicant of the date of the hearing and told him that , if he wished , he could ask ORG for leave to make an oral statement at the hearing but that he would not be heard either as a party or as a witness . Moreover , counsel advised the applicant that it was unusual for a defendant in an appeal personally to address ORG . Accordingly , the applicant did not ask for such leave .", "ORG An extract of the proceedings in ORG , prepared by the prosecutor ( for further details , see paragraph CARDINAL below ) , was sent to counsel well in advance of the hearing in ORG . Counsel made no objections to the extract , nor did he make any further submissions to ORG .", "ORG At the hearing on DATE the applicant 's counsel was present , but he himself was not . As he was entitled to do , counsel addressed ORG and replied to the prosecutor 's oral submissions in so far as they concerned the latter 's appeal on points of law and procedure ( see paragraph CARDINAL above ) . However , in determining liability , ORG was bound by the establishment of the facts concerning the question of guilt in ORG judgment ( LAW as applicable at the relevant time ) .", "After the main pleadings , the prosecution requested ORG to convict the applicant of an offence under Article CARDINAL para . CARDINAL of LAW and to sentence him to a suspended term of DATE military custody and to a fine of ORG CARDINAL,CARDINAL , failing payment of which he should be imprisoned for DATE . In the alternative , the prosecutor asked ORG to quash ORG judgment .", "Counsel for the applicant requested ORG to dismiss the appeal .", "ORG case file included a CARDINAL-page extract from the proceedings in ORG , containing ORG judgment of DATE , the written evidence used by it , including details of the applicant 's professional and private status and income , his military service card , a statement to the effect that he had no criminal record , the military inquiry report and certain court transcripts . However , it did not include any records of the hearings in ORG , such records not being available . ORG heard no witnesses or experts .", "ORG In a judgment of DATE , which was final , ORG upheld the prosecution appeal . Mr Justice PERSON , on behalf of a unanimous court , gave the following reasons :", "\" I find that the appeal on the application of the law must be upheld and that the conditions for pronouncing a new judgment convicting the accused pursuant to LAW para . CARDINAL of LAW have been fulfilled .", "...", "The decisive issue in the case is ... whether the applicant 's conduct in connection with the landing operation and the preparations for it constitutes neglect or carelessness under LAW para . CARDINAL of LAW . The grounds cited for this are that he disregarded applicable instructions on several points as specified in the indictment . ORG judgment lists CARDINAL matters which , taken together , are claimed to constitute neglect . Several of these points have not been pursued before ORG .", "The instructions applying to PERSON are comprehensive . This must be viewed in the light of the demanding conditions for those serving there . I would note that the preamble to the instructions for PERSON , which were issued in DATE by ORG and ORG and which are relevant to the present case , states : ' Written instructions are more necessary on GPE , where there is a constant turnover of personnel , than elsewhere . '", "The ' General Provisions concerning Traffic on and around PERSON , which form part of the said instructions , figure centrally in the case . LAW ... , entitled ' Purpose ' , reads : ' These are general provisions which are intended as guidelines for both official and leisure traffic on and around PERSON . ' Even though the provisions initially give the impression of setting out ' guidelines ' , it is clear that they include binding rules , as shown by LAW paragraph of which reads : ' Excursions by boat in the sea around PERSON without seagoing support vessel are generally prohibited . ' However , the rule goes on to list various exceptions . I would point out that the provisions on sea traffic clearly must cover the operation launched to receive the injured fisherman on that occasion , even though it was presumed that the transfer would be conducted relatively close to the shore . I also find it clear that the provisions must apply to the landing operation , even though there is no mention of assistance to the fishing fleet here or elsewhere in the instructions for QUANTITY .", "Section CARDINAL ... includes , inter alia , the following CARDINAL clauses : `", "- Ensure that both dories are used on trips if no other boat is close to the island , or no other boat has been made ready to assist if necessary . ORG", "- When the weather conditions are deemed to be satisfactory , the other dory may be replaced by the dinghy , which may be taken aboard the dory or drawn behind it . '", "In my view , it follows from the rules that there is a requirement to use a dory on occasions such as the one in question here , and that a dinghy could not replace a dory in this situation . It is true that a dinghy could be used in certain circumstances , but only as a backup . I therefore agree with the President of ORG and the one lay judge who , admittedly on somewhat different grounds , found that the provisions imposed an official duty on the [ applicant ] to use a dory instead of a dinghy .", "The President of the [ City ] Court was however of ' ... the opinion that even if this instruction has been disregarded , it must nevertheless be considered in applying Article CARDINAL para . CARDINAL ... whether the choice made by the [ applicant ] made the situation worse than would have been the case had he used a dory . If it did not , a violation of this instruction can not be described as neglect or carelessness ' .", "I do not agree with this interpretation of the law .", "In my opinion , the duty to use a dory is of such key significance in the provisions relating to traffic that an assessment such as that mentioned by the President is insufficient . I refer to the fact that the duty was imposed in the light of experience and is intended to protect life and health in an area characterised by quite extraordinary weather conditions and in difficult waters , and that it is thus particularly important that the instruction is complied with on this point . The assessment referred to by the President of ORG can not therefore be decisive for whether there was neglect .", "The second lay judge , who together with the President of ORG constituted the majority voting in favour of acquittal , likewise based her decision on an erroneous application of the law . In her opinion , the duty to use a dory did not apply ' to a rescue operation of this kind , and the matter must therefore be considered on the basis of a general assessment of the duty of care ' . I find that she was of the opinion that there was no duty to use a dory , and therefore no neglect within the meaning of Article CARDINAL para . CARDINAL .", "The majority of ORG ... found that using a rubber dinghy instead of a dory on the occasion did not have the effect of reducing safety given the use for which the dinghy was initially intended , namely reception of the injured fisherman from the shrimp trawler 's lifeboat not ' much QUANTITY from shore ' . However , according to the regulations , this is not decisive .", "Thus the [ applicant 's ] acquittal is based on an erroneous application of the law . In the present case , however , this does not warrant quashing ORG judgment , since I agree with the prosecution 's submission in the notice of appeal that the conditions are satisfied for pronouncing a new judgment convicting [ the applicant ] pursuant to LAW para . CARDINAL of LAW . In this connection , I refer to ORG account of the facts .", "I also refer to what I previously said about the background to and the specific contents of the provisions concerning traffic on and around PERSON , in particular the duty to use a dory . Given the difficult conditions on the island , it is particularly important that rules of this kind are complied with . The [ applicant ] is at fault for having decided , despite the requirement set out in the instruction , to use the rubber dinghy on that occasion and for having done so . I would point out , however , that the situation had changed at the subsequent stages of the operation , when it was clear that the persons in the approaching lifeboat were in danger . In my opinion , however , what had already happened in the earlier stages constitutes such a serious matter that it must be deemed to constitute neglect under LAW para . CARDINAL . I would note that counsel for the defence has contended before ORG that the duty to use a dory could not apply when a lifeboat was launched from the shrimp trawler . I do not find that this [ argument ] can be accorded decisive weight in the present case , as it is clear from ORG judgment that the dinghy was not simply used as a backup on this occasion . Nor could the defendant know whether or not the lifeboat was properly equipped , as subsequently turned out not to be the case .", "As previously indicated , the prosecution has also brought up other matters which , in its opinion , constitute breaches of the applicable instructions . Some of these matters which were submitted to ORG have not been pursued before ORG .", "...", "ORG unanimously concluded that there was a breach of the instruction on account of the fact that the nurse had not brought first - aid equipment down to the shore and that the [ applicant ] was aware of this fact . I find this to be the case . However , the failure to use a dory in the landing operation is the predominant factor in relation to Article CARDINAL para . CARDINAL .", "As regards sentencing , I find it appropriate to sentence [ the applicant ] to DATE military custody suspended for a probation period of DATE , in addition to an unconditional fine of ORG CARDINAL,CARDINAL or , in default of payment , military custody for DATE . In this connection , I have attached importance to the fact that the defendant is only at fault in respect of his conduct during the preliminary stages of the landing operation . \"", "ORG Article CARDINAL para . CARDINAL of the Military Penal Code reads :", "\" A person exercising command who is guilty of neglect or carelessness in the performance of his official duties shall be punished with arrest or with the loss of commission or with detention for a term not DATE . \"", "Appeals in all criminal cases , including those covered by LAW , are governed by LAW .", "ORG Under LAW , proceedings during the main hearing in LOC are oral . Written evidence is read out by the person producing the evidence unless the court decides otherwise ( Article CARDINAL ) . After the examination of each individual witness and after the reading out of each piece of written evidence , the accused has to be given an opportunity to speak ( Article CARDINAL ) . The court must see to it that the facts of the case are fully established ( Article CARDINAL ) .", "When the production of evidence ( bevisførselen ) is completed , the prosecutor and then defence counsel may make a speech . Each of them is entitled to speak twice . When defence counsel has finished , the person indicted is asked whether he has any further comment to make ( Article CARDINAL ) . In deciding what is deemed to be proved , only the evidence produced at the main hearing shall be taken into consideration by the court ( Article CARDINAL ) .", "ORG Under LAW , if ORG decides to convict the accused its judgment must , in giving its verdict , state in a specific and exhaustive manner the facts of the case which the court has found to be proved and on which its verdict is based . It must also refer to the penal provision under which the accused has been convicted . In addition the judgment must state the reasons to which the court has attached importance in determining the sanctions .", "If the person charged is acquitted , the grounds of the judgment must , in accordance with LAW , state which conditions for a finding of guilt are deemed not to be satisfied , or the circumstances which exclude a sanction called for by the prosecution .", "ORG Under LAW , as applicable at the material time , a party in a criminal case seeking to challenge a judgment of ORG could , depending on the nature of the point disputed , either request a new trial ( fornyet behandling ) in ORG ( lagmannsretten ) or appeal ( anke ) to ORG .", "If the object was to contest ORG assessment of evidence in relation to the question of guilt ( bevisbedømmelsen under skyldspørsmålet , LAW , as applicable at the relevant time ) , the appellant party could , with leave from ORG of the ORG apply for a new trial in ORG ( LAW , as applicable at the relevant time ) .", "On the other hand , an appeal on grounds of errors of law going to the verdict ( rettsanvendelsen under skyldspørsmålet ) , on procedural defects ( saksbehandling ) and as to sentence ( straffutmåling ) could be lodged with ORG ( Article CARDINAL , as applicable at the relevant time ) . ORG thus had no competence to review questions of facts which go to the question of guilt but had to base itself on the findings of ORG in this respect . No such limitation applied to ORG jurisdiction with regard to sentencing , which comprised both questions of facts and of law .", "ORG Both parties may in principle lodge an appeal against a judgment of LOC ( Article CARDINAL , as applicable at the time ) . However , an acquitted person may not appeal unless the court has found it proved that he committed the unlawful act referred to in the indictment ( Article CARDINAL , as applicable at the time ) .", "ORG The appeal proceedings are prepared and conducted according to the rules applicable to the hearing at first instance in so far as such rules are appropriate and it is not otherwise provided ( Article CARDINAL , as applicable at the relevant time ) .", "ORG The proceedings in ORG are oral and public and both parties are allowed to speak twice . The appellant party is entitled to address the court first . The accused may be allowed to address the court during the hearing ( Article CARDINAL , as applicable at the relevant time ) . Evidence is submitted to the court by reading out from the documents relating to the case ( Article CARDINAL , as applicable at the time ) .", "ORG Article CARDINAL ( as applicable at the time ) read :", "\" If the court finds no reason to vary or set aside the judgment appealed against , the appeal shall be dismissed by court order .", "In the alternative the court shall pronounce a new judgment if the necessary conditions are fulfilled ; otherwise the judgment appealed against shall be set aside by court order . \"", "In determining whether the \" necessary conditions are fulfilled \" , ORG will concentrate on the question whether the facts as ascertained in the judgment appealed against are sufficient to render a new decision on the merits . Case - law under LAW confirms that ORG is reluctant to pronounce a new judgment .", "Prior to the entry into force of the DATE LAW DATE , ORG had , under LAW , power to give a new judgment convicting the accused only \" when the question of guilt had been decided against the defendant \" in the lower court . The DATE Code removed this limitation on ORG competence .", "ORG Since DATE , when the DATE LAW ( Lov av CARDINAL juni CARDINAL nr . CARDINAL om endringer i straffeprosessloven m.v . ( toinstansbehandling , anke og juryordning ) ) entered into force , an appeal against ORG lies ordinarily with ORG , which has power to review points of fact , law and procedure ( Articles CARDINAL , ORG and CARDINAL as amended ) . As a consequence , to a greater extent than before , ORG will act as a second instance , and ORG as a third instance , in criminal cases .", "On the other hand , the above - mentioned provisions in Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL , which have been replaced respectively by Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL , remain essentially unchanged .", "ORG In an opinion appended to the bill proposing to amend LAW ( Ot prp nr . CARDINAL ( DATE ) , p. CARDINAL ) , ORG stated :", "\" The present system , where ORG acts as the ordinary second instance in criminal cases , is internationally unique . This arrangement has enabled a speedy hearing of appeal cases and has given ORG a considerable influence on the practice of criminal law . However , in DATE - given current developments - the present system has demonstrated that it is no longer satisfactory . It does not fulfil the standards of legal safeguards which ought to be met and , at the same time , with the increased number of criminal cases in DATE society , the arrangement creates working conditions in ORG which prevent it from performing its functions in a fully satisfactory manner . The proposal that one should have CARDINAL ordinary instances below ORG would bring the appeal system in criminal cases in line with that in civil cases and with the appeal systems in most countries . It would give ORG the opportunity to concentrate its work to a greater extent on cases where its decision will concern matters of principle , or where there are other particular reasons for obtaining a decision from ORG . \"" ]

[ "6" ]

[ "6-1" ]

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[ "The first applicant was born in DATE and lives in PERSON am PERSON . The second applicant was born in DATE and lives in PERSON .", "On DATE the Braunau ORG Bezirkshauptmannschaft ) informed the applicant that he was suspected of having driven a motor vehicle under the influence of alcohol contrary to sections CARDINAL ) and CARDINAL ) of FAC ( Strassenverkehrsordnung ) on DATE . The breathalyser test had shown an alcohol level of QUANTITY mg / l in his breath .", "NORP In his submissions of DATE the applicant argued that allowance should be made for PERCENT inaccuracy in the result of the breathalyser test . This would lead to an established alcohol level of CARDINAL mg / l and his conduct would therefore constitute a less serious offence under Sections CARDINAL ) and CARDINAL ) of LAW .", "On DATE PERSON ORG found the applicant guilty of the offence of drunk driving under sections CARDINAL ) and CARDINAL ) of FAC , which provides for a fine of CARDINAL and CARDINAL ( ORG ) . It imposed a fine of ORG CARDINAL,CARDINAL on him with CARDINAL days’ imprisonment in the event of default . Having regard to the evidence before it , ORG noted that the breathalyser at issue had been duly checked by ORG ( ORG für PERSON ) and the test had been carried out correctly . Referring to ORG case - law , it noted that in such circumstances there was no need to make any allowance for inaccuracy .", "The applicant appealed , repeating his argument as regards the alleged imprecision of the breathalyser test .", "After holding a hearing , ORG ( Unabhängiger Verwaltungssenat ) allowed the applicant ’s appeal in part . In its decision of DATE it found that an alcohol level in the applicant ’s breath of CARDINAL mg / l could be considered to have been confirmed , since allowance had to be made for a possible inaccuracy in the result of the breathalyser test . Consequently , it convicted the applicant under sections CARDINAL ) and CARDINAL ) of LAW , which provides for a fine of between LAW and EUR CARDINAL,CARDINAL , and reduced the fine to LAW with CARDINAL days’ imprisonment in the event of default .", "ORG considered that the question about possible inaccuracy of the breathalyser test was not a matter of law but a matter of fact . There was documentary evidence , and also evidence from an expert on weights and measurements , that for this particular type of breathalyser PERCENT inaccuracy could not be ruled out .", "NORP The decision was served on the applicant on DATE . He did not lodge a complaint with ORG ) or ORG ( Verwaltungsgerichtshof ) within the statutory DATE time - limit . There was no other party to the proceedings who could lodge a complaint .", "On DATE ORG decision of DATE was served on the Federal Minister for Traffic , ORG .", "On DATE the Federal Minister for Traffic , ORG lodged an official complaint ( ORG ) under LAW ) subparagraph ( CARDINAL ) of LAW ( ORG ) against that decision , on the ground that it contained an error of law . According to ORG case - law the authority was obliged to base its finding in respect of the blood alcohol level of the accused on the result of the breathalyser test . In the present case , the breathalyser had been duly examined by ORG and no doubts had been raised as to its correct functioning .", "On DATE ORG , following the official complaint , quashed ORG decision of DATE and referred the case back to it . It found that the decision had applied the law incorrectly , since there was no ground to make allowance for inaccuracy in the breathalyser test .", "In his submissions of DATE the applicant asserted that it would violate the requirements of a fair trial if the quashing of ORG decision following the ORG official complaint had any negative consequences for him .", "On DATE ORG , noting that it was bound by ORG legal view , dismissed the applicant ’s appeal against ORG decision of DATE . Consequently , his conviction under section CARDINAL(CARDINAL)(a ) of FAC was upheld .", "As regards the sentence , ORG noted that section CARDINAL(CARDINAL)(a ) provided for a fine of between ORG CARDINAL and ORG CARDINAL,CARDINAL . It found that the minimum fine of ORG CARDINAL with CARDINAL days’ imprisonment in the event of default was appropriate . It noted that the applicant had no prior convictions , and also had regard to ORG case - law , according to which unreasonably lengthy proceedings could lead to a reduction of the sentence .", "The applicant lodged a complaint with ORG , claiming several violations of LAW . He submitted , in particular , that the proceedings had been unreasonably lengthy and that he had no remedy in this respect ; that ORG and subsequently ORG had disregarded the expert opinion and documentary evidence on the reliability of the breathalyser test and that his conviction had thus been based on a mere presumption .", "NORP Moreover , the applicant alleged that the proceedings were unfair , and violated the ne bis in idem principle , since the proceedings had been reopened following the Federal Minister ’s official complaint , although ORG decision had already become final . However the reopening was not justified by any of the reasons mentioned in LAW No . CARDINAL , and the new proceedings had produced a result which was unfavourable to him .", "NORP The applicant also complained that he did not have a review by a higher tribunal as required by LAW , since the scope of the ORG review was limited . Finally , relying on LAW No . CARDINAL , he complained that the fixing of sentences in administrative criminal law did not take ORG financial situations into account .", "On DATE ORG dismissed the applicant ’s complaint for lack of prospects of success . On a request by the applicant on DATE it transferred the case to ORG .", "On DATE ORG dismissed the applicant ’s complaint as being unfounded . This decision was served on the applicant ’s counsel on DATE .", "On DATE the applicant was stopped by a traffic patrol and asked to undergo a breathalyser test . The test showed an alcohol level of CARDINAL mg / l in his breath .", "On DATE the Braunau ORG informed the applicant that he was suspected of the offence of driving under the influence of alcohol under sections CARDINAL ) and CARDINAL ) of FAC , with a breath alcohol level of CARDINAL mg / l . The authority requested the applicant to submit his defence .", "By a penal order of CARDINAL DATE ORG found the applicant guilty of drunk driving under sections CARDINAL ) and CARDINAL ) of FAC and sentenced him to a fine of ORG CARDINAL with CARDINAL days’ imprisonment in the event of default . Noting that the breathalyser used had been correctly calibrated , it dismissed the applicant ’s argument that the result of the breathalyser test could not be deemed to be completely accurate and that allowance had to be made for possible calibration and measurement errors . As to the fixing of the sentence , the authority noted that despite its request the applicant had not submitted evidence of his income . Thus , it based itself on his unsupported submission that he had a net income of ORG DATE and no maintenance obligations .", "The applicant appealed on DATE .", "On DATE the ORG held a hearing . It questioned the applicant and an expert on weights and measurements . In addition it took documentary evidence , including submissions from ORG and Measurements relating to the calibration of the breathalyser at issue , and an expert opinion which had been published in a professional journal .", "By a decision of DATE ORG allowed the applicant ’s appeal in part . Referring to the evidence before it , ORG held that a certain imprecision of the measurement could not be excluded . Even making allowance for possible inaccuracy a breath alcohol level of CARDINAL mg / l could be established beyond all doubt . The offence therefore fell under section CARDINAL ) of LAW and the fine was to be reduced to LAW , with CARDINAL days’ imprisonment in the event of default .", "ORG decision was served on the applicant ’s counsel on DATE . The applicant did not lodge a complaint with ORG or ORG within the statutory DATE time - limit . There was no other party to the proceedings who could lodge a complaint .", "On DATE ORG decision of DATE was served on the Federal Minister for Traffic , ORG .", "On DATE the Federal Minister for Traffic , ORG lodged an official complaint under LAW ) subparagraph ( CARDINAL ) of LAW , arguing that ORG decision had applied the law incorrectly in that it had made allowance for a possible inaccuracy in the result of the breathalyser test .", "ORG served the official complaint on the applicant , informing him that he could submit observations . The applicant did not make use of this possibility .", "On DATE ORG , following the official complaint , quashed ORG decision of DATE and referred the case back to it . It observed that a driver who was required to undergo a breathalyser test had the right to request that a blood sample be taken to confirm the result , while the law and its own caselaw did not provide for a conclusion to be drawn from the result of the breathalyser test .", "On DATE ORG asked the applicant to submit his comments and to indicate whether he wished a further hearing to be held . On DATE the applicant submitted comments and stated that a further hearing could be dispensed with .", "On DATE ORG dismissed an appeal by the applicant against the penal order of DATE . Applying ORG legal view , it held that an alcohol level of CARDINAL mg / l in the applicant ’s breath had been established by the breathalyser test . Therefore the conviction under section CARDINAL(CARDINAL)(a ) of LAW stood . However , ORG noted that it shared the applicant ’s concerns as regards a possible violation of LAW No . CARDINAL by the use of the official complaint procedure . It also noted that it had to set a fine of ORG CARDINAL , as this was the minimum fine applicable for the offence at issue . Taking the duration of the proceedings into account ORG reduced the default term of imprisonment from DATE .", "The applicant lodged a complaint with ORG on DATE . He raised complaints identical to the ones raised by the first applicant ( see paragraphs DATE above ) .", "On DATE ORG refused to deal with the applicant ’s complaint for lack of prospects of success . In respect of the applicant ’s complaint about the length of the proceedings , it noted that ORG had taken the lengthy duration of the proceedings into account . Upon the applicant ’s request , ORG referred the case to ORG by a decision of DATE .", "The applicant made submissions on DATE to supplement his complaint to ORG .", "ORG submitted its observations in reply on DATE .", "On DATE ORG , referring to its previous decision , dismissed the applicant ’s complaint as unfounded . The judgment was served on the applicant ’s counsel on DATE .", "By virtue of section CARDINAL(CARDINAL ) of LAW ( GPE ) , the accused may lodge an appeal against a penal order with ORG .", "The administrative authority which has issued the impugned decision is a party to the proceedings before ORG ( section CARDINAL(d ) ) .", "Pursuant to Article CARDINAL of LAW ( ORG are set up in the Länder . The function of these panels includes determining both the factual and legal issues arising in cases concerning administrative offences .", "By virtue of LAW has jurisdiction to examine complaints alleging that a decision by an administrative authority or by ORG is unlawful .", "Article CARDINAL ( CARDINAL ) subparagraph ( CARDINAL ) entitles a person who alleges that his or her rights have been violated by an administrative decision to lodge a complaint with ORG following exhaustion of appeals .", "Article CARDINAL ( CARDINAL ) subparagraph ( CARDINAL ) of LAW entitles the competent Minister , inter alia , in matters pertaining to the enforcement of federal laws by the Länder , to lodge an official complaint with ORG against an allegedly unlawful decision of an administrative authority , following exhaustion of appeals by the parties .", "Section CARDINAL of LAW ( Verwaltungsgerichts - hofgesetz ) deals with time - limits for lodging complaints .", "Pursuant to section DATE ) subparagraph ( CARDINAL ) , a complaint under LAW ) subparagraph ( CARDINAL ) has to be brought within DATE of the date of service of the decision or , if the decision was only pronounced orally , from the date of pronouncement .", "Pursuant to section DATE ) subparagraph ( CARDINAL ) an official complaint has to be brought within DATE of the point when the decision at issue was served on the Federal Minister , or the Federal Minister becomes aware of the decision at issue .", "Section CARDINAL(CARDINAL ) of the LAW states that , except where otherwise provided , ORG must either dismiss an application as ill - founded or quash the impugned decision . Section ORG ) lists the grounds of unlawfulness of a decision . Section CARDINAL ) provides that if ORG quashes the impugned decision the proceedings are resumed at the stage they were at before that decision was issued .", "If ORG quashes the impugned decision , “ the administrative authorities [ are ] under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ” ( section CARDINAL(CARDINAL ) ) ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "6-1" ]

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[ "The applicants , PERSON , PERSON , PERSON and PERSON , are NORP nationals , who live in PERSON . They were represented before the Court by Mr GPE from the “ ORG , a non - governmental organisation based in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants were all employees of a private company ( “ the company ” ) . On different dates in DATE they were dismissed .", "Since the company had failed to pay them their salaries for DATE of their employment , in DATE the applicants lodged with ORG an action against their former employer , seeking payment of their salary arrears .", "ORG found in favour of the applicants and by judgments of DATE , DATE and DATE ordered the company to pay them the following amounts : CARDINAL Moldovan lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) to PERSON ; MDL MONEY ( EUR CARDINAL ) to PERSON ; MDL CARDINAL ( ORG CARDINAL ) to PERSON and ORG CARDINAL,CARDINAL ( ORG CARDINAL ) to PERSON . No appeals were lodged and the judgments became final DATE .", "The applicants obtained enforcement warrants which were sent to a bailiff on CARDINAL and DATE . Because the bailiff did not enforce the warrants , the applicants sent numerous complaints to various authorities asking for the judgments to be enforced .", "On DATE a bailiff issued a decision and discontinued the enforcement proceedings on the ground that the company had been insolvent and handed over the enforcement warrants to the applicants . The applicants did not lodge an appeal against this decision , nor did they repeatedly submit the enforcement warrants to ORG for enforcement .", "The judgments in favour of the applicants have not been enforced to date .", "The relevant provisions of domestic law have been set out in this ORG ’s judgment in the case of GPE v. GPE ( no . CARDINAL , ECHR CARDINALIII ( extracts ) , § CARDINAL ) .", "Article CARDINAL of the Code of Civil Procedure , in force between CARDINAL DATE and DATE , reads as follows :", "“ The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against the acts carried out or the refusal to carry out such acts by a bailiff within the enforcement proceedings . ( ... ) ”" ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "The applicant shared a house and a plot of land with CARDINAL family members ( “ the neighbours ” ) . On DATE he instituted non - contentious proceedings ( postępowanie nieprocesowe ) before ORG ( Sąd Rejonowy w Częstochowie ) in which he requested that the co - ownership of the property be dissolved .", "Until DATE the court held QUANTITY hearings and ordered CARDINAL expert opinions .", "On DATE the court stayed the proceedings because the applicant had failed to pay an advance fee towards the costs of an expert opinion .", "On DATE the proceedings were resumed as the applicant paid the costs ordered by the court .", "On DATE and DATE the court held hearings . It ordered a supplementary expert opinion .", "In DATE and DATE the applicant requested the court to appoint another expert . Subsequently , he challenged an expert opinion and the expert who prepared it . The court dismissed his applications on DATE and CARDINAL DATE .", "On DATE the court ordered another expert opinion . The opinion was submitted to the court on DATE .", "On DATE , DATE , DATE and CARDINAL DATE the court held hearings . It ordered CARDINAL supplementary expert opinions .", "DATE and DATE the proceedings were stayed because the applicant failed to pay an advance fee towards the costs of a supplementary expert opinion .", "NORP In DATE an expert opinion was submitted to the court ; subsequently , the court ordered another expert opinion .", "NORP In DATE the applicant challenged the appointment of a new expert .", "On DATE the expert submitted his opinion to the court .", "On DATE the court held a hearing .", "On DATE the ORG gave a decision in which it dissolved the coownership .", "The neighbours appealed against it .", "On DATE ORG ( Sąd Wojewódzki ) quashed the impugned decision and remitted the case to the firstinstance court .", "On DATE the court held a hearing at which it decided to hold a view of the property . The applicant requested the court not to schedule any hearing until DATE .", "On DATE the judge held a view of the property .", "On DATE the court held a hearing . Subsequently , the court ordered another expert opinion and ordered the applicant to pay an advance fee towards the costs of it .", "On DATE ORG stayed the proceedings because the applicant had failed to pay the advance fee . The applicant ’s appeal against this decision was allowed by ORG on DATE .", "On DATE the court held a hearing .", "Subsequently , the neighbours challenged a court expert . Their challenge was finally dismissed on DATE .", "On DATE the applicant challenged another court expert . On DATE ORG dismissed his application .", "On DATE the expert submitted another opinion to the court .", "On DATE ORG held a hearing .", "On DATE the applicant instituted another set of civil proceedings in which he requested permission to be connected to the public water supply and to carry out construction works on the co - owned property . The proceedings are pending before ORG .", "On DATE the court again decided to stay the proceedings because administrative proceedings concerning a porch built by CARDINAL of the neighbours were pending . The applicant appealed against this decision .", "On DATE ORG resumed the proceedings .", "At the hearing held on DATE the court for the second time decided to stay the proceedings due to the administrative proceedings concerning the porch . The applicant ’s appeal was dismissed on DATE .", "On DATE the applicant applied to resume the proceedings .", "In DATE and DATE the court requested certain municipal and central authorities to provide some information necessary for the case .", "On DATE the proceedings were resumed and on DATE the court held a hearing .", "On DATE the ORG gave a decision . It dissolved the co - ownership .", "On DATE the applicant lodged an appeal against that decision .", "On DATE ORG dismissed the appeal ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is a practising lawyer by profession . He runs his law office with a partner .", "NORP In DATE criminal proceedings on suspicion of aggravated theft , aggravated fraud and embezzlement were opened against the applicant and a number of other persons by ORG ( PERSON für PERSON ) .", "On DATE the investigating judge issued a search warrant for the applicant ’s premises . The warrant authorised the search and seizure of the following items :", "“ Documents , personal computers and discs , savings books , bank documents , deeds of gift and wills in favour of Dr PERSON , and any files concerning NORP [ name of CARDINAL person ] and PERSON [ name of another person ] . ”", "In its reasoning , the search warrant stated that the applicant was suspected firstly of having taken furniture , pictures and silver worth MONEY ( ORG ) from PERSON in DATE for personal enrichment ; secondly , of having induced PERSON to sign an agreement for a secured loan of LAW in DATE , which PERSON then failed to receive ; and thirdly , of having abused the power of attorney granted to him by PERSON in order to make bank transfers , causing the latter financial damage of more than LAW in DATE .", "The search of the applicant ’s business LOC was carried out by police officers of ORG on DATE . The applicant , his defence counsel and a representative of ORG were present . The police officers proceeded to search the applicant ’s computer system , copying all files to disc . The representative of ORG opposed this as being disproportionate since it was technically possible , by using appropriate search criteria , to search for and copy only those files which corresponded to the criteria set out in the search warrant . Having contacted the investigating judge , the police officers insisted on copying all files . On the proposal of the representative of ORG , the police officers copied all data returned by a search for the names “ NORP ” and “ PERSON ” to CARDINAL disc and all other data to separate discs . All the discs were sealed .", "NORP The report drawn up by the police officers lists the following seized items : ( CARDINAL ) laptop , ( CARDINAL ) CDs / DVDs of ORG data , ( CARDINAL ) CDs / DVDs of all NORP law office data , and ( CARDINAL ) copies of agendas .", "All these items were handed over to the investigating judge . Because the applicant opposed the search of the data , ORG ( Ratskammer ) , a panel of CARDINAL judges , of ORG was called upon to decide whether they were to be examined or returned pursuant to LAW ) .", "On DATE ORG authorised the examination of all the files . It repeated that there were grounds for suspecting the applicant of the offences described in the search warrant and noted that the data in issue had been seized in the context of the preliminary investigations in respect of the applicant and other persons . A lawyer could not rely on his duty of professional secrecy and the attendant guarantees of LAW when he himself was the suspect . In sum , the examination of the seized files was necessary in order to investigate the offences .", "On DATE ORG contacted the Procurator General , suggesting that he lodge a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) in the applicant ’s case . It submitted , in particular , that a search of a lawyer ’s business premises risked impinging on his duty of professional secrecy .", "Pursuant to LAW , the investigating judge had to give reasons when issuing a search warrant and to describe as clearly as possible which items were to be searched for and seized . In the applicant ’s case it was open to doubt whether the search warrant had accurately described which items could be seized . Generally , only a search for particular files likely to be related to the offence in issue could be authorised . The same applied to searches of electronic data . A practising lawyer was obliged by law to have at his disposal a computer system fulfilling certain standards in order to communicate electronically with the courts . In fact , most lawyers also had all their files in electronic form . Standard software for law offices allowed full - text searches for any name or word and thus made it easy to narrow the search of data . In the present case such a search had returned results and thus the search warrant did not extend to the seizure of all of the law office ’s data .", "For these reasons , ORG argued that the seizure of all the data and ORG decision to permit the examination thereof had been excessive and therefore unlawful . ORG had failed to give any specific reasons why an examination of the data relating to PERSON and PERSON would not be sufficient . The applicant ’s duty of professional secrecy could only be lifted in relation to the suspicion against him concerning CARDINAL of his clients but not in respect of all his lawyer - client relationships . Moreover , the partner in his law office was not under any suspicion .", "By a letter of DATE the Procurator General informed ORG that he had not found any reason to lodge a plea of nullity for the preservation of the law .", "On DATE ORG convicted the applicant of embezzlement but acquitted him of the other charges . The court sentenced him to CARDINAL GPE imprisonment , CARDINAL of which were suspended on probation . On DATE ORG dismissed the applicant ’s and the public prosecutor ’s pleas of nullity and on DATE ORG upheld the sentence . Subsequently , the applicant obtained evidence which had not been available to him at the time of the trial . He requested a reopening of the proceedings , which was granted and led to the applicant ’s acquittal by ORG judgment of DATE .", "Articles CARDINAL to CARDINAL of the Code of Criminal Procedure in the version in force at the material time concerned the search of LOC and persons and the seizure of objects .", "Article CARDINAL § CARDINAL provided , in particular , that a search may be carried out only if there is reasonable suspicion that a person suspected of having committed an offence is hiding on the LOC concerned , or that there are objects on the LOC the possession or examination of which is relevant to a particular criminal investigation .", "Pursuant to LAW , a search should , in general , be carried out only after the person concerned has been questioned , and only if the person sought has not come forward of his or her own volition or the object or objects sought have not been voluntarily produced and if the reasons warranting the search were not eliminated during the questioning . No such questioning is required where delay would be detrimental .", "Article CARDINAL § CARDINAL stated that a search may , as a rule , only be carried out on the basis of a reasoned search warrant issued by a judge .", "Pursuant to LAW , the occupant of the LOC subject to the search or , if he is unavailable , a relative of the occupant , must be present during the search . A report is to be drawn up and signed by all those present .", "Article CARDINAL § CARDINAL of the Code of Criminal Procedure provided that , if objects relevant to the investigation or subject to forfeiture or confiscation are found , they are to be listed and taken to the court for safe keeping or seized . It referred in this respect to LAW , pursuant to which objects in safe keeping must be put into an envelope to be sealed by the court , or have a label attached so as to avoid any substitution or confusion .", "Article CARDINAL read as follows :", "“ CARDINAL . When searching through documents , steps must be taken to ensure that their content does not become known to unauthorised persons .", "NORP If the owner of the documents does not want to permit their being searched , they shall be sealed and deposited with the court ; ORG must determine immediately whether they are to be examined or returned . ”", "According to the ORG case - law , which is endorsed by the opinion of academic writers ( see ORG , PERSON , CARDINALth edition ) , the provisions relevant to the search and seizure of paper documents also apply mutatis mutandis to the search and seizure of electronic data . If the owner of discs or hard drives on which data are stored objects to their being searched , the data storage devices are to be sealed and ORG must decide whether they may be examined .", "Section CARDINAL of LAW regulates the professional duties of lawyers including , inter alia , the duty to maintain professional secrecy .", "Article CARDINAL § CARDINAL of LAW exempts lawyers , notaries and business trustees from the obligation to give evidence as witnesses in respect of information given to them in the exercise of their profession .", "It is established case - law that documents which contain information subject to professional secrecy may not be seized and used in a criminal investigation .", "Pursuant to an instruction ( Erlaß ) of the Federal Minister of ORG of DATE , a representative of the competent ORG shall be present during the search of a lawyer ’s office in order to ensure that the search does not encroach on professional secrecy ." ]

[ "8" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE a judge of ORG issued a warrant for a search of the applicant 's home under LAW § DATE § CARDINAL of the Code of Criminal Procedure .", "NORP The decision was issued at the request of a public prosecutor . It stated that criminal proceedings had been brought in DATE against several persons suspected of having produced and sold forged paintings . The applicant had bought CARDINAL such painting in DATE . It was therefore considered likely that he had it in his house . Accordingly , there was a suspicion that there was an object on the LOC which was important for the purposes of the criminal proceedings .", "NORP The police arrived at the applicant 's house at TIME on DATE to carry out the search . The applicant was on holiday in GPE . His partner 's son , who was DATE , was present and , according to the police record , he was requested under LAW to hand over the painting . He informed the police that the painting was unlikely to be in the house and expressed the view that it might be at the premises of the applicant 's company , that is , at a different address . All the rooms of the applicant 's house were visually searched CARDINAL and TIME by QUANTITY policemen , in the presence of the applicant 's partner 's son and a third person who was not involved in the case . The painting in issue was not found .", "Upon his return on DATE , the applicant complained to ORG , ORG and ORG , alleging that the search had been inappropriate . He argued , in particular , that he had purchased the painting through an auction house and that it had been open to the prosecuting authorities to ask him for it . The search had interfered with his right to respect for his private life , as he had been on holiday and had had to make the necessary arrangements through his lawyer , and because his reputation had been compromised at his place of residence . The applicant also complained that the police had damaged his good name in that they had interviewed the employees of his company about his private collection of paintings .", "On DATE the applicant lodged a complaint with ORG . Relying on LAW , he argued that he was an injured party and that he had no interest in concealing the painting , which he had bought at an auction . He was himself interested in having its origin established . He would have cooperated with the prosecuting authorities if requested . However , those authorities had not contacted him prior to the search . The applicant alleged a breach of LAW of LAW . He also complained that the police who had searched his flat had later attempted , without authorisation , to search his private art collection , which was held at a different location , and had interviewed the employees of the applicant 's company , thereby damaging his good name and reputation .", "On DATE the police contacted the applicant and requested , under LAW , that the painting be handed over to them . The applicant complied with the request immediately .", "NORP On DATE ORG dismissed the applicant 's complaint on the following grounds . To the extent that the applicant complained about the warrant and the search , he should have sought redress within the framework of the criminal proceedings in which he had the standing of an injured party . The question of the justification for the search was within the scope of the powers of the criminal court dealing with the case . The applicant could have asked that court to conclude , in its reasons for the decision on the merits of the case , that the warrant and the search had breached his fundamental rights and freedoms . Such a finding would have entitled the applicant to claim damages under LAW no . CARDINAL/CARDINAL , which governed liability for damage caused in the context of the exercise of public authority .", "As to the complaint about the conduct of the police involved , ORG held that the applicant should first have sought redress by means of a petition to a public prosecutor , pursuant to LAW .", "In a letter of DATE a public prosecutor of ORG concluded , in reply to the applicant 's complaint , that the search had complied fully with the relevant law . The letter explained that a police operation had been planned for DATE , in the context of which the suspected persons had been arrested and their homes searched . For tactical reasons , the police had planned to secure all of the paintings presumed to have been forged on DATE . The search had consisted of a purely visual examination of the LOC . It had been necessary as there had been a risk that the injured parties would refuse to hand over the paintings to the prosecuting authorities . In particular , they might have denied ownership of the paintings after learning that they had been forged , out of fear that they would be unable to obtain compensation from the perpetrators .", "On DATE the investigator concluded that no offence had been committed and discontinued the criminal proceedings concerning the alleged forgery of works of article On DATE the applicant lodged a complaint against that decision . He withdrew his complaint on DATE .", "On DATE ORG ordered that new criminal proceedings concerning forged paintings should be brought in the same context . In a decision of CARDINAL DATE the police started these proceedings . A witness was heard on DATE . On DATE the criminal proceedings were stayed as no facts had been established that could have led to the prosecution of a specific person .", "The following provisions of LAW are relevant to the present case .", "Article CARDINAL § CARDINAL states that all persons who are in possession of an object which is important for the purposes of criminal proceedings are obliged to show it to the investigator or police . Where it is necessary to secure such an object for the purposes of the criminal proceedings , the person in possession of the object must hand it over to the authorities in charge of the case .", "In the event of a refusal , the authorities are entitled to seize the object , subject to approval by a judge , or a public prosecutor in preliminary proceedings ( LAW ) .", "Pursuant to LAW , the search of a person 's home is permissible where there is a justifiable suspicion that an object which is important for the purposes of criminal proceedings is located therein or that a person suspected of an offence is hiding there .", "Under LAW , the search of a person 's home must be ordered by a judge . The warrant must be issued in writing and indicate the reasons . It must be served on the person whose LOC are to be searched . If it is not possible to do so immediately , the warrant must be served within TIME of the removal of the obstacle preventing the service of the warrant .", "Article CARDINAL allows for the search of LOC only when it has been impossible to attain the purpose of the search by means of a prior request addressed to the person whose LOC are to be searched .", "LAW requires that the person whose LOC are to be searched , or an adult member of his or her household , should be allowed to be present during the search . Pursuant to paragraph CARDINAL of LAW , the presence of a third person without any involvement in the case should also be ensured during a search ." ]

[ "8" ]

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[ "The applicant , PERSON Ivanovna Gurzhyy , is a NORP national who was born in DATE and lives in ORG , the NORP region . ORG ( “ the Government ” ) were represented by their Agent , Mr Y. GPE .", "The applicant is a pensioner . She has no home telephone line .", "In DATE Mr NORP fatally injured the applicant ’s son in a car accident in the town of GPE , QUANTITY away from the applicant ’s home town .", "On DATE the applicant instituted civil proceedings against Mr NORP , seeking non - pecuniary damages and funeral expenses .", "On DATE the GPE ORG ( Ленінський районний суд м. DATE hereafter “ the ORG ” ) awarded the applicant CARDINAL hryvnyas ( ORG ) in respect of the funeral expenses and dismissed the remainder of her claims . On CARDINAL DATE the Zaporizhzha Regional Court of Appeal ( ORG суд GPE області – hereafter “ the Court of Appeal ” ) upheld that judgment on an appeal by the applicant .", "In DATE the applicant , acting without legal representation , appealed in cassation to ORG . In accordance with the procedural rules applicable at the material time , the cassation appeal was lodged with the first - instance court , which was to rule on its compliance with the procedural formalities .", "On DATE the ORG found numerous procedural shortcomings in the applicant ’s cassation appeal and gave her a time - limit by which to rectify them . The applicant provided a corrected version of the cassation appeal ; however , on DATE the ORG decided to return her submissions as “ not lodged , ” having found that the applicant had not rectified the shortcomings properly .", "On DATE the applicant appealed against the decision of DATE . On DATE ORG dismissed her appeal .", "On DATE the applicant requested ORG to mail her a copy of the decision of DATE . On DATE , CARDINAL DATE , CARDINAL May and DATE the applicant addressed the same request to ORG . She sent her requests by registered mail , enclosing with each one an empty stamped envelope for a reply . Having received no response , the applicant complained to ORG ( PERSON з прав людини ) . On DATE the Office of the Ombudsman informed the applicant that her complaint had been transferred to ORG ( Рада PERSON GPE області – hereafter “ ORG ” ) for consideration . On DATE ORG informed the applicant that on DATE ORG had mailed her a copy of the requested decision .", "On DATE the applicant received the decision of CARDINAL DATE and on CARDINAL DATE lodged a cassation appeal against it with ORG . On DATE ORG informed the applicant that it had mailed her cassation appeal to ORG for a ruling on its compliance with the procedural formalities .", "According to the Government , on DATE the ORG found that the applicant ’s cassation appeal had procedural shortcomings : she had , in particular , failed to indicate the scope of the appeal and to provide proper references to the decision appealed against or the law allegedly misinterpreted by the lower courts . The court gave the applicant a time - limit of DATE by which to rectify these shortcomings . This decision was despatched to the applicant on DATE . On DATE the ORG decided to return the applicant ’s cassation appeal as “ not lodged ” as she had failed to rectify the shortcomings in issue . This decision was despatched to her on DATE . The Government presented copies of the aforementioned decisions and of the covering letters , dated DATE and CARDINAL DATE , in which ORG had informed the applicant that it was enclosing them for her information .", "According to the applicant , she never received these letters .", "On DATE the applicant requested ORG to inform her of the status of her cassation appeal , sending her request by registered mail with an envelope for a reply . She has not received a reply .", "In accordance with LAW , cassation appeals were to be lodged with the first - instance court that had dealt with the case . Should the judge to whom the case had been allocated determine that the appeal had procedural shortcomings , he or she was to grant a time - limit by which to rectify them . The appeal was to be declared inadmissible and sent back to the appellant if the latter had not followed the instructions of the judge . The LAW did not provide for any specific form of service of the respective decisions ." ]

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[ "The applicant is a NORP citizen , born in DATE and living in GPE .", "A.", "The applicant ’s criminal conviction in DATE", "In DATE , during the martial law which was in force in GPE at that time , the applicant was convicted of disseminating anticommunist leaflets .", "The proceedings concerning the applicant ’s claim for restitution of property", "Apparently in DATE , within the framework of agrarian reform , the applicant ’s father was awarded a plot of land in S. Later his ownership was listed in the land register run by ORG .", "In DATE the municipal administration gave a decision by which the plots in S. were taken over by the ORG , pursuant to the DATE Decree allowing for expropriation of agricultural lands which were not used by their owners , considering that the land in question had not been farmed by the applicant ’s father .", "In DATE an administrative decision was issued by virtue of ORG of DATE to the effect that a certain PERSON had become the owner of this plot .", "The applicant ’s father was also awarded other plots in K. In DATE this land was likewise expropriated by an administrative decision .", "", "In reply to the applicant ’s enquiry about the possibility of restitution of these plots , in a letter of DATE ORG informed him that the plot in S. had been awarded to PERSON pursuant to ORG of DATE and that he had obtained an administrative decision to the effect that he had become the owner of this plot . The plot located in PERSON had been taken over by the ORG under the Decree allowing for expropriation of agricultural lands , which were not used by their owners . Therefore the applicant ’s request for restitution could not be granted .", "On an unspecified later date the applicant lodged a civil action against ORG with ORG , claiming that the nationalisation decisions be declared null and void for being unlawful . He further claimed restitution of the plots in PERSON and PERSON and compensation for damage he had sustained as a result of the allegedly unlawful expropriation decisions . He claimed in particular compensation for lost profits resulting from the fact that the farms could not have been used as a result of their nationalisation .", "On DATE lCARDINAL the Suwałki ORG refused to entertain the applicant ’s action , considering that civil courts lacked jurisdiction to examine the applicant ’s claims for restitution of property .", "The applicant appealed against this decision , claiming that the expropriation decisions were not in conformity with the laws in force at the time when they had been given .", "On DATE ORG upheld the contested decision . The court noted that the applicant sought a judicial review of administrative decisions before the civil court and , eventually , a declaration that they should be declared null and void for being unlawful . However , under legal provisions concerning jurisdiction of ordinary courts and of ORG , civil courts lacked jurisdiction to examine appeals against administrative decisions . The court observed that had ordinary courts been allowed to examine appeals against administrative decisions , this could have led to situations in which contradictions would arise between final decisions rendered by the courts and by the administrative court in respect of the same administrative decision . The court further observed that both decisions about which the applicant complained could not be reviewed in any judicial proceedings . The court referred in this respect to the decision of ORG of DATE ( decision III CZP CARDINAL/CARDINAL ) . Consequently , the decision under appeal was in conformity with the law .", "On an unspecified later date the applicant lodged with ORG an appeal against the administrative decisions of DATE and DATE .", "On DATE the ORG rejected the applicant ’s appeals , considering that under LAW Supreme Administrative Court Act an administrative decision could not be appealed against to that court if administrative proceedings in which the decision had been rendered , had been instituted before DATE .", "On DATE the Minister of ORG refused to lodge an extraordinary appeal against this decision , finding that it was in conformity with the law .", "The applicant ’s efforts to be awarded veteran status", "By a letter of DATE the Veterans’ Office informed the applicant that his request to have veteran status awarded to him could not be satisfied . It was further stated that he had been convicted in DATE , whereas the Veterans’ Act provided for granting veteran status only to persons who had been persecuted by the communist authorities in DATE . Therefore he did not meet the relevant legal requirements .", "The applicant lodged an appeal with ORG which was rejected on DATE , the ORG considering that no appeal to the court against an information of an administrative body lay , and that no administrative decision had been given in the applicant ’s case .", "The proceedings concerning the applicant ’s social insurance entitlements", "On DATE ORG quashed a decision of ORG concerning the applicant ’s retirement benefits and ordered that the case be reconsidered and that the ORG issues a new decision .", "On DATE the ORG gave a new decision . The applicant appealed .", "On DATE ORG dismissed the applicant ’s appeal against a decision of ORG .", "On DATE ORG dismissed the applicant ’s appeal against this judgment .", "On DATE ORG , in reply to the applicant ’s constitutional complaint , informed him that his complaint did not comply with the relevant legal requirements since it had not been drafted and signed by a lawyer . He was further informed that the constitutional complaint could not be lodged as an ordinary appeal against individual judicial or administrative decisions , but that its purpose was to call in question the compatibility with the LAW of legal provisions , which served as a legal basis for an individual decision .", "On DATE ORG granted the applicant legal aid to be paid by the legal aid scheme , and a lawyer was assigned to represent him in the proceedings before ORG . By a letter of CARDINAL DATE the lawyer informed the applicant that his complaints did not satisfy the requirements of the constitutional complaint as set out by law .", "The applicant complained to ORG . By a letter of DATE ORG informed him that the lawyer ’s conduct was not open to criticism , given that the constitutional complaint could not be lodged against individual decisions . ORG could only examine whether laws which had served as a basis for an individual decision were compatible with LAW .", "On DATE ORG dismissed the applicant ’s appeal against a decision of ORG concerning the calculation of periods giving rise to the applicant ’s retirement pension .", "B. Relevant domestic law and practice", "Administrative proceedings by which a final administrative decision can be declared null and void", "Article CARDINAL § CARDINAL of LAW provides that an appeal can be lodged against a second - instance administrative decision with ORG on the ground that the decision is not in conformity with the law . LAW states that the ORG shall set the decision aside wholly or in part if it establishes that the decision was issued in breach of substantive law ; that the proceedings leading to the decision were flawed with a deficiency which led to the decision being null and void ; or if such procedural shortcomings had occurred in the proceedings leading to the decision which would justify reopening of the proceedings .", "LAW permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest if this is not prohibited by specific legal provisions . In particular , a final administrative decision can be annulled if it has been issued by an authority , which had no jurisdiction or without a legal basis or contrary to the applicable law .", "In DATE , by virtue of ORG , the judicial review of second - instance administrative decisions was introduced . LAW relating to temporal scope of its jurisdiction provided that an administrative decision could not be appealed against to the ORG if administrative proceedings in which the decision had been given , had been instituted before DATE .", "Provisions concerning the regulation of ownership of agricultural property", "Article CARDINAL of ORG of DATE provides that the general provisions of LAW concerning amendment or annulment of final administrative decisions do not apply to decisions confirming the ownership of agricultural real property issued in accordance with ORG of DATE .", "A decision of ORG of DATE states that LAW does not confer a right to claim before a civil court that such decisions be declared null and void ( decision III CZP CARDINAL/CARDINAL ) .", "Veteran status", "The PERSON of DATE on NORP and Other Victims of War and Post - War Repression repealed the PERSON of CARDINAL DATE on the Special Status of Veterans and enacted new criteria on which veteran status can be granted .", "Under LAW , which was subsequently replaced by LAW , veteran status gives rise to various special employment and social insurance entitlements . The periods of veteran service are taken into account in calculating the periods giving rise to seniority . The same periods are multiplied by CARDINAL in calculating periods giving rise to a retirement pension . Veterans who remain in employment are entitled to CARDINAL days’ additional paid leave per year . They are entitled to retire earlier than other employees : women at DATE , and men at DATE , if they have satisfied another requirement for the acquisition of a retirement pension , i.e. if they have worked for periods set out in LAW . The retired veterans are further entitled to the special veterans’ benefit , paid together with their retirement pension as a certain fixed sum .", "Constitutional complaint", "Under LAW DATE , every person whose constitutionally guaranteed rights or freedoms were breached , is entitled , pursuant to procedure set out by a statute , to lodge a constitutional complaint with ORG , claiming that a statute law enacted by ORG ( PERSON ) or other legal provision , which served as a legal basis for a final judicial or administrative decision by which his or her rights , freedoms of obligations were determined , are incompatible with the LAW ." ]

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[ "On DATE the applicant was arrested by the NORP police in GPE on the basis of an international arrest warrant issued by ORG ( PERSON ) on DATE . The applicant was suspected of attempted murder . Following his extradition by the NORP authorities , he was placed in FAC on DATE and remanded in custody .", "On DATE ORG referred the applicant ’s case to ORG , charging him with attempted murder , aggravated robbery and the unlawful possession of a weapon .", "On DATE an assize court ( Geschwornengericht ) sitting at ORG acquitted the applicant of all the charges against him .", "The operative provisions and grounds of the judgment read as follows :", "“ PERSON is acquitted of the charges brought against him , namely that , on DATE in PERSON , acting as an accomplice to his brother PERSON , who was prosecuted in separate proceedings ,", "he had attempted to murder PERSON and PERSON by stabbing PERSON left thigh , left hand , upper part of the body and throat and by shooting at his head which had been grazed by a bullet , ...", "he had taken unlawfully by force , as described under point CARDINAL . ) , and with a weapon the luggage of PERSON and PERSON which contained about ATS CARDINAL in different currencies ;", "he had unlawfully possessed and carried a revolver ; ...", "in accordance with section CARDINAL of the Code of Criminal Procedure ( Strafprozessordnung ) .", "Grounds", "The acquittal is founded on the jury ’s verdict . ”", "According to the record of the jury ’s deliberations ( PERSON ) , as regards the attempted murder charge , the jury found , in dubio pro reo , that the applicant ’s defence could not be refuted . In this respect , they noted that the applicant had been alone and the weapon had been in the possession of PERSON and PERSON who had not testified at the trial . As regards the second charge of taking property by force , the jury considered that the applicant had had no intention to commit a robbery . Finally , concerning the unlawful possession of a revolver , they noted that the weapon had been in the possession of PERSON and PERSON and that the applicant had only taken it in the course of the fight .", "Upon pronouncement of the judgment , at the same hearing , defence counsel applied for the applicant ’s release and for compensation for pecuniary damage caused by his detention on remand . The prosecutor opposed the claim . The hearing was interrupted for the court to deliberate , but the compensation decision was not announced there and then as the judgment was not yet final . On resumption , the applicant ’s release was ordered and the trial closed .", "The decision of the assize court of DATE , dismissing the applicant ’s request for compensation , was served upon the applicant ’s counsel on DATE . In that decision , the assize court found that the conditions laid down by sectionCARDINAL(CARDINAL)(b ) of ORG DATE ( Strafrechtliches Entschädigungsgesetz – “ the DATE LAW ) were not satisfied . In its opinion ,", "“ A claim to compensation under section CARDINAL(CARDINAL)(b ) of the Compensation ( Criminal Proceedings ) Act ... is conditional on the applicant being cleared of the suspicion of which he was the object in the proceedings . A person who has been detained is so cleared only if all the suspicious circumstances telling against him have been satisfactorily explained , so that they cease to constitute an argument for the suspect ’s guilt .", "Having regard to the record of the jury ’s deliberations , who expressly referred to the principle of ‘ in dubio pro reo’ when answering the first main question , it had to be assumed that the suspicion against the applicant had not been dispelled . This circumstance was decisive for the decision of the assize court to refuse the request for compensation . ”", "On DATE the applicant appealed to ORG ( Oberlandesgericht ) , arguing that the reasoning of the assize court was wrong . Reference was also made to LAW and the judgment of CARDINAL DATE of ORG in the case of GPE v. GPE ( Series A no . CARDINAL-A ) .", "On DATE ORG , sitting in private , dismissed the appeal as being unfounded . The reasons for its decision started with a summary of ORG decision . They went on to refute the applicant ’s objections as to ORG interpretation of the record of the jury ’s deliberations , confirming that the conditions of section CARDINAL § CARDINAL ( b ) of the DATE Act were not met . Further , it was stated that the applicant ’s reference to the judgment of ORG in the PERSON case was not relevant as there was no new and independent assessment of guilt in the present case . Finally , it was held that ORG had correctly refused to take further evidence .", "Following the ORG ’s admissibility decision of CARDINAL DATE , ORG ( Oberster Gerichtshof ) , upon the Attorney General ’s plea of nullity for the preservation of the law as regards the lack of publicity ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) , found on DATE that there had been a violation of section QUANTITY of LAW , taken in conjunction with LAW CARDINALof the Convention , in that ORG decision of DATE had not been pronounced publicly , a deficiency which had not been remedied by ORG when taking its decision of CARDINAL DATE . Therefore , ORG ordered ORG to pronounce its decision of CARDINAL DATE in public .", "On DATE ORG complied with this order , pronouncing its decision of DATE at a public hearing .", "Under CARDINAL of LAW , the assize court must acquit the accused as soon as the jury has answered the question of guilt in the negative .", "The relevant provisions of the Compensation ( Criminal Proceedings ) Act DATE read as follows :", "“ ( CARDINAL ) A right to compensation arises : ...", "( b ) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in GPE ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or the prosecution is excluded on other grounds , in so far as these grounds existed when he was arrested ; ... ”", "Section CARDINAL", "“ ( CARDINAL ) A court which acquits a person or otherwise frees him from prosecution ... ( section CARDINAL ( CARDINAL ) ( b ) or ( c ) ) must decide either of its own motion or at the request of the individual in question or the public prosecutor ’s office whether the conditions for compensation under section CARDINAL ( CARDINAL ) ( b ) or ( c ) , ( CARDINAL ) and ( CARDINAL ) have been satisfied or whether there is a ground for refusal under section CARDINAL . If the judgment was based on the verdict of a jury , the bench shall decide together with the jury . ...", "( CARDINAL ) Once the judgment rendered in the criminal proceedings has become final , the decision , which need not be made public , must , as part of the proceedings provided for in paragraph CARDINAL , be served on the detained or convicted person personally and on the public prosecutor ...", "( CARDINAL ) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within DATE . ... ”", "As a general rule , there is no public hearing in ORG . ORG rules after sitting in private .", "In its judgment of CARDINAL DATE ORG ruled on the constitutionality of LAW . It found that this provision in itself did not violate LAW which , under NORP law , has the force of constitutional law . In the light of the GPE v. GPE case ( judgment of DATE , Series A no . CARDINAL ) , it held that it was not the refusal of a claim for compensation which was contrary to the LAW , but the re - examination of the question of guilt after a final acquittal . In ORG view only the separate re - assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence . Nevertheless , ORG observed that it would be desirable to amend section DATE ) of the DATE Act in order to clarify the law ." ]

[ "6" ]

[ "6-2" ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company GPE .", "On DATE the applicant instituted civil proceedings against GPE in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL NORP tolars ( MONEY ) for the injuries sustained .", "DATE and CARDINAL DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .", "DATE and DATE he made CARDINAL requests that a date be set for a hearing .", "Of the CARDINAL hearings held DATE and DATE , none was adjourned at the request of the applicant .", "During the proceedings , the court appointed a medical expert .", "At the last hearing , the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant DATE", "On DATE the applicant appealed to ORG ( PERSON v PERSON ) .", "On DATE the court dismissed the applicant ’s appeal .", "The judgment was served on the applicant on DATE ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant , Mr Odd PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by Mr J. Södergren , a lawyer practising in GPE .", "The applicant had been on board the seal hunting vessel M / S Harmoni ( “ the NORP ” ) during DATE as a freelance journalist , author and photographer . On DATE Mr PERSON applied to ORG to be appointed seal hunting inspector for DATE on board the NORP . Following his appointment on DATE he served on board the ORG from DATE to DATE , when the vessel returned to its port in GPE .", "Thereafter , and until DATE , PERSON published CARDINAL articles on PERSON inspection , including his entire inspection report ( of DATE ) .", "In the meantime , by DATE , ORG had decided to exempt the report from public disclosure with reference to the nature of the allegations – criminal conduct – and to the need to give the persons named in the report an opportunity to comment . On DATE the ORG was reported to have stated that veterinary experts would consider the controversial PERSON report . On DATE the ORG expressed doubts as to the applicant ’s competence and the quality of the report .", "PERSON report continued to receive a wide coverage in other media as well . On DATE and CARDINAL DATE extensive excerpts from the report were published in GPE , a bi - weekly for fishermen .", "Over DATE the debate about Mr PERSON ’s report died out until DATE , when he gave a press conference in GPE . A film entitled “ Seal Mourning ” ( containing footage shot by PERSON from the NORP ) showed certain breaches of the seal hunting regulations . PERSON from the film were broadcast by the ORG ( ORG ) DATE and the entire film was broadcast by NORP TVCARDINAL on DATE . During DATE scenes from the film were broadcast by CARDINAL broadcasting companies world - wide , including ORG and ORG .", "On account of various publications of allegations by the applicant to the effect that certain seal hunters had violated ORG issued by ORG and some instance LAW , the CARDINAL crew members of NORP brought , mostly with success , a series of defamation proceedings against the applicant and a number of media corporations and companies , including PERSON and its former editor .", "In the defamation case against the applicant himself , ORG ( byrett ) held in a judgment of CARDINAL DATE that a number of his statements were defamatory and should be declared null and void and ordered him to pay compensation to the CARDINAL plaintiffs . Leave to appeal was refused by ORG of ORG in DATE . A more detailed account of those proceedings is given here below . On DATE he lodged an application ( no . ORG ) with the former ORG Rights alleging violations of Articles CARDINAL , CARDINAL of the ORG , which the Commission declared inadmissible on DATE as having been lodged out of time .", "The defamation case against PERSON and its former editor also became the subject matter of an application ( no . CARDINAL ) lodged under the LAW , in which the newspaper and its former editor disputed ORG ( herredsrett ) findings of CARDINAL DATE ( against which ORG had refused leave to appeal on DATE ) that its publication of several statements from the applicant ’s report ( crew in specific instances “ beat to death a female harp seal which was protecting her pup ” ; “ Seals skinned alive ” ; the applicant was “ being beaten up by furious hunters , who also threatened to hit him on the head with a gaff if he did not keep quiet . ” ) made them liable for defamation and that the statements should be declared null and void : In its PERSON and PERSON v. GPE judgment of CARDINAL DATE ( [ MONEY ] , no . CARDINAL , ORG CARDINAL-III ) , the ORG , by CARDINAL votes to CARDINAL , found that there had been a violation of LAW with regard to the newspaper and the former editor ( see paragraphs CARDINAL of the judgment and point CARDINAL of the operative provisions ) .", "The present application relates to the NORP ORG refusal to prevent the enforcement in GPE ( where the applicant lived ) of ORG judgment of CARDINAL DATE in the defamation proceedings against the applicant on account of similar or comparable allegations . For a broader view of the factual background of the case complex , the context of the impugned allegations and also details of NORP defamation law , the ORG refers to paragraphs DATE of its above - cited judgment .", "In DATE the crew members of the ORG had instituted defamation proceedings against Mr PERSON before ORG , referring to statements which he had made about them in respect of the DATE and DATE hunting seasons , in his report of CARDINAL DATE , in a television programme “ Antenne CARDINAL ” broadcast by ORG on DATE and the film broadcast by the NORP TVCARDINAL on DATE in its programme “ LOC ” ( Environment pictures ) . They sought the mortification of certain statements imputing reprehensible conduct on the part of the crew . The plaintiffs further requested a prohibition against the publication of the report and of film footage taken by the applicant during the seal hunt on LOC in DATE and DATE .", "By judgment of CARDINAL DATE ( extending to CARDINAL pages ) , ORG , after holding an oral hearing DATE , found for the applicant with regard to some of the impugned statements but declared CARDINAL statements in his inspection report null and void under LAW , as well as CARDINAL other statements made by him in television programmes :", "In the report", "i “ Finally , it is my firm opinion that every seal in the hunting area was to be put to death – no matter the cost or risk . ”", "ii “ The sharp end of the gaff was forcefully driven into the head of the animal by an intoxicated man . ”", "ii “ Some of these people seem to have an excessive , raw lifestyle . ”", "iv “ Since I thought the mental health of [ Mr. PERSON ] was unbalanced ( DATE I made the same observation reg . this man ) I found it best to avoid the man for the rest of DATE . ”", "v “ When the hunter realises that he has failed – that he is the loosing party DATE he kills the female ... .The hunter always invokes self - defence as an excuse for killing the female – who is able to prove the contrary ? ”", "In the TVCARDINAL programme", "vi “ Due to the present conditions , it is a tragedy to the seal , to GPE as a nation it is a scandal – that the set of rules , as it is drafted by ORG , is violated nearly to PERCENT . ”", "In the ORG programme", "vii “ I often saw these whitecoats , bluebacks also for that matter , being kicked to death or being stamped to death when they came on board . ”", "ORG further prohibited the applicant from making accessible to the relevant public film footage , where the plaintiffs could be identified , and ordered him to pay to each of them ORG CARDINAL,CARDINAL in compensation for non - pecuniary damage , plus ORG CARDINAL,CARDINAL in respect of profits he had obtained through illegal publication of the film , as well as legal costs .", "ORG reasoning , which went CARDINAL pages or so , included a detailed analysis of , inter alia , the contents of the impugned allegations , with an assessment of whether they were defamatory in character ; whether the applicant had adduced sufficient proof to establish the veracity of those allegations that were found defamatory , the justification of the request for a prohibition on publication and compensation .", "The applicant ’s request for leave to appeal against the judgment was rejected by ORG of ORG ( Høyesteretts Kjæremålsutvalg ) on DATE .", "The applicant opposed the execution of ORG judgment of CARDINAL DATE . Since he was residing in GPE , the crew members requested ORG ( kronofogdemyndigheten ) of GPE to execute the award of compensation and costs made in the said judgment . On DATE ORG ordered the applicant to pay certain specified sums . The applicant lodged a judicial appeal against that decision , invoking that the CARDINAL DATE judgment violated his right to freedom of expression under LAW .", "In proceedings to which the CARDINAL crew members were parties , ORG ( tingsrätt ) , by a decision ( beslut ) of DATE , rejected the applicant ’s claim . It noted that the impugned matter predated the entry into force of the DATE LAW ( on jurisdiction and the enforcement of judgments in civil and commercial matters ) for GPE and GPE ( respectively on DATE and CARDINAL DATE ) , so it fell to be considered under LAW CARDINAL:CARDINAL regarding ORG judgments in the area of GPE , section CARDINAL § CARDINAL no . CARDINAL of which provided that a judgment which was obviously incompatible with the NORP public order should not be recognised or implemented in GPE . According to the preparatory works this provision should be applied with great caution . In practice it had only been applied in narrowly defined and exceptional circumstances , when there was question of principles fundamental to the NORP legal system and provisions protecting the interests of a weaker party . In this respect ORG observed that the principle of exclusive responsibility on the part of the publisher of an allegation in a periodical or a film was a very important part of the NORP constitutional protection of free speech . That principle did not exist in the NORP legal system , under which several persons might incur liability with respect to the contents of a periodical or a television programme . However , this difference between the NORP and the NORP law , albeit decisive in part for the outcome before ORG , did not amount to an exceptional circumstance warranting the application of the public order provision in LAW . Accordingly , there was no obstacle to recognition and enforcement of ORG judgment of CARDINAL DATE . Nor could that judgment be said to breach the Convention .", "The applicant appealed to ORG ) of LOC which by a decision of DATE upheld ORG reasoning in the main and its conclusion that public order considerations did not prevent the execution of the NORP court ’s judgment in GPE .", "ORG held that it was not for a NORP court to review compatibility with the LAW beyond considering what followed from the NORP public order rules . Of particular interest were the rules on exclusive responsibility of the publisher and the limitations on the possibilities for bringing compensation proceedings against persons other than the publisher of a programme . The question was whether it would be inconsistent with fundamental principles of NORP law to allow enforcement of the compensation award against the applicant for statements with respect to which he would not have been made liable under NORP law . Since the Freedom of the Press Act ( tryckfrihetsförordningen , an instrument forming part of LAW ) only applied to printed matters which had been published , it could not apply to the report published by the newspaper without ORG consent . The applicant ’s statements during television programmes , on the other hand , were such that they were covered by the principle of the publisher ’s exclusive responsibility . The legal grounds on which the applicant was made liable to pay compensation differed in part from the NORP rules . In particular he would not have been liable with regard to the statements made during the television programmes .", "In the assessment of whether execution of the NORP judgment would be obviously incompatible with the fundamental principles of the NORP legal order , ORG had special regard to its consideration that a restrictive attitude ought to be adopted in matters that had particular links to the other ORG . The applicant ’s statements concerned NORP matters and an activity in that country which did not concern NORP interests beyond those of public opinion .", "On a further appeal by the applicant , ORG ( ORG domstolen ) , by a decision of DATE , upheld the lower courts’ decision . It gave the following reasons :", "“ A first question arising is whether , in a case concerning enforcement , there is an obligation under the Convention for NORP authorities to examine the conformity of a foreign judgment with the Convention .", "ORG has been inclined to consider enforcement proceedings following a judgment as part of the proceedings concerning the determination of civil rights and obligations ( see PERSON , PERSON rättigheter i europeisk praxis pp CARDINAL and CARDINAL ) . The ORG ’s judgment in GPE v GPE , dealing with an issue of enforcement in GPE of a criminal judgment delivered in GPE , could be interpreted to mean that in cases of flagrant denial of justice in foreign proceedings , a certain review ought to be carried out prior to the execution of a criminal judgment ( see PERSON , ORG , p. CARDINAL ) .", "In these circumstances ORG finds that an examination ought to be made of [ the applicant ’s ] submission that ORG judgment must not be executed on the grounds that it violates LAW . It can , however , not be a question of undertaking a complete review of ORG judgment . Such a scheme would cause an excessive burden to the international co - operation aimed at facilitating the execution of judgments in countries other than that where the judgment was delivered ( cp . , PERSON , ORG , p. CARDINAL ) .", "It is also apparent that a court in the ORG of origin is normally better placed than an authority in the ORG of enforcement to make certain assessments , for example evidentiary matters and the application of the national law of the ORG of origin . Normally the proceedings in that ORG have been complete and afforded the parties an opportunity to adduce evidence and legal arguments in support for their case . This can be presumed to be the case especially with respect to GPE which have ratified the Convention ( cp . , PERSON , ORG , p. CARDINAL ) .", "In the relations among the Convention States themselves it should normally suffice for the authority in the country of execution to pursue a rather summary assessment in verifying whether the judgment is in conformity with the Convention . However , should there , for example on a claim by a party , emerge circumstances that would make it questionable whether the judgment fulfils the requirements in the ORG , a closer scrutiny must be carried out .", "According to paragraph CARDINAL of LAW everyone has a right to freedom of expression . Pursuant to the second paragraph this right may be subjected to certain limitations , provided that they are prescribed by law and are necessary in a democratic society inter alia for the protection of the reputation of others . If a person has made a defamatory statement against another person and the case is brought before a court , the court has to weigh the former ’s interest in enjoying his right to freedom of expression against the latter ’s interest in protecting his personal integrity . As a principle , the person who has made a defamatory allegation against another person must be able to prove that the statement is true . This applies in particular if the statement includes an allegation that the person pointed at has committed a criminal offence . The person who has made the statement must however not be imposed with an unreasonable burden of proof ( see ORG judgment in PERSON [ of DATE , Series A no . CARDINAL ] ) .", "The balance that shall be struck between the interest of freedom of expression and the interest of protecting the reputation of an individual may depend on who is the victim of the defamatory allegation and the accusation ’s importance to public debate . A politician , for instance , must be prepared to accept more than a private person . The same holds true for political and other institutions . If the allegation is part of a public debate or serves to enlighten on a question of public interest , that is a factor that carries great weight .", "In the examination of ORG judgment to be carried out in the present enforcement case , ORG finds from the outset that it must be deemed acceptable that ORG has placed the burden of proof on [ the applicant ] with regard to the truth of his statements . ORG further finds no reason to question the establishment of facts made by ORG . It must , amongst other , be taken into account that ORG held an oral hearing of the case DATE and must be assumed to have had ample opportunity to go into the different issues of the case . Finally , as regards to the balancing of interest to be carried out between [ the applicant ’s ] right to freedom of expression and each individual seal hunters’ interest in protecting his reputation , regard must be had inter alia to the fact that the subject that [ the applicant ] raised in the debate was of great public interest and that he had the mission to serve as a seal hunting inspector and had special reasons for expressing himself . Against this it should be weighed that the applicant ’s statements were not pointed at seal hunters in general but at individual persons and that these persons did not occupy a position suggesting that they should accept to be pointed at in the same way as public persons . Having regard to these circumstances , ORG finds that ORG assessment did not entail a violation of [ the applicant ’s ] right to freedom of expression under LAW . There is thus no hindrance under this Article to the enforcement of ORG judgment .", "As regards the question whether there are obstacles to enforcement of ORG judgment in view of public order considerations it should be underlined that , generally speaking , only in exceptional cases can there be question of refusing enforcement of a judgment on such grounds ... This applies especially when there is question of enforcement of a judgment delivered in another NORP country .", "The issue of NORP public order in this case concerns firstly [ the applicant ’s ] participation in the film that was shown on NORP television . This participation should be considered against the background of the principles on the freedom to impart information under LAW ( tryckfrihetsförordiningen , an instrument forming part of LAW ) and LAW ( yttrandefrihetsgrundlagen ) . According to this principle everyone is free to provide information for publication by a printed matter , by radio or television broadcast or other medium , which enjoy special constitutional protection . A person who contributes in this way to the creation of for example a television programme ( except in certain circumstances which do not apply here ) , is free from criminal liability and liability to pay compensation , which instead lay on the publisher and , in the case of liability to pay compensation , on the company . LAW is certainly not applicable to the NORP television programme , as it was shown before the entry into force of the constitutional provisions on DATE , though corresponding provisions existed under LAW DATE on ORG .", "The freedom to impart information is a fundamental principle under LAW ... It must therefore be assumed that NORP public order considerations bar the enforcement in GPE of a foreign judgment imposing criminal punishment or an award of compensation , where the establishment of liability on the other country constitutes a circumvention of the NORP constitutional protection of persons who contribute to the preparation of a presentation in any of the constitutionally protected media . However , NORP public order considerations can not go as far as to always protect a person who has contributed to a programme shown on NORP television against the enforcement of a foreign judgment concerning liability for participation in the programme . Thus , a person who defames another person in a programme shown in another country , which is later shown in GPE , can not , as a rule , avoid enforcement of a judgment delivered in the [ first ] country establishing that defamation has occurred there . The conclusion is that in an enforcement matter , the question whether there are circumstances warranting the refusal of enforcement in GPE must be considered on a case - by - case basis .", "As regards the film in question it has been stated that it was shown at press conferences in GPE and GPE , in which [ the applicant ] participated , DATE before it was broadcast on NORP television . On DATE as the press conferences took place , the film was also broadcast by LANGUAGE television . It does not appear clearly from ORG judgment what instances of visioning of the film gave rise to liability , but there is no reason for assuming that it did not concern also those instances that did not occur in GPE . Even if a greater NORP public could view the film only when it was broadcast by NORP television , in the above - mentioned circumstances and the situation as a whole , it can not be considered against NORP public order to enforce the NORP judgment in this point .", "Nor were there any other public order grounds constituting a hinder to the requested enforcement . ”" ]

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[ "The applicant was born in DATE in GPE and is currently serving a life sentence in FAC .", "The applicant was sought by the law - enforcement authorities for complicity in a number of criminal offences , including CARDINAL murders , committed in DATE .", "On DATE the applicant was arrested in GPE and on DATE he was extradited to GPE .", "On DATE ORG , sitting as the court of first instance , convicted the applicant of complicity in CARDINAL counts of murder , several counts of theft , illegal possession and sale of weapons , and hooliganism . The sentences for these offences were merged , and the applicant was sentenced to life imprisonment and confiscation of property .", "Following his conviction , in DATE the applicant was transferred to the CARDINALth wing of Bayil Prison , formerly designated for convicts sentenced to death .", "On DATE he was transferred to FAC , located outside GPE , where he is currently detained . The applicant is held , together with CARDINAL other inmate , in a cell measuring QUANTITY high . The cell has CARDINAL beds , a small bedside cupboard , and CARDINAL small table and CARDINAL chairs fixed to the cell floor . The toilet area is separated from the rest of the cell . The floor and ceiling are made of stone and concrete respectively . The temperature inside the cell is very high in DATE and very low in DATE . Central heating is available , but insufficient .", "The window has metal bars and no pane and , in DATE , is closed with a transparent polyethylene film . The air inside is stale and the cell can not be naturally ventilated . The food served in the prison is often of poor quality and lacks sufficient meat and vitamins , and the menu is unvaried and monotonous . The inmates are allowed TIME outdoor exercise a day .", "After his transfer to FAC , the applicant was detained respectively in cell CARDINAL in the CARDINALth unit and in cell CARDINAL in the CARDINALth unit . Since DATE he has been detained in cell CARDINAL in the CARDINALth unit . All these cells are intended for CARDINAL prisoners and their size is QUANTITY m.", "The conditions of the applicant ’s detention meet all the national and international requirements and standards . The window of the cell can be opened from the inside . The window is large enough and does not prevent the entrance of natural light and fresh air . The cell is also provided with electric lamps , a ventilator and a radio set .", "NORP Since DATE the prisoners have had the right to watch TV for TIME a day and TIME at weekends and holidays . The prison has a library accessible to the prisoners . The sanitary conditions are normal and the food is of good quality . The applicant has the right to TIME ’s outdoor exercise a day .", "When he arrived at FAC , he was in good health and was not suffering from any illness . In Bayil Prison , the applicant was initially placed in a cell which had previously accommodated inmates who were suffering from contagious conditions , and which had not been disinfected .", "In DATE the applicant was transferred to another cell , which he shared with A. , an inmate suffering from tuberculosis . According to the applicant , he contracted tuberculosis from his cellmate . He began to feel the first symptoms of the disease shortly after his transfer to that cell . He had been in the same cell as A. from DATE , from DATE to DATE or DATE and from DATE to DATE .", "During that period inmates of the CARDINALth wing of Bayil Prison who were suffering from tuberculosis were generally not transferred to any specialised medical facilities but received treatment while remaining in their cells . There was a high mortality rate among inmates suffering from tuberculosis .", "Following his transfer to FAC , in DATE the applicant was diagnosed with pulmonary tuberculosis . By that time , he had lost a significant amount of weight and was coughing blood . On DATE he was transferred for in - patient treatment to ORG with Tuberculosis . He received treatment based on ORG DOTS ( Directly Observed Treatment , Short Course ) programme .", "On DATE the applicant was transferred back to Gobustan Prison , where he continued to receive outpatient treatment . CARDINAL October CARDINAL , from CARDINAL to CARDINAL DATE , from DATE to DATE and from DATE to DATE the applicant was sent to various medical facilities for examination and inpatient treatment .", "According to a statement issued on DATE by ORG following the applicant ’s latest examination and in - patient treatment , the applicant was diagnosed with , inter alia , focal tuberculosis of the upper lobes of both lungs in the consolidation phase and residual symptoms of tuberculosis .", "The Government submitted that it was doubtful that the applicant had contracted tuberculosis in LOC . When he was sharing a cell with A. in DATE the latter had recovered and his disease was not contagious . In this regard , the Government noted that the applicant had been diagnosed with tuberculosis in DATE , when he was in FAC .", "The applicant was sent to ORG with Tuberculosis , where he received in - patient treatment on the basis of the ORG programme of the ORG . The applicant ’s treatment lasted until DATE and after his recovery he was transferred back to FAC .", "On DATE the applicant received outpatient treatment with vitamins . On DATE this treatment was completed and the applicant ’s health was considered satisfactory . On DATE and DATE and on DATE the applicant was examined by a doctor and no deterioration of his health was observed .", "NORP The applicant was subsequently examined , on DATE , on DATE , on DATE and on DATE , by a group of doctors in FAC . According to each examination , the applicant was diagnosed with clinically recovered pulmonary tuberculosis and prescribed dispensary supervision .", "From DATE the applicant was examined in the prison medical unit and , according to the clinic laboratory and X - ray examination results , there was no need for in - patient treatment .", "NORP In DATE the applicant was again instructed to go to the medical unit , however he refused to go there because of his religious fast .", "Following examinations on CARDINAL DATE and DATE the applicant ’s health was pronounced fully improved and it was stated that there was no need for any special treatment under the ORG programme .", "On DATE the applicant lodged a civil action against the Bayil Prison authorities , seeking compensation for damage caused to his health . He claimed that the prison authorities were directly responsible for his having contracted tuberculosis , taking into account the poor conditions of detention and the fact that he had been held in the same cells as inmates with tuberculosis . In support of his claims he submitted written statements by other inmates who had previously been detained in Bayil Prison . The applicant further asked the court to ensure his presence at the hearings .", "On DATE ORG dismissed the applicant ’s claim , finding that the applicant had failed to prove that he had been deliberately placed in a cell with inmates who were ill and had contracted tuberculosis as a result . The court further held that , in such circumstances , FAC authorities could not be considered to have ill - treated the applicant in any way . Concerning the written statements of other inmates detained at that time in Bayil Prison , the court held that these statements were not reliable , because as former inmates of Bayil Prison the authors of these statements could be biased against the administration of Bayil Prison .", "The applicant was not personally present at the hearings of the firstinstance court , but was represented . The judgment of the first - instance court was silent as to the applicant ’s request on his attendance at the hearing .", "The applicant lodged an appeal , reiterating his previous complaints and his request for leave to appear at the hearings . On DATE , having examined the applicant ’s appeal in the absence of the applicant and his representative , ORG rejected the appeal , finding that the applicant ’s arguments were unsubstantiated . Following the applicant ’s cassation appeal , on CARDINAL DATE ORG quashed the judgment of DATE and remitted the case to ORG for a new examination . ORG found that ORG had neither examined the question of the applicant ’s participation in the appeal hearing nor informed his representative about the time and place of the hearing . The relevant part of ORG decision read as follows :", "“ As a court of full jurisdiction under LAW , the appellate court which examines the case on its merits on the basis of the evidence in the file or additionally submitted evidence , did not discuss the question of N. PERSON ’s impossibility to exercise his right to attend the hearings because of his imprisonment , thus independent of his will , and did not take any measure or decision in order to ensure his presence at the hearings . PERSON representative was not informed of the place and date of the hearing . Therefore , PERSON was deprived of the possibility to attend the hearing on his case and to benefit from the procedural rights provided for by LAW .", "On DATE , having examined the case in the absence of the applicant but in the presence of his representative , ORG dismissed the applicant ’s appeal and upheld ORG judgment of DATE . The appellate court ’s judgment was silent as to the applicant ’s request for leave to appear .", "On DATE ORG dismissed the applicant ’s cassation appeal and upheld ORG judgment . The proceedings before ORG were held in the applicant ’s absence , but in the presence of his lawyer . ORG noted that the absence of the applicant was not a ground for quashing the appellate court ’s judgment , because the applicant had been represented in those proceedings . ORG also noted that the applicant ’s personal presence was not mandatory and his presence should be secured only if the court considered it necessary . The relevant part of ORG decision read as follows :", "“ It appears from the legislation that the right to call a person who is represented before the court by a representative , to attend the hearing in person belong to the court which examines the case , only if this court considers it necessary , and the application of this provision is not mandatory ...", "... taking into consideration the fact that PERSON presence at the hearing was not necessary , because he was represented by his representative when the appellate court examined the case , the panel of court considers unfounded to quash the judgment for the lack of PERSON presence at the hearing . ”", "In DATE , the applicant lodged a civil action against the Gobustan Prison authorities , seeking compensation for damage caused to his health . He complained in particular that adequate medical assistance was not available in FAC . The application was drafted in NORP .", "On DATE ORG refused to admit the applicant ’s complaint . The court held that the application had been drafted in NORP , not in NORP , which is the official language of the country , and that no justification had been given for drafting the application in NORP .", "Following an appeal by the applicant against this decision , ORG agreed to hear the applicant ’s complaint and on DATE held a preliminary hearing . At the request of the applicant ’s representative , the court commissioned an expert report on the applicant ’s illness and adjourned the proceedings .", "The proceedings were then adjourned because of the expiration of the power of attorney of the applicant ’s representative . On DATE the court decided to leave the applicant ’s complaint unexamined due to the failure of both the claimant and the defendant to attend the hearing .", "The proceedings were subsequently continued and on DATE ORG delivered a judgment on the merits . The court dismissed the applicant ’s complaint , noting that the applicant had been provided with adequate medical assistance after he was diagnosed with tuberculosis . The court also held that the applicant ’s allegations had not been confirmed by the expert opinion , according to which it was impossible to establish that the applicant had contracted tuberculosis in prison .", "On DATE the applicant appealed against the first - instance court ’s judgment and reiterated his previous complaints .", "NORP The proceedings before the appellate court are still pending .", "NORP Parties to civil proceedings may appear before a court in person or act through their representative ( Articles CARDINAL , DATE and CARDINAL of the Code of Civil Procedure ( “ the ORG ” ) ) .", "The Code on Execution of Punishments ( “ the CEP ” ) provides that a convicted person may be transferred from a prison to an investigative unit if his participation is required as a witness , suspect or accused in connection with certain investigative measures ( LAW ) . The ORG is silent as to the possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or a defendant ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE . He stood for the elections to ORG ( PERSON ) of DATE as a candidate of the opposition bloc GPE .", "The applicant was registered as a candidate by ORG ( “ the ConEC ” ) for the single - mandate ORG no . CARDINAL .", "There were a total of CARDINAL polling stations in the constituency . At the end of DATE , the applicant obtained copies of official records of election results ( səsvermənin nəticələrinə dair protokol ) drawn up by all CARDINAL Polling Station Electoral Commissions ( “ PECs ” ) . According to the copies of the ORG records in the applicant ’s possession , he received the majority of votes in the constituency .", "On DATE the applicant lodged a complaint with ORG ( “ the ORG ” ) , claiming that , after the submission of all the ORG records of results to the ConEC , the ORG records for ORG . CARDINAL , DATE and DATE had been falsified in favour of CARDINAL of his opponents .", "On DATE the ORG acknowledged receipt of the applicant ’s complaint and also notified him that , on DATE , it had issued a decision to invalidate the election results for the entire ORG no . CARDINAL . The decision , in its entirety , stated as follows :", "“ Pursuant to Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL.CARDINAL.CARDINAL of LAW and sections CARDINAL of the PERSON of CARDINAL DATE on Approval and Entry into Force of LAW , ORG decides :", "To invalidate the election results in Polling Stations nos . CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE of ORG no . CARDINAL due to impermissible alterations [ “ yolverilməz düzəlişlər ” ] made to the ORG records of election results [ “ protokollar ” ] of those polling stations as well as infringements of the law [ “ qanun pozuntuları ” ] which made it impossible to determine the will of the voters .", "To invalidate the election results in ORG no . CARDINAL due to the fact that the number of polling stations in which the election results have been invalidated constitutes CARDINAL of the total number of polling stations in the constituency and that the number of voters registered in those polling stations constitutes CARDINAL of the total number of voters in the constituency . ”", "On DATE the applicant lodged an appeal against that decision with ORG , arguing that the findings in the ORG decision were wrong . He argued that , while the ORG decision stated that “ impermissible alterations ” had been made to the results records of CARDINAL PECs , in reality such alterations had been made to the records of CARDINAL PECs ( in FAC . CARDINAL , DATE and DATE ) . As for the ORG records for other polling stations , the photocopies of the same ORG records which were in his possession did not contain any such alterations or changes . According to those ORG records ( and excluding the ORG records for ORG . CARDINAL , DATE and DATE ) , he had obtained the highest number of votes in the constituency . The applicant requested the court to quash the ORG decision of CARDINAL DATE and to declare him the winner of the election in the constituency .", "During the hearing held on DATE , the judges of ORG did not independently examine the originals of the ORG and the PERSON records of results or hear witnesses called by the applicant . ORG upheld the ORG decision by reiterating the findings made in that decision and concluding that the invalidation of the election results based on those findings had been lawful .", "NORP The applicant lodged a cassation appeal . In addition to the arguments advanced in his appeal before ORG , he also complained , inter alia , that ORG had refused to independently examine the primary evidence and had simply taken the ORG ’s findings as fact . He also complained that the ORG had failed to consider the possibility of ordering a recount of the votes as required by LAW and to summon him as an affected party and hear his explanation as required by LAW .", "On DATE ORG rejected the applicant ’s appeal and upheld ORG judgment as lawful .", "On DATE ORG ordered repeat elections to be held on DATE for all electoral constituencies in which the results had been invalidated , including the applicant ’s constituency .", "After the votes in a polling station have been counted at DATE , the ORG draws up an official record of election results ( in CARDINAL original copies ) documenting the results of the vote in the polling station ( Articles CARDINAL - CARDINAL.CARDINAL ) . CARDINAL copy of the ORG record , together with other relevant documents , is then submitted to the relevant ConEC within twentyfour TIME ( Article CARDINAL ) . The ConEC verifies whether the ORG record complies with the law and whether it contains any inconsistencies ( Article CARDINAL.CARDINAL ) . After submission of all ORG records , the ConEC tabulates , within DATE of DATE , the results from the different polling stations and draws up a record reflecting the aggregate results of the vote in the constituency ( Article CARDINAL ) . CARDINAL copy of the ConEC record of results , together with other relevant documents , is then submitted to the ORG within DATE of DATE ( Article CARDINAL ) . The ORG checks whether the PERSON records comply with the law and whether they contain any inconsistencies ( Article CARDINAL ) and draws up its own final record reflecting the results of voting in all constituencies ( Article CARDINAL ) .", "NORP If within DATE of DATE the ORG discovers mistakes , impermissible alterations or inconsistencies in the records of results ( including the accompanying documents ) submitted by ConECs , the ORG may order a recount of the votes in the relevant electoral constituency ( LAW ) .", "Upon review of a request to declare invalid the election of a registered candidate , an electoral commission has a right to hear submissions from citizens and officials and to obtain necessary documents and materials ( Article CARDINAL ) .", "In the event of the discovery of irregularities aimed at assisting candidates who were not ultimately elected , such irregularities can not be a basis for the invalidation of the election results ( Article CARDINAL ) .", "The CARDINAL or ORG may invalidate the election results for an entire single - mandate constituency if election results in CARDINAL of polling stations , representing CARDINAL of the constituency electorate , have been invalidated ( Article CARDINAL.CARDINAL.CARDINAL ) .", "According to former LAW in force at the material time , during the initial vote - counting at a polling station at the end of DATE , if a voting ballot which had not been properly placed in the corresponding envelope was found in the ballot box , the vote on that ballot was considered to be invalid . Article CARDINAL was subsequently repealed on DATE .", "The relevant excerpts from the report read as follows :", "“ Although constituency aggregate results were made available within the legal deadline , detailed results by polling station were only released on DATE , DATE after the election , despite the computer networking of all ConECs with the ORG . This made it difficult for candidates and observers to check that results had been reported accurately . Protocols from CARDINAL constituencies , CARDINAL and DATE , were never posted publicly . ...", "The ORG invalidated the results of CARDINAL constituencies [ including ORG no . CARDINAL ] under LAW , which states that if a ConEC or the ORG cancels CARDINAL of PECs representing CARDINAL of the total electorate in a constituency , then the entire constituency result is considered invalid . ...", "At least ... CARDINAL ConEC chairpersons [ ConECs CARDINAL and DATE ] were dismissed after DATE for involvement in electoral malfeasance . The CARDINAL ConEC chairpersons were arrested and charged with forging election documents . ... The ORG forwarded materials on possible criminal violations to ORG Office regarding CARDINAL PECs . ...", "The process of invalidation of aggregated results in CARDINAL constituencies by the ORG did not have sufficient legal grounds or an evidentiary basis , nor was the process transparent . The ORG decisions on the invalidation of the election results in the CARDINAL constituencies concluded that there were “ unacceptable modifications performed on the protocols and law infringements which made it impossible to determine the will of the voters ” but did not provide any factual basis to support this conclusion . ...", "Furthermore , when it invalidated results , the ORG did not make the required initial factual inquiry [ as required by LAW ] , and ignored LAW , which authorizes the ORG to order a recount of votes in a constituency if the protocols and documents submitted by the ConEC reveal “ mistakes , inadmissible corrections and inconsistencies . ” Protocols of ConECs and PECs were not examined or reviewed at ORG sessions . Invalidation of results in a polling station was premised solely on the conclusion of an individual ORG member as to whether a protocol should be invalidated . The judgment of a single ORG member that there were deficiencies in the protocol was accepted as established fact without any explanation of the alleged defect or identification of the number of votes involved . Accordingly , there was no factual basis presented publicly for invalidating results in any of the CARDINAL constituencies , which is particularly troubling since the ORG registered few complaints that alleged violations in these constituencies . ...", "The adjudication of post - election disputes in the courts largely disregarded the legal framework , and fell short of internationally accepted norms . ... In most cases , complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both ORG and ORG .", "Opposition candidates appealed the ORG ’s invalidation of results in constituencies CARDINAL , DATE and CARDINAL . ORG upheld the CARDINAL ORG decisions without any investigation or review of the primary documents and evidence , such as the ORG protocols . In constituency CARDINAL , the appellant petitioned ORG to examine the protocols , which had been forwarded to ORG office by the ORG . This petition was denied . In constituency DATE , the appellant made an identical request and the court again denied the petition , ruling that it was impossible to obtain the protocols from the Prosecutor General within the legal deadline . The ORG was not able to explain or give any information as to any specific defect in an invalidated protocol or offer any explanation as to what change to a protocol was sufficient for invalidation . ...", "Proceedings in ORG did not correct the shortcomings noted above . ORG upheld each ORG decision . ”" ]

[ "P1" ]

[ "P1-3" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE ORG of PERSON ordered ORG , a private company , to pay the applicant ORG CARDINAL,CARDINAL.CARDINAL in salary arrears and compensation for pecuniary and non - pecuniary damage .", "On DATE ORG of PERSON instituted enforcement proceedings .", "On DATE the applicant was paid ORG CARDINAL .", "On DATE ORG terminated the enforcement proceedings in view of the debtor ’s lack of funds . The applicant did not challenge that decision before the domestic courts .", "The judgment of CARDINAL DATE remains partially unenforced ( ORG CARDINAL,CARDINAL ) .", "In DATE the applicant lodged with ORG of PERSON CARDINAL separate defamation claims against the newspapers “ Litsa ” and “ PERSON ” , and a journalist PERSON The applicant sought refutation of the information contained in CARDINAL articles published by the defendants and compensation for non - pecuniary damage .", "The applicant failed to provide any further information as to the outcome of these proceedings ." ]

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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 Court by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr PERSON , Director in ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant sustained injuries to his shoulder , arms and wrists in an accident on DATE while driving a kick sledge . An insurance company granted the applicant a DATE allowance ( päiväraha , dagpenning ) for CARDINAL % reduction of his working capacity from DATE to CARDINAL DATE .", "As the applicant apparently had continued problems , especially with his right wrist , he submitted medical opinions to the insurance company , applying for a continued DATE allowance / accident pension for DATE . On DATE the insurance company rejected his application and denied the compensation claim for loss of income , considering that the applicant ’s working capacity was reduced by CARDINAL PERCENT and that he was able to work at his post as technical director in a company .", "The applicant sought medical help in DATE and participated , inter alia , in a rehabilitation examination . Right elbow nerve damage and signs of damage to the right wrist as well as depression were diagnosed in a medical opinion dated DATE . The applicant also underwent an isotope survey on DATE and submitted to the insurance company a medical opinion dated DATE regarding his hands and wrists .", "On DATE the insurance company upheld its previous decision and decided not to grant the applicant a DATE allowance for DATE .", "On DATE the insurance company corrected its previous decision of CARDINAL DATE so as to grant the applicant an accident pension for CARDINAL % reduction of working capacity from DATE to CARDINAL DATE .", "The applicant appealed to ORG ( tapaturmalautakunta , olycksfallsnämnden ) requesting an accident pension ( tapaturmaeläke , olycksfallspension ) as of DATE . He relied , inter alia , on a medical opinion in which he was regarded as unfit to work until DATE ; on a medical opinion of DATE , in which he was regarded as unfit to work for DATE ; and on documents from the rehabilitation examination in DATE .", "The insurance company submitted in its observations that the applicant was not entitled to compensation after DATE . It maintained that the accident had caused impact injuries to the applicant ’s left shoulder joint , left forearm and both wrists . The applicant claimed that he had sustained injuries in addition to his shoulder , neck , right shoulder joint and right forearm , requesting an accident pension as from DATE with interest .", "The insurance company further adduced a medical opinion dated DATE in which the applicant was regarded as unfit to work due to depression until DATE . The company maintained that the applicant ’s neck strain and depression were not caused by the accident of CARDINAL DATE and that the elbow nerve damage , which was caused by the said accident , was so mild that it did not render the applicant incapable to work .", "On DATE ORG upheld the insurance company ’s decision of DATE . It reasoned its decision as follows :", "“ Based on the medical evidence submitted [ the applicant ] has sustained impact injuries to both his wrists , left shoulder area and left forearm area as well as damage to his right elbow nerve as a result of the accident on DATE . These injuries have not reduced his working capacity by CARDINAL PERCENT as from DATE and [ the applicant ] is therefore not entitled to an accident pension pursuant to section DATE , subsection CARDINAL of GPE . [ The applicant ] must be regarded as capable of working as a managing director / technical director at his post . ORG holds that [ the applicant ’s ] present difficulties with his right hand and arm are to a high degree of probability not caused by the accident on DATE , given that hardly any tissue damage has been found in the magnetic scan of his right hand or in the ORG - examination . The left elbow nerve damage , for which the applicant has received compensation from the insurance company , is mild and ORG holds that it is probably sickness - related . ORG further finds that [ the applicant ’s ] depression , which reduces his working capacity , was neither caused by the accident of DATE , or by the subsequent injuries . Initially no neck strain was found and neither had any damage to [ the applicant ’s ] right shoulder joint been reported in connection with the accident . ”", "The applicant appealed to ORG requesting an accident pension as from DATE with interest . He submitted to ORG CARDINAL medical opinions dated DATE and DATE supporting his claims and a certificate indicating that the applicant had tried to find employment on DATE . According to ORG decision it invited observations from both parties and received letters from the applicant dated DATE . On DATE ORG rejected the appeal and upheld ORG decision . ORG reasoned its decision as follows :", "“ Reasons mentioned in ORG decision . The submitted new evidence does not give rise to different conclusions . ”", "The applicant sought leave to appeal from ORG ( korkein oikeus , högsta domstolen ) . ORG refused the applicant leave to appeal on DATE .", "Following an appeal on DATE ORG Health ( sosiaali- ja terveysministeriö , social- och hälsovårdsministeriet ) maintained that the insurance company had in some of its observations by mistake mentioned nerve damage in the applicant ’s left elbow whereas the nerve damage was in fact in the right elbow . It however noted that the mistake had not affected the outcome of the case as the appellate bodies had had access to the original medical opinions which described the injuries correctly .", "Section CARDINAL ( CARDINAL/CARDINAL ) of LAW ( hallitusmuoto , regeringsform , CARDINAL/CARDINAL ) , as in force at the relevant time , provided that everyone should have the right to have his case considered appropriately and without undue delay by a lawfully competent court of justice or other public authority as well as the right to have a decision concerning his rights and obligations reviewed by a court of justice or other independent judicial organ . LAW said section provided that the publicity of proceedings and the right to be heard , to receive a decision with stated grounds and to appeal against the decision as well as other guarantees of a fair trial and of good public administration were to be secured by ORG .", "At the relevant time chapter CARDINAL , section CARDINAL ( CARDINAL/CARDINAL ) of LAW ( oikeudenkäymiskaari , rättegångsbalken ) provided that a judgment had to be reasoned , indicating the facts and the legal argumentation on which it was based and the grounds which had led the court to hold a disputed issue established or unsubstantiated .", "Section CARDINAL of the Decree on ORG ( asetus tapaturmalautakunnasta , förordningen om olycksfallsnämnden ; CARDINAL/CARDINAL ) provides that ORG functions as the first appellate body in matters concerning obligatory accident insurance .", "Section CARDINAL of LAW ( tapaturmavakuutuslaki , lag om olycksfallsförsäkring ; DATE ) provides that appellate bodies in accident insurance matters are ORG , ORG and ORG .", "On ORG there are a full - time president , CARDINAL vice - presidents and CARDINAL lawyer and medical doctor members as well as CARDINAL members representing labour market organisations . They all bear the responsibility of a judge . The president , the vice - presidents and the lawyer members must be qualified to sit as a judge and they must have a good knowledge of accident insurance . The medical doctor members must be registered and have a good knowledge of insurance medicine . All the members and their personal substitutes were at the relevant time appointed by ORG for a fixed term of DATE . The labour market members were appointed on a proposal by the ORG and GPE organisations .", "Pursuant to section CARDINAL , subsection CARDINAL of GPE ( tapaturmavakuutuslaki , lag om olycksfallsförsäkring , DATE ) an accident pension is paid on condition that an employee ’s working capacity because of the injury or illness caused by an accident is estimated to have been reduced by PERCENT ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant challenged the lawfulness of his dismissal from a job before GPE ORG .", "On DATE ORG found that GPE ORG had violated the applicant ’s constitutional right to have his case examined without undue delays . In its finding ORG noted , in particular , that the case had to be adjourned on CARDINAL occasions as the chamber dealing with it was incomplete .", "On DATE ORG declared the applicant ’s dismissal unlawful . The judgment was served on the applicant on DATE and the defendant company appealed on DATE .", "On DATE ORG quashed the first instance judgment to the extent that it concerned the compensation awarded to the applicant and the decision on court fee . ORG upheld the remainder of ORG judgment .", "In the proceedings concerning the outstanding part of the applicant ’s claims GPE ORG scheduled hearings for DATE and DATE . The proceedings are pending .", "Article CARDINAL ( CARDINAL ) of the LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .", "Pursuant to LAW , as in force until DATE , ORG could commence proceedings upon the petition ( “ podnet ” ) presented by any individual or a corporation claiming that their rights have been violated .", "According to its case - law under the former LAW ) of LAW , the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights under LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found . In ORG view , it was therefore for the authority concerned to provide redress to the person whose rights were violated .", "As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW . Under this provision ORG has the power , in case that it found a violation of LAW ) of the LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional right was violated as a result of excessive length of proceedings ( for further details see , e.g. , ORG and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , DATE ) .", "According to an explanatory letter by the President of ORG of DATE , nothing has prevented ORG from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before ORG provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed . The letter further states that where ORG earlier found a violation of LAW ) of the LAW , a further complaint about delays in the same proceedings can be entertained only to the extent that it relates to the period after the delivery of the first finding of ORG . However , when deciding on such cases ORG will , as a rule , take into account that the ordinary courts have failed to proceed with the case without undue delays following its finding of a violation of LAW ) of LAW ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE .", "The applicant appears to have arrived in GPE in DATE . He applied for asylum and submitted that in his home country he had been a deacon in the NORP church . In DATE he had been called upon to be an observer in the national elections . Serving in this capacity , he had witnessed many wrongdoings by officials . The personal integrity and freedom of election of voters had been violated . Due to this , the applicant had refused to sign a statement asserting that the election procedure had been carried out correctly . Subsequently he had received several death threats . In connection with a sermon on DATE he had been severely beaten outside the church by CARDINAL unknown men . He had lost a tooth and had been cut on the hand . In DATE he had attended a traditional NORP feast . There he had been pursued and arrested by CARDINAL policemen who had taken him to a police station in GPE . He had been accused of activities against the regime and had been incarcerated for DATE and DATE , during which time he had been tortured . On DATE , after being released , he had participated in a demonstration against the election results . He had again been taken into custody by CARDINAL unknown men and taken to the LOC prison in GPE . There , he had been kept without criminal charges or a trial and had been tortured through violence with fists and truncheons , cut with sharp objects , chained and blind - folded , forced to hear other inmates being tortured , forced to crawl on his knees on sharp rocks and have his head shaved with broken bottle glass . The detention had lasted for DATE . During his time in the prison , he had preached to his fellow inmates . He had told his story to CARDINAL of the military prison guards , who had then helped him to escape . He had hidden from the authorities by travelling between NORP holy places where he had preached . A group of pilgrims had helped him and had paid him to travel with them and preach to them . On CARDINAL DATE , the pilgrims had informed him that they had decided to help him flee the country . They had arranged for his travel to GPE , where he had had to wait for a while . A smuggler had then helped him to reach GPE , via an unknown NORP country .", "On DATE ORG ( Migrationsverket ) rejected the application . It stated that , although the applicant had not submitted any identification papers , a language test had shown it probable that he was from GPE . It further stated that the general situation in GPE was not a sufficient ground for asylum . Regarding the applicant ’s situation and individual reasons for asylum , the ORG found that his story lacked credibility and that his submission about his escape from prison was not plausible . Also , the applicant had never been convicted of any crime , nor had he tried to contact the judicial authorities in GPE regarding the violence to which he had been subjected . He had not shown it probable that he would be at risk if he returned to GPE .", "The applicant appealed to ORG ( NORP - domstolen ) in GPE . He maintained his earlier submissions and added the following . He had been harassed in GPE due to his foreign appearance , his mother being NORP . He also claimed that he had been accused by the Government of being a spy . He submitted an arrest order issued by the NORP authorities on DATE and stated that some members of his church in GPE had been visiting GPE and the local police had handed them the arrest order . He also submitted a medical certificate from ORG at ORG ( Kris- och traumacenter vid PERSON ) containing a psychiatric and physical evaluation as well as a forensic evaluation .", "NORP The psychiatric evaluation had been carried out by GPE , a licensed physician and specialist in general and forensic psychiatry , and was based on a meeting with the applicant on DATE . The applicant had claimed to worry a lot , to have a dark outlook on life and to suffer from depression and loss of appetite . He had had thoughts of being better off dead , but had not seemed to consider suicide as an option and had claimed to leave himself in the hands of God . He had tried to cure his depression with holy water and by staying in a monastery . During the examination the applicant had been very formal and had given clear and distinct answers to all the questions . However , he had given an emotionally detached impression and had seemed to have an intellectual and distant attitude towards the story he told . There had been no signs of psychosis . He had seemed rigid in his personality and had had difficulties in adjusting his mind - set and the topics discussed to the limited time of the examination . The risk of suicide had been hard to assess . The applicant had expressed a clear will to die , but had seemed to have religious doubts about actually committing suicide and would therefore deny any such plans . The assessment was that he was probably suffering from Post - Traumatic Stress Disorder ( PTSD ) and that his depression was a result of this .", "NORP The forensic evaluation was issued by FAC , associate professor and specialist in forensic medicine , on DATE . According to the forensic findings the applicant had scar tissue on his head , right arm , both legs and also an artificial tooth . The concluding assessment was that none of the findings contradicted that the applicant ’s injuries had occurred at the time he described . Furthermore , the injuries were visibly compatible with his story and could support his claims that he had been subjected to torture in the way he had submitted .", "On DATE ORG rejected the appeal . It noted that the applicant had not proved his identity . Moreover , it stated that the arrest order submitted by the applicant was very simplistic in nature and hence had little evidential value . Regarding the medical certificate , the court found that it confirmed that the applicant was suffering from PTSD and that he had scars , but that it could not confirm how his injuries had occurred . The court further stated that the applicant ’s submissions had been vague and had escalated during the proceedings . The applicant had submitted for the first time at the oral hearing , among other things , that he had been suspected of being a spy . Moreover , it found peculiar his explanations as to how he had escaped from prison and how he had received information on being wanted by the NORP authorities . The court thus found that the credibility of the applicant ’s submissions was weak . It also added that the incidents described by the applicant had happened DATE , that he had not been politically active and that he had not had any problems prior to the DATE elections . Moreover the court stated that the political situation in GPE had calmed down since then and that the applicant ’s submissions did not substantiate that he would risk being subjected to persecution to such an extent that he should be perceived as a refugee . Nor did they substantiate that he would be at risk of being subjected to degrading or inhuman treatment if he were to return . He was therefore not considered to have other needs for protection .", "On DATE ORG ( Migrations - överdomstolen ) refused leave to appeal .", "The applicant subsequently claimed that there were impediments to his deportation and requested that his application for a residence permit be examined anew . In support of his claim he mainly referred to his previous submissions but also stated that the general situation in GPE was such that he feared , due to his background as a critic of the regime , that he would be subjected to further ill - treatment upon return . The applicant further stated that the general situation in the country had become more serious after the elections of DATE .", "In its decision of DATE , ORG found that the applicant ’s submissions did not qualify as impediments to deportation nor reasons to examine his asylum application anew . The applicant did not appeal against this decision .", "The basic provisions applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) .", "An alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE ( LAW , LAW CARDINAL of the CARDINAL Act ) . The term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a wellfounded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country ( LAW , section CARDINAL ) . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , section CARDINAL ) .", "NORP Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) to allow him or her to remain in GPE ( LAW , section CARDINAL ) . Special consideration should be given , inter alia , to the alien ’s health status . According to the preparatory works ( Government PERSON , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien ’s home country could constitute a reason for the grant of a residence permit .", "As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW ) .", "NORP Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced ( LAW , section CARDINAL ) . If a residence permit can not be granted under these criteria , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , sections CARDINAL and CARDINAL , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , section CARDINAL ) .", "Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances : ORG , ORG and ORG ( LAW , section CARDINAL , and LAW , section CARDINAL ) ." ]

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[ "2", "3" ]

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[ "On DATE the applicants brought separate actions before ORG of First Instance against ORG . They alleged that their plots of land had been illegally seized by the administration for dam construction without any payment being made and requested compensation in this respect .", "On DATE ORG of First Instance held that the cases should be characterised as compensation claims arising from expropriation rather than compensation claims arising from the illegal seizure of the applicants’ land since a committee of experts had assessed the value of the land and this amount had been paid by the authorities to those who were indicated as the owners of the land in ORG . The court ordered the administration to pay the applicants an amount of increased compensation , plus interest at the statutory rate , running from DATE , when the plots of lands were submerged in the waters of the dam .", "On DATE ORG quashed the judgments of the first - instance court and held that the cases could not be characterised as compensation claims arising from expropriation . The applicants requested rectification of the decisions of ORG .", "On DATE ORG rectified its decisions , holding that the cases could be characterised as compensation claims arising from expropriation . It quashed the judgments of the first - instance court only in respect of the date from which the statutory rate of interest began to run from .", "On DATE the first - instance court abided by the ruling of ORG . It accordingly ordered the administration to pay PERSON GPE , PERSON and PERSON MONEY ( TRL ) ( MONEY ( ORG ) ) , ORG ( QUANTITY ) and GPE CARDINAL ( approximately EUR CARDINAL ) respectively , plus interest at the statutory rate , running from DATE , the date on which the ownership of the property was transferred to ORG . ORG appealed .", "On DATE ORG upheld the judgments of ORG of First Instance .", "On DATE the decisions of ORG were served on the applicants .", "On DATE the administration paid the applicants the amounts due together with interest .", "NORP The relevant domestic law and practice are set out in the case of GPE v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE , § § CARDINAL ) ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant received a notice of intended prosecution requiring him to name the driver of his car on DATE . The applicant replied that either he or his wife had been driving but neither could actually remember which CARDINAL of them had been driving through the location of the speed trap on that date .", "On DATE ORG convicted the applicant of an offence under section CARDINAL of LAW DATE and Schedule CARDINAL to FAC DATE for failing to give information which might have led to the identification of the driver of his car . He was fined GBP CARDINAL and ordered to pay GBP CARDINAL costs , with his licence to be endorsed with CARDINAL penalty points .", "On DATE ORG rejected the applicant ’s appeal , amending the sentence such that he would have to pay GBP CARDINAL costs .", "The applicant appealed to ORG by way of case stated claiming a breach of his rights under LAW .", "In the case stated , the ORG trial judge , having set out the facts of the case , stated that the court had been of the opinion that the applicant was trying to evade responsibility for the disregard of the speed limit , that the right against self - incrimination did not apply and accordingly dismissed the appeal .", "On DATE ORG rejected the applicant ’s appeal , referring to established domestic case - law on the point in PERSON v. PERSON [ DATE ] CARDINAL WLR CARDINAL .", "The relevant domestic law and practice is set out in O’Halloran and PERSON the GPE [ ORG ] , ORG . ORG , § § DATE , ORG DATE ..." ]

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[ "ORG Mr PERSON and his wife PERSON were born in GPE in DATE and DATE respectively . They are graduate teachers of LANGUAGE and live on the island of PERSON .", "ORG On DATE the second applicant applied to ORG in GPE for authorisation to establish in PERSON a private school ( frontistirion ) for the teaching of LANGUAGE ( see paragraph QUANTITY below ) . On DATE the ORG refused the application on the ground that only NORP nationals could be granted such authorisation by the provincial secondary education authorities .", "ORG On DATE PERSON tried to deliver a second application in person at the offices of ORG , but the responsible civil servant refused to acknowledge receipt . After a complaint had been lodged by PERSON lawyer , the authority informed her on DATE that under the NORP legislation in force foreign nationals could not obtain authorisation to open a frontistirion .", "PERSON , considering that making nationality a condition for authorisation to establish a frontistirion contravened LAW DATE , applied to ORG , which referred the case to ORG of ORG . In a judgment of DATE ( no . CARDINAL , Commission of ORG v. GPE ) , ORG held that \" by prohibiting nationals of other member GPE from setting up frontistiria GPE [ had ] failed to fulfil its obligations under LAW and CARDINAL of LAW \" .", "ORG On DATE PERSON made a further application to ORG and on DATE PERSON ORG separately sent the authority a similar application . On DATE the authority refused both applications for the same reasons as it had given in its reply of CARDINAL DATE ( see paragraph CARDINAL above ) .", "ORG On DATE the Director of ORG for the NORP province informed the applicants that the question of granting non - NORP authorisation to open a frontistirion was being reviewed by the competent authorities .", "ORG In a letter of CARDINAL DATE the applicants requested the Prime Minister to take the necessary steps to ensure compliance with the judgment given by ORG on DATE ( see paragraph CARDINAL above ) .", "ORG On DATE each of the applicants had lodged with ORG an application to set aside the decisions of the NORP Director of ORG ( see paragraph CARDINAL above ) .", "By CARDINAL judgments of CARDINAL and CARDINAL DATE ( CARDINAL . DATE and DATE ) , ORG set the decisions aside in the following , identical terms :", "\" ...", "This application seeks annulment of the NORP Director of ORG decision ... of DATE rejecting the request of the applicant , a NORP national , for authorisation to set up a frontistirion for foreign - language teaching in PERSON .", "Section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL ... provides : ‘ Authorisation to set up a frontistirion shall be granted to natural persons possessing the qualifications required for employment as a teacher in a primary or secondary school in the public system , or having equivalent academic qualifications.’", "In addition , Article CARDINAL para . CARDINAL of LAW CARDINAL para . CARDINAL of which also applies to secondary and primary teachers - provides : ‘ No one shall be appointed to a civil service post who does not have NORP nationality.’ It appears from these provisions that it is against the law for a non - NORP to be given authorisation to set up a frontistirion for the teaching of foreign languages .", "LAW ORG ... proclaims freedom of establishment for the nationals of a member ORG within the territory of another member ORG , prohibiting all discrimination on the ground of nationality as regards the right to take up activities as self - employed persons and to set up and run businesses . That provision ... has been ‘ directly applicable’ in NORP law since DATE , when the LAW came into force , without it being necessary to amend NORP legislation beforehand to bring it into line with Community law .", "The above - mentioned bar preventing non - NORP from being granted authorisation to set up a frontistirion for the purpose of teaching foreign languages , in so far as it concerns the nationals of the other member GPE of ORG , is contrary to LAW ( judgment no . CARDINAL/CARDINAL of ORG of ORG , DATE , ORG v. GPE ) , since it has been without legal force , regard being had to the foregoing considerations , since DATE . Consequently , the impugned decision rejecting the applicant ’s request - based on the erroneous premiss that the bar complained of continues to apply to all non - NORP , without any distinction between the nationals of other member GPE of ORG and the nationals of non - member GPE - is unlawful and must therefore be set aside .", "The application under consideration must accordingly be allowed .", "For these reasons", "...", "ORG sets aside the Rhodes Director of ORG decision ... of DATE .", "... \"", "ORG On DATE CARDINAL associations of frontistirion owners and CARDINAL owners of such establishments in PERSON lodged a third - party appeal ( tritanakopi ) against judgments ORG . DATE and DATE with ORG . This appeal was dismissed by ORG on DATE .", "ORG On DATE the applicants lodged CARDINAL further applications for authorisation with ORG , enclosing the judgments of ORG and emphasising that no further delay in granting authorisation could be justified . However , they received no reply .", "On DATE the ORG lawyer again applied to the authority .", "ORG On DATE the applicants brought a private prosecution in ORG against the NORP Director of ORG and any other civil servant responsible , relying on LAW ( see paragraph CARDINAL below ) .", "On DATE the ORG gave judgment against the applicants , holding that even supposing the director had been acting unlawfully when he refused authorisation , the intent required by Article CARDINAL for the elements of the offence to be made out had not been established .", "ORG On DATE the applicants brought proceedings in ORG seeking compensation ( Articles CARDINAL and CARDINAL of ORG and sections ORG and CARDINAL of the Introductory Law ( Isagogikos Nomos ) to LAW ( see paragraph CARDINAL below ) ) for the prejudice they alleged had been caused them on account of the administrative authorities’ refusal to comply with the judgments of ORG ( see paragraph CARDINAL above ) . PERSON and PERSON GPE claimed CARDINAL and MONEY ( GRD ) respectively for pecuniary damage and loss of income , and CARDINAL for non - pecuniary damage .", "ORG On DATE ORG declared the application inadmissible ( judgment no . CARDINAL ) on the ground that the dispute submitted to it came within the jurisdiction of the administrative courts .", "ORG On DATE the applicants brought an action for damages against the ORG in ORG . They relied , inter alia , on LAW and section CARDINAL of the Introductory Law to LAW . In addition , they argued that the compensation should cover not only the pecuniary and non - pecuniary damage they had already sustained but also the damage they would continue to sustain until the administrative authorities granted them the authorisation they sought .", "On DATE , in judgment no . ORG , ORG accepted that the administrative authorities had unlawfully refused to process PERSON application for authorisation of CARDINAL DATE ( see paragraph CARDINAL above ) and that after publication of the judgments of ORG and ORG ( see paragraphs CARDINAL and CARDINAL above ) they had failed to comply with them . However , considering that the applicants had not sufficiently proved the damage they claimed to have sustained , it ordered further investigative measures .", "ORG On DATE the applicants asked the Minister of Education to intervene . They applied to him again on DATE and DATE and to the Minister responsible for managing ORG business on DATE .", "ORG On DATE the NORP Director of ORG informed the applicants that he had written to the Minister of Education to ask if he could grant the authorisation requested , in the light of ORG judgments of DATE ( see paragraph CARDINAL above ) . On DATE he informed them that he had again written to the Minister reminding him that DATE had already gone by since the above - mentioned judgments of ORG and that their application was still pending . He also referred to CARDINAL previous letters to the Minister which had gone unanswered .", "ORG A presidential decree ( no . CARDINAL/CARDINAL ) published on DATE recognised the right of nationals of member GPE of ORG to establish frontistiria in GPE ( see paragraph CARDINAL below ) . However , those who did not possess a NORP secondary school - leaving certificate had to pass an examination in NORP language and history .", "On DATE the Minister of ORG asked the NORP Director of ORG to resume consideration of the applicants’ request in the light of Presidential Decree no . CARDINAL/CARDINAL and to keep the Ministry informed of further developments .", "On DATE the Director sent the applicants a photocopy of the decree and urged them to take the necessary steps . On DATE he wrote to them again expressing his surprise that they had not yet taken the examination they needed to pass in order to obtain authorisation to open a frontistirion and to teach in one . He informed them that it was illegal for them to continue working in a frontistirion ( belonging to a NORP national ) under the relevant new legislation and asked them to regularise their situation if they wished to avoid application of the statutory penalties .", "ORG Article CARDINAL para . CARDINAL of LAW provides :", "\" The administrative authorities shall be under an obligation to comply with judgments of ORG setting aside their decisions . Breach of that obligation shall engage the responsibility of any authority in breach , according to the provisions of statute law . \"", "ORG Article CARDINAL of the Criminal Code provides :", "A civil servant who deliberately breaches an official duty with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the ORG or a third party shall be punished by up to CARDINAL years’ imprisonment , save where the offence is punishable pursuant to another provision of criminal law . \"", "ORG The relevant Articles of ORG read as follows :", "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 . \"", "In the cases provided for in the CARDINAL preceding ORG , the court may , in the judgment it gives on the application of the person whose right has been infringed , and regard being had to the nature of the infringement , also order the infringer to make reparation for the plaintiff ’s non - pecuniary damage . Such reparation shall consist in the payment of a sum of money , publication of the court ’s decision and any other measure", "ORG The following provisions of LAW ) to LAW ( Law no . CARDINAL/CARDINAL ) are relevant :", "\" The ORG shall be liable in accordance with the provisions of LAW concerning legal persons , for acts or omissions of its organs regarding private - law relations or ORG assets . \"", "\" 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 in breach of an existing provision but 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 . \"", "ORG Sections CARDINAL and CARDINAL of Presidential Decree no . CARDINAL/CARDINAL codifying the legislative provisions on ORG , of DATE CARDINAL/CARDINAL DATE , govern applications for judicial review of acts or omissions by the administrative authorities :", "An application for judicial review alleging ultra vires or unlawful action is available only in respect of enforceable decisions of the administrative authorities and public - law legal persons and against which no appeal lies to another court .", "...", "Where the law requires an authority to settle a specific question by issuing an enforceable decision subject to the provisions of paragraph CARDINAL , an application for judicial review is admissible even in respect of the said authority ’s failure to issue such decision .", "The authority shall be presumed to refuse the measure either when any specific time - limit prescribed by the law expires or after DATE have elapsed from the lodging of the application with the authority , which is required to issue an acknowledgment of receipt ... indicating the date of receipt . Applications for judicial review lodged before the above time - limits shall be inadmissible .", "An application for judicial review validly lodged against an implied refusal [ on the part of the authorities ] is deemed also to contest any negative decision that may subsequently be taken by the authorities . Such decision may however be challenged separately .", "... \"", "Except as otherwise provided , an application for judicial review must be made within DATE of DATE following the date of notification of the impugned decision or the date of publication ... , or , otherwise , of DATE following DATE on which the applicant acquired knowledge of the decision . In the cases provided for in DATE , DATE and DATE of section DATE , time begins to run when the time - limits prescribed in those provisions have expired .", "... \"", "The decision allowing an application for judicial review shall declare the impugned measure void , which entails its general nullity , whether it is a general or individual measure .", "...", "In the case of failure to take action , where ORG allows the application , it shall refer the case back to the relevant authority so that it can take the action incumbent on it .", "In discharging the obligation imposed on them by LAW para . CARDINAL of the LAW , the administrative authorities must comply with the judgments of ORG in the light of the circumstances of each case , either by taking positive measures to that end or by refraining from any action contrary to ORG decision . Failure to do so may entail , in addition to the criminal penalties laid down by LAW , personal liability in damages .", "Judgments of the plenary court or the divisions allowing or refusing applications to set aside shall constitute binding authority in respect of the parties to a particular case and also in respect of each case or dispute pending before the judicial or other authorities where the administrative issue determined by ORG is decisive for the outcome . \"", "ORG The presidential decree of CARDINAL DATE on \" bringing NORP legislation concerning the setting up and running of frontistiria ... into conformity with Articles DATE , CARDINAL and CARDINAL of the LAW instituting ORG \" provides :", "\" The purpose of the present decree is to bring NORP legislation concerning the setting - up and running of frontistiria ... into conformity with Articles DATE , CARDINAL and CARDINAL of the LAW instituting ORG , by abolishing all forms of discrimination on the ground of nationality . \"", "\" In addition to what is provided in section DATE ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL on private schools , frontistiria and boarding - schools , authorisation to set up a frontistirion shall also be granted to nationals of the member GPE of ORG , providing that they have the qualifications required by law for such authorisation to be granted to a NORP national . ORG nationals shall be required to produce similar documentary evidence and the certificate prescribed by section CARDINAL ( CARDINAL ) of PERSON no . DATE , which shall be applicable by analogy . \"", "\" If the applicants ... do not have a NORP secondary school - leaving certificate , they shall be required to produce a certificate attesting that they understand NORP and speak it fluently and have a knowledge of NORP history . In order to obtain such a certificate , applicants must take an examination under regulations laid down by the Minister for ORG and ORG . \"", "ORG LAW no . CARDINAL/CARDINAL defines a frontistirion as \" the organisation in CARDINAL place of courses for groups of CARDINAL persons , or , regardless of the composition of the groups , for CARDINAL persons in total per week , which have as their purpose , either to supplement and consolidate instruction forming part of the curriculum for primary , secondary and higher education ( the latter whether or not preparatory to university entrance ) , or to teach foreign languages or music or to provide general training in extra - curricular activities , for not TIME a day per group consisting of the same persons \" .", "Section CARDINAL of the same PERSON provides that the setting up of a frontistirion is subject to authorisation which may be granted only to natural persons who hold the qualifications required for employment in the civil service as a teacher in the public - education system . Those qualifications include , according to LAW , the possession of NORP nationality .", "According to Law no . CARDINAL/CARDINAL , frontistiria for foreign languages may be administered only by persons holding the statutory qualifications ; for a definition of those qualifications , reference is made to Law no . CARDINAL/CARDINAL , which requires , in particular , the possession of NORP nationality .", "NORP nationality is also required in the case of all persons teaching in a frontistirion of whatever kind . The only exception to that rule was laid down by Decree no . CARDINAL/CARDINAL of the Minister for Education and ORG . That decree , which , however , applies only to frontistiria engaged in the teaching of foreign languages , provides :", "\" Each frontistirion may employ CARDINAL foreign national if it does not employ CARDINAL foreign - language teachers of NORP nationality . If it employs CARDINAL NORP nationals , it shall be authorised to employ more foreign nationals in the proportion of CARDINAL foreign national to CARDINAL NORP nationals . \"" ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE , a city in LOC .", "As a victim of GPE , the applicant was entitled to social benefits . The benefits were underpaid , and the applicant sued the local welfare authority .", "ORG held for the applicant CARDINAL times .", "On DATE the court awarded arrears and fixed a new amount of periodic benefits . This judgment became binding on CARDINAL DATE and was enforced in DATE .", "On DATE the court awarded arrears and fixed a new amount of periodic benefits . This judgment became binding on DATE and was enforced on DATE .", "On DATE the court awarded arrears and fixed a new amount of periodic benefits . This judgment became binding on DATE and was enforced on DATE .", "On DATE the court awarded arrears and fixed a new amount of periodic benefits . This judgment became binding on DATE and was enforced in DATE .", "On DATE the court awarded arrears and fixed a new amount of periodic benefits . This judgment became binding on DATE and was enforced in DATE .", "On DATE the court awarded inationary loss caused by the non - enforcement of the previous CARDINAL judgments , awarded arrears , and fixed a new amount of periodic benefits . This judgment became binding on DATE and was enforced on DATE .", "On DATE the court awarded arrears and fixed a new amount of periodic benefits . This judgment became binding on DATE and has been enforced in part .", "On DATE the court awarded arrears and fixed a new amount of periodic benefits . This judgment became binding on DATE and has been enforced in part .", "Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE ." ]

[ "6", "P1" ]

[ "P1-1" ]

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[ "On DATE the applicant was involved in a road traffic accident and , on DATE , he was found by ORG Bezirkshauptmannschaft ) to have been driving under the influence of alcohol , contrary to sections CARDINAL § DATE CARDINAL § CARDINAL ( a ) of LAW DATE ( Straßenverkehrsordnung ) . He was sentenced to pay a fine of ORG CARDINAL,CARDINAL.CARDINAL . It does not appear that the applicant appealed against this decision .", "On DATE the ORG convicted him under Article CARDINAL § § CARDINAL and CARDINAL of LAW of negligently causing bodily harm in particularly dangerous conditions ( fahrlässige PERSON besonders gefährlichen ORG ) , and sentenced him to a fine of ORG CARDINAL .", "On DATE ORG dismissed the applicant ’s appeal . ORG distinguished the present case from the PERSON case of ORG ( PERSON v. GPE judgment of DATE , Series A no . CARDINAL-C ) on the ground that in the PERSON case the administrative proceedings were after the criminal proceedings , whereas in the present case the order of the criminal and administrative criminal proceedings was reversed .", "Section CARDINAL of LAW DATE provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or QUANTITY respectively .", "Section CARDINAL of the CARDINAL LAW provides , so far as relevant , that :", "“ ( CARDINAL ) It shall be an administrative offence ( PERSON ) , punishable with a fine of not less than ORG CARDINAL,CARDINAL and not more than ATS CARDINAL,CARDINAL or , in default of payment , with CARDINAL to CARDINAL GPE imprisonment , for any person :", "( a ) to drive a vehicle when under the influence of drink ... ”", "Section CARDINAL § CARDINAL of LAW regulates the relation between the offences under LAW DATE of that Act and offences of ordinary criminal law coming within the jurisdiction of the ordinary courts . While in respect of some offences under LAW of that LAW stipulates a relation of subsidiarity – if the same set of facts might constitute an offence of ordinary criminal law and LAW only an offence falling within the jurisdiction of the ordinary courts is committed – this is not the case with the offence under LAW of driving a vehicle under the influence of drink .", "In its judgment of CARDINAL DATE ORG had to examine the constitutionality of LAW subsection ( CARDINAL ) of LAW , by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts .", "ORG noted that that it was not contrary to LAW if a single act constituted more than one offence . This was a feature common to the criminal law of many NORP countries . However , it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute CARDINAL offence , whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment . Thus , LAW prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other . Where , as in the present case , the law explicitly provided that one offence was not subsidiary to another , it had to be guided by LAW . The ORG ’s Gradinger judgment of CARDINAL DATE had shown that there was a breach of this LAW if an essential aspect of an offence , which had already been tried by the courts , was tried again by the administrative authorities .", "Section CARDINAL subsections ( CARDINAL)(a ) and ( CARDINAL ) of LAW , taken together , meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent . According to the criminal courts’ constant case - law under LAW of LAW ( cited below ) , drunken driving was also an essential aspect of certain offences tried by these courts . In so far as LAW ( CARDINAL ) of FAC limited the subsidiarity of administrative offences to those enumerated in subsections ( CARDINAL ) to ( CARDINAL ) of LAW , thus excluding subsidiarity for the offence of drunken driving contained in LAW ) , it violated LAW .", "", "Under LAW , it is an offence , punishable by CARDINAL months’ imprisonment or a fine , to cause physical injury by negligence .", "Section CARDINAL § CARDINAL increases the sentence in respect of causing injury by CARDINAL months’ imprisonment , if the special circumstances of LAW § CARDINAL apply . LAW increases the sentence in respect of causing injury by up to CARDINAL years’ imprisonment , if the special circumstances of LAW § CARDINAL apply and the injury is particularly serious .", "Section CARDINAL § CARDINAL applies where a person commits the offence", "“ after allowing himself , even if only negligently , to become intoxicated ... through the consumption of alcohol , ... ” .", "Under an irrebuttable presumption applied by the criminal courts , a driver with a blood alcohol level of QUANTITY or higher is deemed to be “ intoxicated ” for the purposes of section QUANTITY ." ]

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[ "The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and lived in GPE , GPE . On DATE PERSON died . The applicants were represented by their son , Mr PERSON .", "ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the ORG bought from the applicants several plots of land in GPE . The land was later partly developed and , inter alia , a bakery was built on it .", "On DATE the first applicant applied for the return of the remainder of their property , which had not been built on according to the relevant development plans .", "On DATE the Head of ORG ( FAC ) decided to return the property in question to the applicants . The applicants and other parties to the proceedings appealed against the decision .", "On DATE the Białystok Governor ( ORG ) quashed the impugned decision and remitted the case .", "DATE and DATE the case was stayed .", "On DATE the Head of ORG dismissed the applicants’ application and refused to return the property to them . They appealed against the decision .", "On DATE the Białystok Governor dismissed the appeal and discontinued the proceedings . The applicants lodged a complaint against the decision with ORG ( PERSON ) .", "On DATE ORG quashed the impugned decision and remitted the case .", "On DATE the Białystok Governor quashed ORG decision of CARDINAL DATE and remitted the case .", "On DATE the Head of ORG stayed the proceedings on the grounds that the outcome of CARDINAL other sets of administrative proceedings was important for the instant case . The applicants’ appeal was dismissed on DATE .", "On DATE the applicants complained to ORG about the non - compliance by ORG with the judgment of DATE and asked the court to impose a fine . ORG in its decision of DATE rejected the complaint finding that domestic law did not allow for the imposition of a fine in such circumstances .", "On DATE the Head of ORG resumed the proceedings .", "On DATE the applicants complained to the higher authority , ORG ( PERSON i PERSON ) , about the inactivity of ORG . The applicants claimed that they had received no further information about their complaint . The Government submitted that on DATE ORG had given a decision urging the Governor to issue a decision in the applicants’ case .", "On DATE the Białystok Governor gave a decision in which he refused to return the property to the applicants .", "The ORG appeal against this decision was dismissed by the Head of ORG on DATE . The applicants lodged a complaint against it with ORG .", "On DATE ORG quashed both decisions and remitted the case to the Bialystok Governor . Following an amendment to the law , the case was transferred to the Mayor of ORG ) .", "On DATE the Mayor of Siemiatycze dismissed the application and refused to return the property to the applicants .", "The ORG appeal was dismissed by the PERSON Governor on DATE . The applicants lodged a complaint with ORG against that decision .", "On DATE ORG quashed both preceding decisions and remitted the case to the Mayor of the District .", "On DATE ORG dismissed the applicants’ request for a fine to be imposed on the Mayor of Siemiatyczne . In their request , the applicants complained about the inactivity of the Mayor and his non - compliance with the judgment of ORG of DATE . However , at the hearing held on DATE the ORG representative specified that the complaint concerned the Mayor ’s alleged non - compliance with the court ’s judgment . Consequently , ORG found that the application was manifestly ill - founded as the impugned judgment had not imposed any obligation on the Mayor .", "On DATE the applicants lodged a complaint about the inactivity of the Mayor of Siemiatycze with ORG . On DATE the court rejected the complaint as it had not been lodged first with the higher authority , as provided by the domestic law .", "On DATE the Mayor of ORG decided to return the disputed property to the applicants .", "On DATE the second applicant , PERSON , died . It appears that the applicants’ son , Mr PERSON , joined the proceedings as her heir .", "The other parties to the proceedings appealed against the decision of CARDINAL DATE .", "On DATE the Podlaski Governor allowed the appeals and quashed the decision . The appeal against this decision was dismissed by ORG PERSON ) on DATE .", "The case was transferred to the Mayor of ORG who , on CARDINAL DATE , stayed the proceedings in view of the fact that ORG was examining the constitutionality of the relevant domestic regulation .", "The other party to the proceedings appealed against the decision asking for the proceedings to be resumed .", "On DATE the ORG Governor quashed the impugned decision , finding that there were no valid grounds for staying the proceedings .", "The applicants’ son appealed against this decision to ORG and asked for the proceedings to be stayed until ORG had reached a decision .", "On DATE ORG dismissed his complaint .", "On DATE the Mayor of ORG dismissed the applicants’ motion for the return of the property .", "It appears that the first applicant and Mr PERSON appealed against this decision to the PERSON Governor . The proceedings are pending .", "Under LAW ( “ the LAW ” ) of DATE an administrative authority should give a decision on the merits of a case within DATE . If those time - limits have not been complied with , the authority must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new timelimit .", "Pursuant to LAW , if the case has not been handled within the time - limits referred to in ORG and DATE , a party to administrative proceedings can lodge an appeal to the higher authority , alleging inactivity . In cases where the allegations of inactivity are well - founded , the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay . If need be , the authority may order that measures be applied to prevent future such delays .", "Until DATE , under LAW , a party to administrative proceedings could , at any time , lodge with ORG a complaint about the fact that an administrative authority had failed to issue a decision .", "On DATE , the Law of CARDINAL DATE on ORG ( “ the DATE LAW ) entered into force . Under section CARDINAL of the DATE ORG was competent to examine complaints against inactivity on the part of an authority .", "Section CARDINAL of the Act provided :", "“ When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law . ”", "Section CARDINAL of the CARDINAL Act set out the requirement of the exhaustion of available remedies before lodging a complaint with ORG . Accordingly , a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level , pursuant to the abovementioned LAW .", "Pursuant to LAW , the decision of ORG ordering an authority to put an end to its inactivity was legally binding on the authority concerned . If the authority did not comply with the decision , the court could , under section CARDINAL , impose a fine on it and might itself give a ruling on the right or obligation in question .", "LAW was repealed and replaced by LAW DATE on ORG ( “ the DATE Act ” ) which entered into force on DATE . LAW of LAW contains provisions analogous to section CARDINAL of LAW . It provides that administrative courts examine complaints about inactivity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings . Under section CARDINAL , if a complaint is well - founded , an administrative court shall oblige the authority concerned to issue a decision , to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in GPE in DATE and is currently serving a life sentence at ORG , GPE . He was represented before ORG by PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was convicted on CARDINAL DATE of murdering a man in a night club in GPE DATE . He was also convicted of robbery and possession of a firearm with intent . The trial judge sentenced him to life imprisonment for the murder , with a recommended minimum term of DATE . For the CARDINAL other offences he was sentenced to terms of imprisonment of DATE and DATE respectively , to run concurrently . The Lord Chief Justice subsequently recommended a minimum term ( “ tariff ” ) of DATE . In DATE , the Secretary of ORG notified a tariff of DATE to the applicant .", "Subsequent to the enactment of LAW DATE , the applicant applied to ORG in DATE for the setting of a tariff in accordance with paragraph CARDINAL of Schedule CARDINAL of the Act ( see under “ Relevant domestic law ” below ) . On DATE , his solicitors submitted representations for a reduction of DATE in the applicant ’s tariff . On DATE , ORG ( ORG ) was requested to seek the views of the victim ’s family on the applicant ’s request for a review of his tariff . The ORG being unable to assist , it was decided in DATE to enlist the help of Victim ORG in ORG to contact the families of victims . On DATE , the Victim Liaison Officer for the West Midlands indicated that the victim ’s family had not responded to the request for their views on the matter .", "During DATE , the case of PERSON ) v. Home Secretary was under consideration by ORG , which was asked to rule on whether the relevant provisions of Schedule CARDINAL were to be construed as allowing for an oral hearing . In its decision of DATE , ORG ruled that an oral hearing was permissible in appropriate circumstances . This ruling was subsequently confirmed by ORG . According to the Government , it was not considered appropriate to process any applications for review under Schedule CARDINAL until the question of oral hearings had been dealt with . Once ORG had determined the issue , all prisoners in ORG database received a letter inviting their views on the need for an oral hearing in their case . Such a letter was sent to the applicant on DATE , eliciting a reply on DATE .", "The procedure therefore only began to operate in DATE , at which point , according to the Government , there were CARDINAL cases pending . This number included applications from prisoners whose tariff had been set by the ORG Secretary , and from prisoners in respect of whom no tariff had yet been set .", "In DATE , ORG , in answer to a letter from the applicant ’s solicitor enquiring about the delay in dealing with his case , apologised for the situation and explained that in view of the great number of such applications pending before ORG , priority was being given to cases in which the tariff would expire in DATE .", "On DATE , ORG ( Mr Justice PERSON ) rejected the applicant ’s application . He concluded that the minimum period of DATE notified by the Secretary of ORG could not be said to be manifestly excessive and so would not be reduced , apart from the period the applicant had spent in custody on remand ( DATE ) .", "Following the ORG ’s judgment in the case of GPE v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV , ORG adopted LAW DATE . Schedule CARDINAL of the Act sets out a procedure whereby a prisoner who received a mandatory life sentence before the date the LAW entered into force ( DATE ) and who was notified by the Secretary of ORG of the minimum term to be served may apply to ORG for a review of that tariff . The relevant provisions read as follows :", "SCHEDULE CARDINAL", "Mandatory Life Sentences : Transitional Cases", "Existing prisoners notified by Secretary of ORG", "CARDINAL Paragraph CARDINAL applies in relation to any existing prisoner who , in respect of any mandatory life sentence , has before the commencement date been notified in writing by the Secretary of ORG ( otherwise than in a notice that is expressed to be provisional ) either—", "( a ) of a minimum period which in the view of the Secretary of ORG should be served before the prisoner ’s release on licence , or", "( b ) that the Secretary of ORG does not intend that the prisoner should ever be released on licence .", "CARDINAL ( CARDINAL ) On the application of the existing prisoner , ORG must , in relation to the mandatory life sentence , either—", "( a ) order that the early release provisions are to apply to him as soon as he has served the part of the sentence which is specified in the order , which in a case falling within paragraph CARDINAL(a ) must not be greater than the notified minimum term , or", "( b ) in a case falling within paragraph CARDINAL(b ) , order that the early release provisions are not to apply to the offender .", "( CARDINAL ) In a case falling within paragraph CARDINAL(a ) , no application may be made under this paragraph after the end of the notified minimum term .", "( CARDINAL ) Where no application under this paragraph is made in a case falling within paragraph FAC ) , the early release provisions apply to the prisoner in respect of the sentence as soon as he has served the notified minimum term ( or , if he has served that term before the commencement date but has not been released , from the commencement date ) .", "( CARDINAL ) In this paragraph “ the notified minimum term ” means the minimum period notified as mentioned in paragraph CARDINAL(a ) , or where the prisoner has been so notified on CARDINAL occasion , the period most recently so notified .", "CARDINAL ( CARDINAL ) In dealing with an application under paragraph CARDINAL , ORG must have regard to—", "( a ) the seriousness of the offence , or of the combination of the offence and one or more offences associated with it ,", "( b ) where the court is satisfied that , if the prisoner had been sentenced to a term of imprisonment , the length of his sentence would have been treated by CARDINAL of LAW DATE ( c. CARDINAL ) as being reduced by a particular period , the effect which that section would have had if he had been sentenced to a term of imprisonment , and", "( c ) the length of the notified minimum term or , where a notification falling within paragraph CARDINAL(b ) has been given to the prisoner , to the fact that such a notification has been given .", "( CARDINAL ) In considering under sub - paragraph ( CARDINAL ) the seriousness of the offence , or of the combination of the offence and CARDINAL or more offences associated with it , ORG must have regard to—", "( a ) the general principles set out in Schedule DATE , and", "( b ) any recommendation made to the Secretary of ORG by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence .", "( CARDINAL ) In this paragraph “ the notified minimum term ” has the same meaning as in paragraph CARDINAL .", "...", "Proceedings in High Court", "CARDINAL ( CARDINAL ) An application under paragraph CARDINAL or a reference under paragraph CARDINAL is to be determined by a single judge of ORG without an oral hearing .", "( CARDINAL ) In relation to such an application or reference , any reference to “ the court ” in section FAC ) to ( CARDINAL ) and Schedule CARDINAL is to be read as a reference to ORG .", "..." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is a practising lawyer . In DATE the applicant was informed by ORG that it planned to appoint him as legal guardian ( PERSON ) for K , who was suffering from a mental illness , and asked him to comment on the proposal . According to the document supplied by the court , there were no known relatives of K who could become guardians , and the association of guardians ( PERSON für Sachwalterschaft ) had informed the court that it lacked the capacity to take over guardianship .", "The applicant submitted comments , stating that his wife objected to the proposal , since K might call the applicant at DATE and disturb their family life . His professional and spare - time activities would also not allow him to take on another duty . He added that he was not trained to deal with persons with a mental illness such as K and was not interested in acquiring the necessary training either . Furthermore , he argued that his professional insurance would not cover the risks associated with being a legal guardian ; therefore , he would have to enter into a separate insurance agreement . The costs would have to be borne by K , who DATE according to the court file which the applicant had received – did not appear to have the money to cover them .", "By a decision of ORG of DATE the applicant was appointed as legal guardian for K in matters of management of income and representation before the courts and other authorities . The court found that no other person , such as a relative , was suitable to be ORG legal guardian . The association of guardians did not have the capacity to appoint a legal guardian for PERSON The applicant was the next person on the list of possible legal guardians . This list , which is kept by ORG , contains the names of all lawyers and public notaries in the district . The court also found that the reasons submitted by the applicant were not sufficient to justify his refusal ; it held that neither having CARDINAL children , nor leading a church choir , nor being member of a supervisory board constituted a valid reason as to why he should be declared unsuitable for the task . The court also held that the duty for lawyers to act as legal guardians did not constitute forced labour , as helping weaker members of society was a civic duty and for practising lawyers , rendering help in legal matters was part of their core professional duties and was comparable to a normal civic obligation within the meaning of LAW .", "The applicant appealed against the decision to ORG , arguing that if the duty were to constitute a normal civic obligation , it was discriminatory to put only lawyers and public notaries on the list , as other persons also had knowledge of law , such as judges , public servants who had studied law or lawyers working in companies . He also alleged that the tasks he had been ordered to perform did not require special legal knowledge as any adult person could manage their income ; he further claimed that no court proceedings in which K was a party were pending , and thus it was not necessary to appoint a practising lawyer as his guardian .", "On DATE ORG upheld the decision of ORG , holding that there was CARDINAL trial involving K pending , and that any other tasks the applicant would have to perform in the present case were limited and did not place an excessive burden on him .", "The applicant lodged an extraordinary appeal on points of law to ORG , alleging a violation of LAW in conjunction with LAW , as only lawyers and their associates ( Rechtsanwaltsanwärter ) and public notaries and their associates ( PERSON ) , but no other persons who had studied law , were placed on the list of possible guardians . He also complained that lawyers were in principle entitled to remuneration for their services , but this applied only in so far as this would not endanger the fulfilment of the basic needs of the person placed under guardianship . By a decision of DATE ORG refused to deal with the matter , finding that it did not raise an important question of law .", "The rules on guardianship are contained in LAW ORG ) , the relevant part of which was recently amended , and ORG ) .", "The law in force at the relevant time provided that adult persons of unsound mind who could not handle all or some of their own affairs without the risk of disadvantages for them should be placed under guardianship ( section CARDINAL of LAW ) .", "There were varying degrees of guardianship , ranging from a duty to carry out CARDINAL specific transaction or enforce or contest a specific claim , to the carrying out of certain types of duties , such as management of a person ’s entire assets or parts thereof , or taking care of all the affairs of the person concerned ( section CARDINAL of LAW ) .", "Placement under guardianship was not permissible if and in so far as the person concerned could take care of his or her affairs to a sufficient degree with assistance , especially from the family or from institutions for people with disabilities ( section CARDINAL § CARDINAL of LAW ) .", "Section CARDINAL of the Civil Code provided that guardians should be persons close to the persons placed under guardianship , unless the wellbeing of the person concerned required otherwise ( § CARDINAL ) ; if this was beneficial to the well - being of a person under guardianship , a person from a GPE association should be nominated as a guardian , where possible ( § CARDINAL ) . If taking care of the affairs of the person concerned required considerable knowledge of law , a practising lawyer ( or lawyer ’s associate ) or public notary ( or notary ’s associate ) was to be appointed as guardian ( § CARDINAL ) .", "Section CARDINAL § CARDINAL of the Civil Code provided that the guardian should be in contact with the person under guardianship and should try to ensure that medical and social assistance was given to the person concerned .", "A person whom the court planned to appoint as a guardian had to notify the court of any circumstances that might prevent him or her from carrying out the task . A particularly suitable person DATE according to the caselaw , a person belonging to the groups mentioned in section CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL above ) – could refuse to carry out the task only if it was unacceptable to him or her ( section QUANTITY of LAW ) .", "The guardian was entitled to remuneration , fees and reimbursement of expenses . If the guardian used his special professional knowledge and skills for tasks for which the services of another person would otherwise have to be engaged , the guardian was entitled to adequate remuneration for these tasks . Remuneration could only be granted in so far as the basic needs of the person under guardianship could still be satisfied from the person ’s income ( sections CARDINAL and CARDINAL of LAW ) .", "Section CARDINAL of the Non - Contentious Proceedings Act ( Außerstreitgesetz ) provided that a guardian had to report to the court about contacts with the person concerned , the life the person led and the person ’s physical and mental state . The reports had to be drawn up at reasonable intervals , at least once DATE . The court could also require the guardian to draw up a report . Further duties listed in the Non - Contentious Proceedings Act concerned the keeping of accounts for the assets and income of the person under guardianship ; the statements of account were subject to the court ’s approval .", "Rule CARDINAL § CARDINAL of the Rules of Procedure of Courts of First and Second Instance ( Geschäftsordnung für die Gerichte PERSON . PERSON ) provides that each court has to have a list of lawyers and public notaries acting in the appropriate district ; courts have to ensure that there is a reasonable alternation in the persons appointed as guardians .", "LAW ( Rechtsanwaltsordnung ) contains the following provisions on the rights and duties of practising lawyers in GPE :", "“ ( CARDINAL ) The right of a lawyer to represent parties shall extend to all courts and authorities of GPE and shall include the authority to represent parties in a professional capacity in all judicial and extrajudicial and in all public and private matters . ...", "( CARDINAL ) The authority to provide comprehensive professional representation to parties within the meaning of subsection ( CARDINAL ) above shall be reserved for lawyers . This is without prejudice to the professional powers deriving from the NORP regulations governing the professions of notaries , patent agents , chartered accountants and civil engineers . ”", "“ ( CARDINAL ) Before being admitted to practise , all lawyers shall be required to furnish proof to ORG of ORG that they have taken out civilliability insurance with an insurance company authorised to carry on business in GPE to cover any claims for damages that may be brought against them as a result of their professional activities . They shall maintain the insurance cover throughout the duration of their professional activities and shall furnish proof thereof to ORG on request . ”" ]

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[ "The applicant , Mr PERSON , is a GPE national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer practising in PERSON .", "On DATE the ORG ( arrondissementsrechtbank ) found the applicant guilty of having committed CARDINAL bank robberies and of having stolen CARDINAL cars . It convicted him of extortion and theft by means of breaking and entering , and sentenced him to CARDINAL years’ imprisonment . It further ordered his confinement in a custodial clinic ( terbeschikkingstelling met bevel tot verpleging van overheidswege ) . In its decision to issue this order , ORG had regard to CARDINAL reports drawn up by a neuropsychologist and a psychiatrist , according to whom the risk of the applicant reoffending was high .", "In view of the applicant ’s extortion conviction , and pursuant to section CARDINAL in conjunction with section CARDINAL , subsection CARDINAL , of the DNA Testing ( Convicted Persons ) Act ( Wet DNA - onderzoek bij veroordeelden ; “ the LAW ” ) , the public prosecutor , on DATE , ordered that cellular material be taken from the applicant – who was at that time detained in a penitentiary institution in GPE – in order for his DNA profile to be determined . A mouth swab was taken from the applicant on DATE .", "The applicant lodged an objection ( verweerschrift ) against the decision to have his DNA profile determined and processed , that is , entered into the national DNA database . He submitted that his DNA profile had never played any role in the investigation of the offences of which he had been convicted . Although it was true that he had threatened to use violence , he had never actually done so . He was therefore of the opinion that his DNA profile could not serve any useful purpose in the prevention , detection , prosecution and trial of criminal offences he might have committed . According to the applicant , the determination and storage of his DNA profile amounted to the imposition of an additional penalty after he had already been convicted , and moreover on the basis of a law which was not in force at the time of his conviction . He alleged a breach of LAW . He further relied on the right to respect for his private life as guaranteed by LAW , arguing that , even having regard to the interests of public order and of the prevention of crime , there was no strict necessity in his case for the authorities to have his DNA profile at their disposal . Finally , there was no single good reason why the applicant had to be distinguished from other persons in the GPE who were not required to have their DNA profile entered into the national database . To this extent there was thus discrimination as prohibited by LAW .", "Having heard the public prosecutor and counsel for the applicant , ORG dismissed the objection on DATE . It considered that the exception contained in section CARDINAL(CARDINAL)(b ) of the LAW ( see below ) did not apply : the applicant had a lengthy criminal record and CARDINAL confinement orders imposed on him were still in place . It did not follow from the fact that no DNA profile of the applicant had been drawn up in previous investigations that his DNA could not serve any investigatory interests at the present time . Moreover , it could not be maintained that the risk of the applicant reoffending was so negligible that on that basis the compilation and processing of a DNA profile could not possibly serve any useful purpose .", "ORG , noting that at the hearing counsel for the applicant had conceded that the obligation to provide cellular material did not constitute a punishment , considered that the applicant could not successfully rely on the principle of nulla poena sine lege . It further held in this connection that the impugned measure did not place the applicant in a more disadvantageous position than that to which he had exposed himself when he committed a criminal offence , since the seriousness of the intervention ( the manner in which cellular material was taken ) was not sufficiently burdensome . Although the entry of a DNA profile in a DNA database might lead to a more speedy prosecution of the applicant in respect of criminal offences ( to be ) committed by him , this did not justify protecting him against a retroactive application of the Act .", "ORG was further of the opinion that the impugned order was not in breach of LAW . The order had been given in accordance with the law and , bearing in mind that the aim of the LAW was to be able to solve more crimes and to prevent recidivism as much as possible , it was necessary in the interests of public safety , the prevention of criminal offences and the protection of the rights and freedoms of others .", "Finally , ORG found that there was no question of a violation of the principle of equality , since the LAW provided that a DNA profile would be compiled of every convicted person who satisfied the criteria laid down in the LAW . The applicant was no worse off than a person whose DNA profile was not included in the database , given that the fact that perpetrators of criminal offences could be traced sooner if their DNA profile was contained in the database did not constitute an interest worthy of legal protection , and since neither category were allowed to commit criminal offences .", "No appeal lay against this decision .", "The statutory maximum prison sentence is DATE for the offence of extortion , and DATE for theft by means of breaking and entering ( Articles CARDINAL and CARDINAL of LAW ) .", "The Criminal Code provides for the following principal penalties ( hoofdstraffen ) : imprisonment , detention , and fine ; and for the following additional penalties ( bijkomende straffen ) : deprivation of certain rights , forfeiture , and publication of the court judgment . Furthermore , the following measures ( maatregelen ) may be imposed pursuant to LAW : withdrawal from circulation of seized goods , confiscation of illegally obtained advantage , order to pay compensation , committal to a psychiatric hospital , a ORG order ( terbeschikkingstelling ; see Brand v. the GPE , no . CARDINAL , § § DATE , CARDINAL DATE ) , and placement in an institution for persistent offenders .", "The DNA Testing ( Convicted Persons ) Act came into force on DATE .", "Section CARDINAL(CARDINAL ) of the LAW requires the public prosecutor at ORG that has given judgment at first instance to order a sample of cellular material to be taken from a person who has been convicted of an offence carrying a statutory maximum prison sentence of DATE . Section CARDINAL(CARDINAL ) stipulates that the Act applies to persons on whom a custodial sentence or measure had been imposed at the time when the LAW came into force , unless the validity of this sentence or measure had already expired at that time .", "According to the explanatory memorandum to LAW ( Memorie van Toelichting ; ORG of ORG , no . CARDINAL , DATE session , no . CARDINAL ) , the seriousness of the offence(s ) involved justified determining and processing a DNA profile of the convicted person in order to contribute to the detection , prosecution and trial of criminal offences committed by him or her and , if possible , to prevent him or her from committing criminal offences again .", "Section CARDINAL ) sets out an exception : no order for sample collection will be made if , in view of the nature of the offence or the special circumstances under which it was committed , it may reasonably be assumed that the determination and processing of the DNA profile will not be of significance for the prevention , detection , prosecution and trial of criminal offences committed by the person in question . It appears from the explanatory memorandum to this provision that the first exception of subsection ( CARDINAL ) , relating to the nature of the offence , may apply when a person has been convicted of a crime for the resolution of which DNA investigations can play no meaningful role ; perjury or forgery , for instance . The second exception , relating to the special circumstances under which the offence was committed , may apply to a convicted person who is highly unlikely to have previously committed an offence in respect of which DNA investigation might be of use and who will not be able to do so in future , for example due to serious physical injury . It may also apply to the case of a woman who has never had any dealings with the law and who , after having been ill - treated by her husband for DATE , finally inflicts grievous bodily harm on him or kills him .", "Section CARDINAL(CARDINAL ) of the Act stipulates that DNA profiles are only to be processed for the purpose of the prevention , detection , prosecution and trial of criminal offences . It further states that rules as to the processing of DNA profiles and cellular material are to be laid down by ORG ( algemene maatregel van bestuur ) , after ORG ( College Bescherming Persoonsgegevens ) has been heard . The rules in question are set out in the DNA ( Criminal Cases ) Tests Decree ( Besluit DNA - onderzoek in strafzaken ) . It regulates how and by whom samples are to be taken ; how they are to be kept , sealed and identified ; how and by whom the DNA profile is to be drawn up ; and which authorities are allowed to make use of the data stored in the DNA database . The Decree further lays down rules on the duration of the retention of a DNA profile and cellular material . This depends on the offence of which the individual concerned has been convicted . The data of persons convicted of an offence carrying a statutory sentence of DATE or more is retained for DATE . For less serious offences carrying sentences of DATE , cellular material and DNA profiles may be retained for a maximum period of DATE .", "If execution of the order for the taking of cellular material so requires , the public prosecutor may issue a warrant for the arrest of the individual concerned ( section CARDINAL(CARDINAL ) ) . Clothing worn , and objects carried , by the arrested person may be examined if this is necessary for the establishment of his or her identity . For the same purpose , the prosecutor may also order the detention of the arrested person for CARDINAL periods of TIME each ( outside TIME and TIME ) . Once the identity of the arrested convicted person has been established , he or she may be detained for a maximum of TIME in order for the cellular material to be taken ( section MONEY ) , ( CARDINAL ) and ( CARDINAL ) ) .", "The individual concerned may lodge an objection against the determination and processing of his or her DNA profile with ORG within DATE after the sample has been taken or after he or she has been served with the notification , required by section PERSON ) of the LAW , that sufficient cellular material has been collected for a DNA profile to be determined and processed ( section CARDINAL(CARDINAL ) ) ." ]

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[ "The applicant , PERSON ORG , is a NORP national , who was born in DATE and lives in GPE . She is represented before the Court by Mr PERSON , a lawyer practising in PERSON .", "In DATE ORG súd ) pronounced the dissolution of the applicant 's marriage .", "On DATE the applicant petitioned to ORG for a division of the matrimonial property .", "On DATE , in reply to the applicant 's complaint , the President of ORG acknowledged that there had been unjustified delays in the proceedings .", "On DATE ORG sought evaluation by CARDINAL sworn experts of the movable and immovable property in dispute . The reports were submitted on CARDINAL DATE and CARDINAL DATE respectively .", "A hearing scheduled for DATE had to be adjourned as , due to health problems , the defendant ( the applicant 's former husband ) could not appear .", "ORG held hearings on DATE , CARDINAL DATE and CARDINAL DATE .", "On DATE , following a hearing held on DATE , ORG divided the property . On DATE it corrected clerical errors in its judgment .", "On DATE the defendant filed an appeal . On DATE ORG sent a copy of the appeal to the applicant . On DATE the applicant filed her observations in reply . On DATE ORG submitted the casefile to ORG ( Krajský súd ) for a decision on the appeal .", "On DATE ORG quashed ORG judgment . It found that ORG had failed to establish the facts of the case adequately and that there had been several formal errors in its judgment . It remitted the case to ORG for reexamination and instructed it to establish carefully the subjectmatter of the proceedings .", "On DATE ORG held a hearing . On DATE the applicant demanded that ORG determine the matter speedily . On DATE the case was assigned to another judge . On DATE the applicant again demanded that the ORG deal with her case promptly . On DATE ORG held a hearing at which it heard the parties .", "On DATE it again divided the property . The judgment became final and binding on DATE .", "On DATE the applicant lodged a petition ( podnet ) with ORG ( Ústavný súd ) objecting to undue delays in the above proceedings . On DATE the petition was declared admissible .", "On DATE ORG found that ORG had violated the applicant 's right under LAW ( CARDINAL ) of the LAW to a hearing without unjustified delay . ORG observed that it had jurisdiction ratione temporis to consider only the period after DATE when it had been established . However it took into account the state of the proceedings at that time . The case was neither legally nor factually complex . The applicant 's conduct did not contribute substantially to the length of the proceedings . ORG failed to deal with the case with the requisite efficiency having regard to , in particular , the fact that the applicant was divorced , had the sole custody over CARDINAL minor children and was principally claiming ownership of the house where she had once lived with her family . Upon service of ORG finding ( nález ) on the applicant and ORG , it became final and binding on DATE .", "On DATE the applicant lodged a complaint ( sťažnosť ) with the ORG pursuant to Article CARDINAL of the LAW as in force since DATE . She objected that , despite ORG finding of DATE , there had been no progress in her case . She invited ORG to find a recurring violation of her right under LAW ( CARDINAL ) of ORG to a hearing without unjustified delay , to order ORG to proceed with her case without delay , to award her CARDINAL NORP korunas ( SKK ) in just satisfaction and to order ORG to reimburse her legal costs . On DATE her complaint was declared admissible .", "On DATE the Constitutional Court found a violation of the applicant 's constitutional right . This finding formally concerned only the period after DATE when its first finding of DATE had become final and binding . ORG observed that in the period DATE and DATE ( DATE , DATE ) ORG had been completely inactive . It also took notice of the fact that the total length of the proceedings was DATE and that there had already been CARDINAL finding of a violation of the applicant 's right to a hearing without unjustified delay in the case . ORG found no reasons to justify the length of the proceedings by the complexity of the case or by the applicant 's conduct . It awarded the applicant LAW by way of just satisfaction in respect of nonpecuniary damage and dismissed her remaining claims .", "Article CARDINAL ( CARDINAL ) provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .", "Pursuant to LAW ( CARDINAL ) , as in force until DATE , ORG could commence proceedings upon a petition lodged by a natural or legal person claiming that their rights had been violated .", "According to its caselaw under the former LAW ( CARDINAL ) of the LAW , ORG lacked jurisdiction to draw legal consequences from a violation of a petitioner 's rights under LAW ( CARDINAL ) of the LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found .", "As from DATE , the LAW has been amended in that , inter alia , natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW . Under this provision , ORG has the power , in the event that it finds a violation of LAW ( CARDINAL ) of the LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings ( for further details see , e.g. , ORG and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , DATE ) ." ]

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[ "The applicants are NORP registered companies . The second applicant publishes newspapers including ORG and is a wholly owned subsidiary of the first applicant ( formerly known as ORG plc ) .", "The case concerns an article published in ORG , a newspaper with the biggest circulation of any DATE newspaper and which sold in the region of CARDINAL copies at the relevant time .", "On DATE an article was published in the newspaper written by a well - known journalist and entitled “ Throwing good money at jobs is dishonest ” . The article commented , inter alia , on a recently discovered letter ( dated DATE ) to ORG of ORG of GPE . The letter had been signed by CARDINAL persons one of whom was PERSON , a very well - known politician . The letter referred to “ special activities ” that had previously met shortfalls in the funding of ORG , a political party of which PERSON had been leader . At the time of publication , PERSON was leader of another political party ( the NORP Left ) , he was a member of parliament and he was engaged in post - election negotiations about his party ’s participation in government .", "NORP The relevant portion of the article stated that :", "“ NORP society is divided . As the political parties manoeuvre to try to form a Government a clear picture has emerged , revealing the nature of our differences .", "On CARDINAL side of the argument are those who would find the idea of NORP Left in cabinet acceptable . These people are prepared to ignore NORP Left leader PERSON reference to the ‘ special GPE which served to fund ORG in DATE .", "The ‘ special activities’ concerned were criminal . Among the crimes committed were armed robberies and forgery of currency .", "The people engaged in this business occupied that twilight world where the line blurs between those who are common criminals and others of that ilk who would claim to be engaged in political activity .", "This world is inhabited by myriad groups , some dealing in drugs , prostitution , protection rackets , crimes of which the weakest members of society are invariably the victims .", "It is therefore , ironic , wickedly so , that a political party claiming to ‘ care’ for the workers should accept funding from ‘ special activities’ of a particularly nasty kind .", "There is no doubt that elements of ORG were involved in ‘ special GPE . What remains unproven is whether PERSON knew about the source of his party ’s funds . There is evidence , strengthened by revelations in ORG DATE , that de Rossa was aware of what was going on .", "If CARDINAL is to allow him the benefit of the doubt , and why not , one must nevertheless have some misgivings about those with whom he so recently associated .", "Justice demands that we welcome NORP Left ’s recent conversion to decency and indeed , acknowledge that their ORG deputies are exemplary in the conduct of the work they engage in on behalf of their constituents .", "Still , questions remain unanswered about ORG ‘ special GPE phase , not to mention their willingness to embrace the NORP party long after the world knew about the brutal oppression that this and other NORP regimes visited on workers , intellectuals and others who would think and speak freely .", "PERSON political friends in GPE were no better than gangsters . The NORP ran labour camps . They were NORP .", "Men like PERSON and PERSON were persecuted . ORG who attempted to flee this terror were murdered . In GPE , the bodies left to rot in no man ’s land between tyranny and liberty . Is it really necessary to remind ourselves of those ‘ special GPE ? ”", "In DATE Mr de Rossa initiated a libel action ( ORG ) against the first applicant . The first trial lasted DATE : the jury was discharged ( following the publication of an article by the first applicant ) . The second trial lasted DATE : the jury failed to reach a verdict .", "The third trial lasted DATE and ended on DATE .", "In his directions to the jury on damages , the trial judge stated :", "“ ... damages are meant to compensate a person for a wrong . ... The only remedy available to a person who says he has been wronged in a newspaper is damages . Damages are meant to put a person , in so far as money can do it , in the position that he or she would have been if the wrong had not taken place . That is the enterprise you are engaged in , in relation to damages . ”", "He then referred to Mr Justice O’Flaherty ’s judgment in an unnamed case ( which was , in fact , PERSON and PERSON v. ORG , ORG judgment of DATE , unreported ) :", "“ ... in a recent case , Mr. Justice O’Flaherty of ORG said , that the approach in cases of this kind should be no different from any other type of proceedings . The jury should be told that their first duty is to try to do essential justice between the parties . They are entitled to award damages for loss of reputation as well as for the hurt , anxiety , trouble and bother to which the Plaintiff has been put . ”", "He went on to quote with approval Mr Justice PERSON ’s judgment in another unnamed case ( which was PERSON v. ORG [ DATE ] ORG ) as follows :", "“ It is the duty of the Judge to direct the Jury that the damages must be confined to such sum of money as would fairly and reasonably compensate the Plaintiff for his injured feelings , and for any diminution in his standing among right thinking people as a result of the words complained of . The Jury have to be told they must make their assessment entirely on the facts found by them , and among the relevant considerations proper to be taken into account are the nature of the libel , the standing of the Plaintiff , the extent of the publication , the conduct of the Defendant at all stages of the case , and any other matter which bears on the extent of the damages . ”", "The trial judge continued :", "“ Now Mr. Justice PERSON , in the case he was dealing with , said that the jury in that particular case was n’t given any real help as to how to assess compensatory damages , and he laid down a guide which could assist the Jury . He considered that in the case in question the jury could be asked to reduce the allegation complained of to actuality , and then to fit the allegation into its appropriate place in the scale of defamatory remarks to which the PERSON could be subjected .", "Now that particular case affords you great assistance in placing the nature of the defamation in a scale , because that case Mr. Justice PERSON was referring to , revolved around an allegation by a politician that a journalist [ sic . ] tweaked his beard . Now it related to the time of one of the pushes against Mr. PERSON , and after an abortive push against him , everybody was coming out to a crowded area of ORG , bustling out , and something was written in the Evening Herald which involved an allegation [ that ] a politician tweaked the Evening Herald journalist ’s beard . Now the learned Trial Judge found that to be defamatory and directed there be an assessment of damages .", "Going back to Mr. Justice PERSON ’s observation , if you examine the words and put them in a scale of things , compare the allegation with tweaking a journalist ’s beard , with an allegation that Mr. PERSON was involved in or tolerated serious crime , and that he personally supported anti - Semitism and violent NORP oppression . It would not surprise me , Members of the Jury , if you went to the opposite end of the scale and even , apart from Mr. Justice PERSON ’s helpful observations , I think there can be no question in this case but that if you are awarding damages you are talking about substantial damages .", "Now as Counsel told you , I am not allowed to suggest to you figures , and Counsel are not allowed suggest to you figures either . I have gone as far as I can to help in relation to that question . I do n’t think anybody takes issue with the proposition if you are awarding damages they are going to be substantial . Mr. PERSON at the time was leader of a political party . The political party was seeking to go into government . Damages will be substantial . It is all I can say to you . It is a matter for you to assess what they ought to be , if you are assessing damages . ”", "The jury found that the impugned words implied that PERSON had been involved in or tolerated serious crime and that he had personally supported anti - semitism and violent communist oppression . The jury went on to assess damages at QUANTITY ( ORG ) .", "The first applicant appealed the award . It accepted that the jury had been directed on damages in accordance with the law but noted that the trial judge had been therefore obliged to confine his directions to a statement of general principles and to eschew any specific guidance on the appropriate level of general damages . Neither counsel nor the trial judge could suggest any figures to the jury and this practice was inconsistent with the provisions of the LAW and of the LAW . Specific guidelines should be given to the jury in such cases including a reference to the purchasing power of any award made and to the income which the award would produce , to what the trial judge and counsel considered to be the appropriate level of damages and to awards made in personal injuries and other libel cases . The first applicant further argued that the common law and the LAW required the appellate court to subject jury awards in defamation actions to stricter scrutiny so that the test which had been outlined by Mr Justice PERSON in the above - cited PERSON case was no longer sufficient . A court of appeal should ask itself the following question ( the “ PERSON test ” ) : “ could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re - establish his reputation ? ” . The first applicant relied on , inter alia , PERSON v. ORG [ DATE ] CARDINAL All E.R. CARDINAL , and PERSON ORG [ DATE ] CARDINAL All E.R. CARDINAL ) and on the judgment of this ORG in the case of PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) .", "NORP The Chief Justice delivered the majority judgment of the court on DATE . He began by describing the role of juries in the assessment of damages in defamation actions . It had been conceded by the first applicant that the trial judge had followed the practice in cases of this nature , namely :", "“ ... that of confining his directions to a statement of general principles , eschewing any specific guidance on the appropriate level of general damages ” .", "As pointed out by the Master of the Rolls in the above - cited PERSON ORG case :", "“ Judges , as they were bound to do , confined themselves to broad directions of general principle , coupled with injunctions to the jury to be reasonable . But they gave no guidance on what might be thought reasonable or unreasonable , and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards . They were in the position of sheep loosed on an unfenced common , with no shepherd . ”", "This was explained by the fact that the assessment of damages in libel cases was “ peculiarly the province of the jury ” As stated by Chief Justice PERSON in the PERSON case ( cited above ) the assessment by a jury of damages for defamation had a “ very unusual and emphatic sanctity ” so that the appellate courts had been extremely slow to interfere with such assessments . As emphasised in the above - cited PERSON v. ORG case , the ultimate decision , subject to appeal , was that of the jury which was not bound by the submissions made to it .", "The Chief Justice outlined the relevant domestic law . He considered that there was no conflict between the common - law and the LAW provisions , on the one hand , and LAW , on the other . LAW , as noted in the PERSON judgment , required that “ an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered ” . He continued :", "“ By virtue of the provisions of LAW , the defendant is entitled , subject to the restrictions therein contained , to exercise the right to express freely its convictions and opinions .", "The exercise of such right is subject however to the provisions of the LAW as a whole and in particular the provisions of LAW which require the ORG by its laws to protect as best it may from unjust attack , and in the case of injustice done to vindicate the good name of every citizen .", "Neither the common law nor the LAW nor the LAW give to any person the right to defame another person .", "The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen ’s good name ( PERSON - O’Sullivan . v. O’Driscoll [ DATE ] ORG ) . This introduces the concept of proportionality which is recognised in our constitutional jurisprudence . ”", "He cited , as the law applicable in the ORG , the judgment of PERSON Justice PERSON in the above - cited PERSON case ( see also paragraphs CARDINAL - CARDINAL below ) and considered that a passage therein ( the duty of the trial judge to direct the jury to confine damages to a sum as would “ fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right - thinking people ” ) emphasised the following elements of NORP law :", "“ ( a ) ... it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right - thinking people as a result of the words complained of ;", "( b ) ... it is a fundamental principle of the law of compensatory damages that the award must always be reasonable and fair and bear a due correspondence with the injury suffered ; and", "( c ) ... if the award is disproportionately high , it will be set aside and not allowed stand . ”", "The obligations arising from the provisions of the LAW and the LAW were met by the laws of GPE , which “ provides that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and by the requirement that if the award is disproportionately high , it will be set aside . ”", "Accordingly , and as regards directions to be given to juries , neither the LAW nor the LAW required a change as suggested by the first applicant . The added guidelines recommended by ORG in the case of PERSON ORG were not based on the ORG but were a development of LANGUAGE common law . Indeed , he regarded the changes brought about by the case of PERSON ORG as not “ modest ” but “ fundamental ” in that they “ radically altered ” the general practice with regard to the instructions to be given to a jury as to the manner in which they should approach the assessment of damages in a defamation action . If the approach adopted in the PERSON case and developed in the PERSON ORG case was to be adopted in GPE , the jury would be buried in figures from the parties representatives and from the judge in respect of both libel and personal injuries’ damages previously awarded , while at the same time being told that they were not bound by such figures . He was satisfied that the giving of such figures , even in guideline form , would constitute an unjustifiable invasion of the domain of the jury . Awards in personal injury cases were not comparable with libel awards and thus he preferred the view on this particular matter expressed in the PERSON case as opposed to the PERSON v. M.G.N case . Informing juries of libel awards approved by ORG would not have been recommended in the PERSON v. ORG case but for ORG DATE ( a law which concerned the power of ORG ) in GPE .", "On the contrary , the jury must base its assessment entirely on the facts of the case as established by it ( Mr Justice PERSON in the PERSON case ) and a departure from that principle would lead to utter confusion . Each defamation action had its own unique features and a jury assessing damages had to have regard to each feature . Those features , which could vary from case to case , included the nature of the libel , the standing of the plaintiff , the extent of publication , the conduct of the defendant at all stages and any other relevant matters . Figures awarded in other cases based on different facts were not matters which the jury should be entitled to take into account . The Chief Justice was not therefore prepared to change the traditional guidelines given to juries in the assessment of damages in libel cases .", "He clarified that this did not mean that the discretion of the jury in libel cases was limitless :", "“ ... the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public . Awards made by a jury are subject to a right of appeal and on the hearing of such appeal , the awards made by a jury are scrutinised to ensure that the award complies with these principles . ”", "The Chief Justice then turned specifically to appellate reviews of such jury awards . He began quoting with approval Chief Justice PERSON in the PERSON case : while the jury assessment was not sacrosanct in the sense that it could never be disturbed on appeal , it had a very “ unusual and emphatic sanctity ” in that the jurisprudence had clearly established that the appellate courts had been “ extremely slow ” to interfere with such assessments . He also quoted with approval from ORG judgment in the PERSON v. ORG case ( at p. CARDINAL ) : “ real weight must be given to the possibility that [ the jury ’s ] judgment is to be preferred to that of a judge ” .", "He summarised the impact of these extracts as follows :", "“ Both judgments recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of a judge .", "He rejected the argument that larger awards should be subjected to a more searching scrutiny than had been customary in the past . He did not agree that the PERSON test proposed by the first applicant ( “ could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re - establish his reputation ” ) was the test to be applied , noting that that test “ differs substantially from the test which has hitherto applied ” . If the PERSON test were to be applied it would remove the “ very unusual and emphatic sanctity ” from jury awards and would take away the giving of “ real weight ” to the possibility that the ORG judgment is to be preferred to that of the judge . He concluded :", "“ Consequently , while awards made by a jury must , on appeal be subject to scrutiny by the appellate court , that ORG is only entitled to set aside an award if it is satisfied that in all the circumstances , the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award . ”", "Applying that test , the Chief Justice considered whether the damages awarded were excessive and disproportionate to any damage done to PERSON . He recalled that the factors to be taken into account were well established and he quoted with approval those outlined in the PERSON ORG judgment ( pp . DATE ) .", "As to the gravity of the libel , he noted that the libel clearly affected Mr de Rossa ’s personal integrity and professional reputation . It was hard to imagine a more serious libel given the nature of the allegations , the profession of Mr De Rossa and the ongoing negotiations concerning his participation in Government .", "As to the effect on him , the Chief Justice referred to his evidence before ORG as to the hurt and humiliation caused to him and his determination to vindicate his personal and professional reputation . This evidence was obviously accepted by the jury and it was easy to imagine the hurt and distress allegations of this nature would cause .", "The extent of the publication was wide : it was conceded by the parties that the “ DATE Independent ” had a wide circulation throughout the ORG and was read each DATE by CARDINAL persons .", "The Chief Justice then considered the conduct of the first applicant up to the date of the verdict , including whether or not an apology , retraction or withdrawal had been published . The lack of an apology was regarded as being of considerable importance , a matter highlighted by PERSON evidence during the second and third trials . The passages cited by the Chief Justice demonstrated clearly , in his view , that all Mr de Rossa required was a withdrawal of the allegations in the absence of which he was obliged to endure CARDINAL trials to secure vindication of his reputation during which he was subjected to “ immensely prolonged and hostile cross - examination ” by Counsel for the first applicant and his motives for bringing the action were challenged as were Mr de Rossa ’s bona fides and credibility .", "The Chief Justice concluded :", "“ The Respondent is entitled to recover , as general compensatory damages such sum as will compensate him for the wrong which he has suffered and that sum must compensate him for the damage to his reputation , vindicate his good name and take account of the distress , hurt and humiliation which the defamatory publication has caused . Such sum should , however , be fair and reasonable and not disproportionate to the wrong suffered by the Respondent .", "The jury found that the words complained of by the Respondent meant that the Respondent was involved in or tolerated serious crime and personally supported anti - Semitism and violent NORP oppression .", "If these allegations were true , the Respondent was guilty of conduct , which was not only likely to bring him into disrepute with right - minded people but was such as to render him unsuitable for public office .", "No more serious allegations could be made against a politician such as the Respondent herein .", "Having regard to the serious nature of the said libel , its potential effect on the career of the Respondent , and the other considerations as outlined herein , it would appear to me that the jury would have been justified in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation . ”", "The jury assessed damages in the sum of £ MONEY . This is a substantial sum but the libel was serious and grave involving an imputation that the Respondent was involved in or tolerated serious crime and that he personally supported anti - Semitism and violent NORP oppression .", "Bearing in mind that a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and not be disproportionate thereto , I am not satisfied that the award made by the jury in this case went beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded and is not disproportionate to the injury suffered by the Respondent . ”", "The award approved by ORG , IR£CARDINAL,CARDINAL , was CARDINAL times more than the highest libel award previously approved by that court . The award and Mr de Rossa ’s legal costs were discharged by the second applicant as were the first applicant ’s own legal costs .", "As to the guidelines to be give to jurors and having reviewed relevant judgments from certain common - law jurisdictions and in the above - cited PERSON case , PERSON was in favour of giving further guidelines to jurors including in respect of prior libel awards made or affirmed by ORG , prior awards in personal injuries’ cases , the purchasing power of an award and the income it might produce together with the level of award deemed appropriate . There was nothing in principle to prevent comparative figures being so provided : it would not diminish the place of the jury if it was informed of issues relevant to the proportionality of the damages . Indeed , as in the PERSON v. ORG judgment , she considered that such information would enhance the role of the jury since it would be assisted by comparative and other relevant information .", "As to the required test to be applied by the appellate court , she recalled and quoted with approval the judgments of Chief Justice PERSON and of PERSON Justice PERSON in the PERSON case . She saw no reason why , if the Chief Justice in that case was making a comparative assessment of awards , this information should not be available to the jury . She agreed that the appellate court should strive to determine the reasonableness and proportionality of awards as outlined in the PERSON case , but the effectiveness of that appellate review depended on the prior availability to the jury at first instance of adequate guidelines on damage levels . Such an approach , she believed , would enable the system to be more consistent and comparative and would allow it to appear more rational .", "As to whether the award in the present case was excessive , she noted that there were strong similarities between the present case and the case of ORG ( Chief Justice PERSON , ORG judgment of DATE , unreported ) : both plaintiffs had a standing in the community and the relevant publications were seriously defamatory . However , the award in the PERSON case was considered to be at the top of the permissible range . Even allowing for the additional aggravating matters in the present case , it was clear that the award was “ beyond that range in the sense that it is so incorrect in principle that it should be set aside ” . She considered that the award to Mr de Rossa should be reduced to IR£CARDINAL,CARDINAL and concluded :", "“ In principle it is open to the ORG to provide guidelines on the charge to be given by a judge to a jury in libel cases . Guidelines on levels of damages given by a judge would aid the administration of justice . Guidelines would give relevant information and aid comparability and consistency in decision - making . Such guidelines would relate only to the level of damages - not the kernel issue as to whether or not there had been defamation . Thus , such guidelines would not impinge of the area traditionally viewed in common law jurisdictions as a matter quintessentially for the jury . More specific guidelines on the level of damages would help juries and the administration of justice by bringing about more consistent and comparable awards of damages and awards which would be seen as such . Specific guidelines would also inform an appellate court in its determination as to whether an award is reasonable and proportionate . The award in this case was excessive and on the principles of reasonableness and proportionality I would reduce it to £ MONEY . ”", "Article CARDINAL(CARDINAL ) of LAW provides , in so far as relevant , as follows :", "“ CARDINAL . The ORG guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen .", "NORP The State shall , in particular , by its laws protect as best it may from unjust attack and , in the case of injustice done , vindicate the life , person , good name , and property rights of every citizen . ”", "Article CARDINAL(CARDINAL)(CARDINAL ) provides , in so far as relevant , as follows :", "“ The ORG guarantees liberty for the exercise , subject to public order and morality : –", "i. The right of the citizens to express freely their convictions and opinions . The education of public opinion being , however , a matter of such grave import to the common good the ORG shall endeavour that organs of public opinion , such as the radio , the press , the cinema , while preserving their liberty of expression , including criticism of Government policy , shall not be used to undermine public order or morality or the authority of the ORG . ”", "The jury assess damages following its finding of defamation . ORG can review and quash the award of a jury of ORG . It does not substitute its own award but rather refers the matter back to ORG for a further trial on damages before a different jury . The second jury will not be informed that an earlier award was quashed nor , consequently , of the decision or reasoning of ORG .", "The case concerned a defamatory allegation that a politician had pulled a journalist ’s beard when leaving parliament . The jury award ( IR£CARDINAL,CARDINAL ) was set aside by ORG . The Chief Justice considered the following principles to apply to the award ( at p. CARDINAL ) :", "“ Firstly , whilst the assessment by a jury of damages for defamation is not sacrosanct in the sense that it can never be disturbed upon appeal , it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments , either on the basis of excess or inadequacy . Secondly , it is clear that whilst the damages in this case at least , where no question of punitive or exemplary damages arises , are fundamentally compensatory in form , that the plaintiff is entitled not only to be compensated for the damage to his reputation arising from the publication of the defamation , but also for the hurt , anxiety and distress to him arising by its publication and by the subsequent conduct of the defendant right up to the time of the assessment of the damages . ”", "He also maintained that certain factors which the jury were entitled to take into account ( including the standing of the plaintiff , the nature of the allegation , the failure by the newspaper to publish the plaintiff ’s denial and its maintenance of the allegation until the verdict ) would have justified the jury in going to the top of the bracket and awarding the largest sum that could fairly be awarded as compensation . He continued ( at p. CARDINAL ) :", "“ Notwithstanding these views , and notwithstanding the fact that this is clearly a case in which a jury would be entitled to award really substantial damages ... the sum of £ MONEY awarded by the jury is so far in excess of any reasonable compensation for the allegation which was made , that it should be set aside . ”", "Mr Justice PERSON outlined the principles as follows ( pp . DATE ) :", "“ The second ground of appeal is that the award of £ MONEY is so excessive as to be unsustainable . In a case such as this , ... it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right - thinking people as a result of the words complained of . The jury have to be told that they must make their assessment entirely on the facts found by them , and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts . Among the relevant considerations proper to be taken into account are the nature of the libel , the standing of the Plaintiff the extent of the publication , the conduct of the Defendant at all stages of the case and any other matter which bears on the extent of damages . ...", "The fact remains , however , that the jury were not given any real help as to how to assess compensatory damages in this case . A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of , namely , that in an excess of triumphalism at his leader ’s success the plaintiff attempted to tweak the beard of an unfriendly journalist . The jury might then have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected . Had they approached the matter in this way , ... the allegation actually complained of would have come fairly low in the scale of damaging accusations . The sum awarded , however , is so high as to convince me that the jury erred in their approach . To put it another way , if £ MONEY were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation , the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high . Yet a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered . In my view , the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded . It was so disproportionately high that in my view it should not be allowed to stand . ”", "The impugned words were found by the jury to mean that the plaintiff barrister was , inter alia , a sympathiser with terrorist causes and incapable of performing his duties objectively . The jury award IR£CARDINAL,CARDINAL : it was not set aside on appeal . The Chief Justice noted :", "“ ... I am satisfied that there are not very many general classifications of defamatory accusation which at present in GPE , in the minds of right - minded people , would be considered significantly more serious . To an extent the seriousness may be somewhat aggravated by the fact that it is an accusation which has been made against a person who has a role , by reason of his profession and by reason of his standing as a member of the bar , in the administration of ORG . ”", "He described a lawyer ’s role in the relevant situation and continued :", "“ The combined accusations made against the Plaintiff are that he failed or was likely to fail completely to do that , and that instead as a piece of major professional misconduct he abused the function which had been entrusted to him by his client . ”", "As to the damages award of the jury , he concluded :", "“ A statement which makes that accusation and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person , irrespective of their calling or profession . I , as I have indicated , take the view that the assessment of damages made by this jury , though undoubtedly high and at the top end of the permissible range , is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside . I would , therefore , dismiss the appeal . ”", "The plaintiff brothers were insurance brokers and took a libel action against ORG about a letter in which the latter informed various industry bodies including the relevant Minister that the plaintiffs’ company ’s membership of the ORG had been terminated for non - compliance with the requirements of insurance legislation . Having found the letter defamatory , the jury awarded IR£CARDINAL,CARDINAL .", "On the level of damages , Mr Justice O’Flaherty found as follows :", "“ ... I have reached the clear conclusion that the award is so excessive as to call for the intervention of this ORG . It is wholly disproportionate to any injury suffered by the plaintiffs ...", "The approach to the assessment of damages in a [ defamation ] action is in essence no different from any other type of proceeding . The jury should , in the first instance , be told that their first duty is to try to do essential justice between the parties . [ In cases where damages could be compensatory only , the jury ] were entitled to award damages for loss of reputation , as well as for the hurt , anxiety , trouble and bother to which the plaintiffs had been put . However , the defendants in defamation cases should never be regarded as the custodians of bottomless wells which are incapable of ever running dry . ... Further , unjustifiably large awards , as well as the costs attendant on long trials , deals a blow to the freedom of expression entitlement that is enshrined in the LAW . ”", "Quoting with approval the judgment of Mr Justice PERSON in the above - cited PERSON case and noting the evidence of harm to the plaintiffs’ reputation and of the defendant ’s conduct , Mr Justice O’Flaherty continued :", "“ Giving the case the most favourable construction in regard to the plaintiffs DATE in the sense of asking one ’s self what damages have the plaintiffs made out in regard to loss of reputation etc . , and taking their case at the high water mark – nonetheless , the award viewed even from that perspective must be regarded as so excessive that it can not stand . ”", "ORG ordered a re - trial . At the end of the fourth trial in ORG , a jury awarded IR£CARDINAL,CARDINAL .", "Mr O’Brien was a well - known and successful businessman . The jury found defamatory ORG allegations that he had , inter alia , bribed politicians to secure radio licences and been involved in other corrupt practices . The jury awarded IR£CARDINAL,CARDINAL in damages . ORG requested ORG to re - consider its judgment in LOC appeal arguing , inter alia , that the latter judgment was wrong in so far as it considered that the principles laid down in the PERSON case were consistent with LAW and with LAW .", "The Chief ORG delivered the majority judgment of the court ( joined by Mr Justice PERSON and Mr Justice O’Higgins ) , refusing to reconsider its de Rossa judgment but setting aside the jury award . Its previous judgment would not be reconsidered as it was not so “ clearly wrong ” that there were “ compelling reasons ” why it should be overruled . The O’Brien appeal had to be dealt with therefore on the basis of the principles outlined by ORG in LOC and PERSON cases .", "NORP The general principle which the Chief Justice considered he must apply to his review of the award was that outlined by Mr Justice PERSON in the PERSON case , namely :", "“ Yet a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered . In my view , the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded . It was so disproportionately high that in my view it should not be allowed to stand . ”", "In determining proportionality , he considered that there was nothing which precluded ORG from determining an appeal on jury libel awards in the light of other such awards which had also been approved by that court provided a degree of caution was exercised .", "The Chief Justice considered the allegations against Mr O’Brien to be “ undoubtedly seriously defamatory statements which justified the award of substantial damages ” . Although he considered the damages’ award to be in the “ highest bracket of damages appropriate to any libel case ” and that it was comparable to the non - pecuniary award “ in the most serious cases of paraplegic or quadriplegic injuries ” , he considered the libel as serious but not coming within the category of the grossest and the most serious libels to have come before the courts . He went on to compare that case to LOC and PERSON cases , although he acknowledged that :", "“ ... ultimately ... this case has to be decided having regard to its own particular facts and circumstances . I am conscious of the care which must be exercised by an appellate court before it interferes with the assessment of damages by a jury in a case of defamation , but , having weighed up all the factors to which I have referred , I am satisfied that the award in this case was disproportionately high and should be set aside . ”", "Mr Justice PERSON in his partly dissenting opinion agreed with ORG judgment in the de Rossa case but did not consider that the jury award had to be set aside .", "He noted that various formulations of words had been used by appellate courts in GPE and GPE as to when an appellate court in a libel action could interfere with a jury award . Although the language was sharper and stronger in some cases than in others , he was not sure that there was ever any intended difference and he was inclined to think that the form of words adopted by Mr Justice PERSON in the PERSON case ( and already cited by the Chief Justice in that case – see above ) was the most helpful . Having noted Chief Justice PERSON ’s comment also in the PERSON case about the assessment of the jury having “ a very unusual and emphatic sanctity ” , he indicated that he doubted whether Mr Justice PERSON and Chief Justice PERSON intended to say anything different :", "“ The true principle would seem to be that in all cases of compensatory damages whether in libel or in personal injuries or otherwise an appeal court will not interfere because its own judges thought the award too high . The court will only interfere if the award is so high that it is above any figure which a reasonable jury might have thought fit to award . But although that principle is the same in all cases of compensatory damages , the application of the principle will necessarily be different in the case of libel from the case of personal injuries . In the case of personal injuries an appeal court can determine with some confidence what would be the range of awards which a reasonable jury ... might make . ... In the case of a libel appeal however the appeal ORG although it has to engage in the same exercise , it can only do so with diffidence rather than confidence . ... Unlike personal injury cases every libel action is completely different from every other libel action and therefore the guidelines available to an appeal court in settling the reasonable parameters of an award are much more limited . ”", "He had no hesitation therefore in leaving the jury award stand as :", "“ having regard to the diffidence with which an appeal court should approach the possible setting aside of a jury award in a libel action , I could not have formed the view that the jury award was beyond reason . ”", "He went on to explain why comparisons with other libel awards approved by ORG were dangerous but that , even if he had to so compare , his view that the award should not be set aside was not affected by the facts or award in LOC or PERSON cases .", "Mrs Justice PERSON also dissented : she considered that there were compelling reasons to reconsider ORG majority judgment in de Rossa . However , given the view of the majority that it would not depart from LOC judgment , she applied it , compared that case and the PERSON awards approved by ORG and found :", ". ”", "Mr PERSON was in prison having pleaded guilty to a charge of assault occasioning actual bodily harm ( to a police officer ) . The defendant published an article which was entitled “ ORG ” and which explained that ORG prisoners were child molesters and sexual offenders and it included a photograph of PERSON prison cell . He issued proceedings in DATE arguing that the juxtaposition of the article and the photograph meant and were understood to mean that he was a child molester or a sexual offender . During the trial , the foreman of the jury asked for guidelines . While the trial judge explained that he could not do so , he gave certain parameters ( including the circumstances in which the photograph came to be taken , that large damages were not merited and that he was not entitled to damages as if he had a blameless character ) . The jury agreed that the article was defamatory and awarded Mr PERSON IR£CARDINAL,CARDINAL .", "The newspaper appealed arguing that the award was disproportionate and taking issue with the absence of guidelines to the jury . ORG did not set aside the award , Mr Justice PERSON noting :", "“ ... it is difficult , if not impossible , to find any nexus between the pain , embarrassment or disfigurement suffered by a plaintiff and the sum of money which would be appropriate to compensate him for any such consequences of a wrong doing . Judges in charging juries as to their responsibilities in determining damages or in performing the same task themselves can say or do little more than recall that damages are designed to compensate for the consequences of a wrong doing and not to punish the wrong doer . It will always be said - perhaps unhelpfully – that the sum awarded should be reasonable to the plaintiff and also reasonable to the defendant . In relation to the extent to which a trial judge could and should give guidance as to an appropriate measure of damages was considered by [ ORG in the LOC case ] and again in O’Brien .v . M.G.N .... . Whilst other jurisdictions have accepted the concept of such guidelines that concept has been rejected in this jurisdiction . Apart from any other consideration there would appear to be insuperable difficulties for any judge to assemble the appropriate body of information on which to base such guidelines . ”", "He concluded that :", "“ There is no doubt that the sum of £ MONEY awarded by the jury was a substantial sum . It may well be at the higher , or even the highest , of the figures in the range which would be appropriate to compensate a Plaintiff for the wrong doing which he has suffered . However I am not satisfied that the figure awarded is so disproportionate to the injury sustained by the Plaintiff ( Respondent ) that it can or should be set aside by this ORG . ”", "By judgment of DATE ( PERSON and PERSON v. GPE ) ORG rejected the ORG appeal finding CARDINAL of the Offences Against the State Act CARDINAL not inconsistent with LAW . It considered that the right to silence was a corollary to freedom of expression ( guaranteed by LAW ) and that the relevant assessment was to consider the proportionality of the restriction on the right to silence against the public order exception to LAW . It noted that LAW was aimed at actions and conduct calculated to undermine public order and the authority of the ORG and that the proclamation made under LAW ( that “ the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order ” ) remained in force .", "DATE . As to whether section CARDINAL restricted the right to silence more than was necessary in light of the disorder against which the ORG was attempting to protect the public , the court noted that an innocent person had nothing to fear from giving an account of his or her movements even though such a person may wish , nevertheless , to take a stand on grounds of principle and to assert his or her constitutional rights . However , it considered that the entitlement of citizens to take such a stand must yield to the right of the ORG to protect itself . The entitlement of those with something relevant to disclose concerning the commission of a crime to remain silent must be regarded as of an even lesser order . That court concluded that the restriction in section CARDINAL was proportionate to the ORG ’s entitlement to protect itself .", "The case of PERSON v. ORG ( [ DATE ] CARDINAL I.R. CARDINAL ) concerned the ban on the broadcasting of religious advertising pursuant to LAW ) of ORG DATE ( “ the DATE LAW ) . ORG considered that the impugned provision of the DATE Act was a restriction of the appellant ’s right freely to communicate and of his right to freedom of expression ( Articles CARDINAL(CARDINAL ) and PERSON ) of the LAW , respectively ) which rights could be limited in the interests of the common good . The real question was whether the limitation imposed upon those constitutional rights was proportionate to the purpose parliament wished to achieve . Quoting with approval previous case - law , it described the principle of proportionality :", "“ In considering whether a restriction on the exercise of rights is permitted by LAW the courts in this country and elsewhere have found it helpful to apply the test of proportionality , a test which contains the notions of minimal restraints on the exercise of protected rights and the exigencies of the common good in a NORP society . This is a test frequently adopted by ORG and by ORG in the following terms . The objective of the impugned provision must be of sufficient importance to warrant over - riding a constitutionally protected right . It must relate to concerns pressing and substantial in a free and democratic society . The means chosen must pass a proportionality test . They must ( a ) be rationally connected to the objective and not be arbitrary , unfair or based on irrational considerations ; ( b ) impair the right as little as possible ; and ( c ) be such that the effects on the rights are proportional to the objective . ”", "ORG found that section CARDINAL(CARDINAL ) of the DATE Act complied with this test and concluded that :", "“ It therefore appears to the court that the ban on religious advertising contained in section CARDINAL(CARDINAL ) of LAW is rationally connected to the objective of the legislation and is not arbitrary or unfair or based on irrational considerations . It does appear to impair the various constitutional rights referred to as little as possible and it does appear that its effects on those rights are proportional to the objective of the legislation . ”", "The ORG consultation paper of DATE considered a number of possible reforms of the law of defamation in GPE and provisionally recommended , inter alia , that parties to defamation actions in ORG should continue to have the right to have the issues of fact determined by a jury with the damages in such actions being assessed by the Judge following the jury ’s determination whether nominal , compensatory or punitive damages should be awarded .", "The ORG was established by the Minister for Justice , LAW with a view to examining reforms of the libel laws to bring them into line with other GPE . As regards the respective roles of the judge and jury , its report of DATE provided as follows :", "“ The initial starting point for the ORG ’s consideration of this matter was the specific recommendation of ORG that the parties to defamation actions should continue to have the right to have issues of fact determined by a jury but that the damages in such actions should be assessed by a judge . ... The ORG was also alert to the valuable role which juries have to play in defamation actions given the importance , in such actions , of getting the perspective of the ordinary persons as to whether the matter complained of should , or should not , be considered defamatory . At the same time , the ORG recognised that there is considerable dissatisfaction with the law as it currently stands whereby juries are deprived of guidance when it comes to deciding upon the level of damages which should be awarded to a successful plaintiff in a defamation action .", "GPE and other common law jurisdictions .... and would accord well with the freedom of expression entitlement enshrined in both the LAW and LAW .", "...", "The final element considered by the ORG under this heading concerned the desirability of having a statutory provision which would make it clear that , in a defamation appeal from ORG , ORG could substitute its own assessment of damages for the damages awarded in ORG . The ORG is of the view that there is considerable merit in a provision of this kind given the additional costs which litigants would have to bear should a new trial be ordered and where the only issues for the appellate court to determine is the appropriateness of the damages award .", "Summary", "The function of assessing damages in defamation proceedings heard before a jury should remain with the jury ;", "Parties to proceedings should be able to make submissions to the court and address the jury concerning damages ; Judges would be required to give directions to a jury on the matter of damages ;", "In making an award of damages , regard would have to be had to a non - exhaustive list of matters including , for example , the nature and gravity of any allegation in the defamatory matter , the extent to which the defamatory matter was circulated and the fact that the defendant made or offered an adequate , sufficient and timely apology , correction or retraction , as the case might be . ...", "There should be an avoidance of doubt provision to the effect that , in a defamation appeal from ORG , ORG could substitute its own assessment of damages for the damages awarded in ORG . ”", "ORG observed that the grant of an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was “ necessary in a democratic society ” or “ justified by a pressing social need ” for the purposes of LAW . It continued :", "“ ... the common law if properly understood requires the courts to subject large awards of damages to a more searching scrutiny than had been customary in the past . It follows that what had been regarded as the barrier against intervention should be lowered . The question becomes : could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re - establish his reputation ? ”", "As to what guidance the judge could give to the jury , ORG was not persuaded that the time had come to make references to awards by juries in previous libel cases . Nor was there any satisfactory way in which awards made in actions involving serious personal injuries could be taken into account . It was to be hoped that in the course of time a series of decisions of ORG , taken under section CARDINAL of ORG DATE , would establish some standards as to what would be “ proper ” awards . In the meantime the jury should be invited to consider the purchasing power of any award which they may make and to ensure that any award they make is proportionate to the damage which the plaintiff has suffered and is a sum which it is necessary to award him to provide adequate compensation and to re - establish his reputation .", "ORG concluded in that case that , although a very substantial award was clearly justified in the case , judged by any objective standards of reasonable compensation or necessity or proportionality , an award of MONEY ( GBP ) was excessive and it substituted GBP CARDINAL .", "DATE . ORG held that in assessing compensatory damages in a defamation case a jury could in future properly be referred by way of comparison to the conventional compensation scales in personal injury cases and to previous libel awards made or approved by ORG . As the Master of the Rolls pointed out :", "“ Judges , as they were bound to do , confined themselves to broad directions of general principle , coupled with injunctions to the jury to be reasonable . But they gave no guidance on what might be thought reasonable or unreasonable , and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards . They were in the position of sheep loosed on an unfenced common , with no shepherd . ”", "While the ultimate decision ( subject to appeal ) was that of the jury which was not bound by submissions made to them , there was no reason why the judge or counsel should not indicate to the jury the level of award which they considered appropriate :", "“ The plaintiff will not wish the jury to think that his main object is to make money rather than clear his name . The defendant will not wish to add insult to injury by underrating the seriousness of the libel . So we think the figures suggested by responsible counsel are likely to reflect the upper and lower bounds of a realistic bracket . The jury must , of course , make up their own mind and must be directed to do so . They will not be bound by the submission of counsel or the indication of the judge . If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal , real weight must be given to the possibility that their judgment is to be preferred to that of the judge .", "The modest but important changes of practice described above would not in our view undermine the enduring constitutional position of the libel jury . Historically , the significance of the libel jury has lain not in their role of assessing damages , but in their role of deciding whether the publication complained of is a libel or not . The changes which we favour will , in our opinion , buttress the constitutional role of the libel jury by rendering their proceedings more rational and so more acceptable to public opinion . ...", "The [ Convention ] is not a free standing source of law in GPE . But there is , as already pointed out , no conflict or discrepancy between Art . CARDINAL and the common law . We regard Art . CARDINAL as reinforcing and buttressing the conclusions we have reached and set out above . We reach those conclusions independently of the [ Convention ] , however , and would reach them even if the convention did not exist . ”", "As to the factors of which one should take account in assessing the damages to be awarded , ORG found :", "“ The successful plaintiff in a defamation action is entitled to recover , as general compensatory damages , such sum as will compensate him for the wrong he has suffered . That sum must compensate him for the damage to his reputation , vindicate his good name and take account of the distress , hurt and humiliation which the defamatory publication has caused . In assessing the appropriate damages for injury to reputation , the most important factor is the gravity of the libel ... The extent of publication is also very relevant ... It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff ’s feelings by the defendant ’s conduct of the action as when he persists in an unfounded assertion that the publication was true , or refuses to apologise , or cross - examines the plaintiff in a wounding or insulting way . ”", "All third parties endorsed the applicants’ submissions .", "The ORG is the representative body for NORP national newspapers including a number of newspapers owned by the applicants . It considered , inter alia , that the decision of ORG in the present case did not accord with the above - cited PERSON judgment . The ORG endorsed the recommendations of the ORG and of the ORG ( paragraphs CARDINAL above ) about the parties and the trial judge addressing the jury directly on the level of damages . More generally , it maintained that many other aspects of defamation law were in urgent need of reform so that that the freedom of speech of journalists in GPE was unreasonably inhibited .", "This company is part of a larger media group known as ORG based in GPE and it publishes an NORP national DATE newspaper . It submitted , inter alia , that various aspects of NORP defamation law acted as a chilling effect on the ORG freedom of expression including ORG inability to substitute its own award together with the associated inability to inform the jury on a re - trial of ORG views and the connected costs impact of an appeal .", "ORG is the owner and publisher of the “ ORG ” newspaper CARDINAL of GPE ’s leading DATE newspapers which is also distributed in GPE and in LOC . It has defended many defamation actions , was particularly concerned about the restrictions on instructing a jury on damages and it endorsed the work and recommendations of the ORG .", "The subsidiaries of these holding companies publish , print and distribute national and regional newspapers in GPE and GPE . ORG was itself subjected to effectively the same treatment as the present applicants ( the above - cited PERSON case ) . The failure to implement the proposals of the ORG and ORG was prejudicial to the NORP media .", "ORG publishes many NORP DATE and DATE newspapers . As a former defendant in libel proceedings in GPE ( O’Brien v. ORG case , see paragraphs CARDINAL above ) , it regretted that ORG did not substitute its own award for that of the jury : sending a case back for re - trial was costly and , because the second jury was not informed of the appeal court ’s view , the risk of disproportionality remained .", "These companies publish numerous DATE and DATE papers in GPE and in GPE . They underlined their support for this ORG ’s judgment in the above - cited case of PERSON and for ORG in the above - cited PERSON and PERSON v. ORG cases .", "The ORG is the largest union of journalists in the world and its NORP branch represents ( PERCENT ( CARDINAL ) of NORP journalists ) . It considered that NORP libel laws prevented journalists from carrying out their duties and denied access to fair and efficient proceedings to protect one ’s reputation . As to the lack of guidance to juries , it considered that the size and arbitrary nature of jury awards were powerful chilling factors on the press ." ]

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[ "The first applicant , ORG , was a NORP citizen . He was born in DATE and lived in LOC . He died in the course of the proceedings before the ORG . The second applicant , Mr Mustafa Kurić , was born in DATE and lives in PERSON . He is a stateless person . The third applicant , Mr Ljubomir Petreš , was born in DATE and lives in GPE . According to the applicant , he is a stateless person . The respondent Government claimed , however , that he was a citizen of GPE . The fourth applicant , PERSON , was born in DATE and lives in GPE . He is a citizen of GPE . The fifth applicant , Mr PERSON , was born in DATE and lives in GPE . He is a stateless person . The sixth applicant , PERSON , is a NORP citizen . She was born in DATE and lives in ORG . The seventh applicant , PERSON , is a NORP citizen . She was born in DATE and lives in GPE . The eighth applicant , Mr PERSON , the son of the seventh applicant , was born in DATE and lives in GPE . He is a citizen of GPE and GPE . The ninth applicant , Mr PERSON , was born in DATE in GPE . According to the most recently available data he is a NORP citizen . The tenth applicant , Mr PERSON , was born in DATE . He lives in GPE and is a stateless person . The eleventh applicant , Mr PERSON , was born in DATE . According to the respondent Government , he is a NORP citizen .", "NORP Before DATE , the day GPE declared independence , the applicants were citizens of both ORG ( “ the SFRY ” ) and one of its constituent GPE other than GPE . They had acquired permanent resident status in GPE as SFRY citizens , a status which they retained until DATE . On DATE they became subject to LAW ( Zakon o tujcih ) and their names were deleted from LAW ORG stalnega prebivalstva , “ the Register ” ) ( see paragraph CARDINAL below ) .", "NORP In DATE , further to a change in government policy , the applicants Mr Petreš and Mr Jovanović , who were already in possession of permanent residence permits valid from the date of issue in DATE , were issued supplementary residence permits awarding them residence status from CARDINAL DATE on the basis of ORG decision ( see paragraphs CARDINAL and CARDINAL below ) . The applicant PERSON , who died on DATE , would also have been entitled to such a permit . The applicant PERSON , who is now in possession of a temporary residence permit valid until DATE , is not entitled to a supplementary residence permit .", "The applicants Mr Kurić , PERSON and PERSON and PERSON have not applied for residence permits under the existing legislation .", "Finally , the applicants PERSON , PERSON and PERSON have applied for residence permits and the respective proceedings are still pending .", "From the First World War until DATE , the territory comprising the modern GPE was incorporated into a union of NORP nations of LOC ( mostly of LOC ) . On DATE the first union DATE ORG , NORP and NORP – joined with GPE and became GPE , NORP and NORP . In DATE the latter was renamed as GPE .", "A new entity was subsequently formed during the Second World War . This common ORG first bore the name of ORG , then of ORG , which in DATE was renamed as the SFRY . It was a federal ORG composed of CARDINAL republics : GPE , GPE , GPE ( with CARDINAL autonomous regions , GPE and GPE ) , GPE , GPE and GPE .", "SFRY nationals had “ dual citizenship ” for internal purposes , that is , they were citizens both of the SFRY and of CARDINAL of the CARDINAL GPE ( see paragraphs CARDINAL - CARDINAL below ) .", "The first LAW after the Second World War was adopted in DATE . In DATE , under the new Constitutions of the SFRY and of the then GPE , the whole system of government shifted from strict centralism to greater autonomy for the constituent GPE . The preamble to LAW introduced the right of every nation to self - determination , including to secession . Until DATE , federal citizenship prevailed over republic citizenship : republic citizenship could only be held by a NORP citizen ( see paragraphs CARDINAL - CARDINAL below ) .", "The regulation of citizenship was similar in all republics of the SFRY , with the basic principle of acquiring citizenship by blood ( ius sanguinis ) . In principle , a child followed his GPE citizenship ; if parents were citizens of different GPE , they jointly agreed on their child ’s citizenship . This basic principle was combined with the principle of place of birth ( ius soli ) or of residence ( ius domicilii ) , of granting of republic citizenship to a citizen of another republic upon application , of naturalisation and recognition under international agreement . Moreover , on the date of admission into the citizenship of another republic , a person ’s prior republic citizenship came to an end .", "DATE a separate Register of Citizenship was kept at the level of the GPE and not at the level of the federal ORG . It follows from the documents at the ORG ’s disposal that those Registers were not always accurate , since different authorities were responsible for keeping them , the rules governing citizenship were not always strictly respected and republic citizenship was not regarded as crucial during the existence of the SFRY since all republic citizens also had SFRY citizenship . Moreover , in a limited number of cases republic citizenship was not even entered in the Register of Citizenship .", "SFRY citizens had freedom of movement within the federal ORG and could register permanent residence wherever they settled on its territory . Full enjoyment of various civil , economic , social and even political rights for SFRY citizens was linked to permanent residence .", "SFRY citizens living in the then GPE who were citizens of CARDINAL of the other SFRY republics , such as the applicants , registered their permanent residence there in the same way as NORP nationals . Foreign citizens could also acquire permanent residence in the ORG under a separate procedure ( see paragraph CARDINAL below ) .", "In DATE the SFRY faced a serious political and economic crisis , with many ethnic tensions which eventually led to the end of the communist regime and the break - up of the SFRY ( see , NORP and Others v. GPE , nos . CARDINAL/CARDINAL , CARDINAL and CARDINAL , § DATE , DATE ) .", "As a consequence of the crisis , numerous amendments to LAW were made in DATE , aimed at a peaceful dissolution of the federal ORG and the establishment of an independent democratic GPE . In particular , LAW emphasised the right of the NORP nation to self - determination and provided a legal basis for calling a plebiscite and for the secession of GPE ( see paragraph CARDINAL below ) .", "On DATE , in the course of the preparations for the plebiscite on the independence of GPE , the then ORG PERSON ORG ) adopted the so - called Statement of Good Intentions ( PERSON o dobrih namenih ) , guaranteeing that all persons with permanent residence on NORP territory would be enabled to acquire NORP citizenship if they so wished ( see paragraph CARDINAL below ) .", "On DATE the plebiscite was held . The right to vote had been granted to all adult inhabitants with registered permanent residence in GPE . CARDINAL out of CARDINAL eligible voters voted . CARDINAL per cent of voters were in favour of independence and MONEY voted against .", "On DATE GPE declared its independence . In order to set the legal framework of the new sovereign ORG , LAW on the Sovereignty and Independence of GPE Temeljna ustavna listina o samostojnosti in neodvisnosti PERSON ) ( see paragraph CARDINAL below ) and a series of laws termed “ the independence legislation ” ( osamosvojitvena zakonodaja ) were passed .", "This included the DATE LAW relating to LAW on the Sovereignty and Independence of GPE ( PERSON za izvedbo Temeljne ustavne listine o samostojnosti in neodvisnosti PERSON , “ the DATE LAW ” ) , ORG ( Zakon o državljanstvu PERSON , “ LAW ” ) , LAW ( see paragraphs CARDINAL below ) , ORG ( Zakon o nadzoru državne meje ) and FAC ( Zakon o potnih listinah državljanov PERSON ) .", "At the material time , in contrast with some other former ORG , the NORP population was relatively homogeneous , as MONEY of the CARDINAL residents had NORP citizenship . CARDINAL NORP residents ( or MONEY of the population ) , including the applicants , were citizens of the other former ORG . This proportion also broadly reflects the ethnic origin of the NORP population at that time .", "In accordance with the Statement of Good Intentions , section CARDINAL of the DATE LAW provided that those citizens of other GPE of the former SFRY who , on DATE , the date of the plebiscite , were registered as permanent residents of GPE and in fact lived there , held equal rights and duties as the citizens of GPE , with the exception of the acquisition of property , until they acquired citizenship of GPE under section CARDINAL of LAW or until the expiry of the time - limit set out in section CARDINAL of LAW ( see paragraph CARDINAL below ) .", "Section CARDINAL of LAW , which entered into force on DATE , provided that citizens of the former SFRY republics who were not citizens of GPE ( “ citizens of the former SFRY republics ” ) could acquire NORP citizenship if they met CARDINAL requirements : they had acquired permanent resident status in GPE by DATE ( the date of the plebiscite ) , were in fact residing in GPE , and applied for citizenship within DATE after LAW entered into force ( see paragraph CARDINAL below ) . The deadline expired on DATE .", "The respondent Government maintained that it was not necessary to enclose any official documents from other former ORG when an application for citizenship was filed ; this was only necessary at a later stage of the proceedings . The applicants however maintained that in practice such documents were required from the outset .", "According to the official data , CARDINAL citizens of the former SFRY republics living in GPE applied for and were granted citizenship of the new ORG under LAW of LAW . Estimations are CARDINAL persons left GPE .", "Under second paragraph of LAW of LAW , citizens of the former GPE who either failed to apply for NORP citizenship within the prescribed time - limit or whose requests were not granted became aliens . The provisions of LAW became applicable to the former SFRY citizens either DATE after the expiry of the time - limit for filing the requests for citizenship under LAW CARDINAL of LAW , that is , DATE , or when a decision issued in administrative proceedings dismissing their application for citizenship became final ( see paragraph CARDINAL below ) .", "On or shortly after CARDINAL DATE the municipal authorities removed those concerned by the second paragraph of LAW of LAW from LAW and , according to the respondent Government , transferred them into the Register of Aliens without a Residence Permit .", "On DATE ORG ( Ministrstvo za notranje zadeve , “ the Ministry ” ) sent “ Instructions on the implementation of LAW ” to the municipal authorities , indicating that it would be necessary to regulate the legal status of the persons affected by LAW after the expiry of the time - limits in DATE . It drew attention to the fact that problems were expected to arise with regard to persons from other GPE of the former SFRY who would become aliens on DATE and had not lodged an application for citizenship . In addition , it pointed out that the papers of such persons , even if issued by the NORP authorities and formally valid , would in fact be invalid owing to the person ’s change in status ex lege . Some of those concerned would be required to leave GPE in accordance with sections CARDINAL and CARDINAL of LAW .", "The applicants stated that persons whose names were removed from the ORG received no official notification . They pointed out that no special procedure was provided for to that effect and no official documents were issued . They only subsequently became aware that they had become aliens , when , for example , they attempted to renew their personal documents ( personal identification card , passport , driving licence ) . On the other hand , the respondent Government maintained that , in addition to the publication in ORG , the NORP population was informed about the new legislation through public media and notices . In some municipalities , personal means of notification were allegedly also used .", "Until recently , according to the official data from DATE , the number of former SFRY citizens who lost their permanent residence status on CARDINAL DATE amounted to CARDINAL ( see paragraph CARDINAL below ) , of whom CARDINAL had been refused citizenship . Their names were erased , ex lege , from ORG on or shortly after CARDINAL DATE and entered into the Register of Aliens without a Residence Permit . They became known as “ the erased ” ( izbrisani ) , and included the applicants in the present case .", "As a result , “ the erased ” became aliens or stateless persons illegally residing in GPE . In general , they had difficulties in keeping their jobs , driving licences and obtaining retirement pensions . Nor were they able to leave the country , because they could not re - enter without valid documents . Many families became divided , with some of their members in GPE and others in CARDINAL of the other successor GPE to the former SFRY . Among “ the erased ” were a certain number of minors . In most cases their identity papers were taken away . Some of “ the erased ” voluntarily left GPE . Finally , some were served removal orders and deported from GPE .", "After the expiry of the DATE period set by section CARDINAL of LAW , the less favourable conditions for acquisition of citizenship by naturalisation provided for by its section CARDINAL became applicable also for citizens of other former LAW ( see paragraph CARDINAL below ) .", "After DATE the registration of permanent residence of citizens of other former SFRY republics was terminated if they had not acquired a new residence permit . On the other hand , under section CARDINAL of LAW , permanent residence permits issued to foreigners with citizenship of other GPE than the former SFRY republics continued to be valid after the entry into force of LAW ( see paragraph CARDINAL below ) .", "The respondent Government maintained that , in view of the large number of persons from the other GPE of the former SFRY living in GPE with non - regulated status , on DATE the ORG decided also to take into account the period before the entry into force of LAW for the purposes of calculating the required period of DATE residence in GPE for issuing a permanent residence permit under section CARDINAL of LAW ( see paragraph CARDINAL below ) . A total of CARDINAL permanent residence permits were thus issued in DATE .", "On DATE the Convention took effect in respect of GPE .", "NORP Moreover , on DATE , further to a request submitted by ORG for a referendum on the question whether or not the citizenship awarded to former SFRY citizens on the basis of section CARDINAL of LAW should be withdrawn , ORG held that the request was unconstitutional .", "In DATE , several non - governmental organisations , including ORG and ORG , and ORG issued reports drawing attention to the situation of “ the erased ” .", "On DATE ORG ( PERSON sodišče ) declared admissible a challenge to the constitutionality of sections PERSON ) and CARDINAL of LAW , lodged in DATE by CARDINAL individuals whose names had been removed from the ORG in DATE ( see paragraph CARDINAL below ) .", "On DATE ORG held that section CARDINAL of LAW was unconstitutional . However , no such problems arose with section DATE ) . It ordered the legislature to regulate , within DATE , the special legal status of citizens of the former ORG who had acquired permanent residence in GPE before its independence and in fact lived in GPE , but either had not applied for NORP citizenship or had had their applications dismissed .", "As a consequence , the Act on Regularisation of the Legal Status of Citizens of Other Successor States to ORG in GPE ( Zakon o urejanju statusa državljanov drugih držav naslednic nekdanje SFRJ v Republiki Sloveniji , “ the LAW ” ) was passed to regulate the legal status of “ the erased ” . It simplified the requirements for acquiring a permanent residence permit . In particular , LAW was no longer applicable to this group of persons . Under this LAW , residence permits were granted ex nunc to those fulfilling the conditions ( see paragraphs CARDINAL - CARDINAL below ) .", "Ruling on another constitutional challenge , on CARDINAL DATE ORG set aside some of the provisions of LAW as unconstitutional because it found that the requirements for the acquisition of permanent residence set forth in these provisions were stricter than the grounds for revoking a permanent residence permit under LAW ( see paragraphs CARDINAL - CARDINAL below ) .", "According to the respondent Government , CARDINAL applications were lodged under LAW by DATE . As a result , CARDINAL permanent residence permits were issued .", "In DATE , LAW was also amended in order to enable the acquisition of NORP citizenship under more favourable conditions to all aliens who had permanent residence in GPE on DATE and had since lived uninterruptedly in GPE ( see paragraph CARDINAL below ) . The deadline for filing of applications expired on DATE . By that time , CARDINAL applications were lodged and by DATE CARDINAL persons had acquired NORP citizenship .", "On DATE , deciding on a challenge to the constitutionality of LAW , ORG ( decision no . ORG ) again found that LAW unconstitutional . It held , firstly , that it did not afford permanent residence retroactively from the date on which the name of the person concerned was removed from the ORG . Secondly , it failed to regulate the acquisition of permanent residence for citizens of former ORG who had been forcibly removed from GPE . And , thirdly , it did not define the meaning of the words “ in fact residing ” in its section CARDINAL . It also struck down the DATE time - limit for lodging an application for permanent residence . It ordered the legislature to rectify the unconstitutional provisions within DATE .", "NORP In point no . CARDINAL of the operative part of the decision , ORG ordered the ORG to issue , ex proprio motu , to those who already had ( non - retroactive ) permits , supplementary decisions establishing permanent residence in GPE with effect from DATE , the date on which their names were deleted from the ORG ( see paragraphs CARDINAL - CARDINAL below ) . In DATE , ORG issued CARDINAL retroactive permits to the erased , solely on the basis of the above - mentioned ORG decision .", "Following the Constitutional Court ’s decision of DATE , the ORG initially prepared CARDINAL Acts in order to comply with it which were eventually never enacted .", "On DATE , ORG enacted the LAW on the Application of Point No . CARDINAL of ORG Decision no . ORG ( Zakon o izvršitvi CARDINAL . točke odločbe PERSON sodišča PERSON št . U - I-CARDINAL/CARDINAL - CARDINAL ) , also known as the “ LAW ” ( see paragraph CARDINAL above ) .", "This Act laid down the procedure for issuing permanent residence permits to citizens of the former SFRY republics who were registered as permanent residents in GPE on both DATE and CARDINAL DATE and had already acquired a permanent residence permit under LAW , LAW or LAW .", "NORP However , those parliamentarians who voted against LAW sought a referendum on whether or not it should be implemented . The referendum was held on DATE . The turnout was PERCENT ; PERCENT of voters were against its implementation , and therefore the LAW never entered into force .", "In addition to the “ LAW ” , an “ Act on Permanent Residence in GPE of Foreigners Having Citizenship of the Other Successor States to the SFRY who were Registered as Permanent Residents in GPE on DATE and CARDINAL DATE ” ( Zakon o stalnem prebivanju tujcev z državljanstvom drugih držav naslednic nekdanje SFRJ v Republiki Sloveniji , ki so imeli na dan CARDINAL.CARDINAL.CARDINAL in GPE v PERSON prijavljeno stalno prebivališče ) – a so - called systemic Act – was drafted but never adopted by ORG .", "In DATE the Government sent a draft LAW amending section CARDINAL of the DATE LAW ORG . However , this law – subject to a heated political debate since it was regarded by the then parliamentary opposition as an attempt to overrule ORG decisions DATE was never enacted and the parliamentary procedure terminated on completion of the ORG ’s term .", "Following the parliamentary elections held on DATE , a new Government was appointed in DATE . The regulation of the status of “ the erased ” in compliance with ORG decisions was established as CARDINAL of its priorities .", "Further to an upgrading of the IT system , the ORG collected new data on “ the erased ” and issued a report stating that on DATE the number of the people removed from ORG on DATE amounted to CARDINAL , of whom CARDINAL had subsequently acquired NORP citizenship ; CARDINAL of them were still alive . A further CARDINAL had acquired a residence permit . CARDINAL of “ the erased ” did not have a regulated status in GPE on that date and their current residence was unknown .", "On DATE the ORG started issuing ex officio supplementary decisions further to point no . CARDINAL of ORG decision of DATE to those who were already in possession of permits or had acquired NORP citizenship ( see paragraph CARDINAL above ) . According to ORG , CARDINAL such permits should have been issued . On DATE the applicants Mr Petreš and Mr Jovanović were issued with supplementary permanent residence permits ( see paragraphs CARDINAL and CARDINAL below ) .", "On DATE ORG voted on a motion of confidence filed against the Minister of the ORG on account of the issuing of retroactive residence permits with effect from DATE . The Minister won the vote of confidence .", "DATE . Subsequently , ORG prepared amendments and supplements to LAW , regulating the remaining incompatibilities between LAW and LAW , following ORG decision of DATE . On DATE the amendments and supplements to LAW were passed .", "On DATE a group of parliamentarians requested that a referendum be held on the implementation of the amendments and supplements to LAW , thus postponing their entry into force . On DATE ORG held that rejecting the law in a referendum would produce unconstitutional consequences . At the time of the consideration of this judgment , LAW has not yet entered into force .", "NORP The applicant PERSON was born on DATE in DATE , GPE . He was a NORP citizen . His family moved to GPE when he was DATE . He was registered as a NORP resident from CARDINAL DATE to CARDINAL DATE and considered himself NORP . The applicant stated that he had worked in GPE for DATE and paid contributions to the national health insurance and pension schemes .", "During the DATE war which followed the declaration of independence in DATE , Mr ORG joined the NORP defence forces . He stated that he believed that he would be granted NORP citizenship but he did not receive any communication to that effect .", "As a result of the deletion of his name from the ORG on DATE , the applicant allegedly lost his job and the benefit of pension contributions . He could no longer afford to pay rent for the apartment owned by his former employer , ORG ( ORG plovba ) , a ORG - owned company , or to buy it in the privatisation process . He was evicted from the apartment in DATE , and lost all his personal possessions , including his documents . He had been living in shelters and municipal parks . His health seriously deteriorated as a result but he no longer had access to medical care .", "The applicant stated that he had visited ORG enota v ORG ) several times in an attempt to regularise his status , but was repeatedly sent away .", "On DATE he lodged an application for a permanent residence permit under the provisions of LAW .", "On DATE ORG ( Center za socialno delo PERSON ) asked the Ministry to expedite the examination of the applicant ’s request in view of his difficult social and health condition .", "DATE . On DATE the Ministry issued a residence permit to the applicant and served it on him on DATE .", "According to the respondent Government , the applicant never applied for NORP citizenship .", "On DATE , with the help of ORG ( Center za socialno delo PERSON ) the applicant was awarded a DATE social assistance allowance amounting to MONEY ( ORG ) .", "Further to a proposal by the applicant ’s physician , on DATE ORG ( GPE za pokojninsko in invalidsko zavarovanje ORG , ORG enota PERSON ) issued a decision classifying him in category I of invalidity with a right to a DATE invalidity pension amounting to ORG CARDINAL from DATE .", "On DATE Mr PERSON died .", "The ORG representatives first asked the applicant PERSON brother whether he wished to pursue the proceedings before ORG . The latter did not express such an intention .", "On DATE his cousin , Ms Marija Ban , informed the ORG that she wished to pursue his application before it . As far as the ORG is aware , the relevant inheritance proceedings are still pending .", "The applicant Mr ORG was born on DATE in GPE ( GPE ) . According to the respondent Government , he is of unknown citizenship . He moved to GPE at DATE and settled in FAC in DATE . He is a trained shoemaker . In DATE he rented a small workshop from GPE ( PERSON ) and established a private business there . He was registered as a permanent resident in GPE from DATE until DATE .", "In DATE he fell seriously ill , was hospitalised for DATE , and allegedly failed for that reason to lodge an application for NORP citizenship . The respondent Government confirmed that the applicant had been hospitalised . However , he had already been released from hospital on DATE .", "In DATE the applicant ’s home caught fire and he lost most of his papers . When he applied for replacement papers to GPE ( PERSON ) , he was informed that his name had been deleted from the Register .", "The applicant continued with his business and was paying the rent until DATE when he started experiencing financial difficulties . Since he could no longer pay the rent , he lost the right to remain in the LOC . Without any papers , he was at risk of being expelled if he travelled outside the local community where the police tolerated his presence .", "The applicant stated that at a later stage he tried on various occasions to regularise his status with ORG , including in DATE , but allegedly received no reply . On the other hand , the respondent Government maintained that Mr ORG had never applied for a residence permit in GPE .", "The applicant further maintained that in DATE he had started proceedings for pension rights with ORG . On DATE the latter sent him a letter with evidence of his years of employment , requesting him to provide a certificate of citizenship . However , further to the request of the Agent of the respondent Government , on CARDINAL DATE ORG stated that the applicant had not begun any official proceedings before it .", "On DATE the applicant applied for NORP citizenship as a stateless person . His request was dismissed on DATE .", "According to the respondent Government , on DATE the applicant again applied for NORP citizenship under section CARDINAL of LAW . The proceedings are pending .", "The applicant Mr PERSON was born on DATE in NORP ( GPE ) . He moved to GPE when he was DATE in search of work . Initially he moved around the country constantly but in DATE he settled in GPE . He was registered as a permanent resident there from DATE until CARDINAL DATE .", "NORP The applicant has been registered as unemployed in GPE since DATE . He stated that he had occasionally worked in GPE and GPE from DATE until DATE .", "In DATE the applicant allegedly enquired of GPE ( Občina Piran ) whether he had to apply for NORP citizenship . He was told that no application was necessary since he had his permanent residence registered there . He was alerted in DATE when he did not receive an invitation to vote in the local elections . In DATE when he sought to renew his identity card , holes were punched in it , making it invalid .", "According to the applicant , after his name was removed from the ORG in DATE , he lost the right to remain in the centre where he resided . He has been homeless ever since , living in a shelter made of wood and cardboard on a piece of land owned by GPE . As he had no valid documents he was unable to travel outside GPE and could not seek work in GPE or visit his parents in GPE . He also risked expulsion if he travelled around the country . In addition , he had health problems and has been in serious need of medical assistance .", "On DATE the applicant applied for NORP citizenship under section CARDINAL of LAW . On DATE the Ministry informed Mr Petreš that his application was incomplete and gave him DATE to provide the missing documents proving that he had accommodation , a permanent source of sufficient income , that he had no convictions and that no criminal proceedings were pending against him , that he had paid all his taxes , and that he had a sufficient command of the NORP language . The deadline for furnishing the missing documents was extended a number of times until DATE , when he was given DATE .", "On DATE the ORG terminated the proceedings under LAW , citing the applicant ’s inactivity . The applicant stated that his failure to submit the requested documents was not due to his unwillingness or negligence but to the actual impossibility of producing evidence .", "The applicant further stated that in DATE he sought in vain to obtain citizenship of GPE in GPE . Contrary to that , the respondent Government maintained that Mr Petreš was a citizen of GPE and GPE .", "On DATE Mr Petreš lodged a request for permanent residence under LAW . On DATE the permanent residence permit was issued to the applicant and served on him on DATE .", "In DATE , with the help of ORG ( Center za socialno delo PERSON ) the applicant was awarded a DATE social assistance allowance , in the amount of ORG CARDINAL .", "Further to the inquiries of the Agent of the respondent Government , on DATE ORG stated that there were no data concerning the applicant ’s employment in their evidence , nor had he started any proceedings before it .", "On DATE the President of the ORG requested the respondent Government and the applicants under LAW ( a ) to inform the ORG whether an additional residence permit , further to ORG decision of DATE , had been issued in respect of the applicant Mr Petreš .", "The respondent Government confirmed that on DATE the applicant had been ex officio issued a supplementary residence permit on the basis of point no . CARDINAL of the operative part of ORG decision of DATE , awarding him residence status from CARDINAL DATE .", "The applicant initially replied that no supplementary decision had been issued in respect of him . However , on DATE he confirmed the fact that he had been issued with the supplementary residence permit . Owing to impediments to serving the decision on the applicant in person , the decision was notified to him by publication on the ORG ’s notice board .", "The applicant Mr Jovanović was born on DATE in PERSON ( GPE ) . He is a citizen of GPE . He moved to GPE in DATE in search of work and settled in GPE . He had his permanent residence registered in GPE from DATE to CARDINAL DATE .", "According to the applicant , in DATE he did not apply for NORP citizenship because he could not obtain the required documents from GPE . Subsequently , he was stopped by the police in a routine check and his passport and identity card were confiscated . The applicant has not left GPE since DATE because he would be unable to re - enter the country , as he has no papers .", "The applicant worked in ORG brewery from CARDINAL DATE until DATE . Afterwards , he wished to set up a private company but his plans to pursue a private career fell through because of his lack of status . He also lost the apartment he had rented from his former employer , but acquired a new residence with his partner , ORG , who was also of NORP origin but had acquired NORP citizenship . They had a son , PERSON , who has NORP citizenship .", "NORP On DATE Mr Jovanović lodged an application for NORP citizenship under section CARDINAL of LAW and an application for a permanent residence permit .", "On DATE the Ministry informed him that his application for citizenship was incomplete . He was specifically requested to produce , inter alia , proof that he had sufficient income , no outstanding tax debts , and legal status as an alien .", "On DATE the Ministry informed PERSON that he had not lodged the application for a permanent residence permit with the competent administrative authority on the prescribed application form . As a consequence , he was requested to pay administration fees within DATE , which he did .", "According to the respondent Government , on DATE the applicant applied again for NORP citizenship under section CARDINAL of LAW .", "In the meantime , on DATE the applicant applied again for a permanent residence permit . On DATE he withdrew his request . On DATE ORG enota GPE ) terminated the proceedings .", "On DATE a permanent residence permit in proceedings initiated previously was issued to the applicant . The decision was served on him on DATE .", "On DATE his application for NORP citizenship was dismissed .", "Subsequently , according to the respondent Government , on CARDINAL DATE the applicant was awarded NORP citizenship by naturalisation since he is married to a NORP citizen .", "Further to the request of the Agent of the respondent Government , on DATE ORG stated that the applicant ’s employment in GPE was registered in their evidence . He did not start any proceedings before ORG .", "On DATE the President of the ORG requested the respondent Government and the applicants under LAW ( a ) to inform the ORG whether , further to ORG decision of DATE , a supplementary residence permit had been issued in respect of the applicant PERSON .", "The respondent Government confirmed that on CARDINAL DATE the applicant had been ex officio issued a supplementary residence permit on the basis of point no . CARDINAL of the operative part of ORG decision of DATE , awarding him residence status from CARDINAL DATE .", "The applicant initially replied that no supplementary decision had been issued in respect of him . However , on DATE he confirmed that he had been issued with the supplementary residence permit . Owing to various circumstances , however , he had previously been unaware of this fact . The decision was served on a member of PERSON family , who allegedly failed to inform him .", "The applicant PERSON was born on DATE in GPE ( GPE ) . According to the respondent Government , the applicant had NORP citizenship . He was registered as a permanent resident in GPE from DATE until DATE . His parents and CARDINAL brothers were born in GPE and they , like the applicant , were removed from the ORG in DATE . The applicant ’s mother was granted NORP citizenship in DATE and his father in DATE .", "The applicant stated that in DATE he had moved to GPE , but remained registered as a permanent resident in PERSON ( GPE ) until the events of DATE . He allegedly received false information from ORG . The respondent Government stated that the applicant had been living in GPE since DATE , and not only in DATE . He was therefore not resident in GPE when the plebiscite was held and when it became independent .", "The applicant worked in GPE until DATE , when his old SFRY passport expired and the NORP authorities refused to extend his residence permit . He remained in GPE illegally and on DATE he was ordered to leave the country within DATE . Eventually , he was given leave to remain in GPE since he had applied for recognition of his stateless person status and the proceedings were pending .", "NORP In the meantime , on DATE the applicant urged ORG to issue a decision regulating his status following the delivery of ORG decision of DATE ( see paragraphs CARDINAL above and CARDINAL - CARDINAL below ) . The respondent Government maintained that the applicant had never properly applied for a residence permit in GPE .", "On DATE the applicant applied for NORP citizenship under section CARDINAL of LAW as amended in DATE .", "On DATE the applicant filed an action complaining of the silence of the administrative authorities ( tožba zaradi molka upravnega organa ) in ORG of ORG ( ORG sodišče , ORG ) since he had not been issued with a supplementary decision ( see paragraph CARDINAL above ) .", "On CARDINAL DATE the applicant ’s action was rejected by ORG .", "On DATE the ORG dismissed his application for NORP citizenship because he had failed to prove that he had in fact resided in GPE for DATE and had lived there constantly for DATE .", "The applicant PERSON was born on DATE in GPE ) . She is a NORP citizen . In DATE she moved to GPE ( GPE ) , where she later found work . She was registered as a permanent resident in GPE from DATE to CARDINAL DATE .", "According to the applicant , in DATE , after the birth of her second child , she became aware of the fact that her name had been erased from the ORG . Her employer shortened her maternity leave and made her redundant . Moreover , in DATE she was stopped by the police during a routine check . Since she had no papers , she was detained at the police station and later in a transit centre for foreigners ( prehodni dom za tujce ) , but was released after paying a fine .", "Subsequently , she moved to GPE , where she met PERSON , a NORP citizen , with whom she had CARDINAL children , both of whom are NORP citizens .", "On DATE PERSON lodged an application for a permanent residence permit under LAW . ORG asked her CARDINAL times to complete her application and informed her that she could also have sought a permanent residence permit under the provisions for family reunification .", "On DATE the applicant requested the ORG to issue a supplementary decision under point CARDINAL of the operative part of ORG decision of DATE ( see paragraph CARDINAL above ) .", "On DATE the applicant applied for NORP citizenship under section CARDINAL of the amended LAW .", "On DATE the applicant attended a meeting at ORG in the framework of proceedings for a permanent residence permit . On DATE the applicant was requested to complete her application .", "On DATE ORG stated that the applicant ’s employment in GPE was registered in their files .", "On DATE the ORG terminated the proceedings relating to the applicant ’s request for a permanent residence permit on account of her inactivity .", "In the proceedings concerning the citizenship , on DATE the Ministry gave the applicant DATE to complete her application . Among other things , she was to prove that she had in fact been resident in GPE since DATE .", "On DATE the ORG dismissed her application for NORP citizenship .", "On DATE the applicant applied for a temporary permit as a family member of a NORP citizen .", "On DATE the applicant received a temporary residence permit valid until DATE .", "NORP The applicant PERSON was born on DATE in GPE ( GPE ) . She is currently a NORP citizen . She moved to GPE ( GPE ) in DATE in search of work . She married there and on DATE her son , the applicant Mr PERSON , was born . He is a citizen of GPE . Both applicants were registered as permanent residents in GPE before the events of DATE ; PERSON from DATE to CARDINAL DATE and her son from DATE until DATE .", "PERSON maintained that she believed that she would be awarded NORP citizenship automatically as a permanent resident . However , in DATE both PERSON and her son were deported from GPE . PERSON husband , who was in possession of a work permit and a temporary residence permit at the material time , remained in GPE . He later received a permanent residence permit .", "According to the respondent Government , PERSON moved from her Municipality without deregistering her permanent residence and her personal card was for that reason transferred from ORG into the ORG of those “ emigrated without having deregistered ” .", "In DATE PERSON acquired a NORP identity card and in DATE a NORP passport . In DATE , the authorities of GPE issued an identity card and a passport to PERSON . Since he has no NORP documents he has allegedly been living in GPE in constant fear of being deported .", "The applicants PERSON and PERSON stated that they never applied for a permanent residence permit or for NORP citizenship since they did not fulfil the condition of actually living in GPE under the existing legislation .", "The applicant PERSON was born on DATE in GPE ) in a GPE ethnic community . According to the respondent Government , he is a NORP citizen . He moved to GPE in DATE . He worked in a factory “ Elektrokovina ” in GPE until DATE . He was registered as a permanent resident in GPE from DATE until DATE .", "In DATE he allegedly spent some time in GPE with his sick mother . This appears to have been the reason why he did not apply for NORP citizenship at that time .", "NORP The applicant maintained that he was detained in DATE by the NORP border police as he re - entered the country after visiting relatives in GPE . His SFRY passport was taken away from him and he was kept in a transit centre for foreigners for DATE . On DATE he was deported to GPE ( GPE ) , allegedly without any decision . The NORP police returned the applicant to GPE because he had no passport . He was again placed in the transit centre , from which he escaped during TIME .", "In DATE the applicant fled to GPE , where he received a temporary residence permit for humanitarian reasons , owing to the unstable situation in GPE at the time .", "NORP On DATE he married PERSON , born in GPE , also a member of a GPE ethnic group . CARDINAL children were born DATE while the family lived in GPE and received welfare benefits there .", "In DATE the NORP authorities dismissed the applicant ’s request for another extension of his residence permit because the overall situation in GPE was deemed stable enough for him to return there . He was ordered to leave GPE with his family by DATE .", "At an unknown time , the applicant and his family lodged requests for asylum in GPE .", "Subsequently , the applicant and his family moved to GPE .", "On DATE the applicant and his family lodged an application for temporary residence permits and on DATE they lodged an application for permanent residence permits under LAW .", "In addition , on DATE the applicant and his family filed asylum requests . The applicant also sought refugee status .", "Further to the withdrawal of their asylum requests , on DATE the ORG terminated the proceedings . ORG also ordered that the applicant and his family should return to GPE . On DATE the removal order was issued but was not executed . On DATE a new removal order was issued , setting the date of removal for DATE . The applicant started proceedings before ORG . On DATE his request was granted .", "At that time the case also received considerable attention from the local and international community owing to the efforts of ORG .", "On DATE the family again applied for asylum in GPE . They were living in an asylum centre ( azilni dom ) at the time .", "On DATE the applicant brought an action before ORG , complaining of the silence of the administrative authorities in the proceedings related to the permanent residence permits for him , his wife and their CARDINAL children . Those proceedings are pending .", "On DATE the NORP authorities informed the NORP authorities that GPE had jurisdiction under LAW for examining the asylum applications of the PERSON family .", "On DATE the applicant ’s fifth child was born in GPE .", "On DATE the ORG decided , further to the above - mentioned decision of the NORP authorities , that they did not have jurisdiction for the examination of the asylum requests of the applicant and his family and that they would be handed over to GPE . ORG had also received fresh evidence that PERSON and his family were asylum seekers in GPE , where they had received financial aid for that purpose .", "On DATE the applicant and his family instituted proceedings in ORG , contesting the ORG ’s decision . On DATE they also requested that the impugned decision not be enforced and withdrew their application for asylum .", "According to the applicant , on DATE the Ministry again tried to transfer the applicant and his family to GPE and on DATE ORG annulled the removal order .", "On DATE ORG ( Vrhovno sodišče ) upheld the Ministry decision ’s of DATE that GPE had jurisdiction under LAW to decide on the applicant ’s request for asylum .", "On DATE the applicant and his family were handed over to GPE .", "Neither the applicant nor his family have applied for NORP citizenship .", "On DATE the applicant filed a constitutional complaint . The proceedings before ORG are pending .", "NORP The applicant PERSON was born on DATE in GPE ( “ the former GPE ” ) in a GPE ethnic community . According to the respondent Government , he is of unknown citizenship . In DATE he moved to GPE , where he worked until DATE . He had his permanent residence registered there from DATE to CARDINAL DATE .", "According to the applicant , in DATE he was stopped by the police in the course of a routine check . Since he had no valid papers , he and his family were expelled to GPE . Shortly afterwards they moved to GPE , from where they re - entered GPE illegally .", "On DATE the applicant lodged an application for NORP citizenship with the assistance of a lawyer .", "NORP The applicant later moved to GPE where he declared himself a stateless person and obtained a temporary residence permit and a passport for foreigners .", "On DATE he requested the Embassy of “ the former GPE ” to issue him with a passport , but received a negative reply since he was not their citizen .", "On DATE the applicant applied for a permanent residence permit under LAW . On DATE the ORG requested him to complete his application with evidence of citizenship .", "On CARDINAL DATE his application was rejected on the ground that the applicant was a stateless person . ORG stated that LAW applied only to citizens of the former LAW .", "On DATE the ORG replied to the applicant ’s letter seeking further examination of his application for NORP citizenship lodged in DATE . It informed him that , since he did not appear to have lived in GPE for DATE , he did not meet the requirements for NORP citizenship under the amended LAW .", "On DATE his application for NORP citizenship was dismissed .", "NORP On DATE the applicant again applied for a permanent residence permit under LAW . On DATE his application was rejected , again on the ground that the applicant was not a citizen of any of the former SFRY republics .", "The applicant started proceedings before ORG which are pending .", "The applicant now lives in GPE .", "NORP The applicant PERSON was born on DATE in GPE ( GPE ) . According to the respondent Government , he is a NORP citizen . He moved to GPE with his family in DATE . He was registered as a resident in GPE from DATE to CARDINAL DATE .", "According to the applicant , he and his family applied for NORP citizenship under LAW . However , they missed the deadline for lodging the application by DATE , as the war in GPE had made collecting the necessary documents difficult . According to the information supplied by the respondent Government , there was no evidence that Mr Minić had applied for NORP citizenship in DATE . Finally , PERSON mother was awarded NORP citizenship in DATE and his siblings in DATE .", "The respondent Government stated that it followed from his employment documents that he had been working in PERSON from DATE until DATE . He married a NORP citizen , with whom he has QUANTITY children . On the other hand , the applicant stated that he had been living in GPE in DATE .", "NORP In DATE PERSON was arrested by the police in GPE because he was working without a permit . He was prosecuted , ordered to pay a fine and on DATE expelled to GPE , in spite of ORG decision of CARDINAL February CARDINAL ( see paragraphs CARDINAL above and CARDINAL below ) , without any formal decision .", "On DATE the applicant applied for NORP citizenship under LAW of the amended LAW .", "DATE and DATE the ORG asked the applicant CARDINAL times to complete his application by providing evidence , among other things , that he had been living in GPE without interruption since DATE . When he failed to do so , he was summoned for a hearing at the Ministry .", "At the hearing on DATE he confirmed the information stated in his employment record , namely that he had worked in GPE ( GPE ) from DATE to DATE and had thus not been living in GPE uninterruptedly since DATE .", "On DATE his application for NORP citizenship was accordingly dismissed . That decision was served on PERSON between DATE and DATE during a trip to GPE .", "On DATE the applicant initiated proceedings before ORG . The proceedings are pending .", "On DATE the applicant applied for a permanent residence permit under LAW .", "On DATE a hearing was held at the Ministry . On DATE the applicant provided supplementary documents in support of his request .", "On DATE the ORG dismissed the applicant ’s request since he did not meet the requirement of the actual residence in GPE .", "On DATE the applicant initiated proceedings before ORG . The proceedings are pending .", "In the former GPE , citizenship was regulated by different federal and individual republics’ acts on citizenship ( see paragraphs CARDINAL - CARDINAL below ) .", "Section CARDINAL of the Citizenship of the NORP LAW provided for uniformity of NORP citizenship , which comprised both federal and republic citizenship : every citizen of a republic was simultaneously a federal citizen and every federal citizen was also a republic citizen .", "After the adoption of the LAW in DATE , this LAW was confirmed as the Citizenship of the Federal People ’s Republic of Yugoslavia Act .", "Section CARDINAL of this Act specified that citizenship of GPE could only be held by persons who were also citizens of ORG of Yugoslavia .", "Following the adoption of the DATE LAW , LAW was passed in DATE . LAW provided that the republic citizenship could only be held by a NORP citizen , thus retaining the primacy of federal citizenship . Loss of NORP citizenship entailed loss of republic citizenship .", "Consequently , the new Citizenship of GPE was adopted in DATE .", "The Preamble of the LAW of the SFRY read :", "“ Proceeding from the right of every nation to self - determination , which also includes the right to secede , the nations of GPE have , on the basis of the freely expressed will in the common struggle of all the nations and nationalities in the national liberation war and socialist revolution , in accordance with their historical aspirations , aware that the further strengthening of brotherhood and unity is in the common interest , together with the nationalities with which they live , united into a federal republic of free and equal nations and nationalities and have created a socialist federal community of working people – ORG – in which in the interest of each nation and each nationality in particular and of all together they shall fulfill and ensure :", "...", "The working people and nations and nationalities shall fulfill their sovereign rights in the socialist GPE and in the socialist autonomous regions in accordance with their constitutional rights and – where this LAW so provides in the common interest – in ORG . ... ”", "DATE LAW defined the SFRY as a federal ORG consisting of voluntarily united nations . Individual republics were defined as GPE based on national sovereignty and on the rule and self - management of the working class and all working people ( Article CARDINAL ) .", "Article CARDINAL of the LAW provided that SFRY citizenship was common to all residents of GPE , whereby every citizen of a republic was at the same time a citizen of the SFRY .", "Following the adoption of LAW , a new LAW , the last , was enacted in DATE .", "Article CARDINAL of LAW set forth the duties of the republic : ensuring and exercising sovereignty , equality and national freedom , ensuring independence and territorial integrity , ensuring human rights ; ensuring conditions for the development and progress of the NORP nation ; developing international relationships in the political , economic , cultural and other areas within the framework of foreign policy of the SFRY ; performing all other functions that are important for political , economic and cultural activities ; defence and socialist self - managing of the democratic social environment .", "NORP Moreover , the same article provided that only those duties which , in the common interest of nations and nationalities and on the basis of an agreement of the GPE and autonomous regions , were so defined by LAW , were to be fulfilled within the SFRY .", "In relation to citizenship , the LAW provided that every citizen of GPE was simultaneously a citizen of the SFRY .", "In DATE , LAW to LAW replaced its LAW , and provided :", "“ GPE exists within the composition of the SFRY on the basis of the permanent , integral and inalienable right of the NORP nation to self - determination , which also includes the right to secede . ”", "Section CARDINAL of this Act provided that every citizen of GPE was simultaneously a citizen of the SFRY , thus establishing the primacy of the republic citizenship .", "This Act clearly distinguished between a permit for temporary or permanent residence of an alien in the ORG territory and the temporary or permanent place of residence of a SFRY citizen , denoting the actual location of his / her residence .", "This Act regulated the registration and deregistration of permanent and temporary residence and the keeping of population registers on NORP territory .", "In DATE , its section CARDINAL was amended to provide :", "“ The registration of permanent residence and registration of any change of address is obligatory for all inhabitants , whenever they settle permanently in a settlement or change their address . Deregistration of permanent residence is obligatory for inhabitants who move from the territory of GPE . ”", "The relevant provisions of this Act provide :", "“ Personal cards shall contain the following data on the inhabitant :", "unique personal identification number ( enotna matična številka občana )", "...", "national affiliation , nationality or ethnic group ,", "citizenship of a socialist republic ,", "... ”", "“ If the competent authority determines that for an individual inhabitant the reasons for being kept in the card index of permanent residents have ceased , it shall remove that person ’s card from the card index of permanent residence and shall place it in CARDINAL of the special card indexes . ”", "“ ..", "The competent authority must harmonise and supplement the files DATE with regard to the following events :", "...", "loss of citizenship of a socialist republic and the SFRY and change in citizenship of a socialist republic ,", "... ”", "The purpose of the Statement of Good Intentions , adopted on DATE in the course of preparations for the plebiscite on the independence of GPE , was to express the ORG ’s commitment to certain values in pursuit of its independence . The relevant provision of this document provides :", "“ ... ORG ... shall ... guarantee to all members of other nations and nationalities the right to an all - embracing development of their culture and language and to all those who have their permanent residence in GPE the right to obtain NORP citizenship if they so wish ... ”", "NORP The relevant provisions of LAW on the Sovereignty and Independence of GPE , published on DATE , provide :", "“ GPE guarantees the protection of human rights and fundamental freedoms to all persons on the territory of GPE , regardless of their national origin and without any discrimination , in accordance with LAW and binding international agreements ... ”", "The relevant provisions of the CARDINAL LAW provide :", "“ Citizens of the other GPE [ of the former SFRY ] who on DATE , DATE the plebiscite on the independence of GPE was held , were registered as permanent residents in GPE and in fact live here shall until they acquire citizenship of GPE under section CARDINAL of the Citizenship of GPE or until the expiry of the time - limit set forth in section CARDINAL of LAW , have equal rights and duties as the citizens of GPE ... ”", "NORP The relevant provisions of LAW provide :", "“ LAW must comply with generally accepted principles of international law and with treaties that are binding on GPE . Ratified and published treaties shall be applied directly . ”", "“ In GPE everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin , race , sex , language , religion , political or other conviction , material standing , birth , education , social status or any other personal circumstance .", "All are equal before the law . ”", "“ ORG may call a referendum on any issue which is the subject of regulation by law . ORG is bound by the result of such referendum .", "ORG may call a referendum from the preceding paragraph on its own initiative , however it must call such a referendum if so required by CARDINAL of the deputies , by ORG or by CARDINAL voters ..", "The right to vote in a referendum is held by all citizens who are eligible to vote in elections .", "A proposal is passed in a referendum if a majority of those voting have cast votes in favour of the same .", "Referendums are regulated by a law passed in ORG by a CARDINAL majority vote of deputies present . ”", "The relevant provisions of LAW provide :", "“ CARDINAL . ORG is the highest body of judicial authority for the protection of constitutionality , legality , human rights and basic freedoms .", "In relation to other ORG bodies , ORG is an autonomous and independent state body .", "Decisions of ORG are legally binding . ”", "“ The Constitutional Court shall issue a decision declaring that the appeal was unfounded or shall accept the appeal and quash the act that was the subject of the appeal or declare it null and void in whole or in part , and return the matter to the competent body . ... ”", "“ CARDINAL . If ORG quashes an individual act , it may also decide a contested right or freedom if such a procedure is necessary in order to put an end to consequences that have already occurred as a result of that act or if such is the nature of the constitutional right or freedom and provided that a decision can be reached on the basis of information in the record .", "The decision referred to in the preceding paragraph is implemented by the authority which is competent for the implementation of the individual act which ORG abrogated or annulled and replaced by its decision . If there is no competent authority according to the regulations in force , ORG determines CARDINAL . ”", "The relevant provisions of LAW provide :", "“ The competent authority may , within its discretion , admit a person requesting naturalisation if this is in compliance with the national interest . The person must fulfil the following conditions :", "be DATE ;", "have been released from current citizenship or prove that he / she will be released [ from such citizenship ] if he / she acquires citizenship of GPE ;", "have in fact been living in GPE for DATE , of which DATE prior to the submission of the application are to have been continuous ;", "have a guaranteed permanent source of income , at least in an amount that enables material and social security ;", "have a command of the NORP language for the purposes of everyday communication ;", "not have been sentenced to a prison sentence longer than DATE in the country of which he / she is a citizen or in GPE for a criminal offence which is prosecuted by law , provided that such an offence is punishable pursuant to the regulations of his / her country and also pursuant to the regulations of GPE ;", "not have had his or her residence in GPE prohibited ;", "the person ’s naturalisation must pose no threat to the public order , security or defence of the ORG ;", "... ”", "“ If the procedure for the establishment of citizenship or for the acquisition or loss of citizenship of GPE was introduced upon request of the person concerned and it is impossible to end the procedure without his / her cooperation , his / her silence shall be considered as the withdrawal of the request , if he / she , despite an admonition from the competent authority , does not carry out any activity within the given term , necessary to continue or end the procedure , or if it can be concluded from the omission of such deeds that he / she is no longer interested in the continuation of the procedure .", "The procedure can only be ended on the basis of the reasons under the preceding paragraph after DATE have expired from the admonition . ”", "“ Persons who acquired citizenship of GPE and of ORG under valid legislation shall be considered citizens of GPE under the present Act . ”", "“ ORG of another republic [ of the former SFRY ] who on DATE , DATE the plebiscite on the independence of GPE was held , were registered as permanent residents in GPE and in fact live here shall acquire citizenship of GPE if they lodge , within DATE after the present Act enters into force , an application with the internal affairs authority of the municipality where they live ... ”", "On DATE LAW was amended , by adding the following CARDINAL paragraphs to the above - mentioned section CARDINAL :", "“ Even if the applicant meets the requirements set forth in the preceding paragraph his or her application will be dismissed , if he or she committed , after DATE , a crime ..... against GPE or other values protected by the criminal legislation in accordance with section CARDINAL of LAW relating to LAW on the Sovereignty and Independence of GPE , regardless of where the crime was committed . If criminal proceedings are pending , the procedure concerning nationality shall be suspended until the decision in the aforementioned proceedings becomes final .", "Even if the applicant meets the requirements for citizenship set forth in the first paragraph , his or her application may be dismissed [ if granting citizenship would be liable to undermine public order , security or defence of the ORG ] . ”", "In its decision U - I-CARDINAL/CARDINAL of DATE , ORG declared unconstitutional the provision in the latter paragraph that cited “ public order ” as a reason for denying citizenship .", "NORP On DATE the Citizenship of GPE was further amended . The relevant provision reads :", "“ An adult who on DATE was registered as a permanent resident on the territory of GPE and has lived there uninterruptedly since DATE , may apply for citizenship of GPE within DATE after the present Act enters into force if he or she meets the requirements set forth in ... this Act .", "When deciding under the preceding paragraph whether the applicant meets the requirements set forth in ... this LAW , the competent authority may take into consideration the length of the applicant ’s stay in the ORG , his or her personal , family , business , social and other ties with GPE and the consequences a refusal of citizenship would have for the applicant .", "... ”", "The relevant provisions of LAW read as follows :", "“ A foreigner who enters the territory of GPE with a valid passport may remain in it for DATE or as long as the validity of an issued visa allows him to , unless otherwise provided by an international agreement ...", "A foreigner wishing to remain on the territory of GPE for longer than provided by the above paragraph for reasons of education , specialisation , employment , medical treatment , professional experience , or because they have married a citizen of GPE , have immovable property on the territory of GPE , or enjoy the rights afforded by employment in the ORG or for any other valid reason requiring their residence in the ORG , must apply ... for a temporary residence permit .", "... ”", "“ A residence permit may be issued as", "( i ) a temporary permit ; or", "( ii ) a permanent residence permit . ”", "“ A permanent residence permit may be issued to a foreigner who has been living on the territory of GPE continuously for DATE on the basis of a temporary residence permit and meets the requirements set forth in section CARDINAL of this LAW for permanent residence on the territory of GPE ... ”", "“ A foreigner residing on the territory of GPE on the basis of a foreign passport , a visa or an entrance permit , or an international agreement ... or who has been issued with a temporary residence permit ... may be refused leave to remain :", "( i ) if reasons of public order , security or defence of the ORG so demand ;", "( ii ) if he or she refuses to abide by a decision of the ORG authorities ;", "( iii ) if he or she repeatedly breaches public order , national border security or the provisions of this LAW ;", "( iv ) if he or she is convicted by a foreign or national court of a crime punishable by CARDINAL months’ imprisonment ;", "( v ) if he or she no longer has sufficient means of subsistence and his or her subsistence is not otherwise secured ;", "( vi ) for the protection of public health . ”", "“ An authorised officer of the internal affairs authority may take a foreigner who fails voluntarily to leave the territory of GPE when required to do so by the competent authority or administrative body in charge of internal affairs , or who resides on the territory of GPE beyond the period provided for in section PERSON ) of this LAW or beyond the period allowed in the decision granting temporary residence , to the State border or diplomatic - consular representation of the ORG of which he or she is a citizen , and direct such person to cross the border or hand him or her over to the representative of a foreign country .", "The internal affairs authority concerned shall order any foreigner who does not leave the territory of GPE in accordance with the above paragraph and can not be removed immediately for any reason , to reside in a transit centre for foreigners for a period not exceeding DATE if there exists a suspicion that he or she will seek to evade this measure .", "An internal affairs authority may designate a different place of residence for a foreigner who is unable to leave the territory of GPE immediately but has sufficient means of subsistence . ”", "“ Until the decision issued in the administrative proceedings concerning the request for citizenship becomes final , the provisions of this Act shall not apply to citizens of the SFRY who are citizens of other GPE and who apply for NORP citizenship in accordance with section CARDINAL of the Citizenship of GPE within DATE after it enters into force .", "As regards citizens of the SFRY who are citizens of other GPE but either do not apply for citizenship of GPE within the time - limit set out in the previous paragraph or are refused citizenship , the provisions of this LAW shall apply DATE after the expiry of the time - limit within which they could have applied for citizenship or after the decision made in respect of their application became final . ”", "“ ... Permanent residence permits issued in accordance with the Movement and Residence of Foreigners Act ... shall remain valid if the foreign holder of such a permit had permanent residence on the territory of GPE when this LAW came into force . ”", "NORP In order to faciliate the acquisition of permanent residence permits for citizens of the other former SFRY republics who have either failed to apply for NORP citizenship or have not acquired residence permits under LAW , on DATE the Government adopted the following decision :", "“ ... in examining applications for permanent residence permits for aliens referred to in LAW of LAW ... , ORG Interior shall take into account that the condition for permanent residence in the territory of GPE has been met when the alien has had permanent residence registered for DATE and was in fact living here before the provisions of LAW started applying to him . ”", "In DATE section CARDINAL of LAW was amended so as to require DATE uninterrupted residence on the basis of a temporary residence permit in order for a foreigner to qualify for permanent residence .", "The DATE LAW replaced LAW of DATE . Several amendments were made to the DATE LAW in DATE , DATE and DATE . The relevant provision of the amended DATE LAW provides :", "“ Foreigners registered as a permanent resident in GPE and foreigners who have been living in GPE for DATE as a temporary resident and have acquired a temporary residence permit valid for DATE shall have , under the terms set forth in this LAW , a right to preservation of family and a right to family reunification ...", "An application for a residence permit shall be lodged with a diplomatic - consular representation of GPE abroad or with a competent authority in GPE .", "For the purposes of this LAW , the members of the foreigner ’s immediate family are :", "( i ) a spouse ;", "( ii ) minor unmarried children of the foreigner ;", "( iii ) minor unmarried children of the spouse ;", "( iv ) parents of the minor foreigner ;", "( v ) foreigner ’s or spouse ’s unmarried of - age children and parents which the foreigner or the spouse are obliged to support in accordance with the legislation of the ORG of his or her citizenship .", "... ”", "The relevant provisions of LAW , enacted further to ORG decision of CARDINAL DATE ( see paragraphs CARDINAL above and CARDINAL - CARDINAL below ) , provide :", "“ ORG of another successor ORG to the former SFRY ( hereinafter ‘ a foreigner’ ) who were registered as permanent residents on the territory of GPE on DATE and are in fact residing in GPE , and foreigners who were in fact resident in GPE on DATE and have been living there continuously ever since shall be issued with a permanent residence permit , regardless of the provisions of LAW ... , if they meet the requirements set forth in this LAW . ”", "“ An application for permanent residence shall be filed within DATE after this LAW enters into force ...", "A foreigner who has lodged an application for permanent residence pursuant to section CARDINAL of the Citizenship of GPE ... but has received a decision refusing to grant his application , may file an application under the preceding paragraph within DATE after this LAW enters into force or the decision became final , if such decision is issued after this LAW entered into force ... ”", "“ A permanent residence permit shall not be issued if the applicant has :", "( i ) disturbed the peace or breached public order by the use of violence since DATE ; or", "( ii ) been convicted and sentenced to DATE imprisonment since DATE ; or", "( iii ) been convicted and sentenced , in total , to CARDINAL years’ imprisonment since DATE ; or", "... ”", "The DATE amendments to this Act were made as a result of ORG decision of CARDINAL DATE ( see paragraphs CARDINAL below and CARDINAL - CARDINAL above ) and replaced the original section CARDINAL with a new section which provides as follows :", "“ The Ministry [ of ORG ] may refuse a permanent residence permit to a foreigner who , by a final judgment :", "( i ) has been convicted of a criminal offence and sentenced to DATE imprisonment ;", "( ii ) has been convicted and sentenced to a total of PERCENT imprisonment ;", "...", "When taking a decision on the basis of the preceding paragraph , the Ministry shall take into consideration the length of the applicant ’s stay in the ORG , his personal , family , business , social and other ties with GPE and the potential consequences of a refusal of a permanent residence permit for the applicant . ”", "The relevant provision of the ORG provides :", "“ The record of permanent residents contains data on citizens of GPE who have registered permanent residence in the territory of the municipality .", "In the record of permanent residents , the competent authority shall identify citizens of GPE who travel abroad temporarily for DATE , and persons to whom the authority has declined registration of permanent residence ... ”", "The relevant provisions of this Act provide :", "“ CARDINAL . During pregnancy and following childbirth , a female worker shall have the right to maternity leave and childcare leave in a total duration of DATE .", "The female worker shall use the right to maternity leave in the form of absence from work of DATE , and following the expiry of maternity leave shall use the right to childcare leave in the form of absence from work of DATE or by working CARDINAL of TIME a day until the child is DATE . ”", "The ORG - management Agreement on Maternity Leave ( Samoupravni sporazum o porodniškem dopustu , ORG of the ORG , no . CARDINAL , as amended ) , which previously governed maternity leave , contained similar provisions .", "The transitional provision of section CARDINAL of this Act enabled the citizens of other former ORG to acquire a DATE work permit if , on DATE of the entry into force of the LAW , they were formally employed in GPE for an indefinite period with DATE of service or if they were in fixed - period employment or if they were in an employment relationship for a fixed or indefinite period as DATE migrants , or registered at ORG and receiving financial benefits in accordance with the regulations on employment and employment insurance . Any citizens of other former ORG ( with some exceptions ) who on DATE of the entry into force of the act were in an employment relationship of an indefinite period in GPE and had DATE of service were enabled to acquire a work permit for an indefinite period . Both categories were to have applied for work permits within DATE of the LAW entering into force .", "The following provisions of this LAW are relevant :", "Section CARDINAL", "“ The pension and invalidity insurance system in GPE shall cover :", "- a compulsory pension and invalidity insurance scheme on the basis of intergenerational solidarity ;", "- compulsory and voluntary supplementary pension and invalidity insurance schemes ; and", "- a pension and invalidity insurance scheme on the basis of personal pension savings accounts . ”", "“ CARDINAL . The rights under compulsory insurance shall be as follows :", "a. the right to a pension :", "- old - age pension ,", "- invalidity pension ,", "- widow / widower ’s pension ,", "- survivor ’s pension ,", "- partial pension ;", "... ”", "“ CARDINAL . Compulsory insurance shall cover the nationals of GPE and foreign nationals , provided they fulfil the conditions stipulated by the present LAW or by a relevant treaty . ... ”", "“ CARDINAL . Compulsory insurance shall cover persons employed in the territory of GPE . ... ”", "Section CARDINAL(CARDINAL ) of this LAW provides that in simple matters , where there is no need to undertake separate examination proceedings , an administrative body is obliged to give a decision within DATE of the submission of an application . In all other cases , the administrative body is obliged to give a decision within DATE .", "Section CARDINAL ) entitles a party whose application has not been decided upon within the time - limits set out in subsection ( CARDINAL ) to lodge an appeal as if the application had been denied .", "The relevant sections of this Act provide :", "“ CARDINAL . The action must be filed within DATE of the delivery of the administrative act by means of which the procedure was concluded . The public - interest representative may file an action even if he was not a party to the proceedings in which the administrative act was issued , within the time - limit that applies to the party in favour of which the administrative act was issued .", "NORP If the second - instance authority does not rule on the applicant ’s appeal against the first - instance decision within DATE or within a shorter period if any , provided by a special regulation , and fails to make an award upon a subsequent request within a further period of DATE , the applicant may then bring an administrative action , as if his request had been dismissed . ”", "“ CARDINAL . An action may be filed to request :", "- the annulment of the administrative act ( challenging action ) ,", "-the issuing or service of the administrative act ( action due to non - response of the authority ) ,", "-amendment of the administrative act ( action in a dispute of full jurisdiction ) . ”", "Similar provisions were contained in sections CARDINAL and CARDINAL of the previously valid LAW ( Official Gazette no . CARDINAL , as amended ) .", "On DATE ORG declared partly admissible a challenge to the constitutionality of LAW , lodged by CARDINAL individuals whose names had been removed from the ORG in DATE .", "In a decision of CARDINAL DATE ( ORG ) ORG declared that LAW of LAW was unconstitutional since it had not set out the conditions for acquisition of permanent residence for those subject to its second paragraph . It noted that the authorities had deleted the names of citizens of the former ORG who had not applied for NORP citizenship from the ORG and entered them ex officio in the register of foreigners , without any notification . It further found that there was no legal basis for this measure ; ORG did not provide for an ex lege deregistration .", "ORG stated that the provisions of LAW were , in general , designed to regulate the status of foreigners who entered GPE after independence , not of those who were already living there . While section CARDINAL of LAW did regulate the legal status of foreigners originating from outside the former GPE , no similar provision existed in respect of people from the former SFRY . As a consequence , the latter were in a less favourable legal position than foreigners who had lived in GPE since before independence . Failing to regulate the legal status of these people was contrary to LAW .", "ORG noted in this respect that a proposal had been made in the legislative process in DATE for a special provision regulating the temporary situation of former SFRY citizens living in GPE who had not applied for NORP citizenship . The legislature had maintained that their situation should not be regulated by LAW but rather by an agreement between the successor GPE to the former SFRY . Since those agreements had not been concluded , notably because of the state of war in GPE and in GPE , their situation remained unaddressed . In ORG view , in the light of modern developments in human - rights protection , the situation of persons having held the nationality of the predecessor but not of the successor ORG , with permanent residence on the territory of GPE disintegrated after DATE , had become a matter of international agreements .", "Furthermore , the provisions of LAW regulating the acquisition of permanent and temporary residence ( sections CARDINAL and CARDINAL of LAW ) could not be used to remedy the status of citizens of the former SFRY republics because permanent residence and the fact of actual residence in GPE were particular circumstances requiring special consideration . Citizens of the former ORG had a reasonable expectation that the new conditions for retaining permanent residence in GPE would not be stricter than those set forth in LAW relating to LAW on the Sovereignty and Independence of GPE and section CARDINAL of LAW , and that their status would be determined in accordance with international law .", "Section CARDINAL was therefore declared unconstitutional as it did not prescribe the conditions under which persons subject to this section who either failed to apply for or were denied NORP citizenship could apply for permanent residence after the expiry of the prescribed time - limit . A legal void was thus constituted and the principles of the rule of law , of legal certainty and equality breached .", "The Constitutional Court further found that section CARDINAL ) of LAW was not unconstitutional , because it applied only to foreigners entering GPE after independence .", "The legislature was given DATE in which to modify the unconstitutional provisions . In the meantime , ORG ruled that no citizen of the former SFRY who was registered as a permanent resident in GPE on DATE , DATE on which the plebiscite on independence was held , and was living in GPE when ORG judgment was issued , could be forcibly removed from GPE pursuant to LAW of LAW .", "ORG also pointed out that the unregulated situation of citizens of the former SFRY republics who have found themselves in a precarious legal position could lead to a violation of the right to respect for family life , as protected by LAW .", "ORG In a decision of DATE ( Up-CARDINAL/CARDINAL ) ORG referred to its findings in the decision of DATE and reiterated that citizens of the former SFRY republics were in a less favourable position than other foreign citizens who were living in GPE on the date of independence . It noted that following its decision of CARDINAL DATE a Bill the LAW had been drafted , but had not yet been adopted , for the purpose of addressing the issue raised by that judgment .", "In the case before it , the claimant , whose name had been deleted from the ORG in DATE , had been refused the renewal of his driving licence , because he was considered a foreigner without lawful residence in GPE . ORG ordered that , until LAW entered into force , he should enjoy the status he would have had under LAW of LAW on the Sovereignty and Independence of GPE before the expiry of the time - limit set forth in LAW of the CARDINAL LAW . The authorities were ordered to register the claimant as a permanent resident at the address where he was living before his name was illegally deleted from the ORG . They were also ordered to renew his driving licence .", "In a decision of DATE ( ORG ) , the claimants , who were members of the same family and citizens of CARDINAL of the former SFRY republics , were denied permanent residence under LAW of LAW , because the father had lost his job . ORG , for reasons similar to those in case no . Up-CARDINAL/CARDINAL , held that until LAW entered into force , the authorities should register them as permanent residents at the address where they were living before their names were illegally deleted from the ORG .", "In a decision of CARDINAL DATE ( U - I-CARDINAL/CARDINAL ) ORG set aside the first , second and third sub - paragraphs of section CARDINAL of LAW . It found that the requirements for the acquisition of permanent residence set forth in these provisions were stricter than the grounds for revoking a permanent residence permit under LAW .", "It went on to hold that the legal status of citizens of the former SFRY republics should be regulated on the basis of the position the individuals concerned would have had , but did not have , because of the legislature ’s failure to regulate it . It reiterated that the legal status of citizens of the former SFRY republics should not be essentially different from that enjoyed by foreign citizens who had acquired permanent resident status in GPE before independence .", "NORP In case no . U - I-CARDINAL/CARDINAL the Constitutional Court reiterated its ruling in its decision of CARDINAL DATE . It found LAW unconstitutional because , firstly , it did not grant retrospective permanent residence from DATE of the erasure of the names of those concerned from the ORG ; secondly , it failed to regulate the acquisition of permanent residence for citizens of former ORG who had been forcibly removed from GPE pursuant to LAW of LAW ; and , thirdly , it did not define the meaning of the words “ in fact residing ” in section CARDINAL . ORG also struck down the DATE time - limit for submitting applications for permanent residence because it was unreasonably short . It ordered the legislature to rectify the unconstitutional provisions of the impugned act within DATE .", "In point no . CARDINAL of the operative part of the decision , it held that permanent residence permits already issued to citizens of the former SFRY republics in accordance with LAW , LAW or LAW would be effective from DATE , if their names had been erased from the ORG on that date . It also ordered the ORG to issue , ex proprio motu , supplementary decisions establishing the permanent residence of those concerned retrospectively , since DATE . Once this was done , those who had had permanent residential status until DATE but had not been able to enjoy certain rights after that date owing to their unregulated legal status , would be able to invoke their rights in accordance with the relevant legislation .", "In addition , special provisions were needed to address the situation of those who had been forcibly removed from GPE , although ORG suspected that the numbers of individuals affected would probably be low , since the unregulated status of these people had generally been tolerated .", "NORP Moreover , ORG said that , when determining a new time - limit for applications for permanent residence , assuming such a time - limit should be provided , the legislature should take into consideration personal and other circumstances that might have impeded the persons concerned from lodging their application in time . Until such a time - limit was set , those concerned could continue to lodge applications for permanent residence .", "Lastly , ORG observed that by DATE CARDINAL citizens of the former SFRY republics had been granted permanent residence status on the basis of LAW , that CARDINAL applications had been dismissed or rejected , CARDINAL applications were pending and that CARDINAL citizens of former ORG republics had not applied for permanent residence . The decisions concerning the first group of persons concerned were of a constitutive nature and thus only had ex nunc effect . ORG further observed that permanent residence was important in securing certain rights and benefits . A lack of permanent residence status resulted in citizens of the former GPE being deprived of certain rights enjoyed by foreigners with permanent residence status , for example , the right to a military pension , and to certain retirement benefits and the right to renew a driving licence .", "Subsequently , in a decision handed down on DATE , ORG specified that the legal basis for issuance of the supplementary residence permits by ORG was its decision of DATE and that it was bound to implement it .", "In a decision of DATE , ORG set aside the judgments of the ORG and ORG dismissing the claimant ’s request for a permanent residence permit under LAW and remitted the case to ORG . It instructed the latter to appropriately assess the legal term set out in section CARDINAL of the Legal Status Act “ in fact residing on the territory of GPE ” since DATE and the reasons for the claimant ’s absence from GPE .", "NORP In particular , ORG held that the fact that the legislature had been late in eliminating the inconsistency did not prevent the courts to render a decision in the case in conformity with ORG decision of DATE ( see paragraphs QUANTITY above ) .", "LAW ( the Convention determining the ORG responsible for examining applications for asylum lodged in one of GPE of ORG , DATE ) provided for measures to ensure that applicants for asylum had their applications examined by CARDINAL of the Member GPE . Articles CARDINAL to CARDINAL set out the criteria for determining the single Member ORG responsible for examining an application for asylum .", "The Convention has been superseded by ORG ( ORG ) No . CARDINAL of DATE establishing the criteria and mechanisms for determining the Member ORG responsible for examining an asylum application lodged in one of GPE by a third - country national ( “ Dublin II ” , hereinafter “ LAW ” ) . LAW applies to all ORG Member GPE , GPE and GPE . Article CARDINAL(CARDINAL ) of the ORG provides for asylum applications to be examined by a single Member ORG , according to the criteria set out in LAW . If responsibility of a Member ORG can be designated on the basis of the criteria , LAW provides that the first Member ORG with which the application for asylum was lodged shall be responsible for examining it .", "“ ... for periods of residence longer than DATE , the host Member ORG may require Union citizens to register with the relevant authorities . ... ”", "“ CARDINAL . Member GPE shall issue a residence card to family members of a Union citizen who are not nationals of a Member ORG , where the planned period of residence is for DATE .", "The deadline for submitting the residence card application may not be DATE from the date of arrival .", "Failure to comply with the requirement to apply for a residence card may make the person concerned liable to proportionate and non - discriminatory sanctions . ”", "“ CARDINAL . The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called ‘ Residence card of a family member of a Union citizen’ DATE from the date on which they submit the application . A certificate of application for the residence card shall be issued immediately .", "For the residence card to be issued , Member GPE shall require presentation of the following documents :", "( a ) a valid passport ;", "( b ) a document attesting to the existence of a family relationship or of a registered partnership ;", "( c ) the registration certificate or , in the absence of a registration system , any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining ;", "( d ) in cases falling under points ( c ) and ( d ) of Article CARDINAL ) , documentary evidence that the conditions laid down therein are met ;", "( e ) in cases falling under LAW ) , a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen , or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen ;", "( f ) in cases falling under LAW ) , proof of the existence of a durable relationship with the ORG citizen . ”", "“ CARDINAL . The residence card provided for by LAW ) shall be valid for DATE from the date of issue or for the envisaged period of residence of the Union citizen , if this period is DATE .", "The validity of the residence card shall not be affected by temporary absences not DATE , or by absences of a longer duration for compulsory military service or by CARDINAL absence of a maximum of DATE for important reasons such as pregnancy and childbirth , serious illness , study or vocational training , or a posting in another Member ORG or a third country . ”", "“ CARDINAL . Union citizens who have resided legally for a continuous period of DATE in the host Member State shall have the right of permanent residence there . This right shall not be subject to the conditions provided for in LAW .", "Paragraph CARDINAL shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of DATE .", "Continuity of residence shall not be affected by temporary absences not exceeding a total of DATE , or by absences of a longer duration for compulsory military service , or by CARDINAL absence of a maximum of DATE for important reasons such as pregnancy and childbirth , serious illness , study or vocational training , or a posting in another Member ORG or a third country .", "Once acquired , the right of permanent residence shall be lost only through absence from the host Member ORG for a period exceeding DATE . ”", "“ CARDINAL . Member GPE shall issue family members who are not nationals of a Member ORG entitled to permanent residence with a permanent residence card within DATE of the submission of the application . The permanent residence card shall be renewable automatically DATE .", "The application for a permanent residence card shall be submitted before the residence card expires . Failure to comply with the requirement to apply for a permanent residence card may render the person concerned liable to proportionate and non - discriminatory sanctions .", "Interruption in residence not exceeding DATE shall not affect the validity of the permanent residence card . ”", "The principal ORG concerning citizenship is LAW , which was adopted on DATE and entered into force on DATE . GPE has not signed this convention .", "“ CARDINAL . In matters of nationality in cases of ORG succession , each ORG concerned shall respect the principles of the rule of law , the rules concerning human rights and the principles contained in ... this Convention ... , in particular in order to avoid statelessness .", "In deciding on the granting or the retention of nationality in cases of ORG succession , each ORG concerned shall take account in particular of :", "( a ) the genuine and effective link of the person concerned with the ORG ;", "( b ) the habitual residence of the person concerned at the time of ORG succession ;", "( c ) the will of the person concerned ;", "( d ) the territorial origin of the person concerned .", "... ”", "On DATE ORG adopted the Convention on the avoidance of statelessness in relation to ORG succession . This convention entered into force on DATE . GPE has not signed this convention .", "“ CARDINAL . A successor ORG shall grant its nationality to persons who , at the time of the ORG succession , had the nationality of the predecessor ORG , and who have or would become stateless as a result of the ORG succession if at that time :", "( a ) they were habitually resident in the territory which has become territory of the successor ORG , or", "( b ) they were not habitually resident in any ORG concerned but had an appropriate connection with the successor ORG .", "For the purpose of paragraph CARDINAL , sub - paragraph b , an appropriate connection includes inter alia :", "( a ) a legal bond to a territorial unit of a predecessor ORG which has become territory of the successor ORG ;", "( b ) birth on the territory which has become territory of the successor ORG ;", "( c ) last habitual residence on the territory of the predecessor ORG which has become territory of the successor ORG . ”", "“ States concerned shall take all necessary steps to ensure that persons concerned have sufficient information about rules and procedures with regard to the acquisition of their nationality . ”", "On DATE ORG on LAW adopted its second opinion concerning GPE . On DATE the respondent Government filed its written comments . The relevant part of the report states as follows :", "“ Legal status of persons deleted from the list of permanent residents", "Findings of the first cycle", "In its first Opinion on GPE , ORG noted with concern the problematic situation of a number of former citizens of other GPE of former GPE ( SFRY ) , who found themselves foreigners in the territory they were living in and without confirmed legal status , following their removal from the register of permanent residents , in DATE .", "Present situation", "a ) Positive developments", "ORG notes that a number of positive developments have taken place in this area . For instance , ORG has taken a stand on these issues by clearly stating the need to restore , without further delay and retrospectively , the rights of non - NORP former NORP citizens who were , according to the ORG , illegally removed from the register of permanent residents . ORG also notes that efforts have been made at the legislative level to regularise the legal status of these persons , and that most of them have been granted permanent resident status in DATE on the basis of individual decisions issued by ORG .", "b ) Outstanding issues", "ORG notes with concern that , despite the relevant ORG decisions , CARDINAL persons whose names were deleted from the registers of permanent residents on DATE , and automatically transferred to the registers of foreigners , are still , DATE on , awaiting clarification of their legal status . This concerns citizens of other former NORP republics , including a number of GPE , who were legally resident in GPE and , for various reasons , did not wish DATE or were unable – to obtain NORP citizenship within the short time - limit allowed by the authorities after the country ’s independence .", "In many cases , the lack of citizenship or of a residence permit has had a particularly negative impact on these ORG situation . It has , in particular , paved the way for violations of their economic and social rights , with some of them having lost their homes , employment or retirement pension entitlements , and has seriously hindered the exercise of their rights to family life and freedom of movement .", "ORG notes that more recent government initiatives have sought , in accordance with the relevant decisions of ORG , to restore these ORG rights retrospectively . It finds it disturbing that these initiatives have been stalled for DATE , and that the social climate in GPE has not been conducive to a speedier resolution of these matters . In the referendum held in DATE on GPE No . CARDINAL of Constitutional Court Decision no . ORG ( the so - called LAW on Erased Persons’ ) , PERCENT of participants ( representing PERCENT of voters ) expressed their opposition to LAW ( see also comments under LAW below ) .", "ORG notes that the authorities are in the process of drafting , at the governmental level , a new normative text expected to provide solutions to the problems mentioned above . Insofar as this new initiative is not yet in the public domain , it is difficult to ascertain , at this stage , whether the measures envisaged – legislative or other – will be likely to resolve the situation in a comprehensive manner once and for all .", "Recommendations", "Without further delay , the authorities should find solutions to the problems faced by non - ORG from former GPE ( SFRY ) who have been deleted from the register of permanent residents , in connection with the regularisation of their legal status , including access to citizenship and social and economic rights .", "At the same time , they should assist these persons in their efforts to overcome the difficulties arising from this situation , and facilitate their effective participation and integration in the NORP society by means of targeted measures . ”", "On DATE ORG Resolution ResCMN(CARDINAL)CARDINAL on the implementation of LAW for ORG by GPE . It noted as an issue of concern the situation of those non - Slovenes from former GPE ( SFRY ) whose legal status had still not been resolved , which raised substantial problems in terms of access to social and economic rights , including educational rights , and effective participation . ORG invited the NORP authorities to find without further delay solutions to the situation of non - Slovenes from SFRY whose legal status had still not been regularised and take specific measures to assist those persons on the social and economic front .", "NORP On DATE a Follow - up Report on GPE ( DATE ) was published , assessing the progress made in implementing the recommendations of ORG for Human Rights . In the relevant part it states as follows :", "“ DATE . The issue of erased persons continues to be a divisive and politically charged issue in GPE and is the subject of heated debate . Regrettably , the issue has been frequently used by some political factions as a campaign tool . Especially during the period leading to the DATE general elections , many politicians made xenophobic statements when referring to the issue of the erased persons and to others considered non - NORP or otherwise different .", "In a ruling of DATE , ORG declared the DATE law aimed at remedying the situation of the erased persons to be unconstitutional . The ORG ordered that those who had already acquired permanent residency on the basis of the law , be granted permanent residence permits retroactively for the period from CARDINAL DATE to the date of its formal acquisition . It also ordered the legislator to amend the law within DATE to determine a new time limit for possible new applications for permanent residence permits .", "ORG decision imposed a duty on ORG to issue supplementary decisions giving retroactive effect to the residence permits to all those citizens of other former NORP Republics , who were , on CARDINAL DATE , removed from the register of permanent residents , but who had since acquired a permit for permanent residence . ORG position was made clear in a further decision issued in DATE stating that the decision of DATE could be considered as sufficient legal basis for issuing decisions on permanent residence with retroactive effect , without there being any need for specific legislation . Following ORG decisions , ORG , after some delay , started issuing permanent residence decrees with retroactive validity . CARDINAL such decrees have since been issued , but at the time of the follow - up visit , it appeared that the issuance of decisions was suspended .", "DATE . According to the information received from ORG , out of the CARDINAL erased persons , CARDINAL have over time either obtained citizenship or received a permanent residence permit . All of these QUANTITY persons , according to the DATE decision of ORG , should have had their permanent residence status recognised with retroactive effect .", "Regarding the enactment of the law required to regulate the status of those erased persons who had been expelled from or had left GPE , the issue is still unresolved . There has been an ongoing and heated discussion regarding this issue , which – quite apart from what the criteria for legitimate absence from GPE and the situation of the expelled should be DATE has focused also on whether the law should be enacted in the normal legislative process or adopted as a constitutional act .", "Conclusions", "The Commissioner urges ORG to immediately continue and finalise the issuance of supplementary decisions giving retroactive effect to the permanent residence permit of all those persons , who are entitled to it .", "As regards the enactment of the law regulating and reinstating the status of the remaining erased persons , the Commissioner urges the NORP government to definitely resolve the issue in good faith and in accordance with the decisions of ORG . Whatever the appropriate legislative solution may be , the current impasse reflects poorly on the respect for the rule of law and ORG judgements in GPE .", "The Commissioner is extremely concerned about the continuous public manifestations of hate speech and intolerance by some politicians . The Commissioner calls for greater responsibility of politicians and media in this regard and for the full respect of the rights and values laid down in ORG Rights and other international instruments . ”", "On CARDINAL and DATE the Commissioner visited GPE and , inter alia , discussed the issue of the “ erased ” with the NORP authorities .", "On DATE ORG against Racism and Intolerance ( “ ECRI ” ) published its third report on GPE , which was adopted on DATE . This report described the situation of “ the erased ” as follows :", "“ CARDINAL . In its second report , ORG dealt at length with the situation of those citizens of other ex - NORP countries who were removed ex officio from the register of permanent residents of GPE in DATE and who since then , are often referred to as the ‘ GPE . As explained in that report , following the armed conflict in GPE in DATE and the ensuing independence of the country , over CARDINAL CARDINAL of the approximately QUANTITY permanent residents of GPE from other ex - NORP countries obtained NORP citizenship on the basis of the DATE citizenship law . This law allowed for a DATE window to apply for citizenship . Of the remaining QUANTITY persons , CARDINAL left GPE around that time . However , for a number of reasons , including the war between other successor GPE of the former GPE , the uncertain situation prevailing in other such GPE , and the destruction , loss or inaccessibility of personal documents , CARDINAL permanent residents did not or could not apply for NORP citizenship or applied and were rejected . As mentioned , these persons were struck off the register of permanent residents on DATE . Many of these persons DATE for the most part reportedly persons without good levels of education DATE had been living in GPE for a long time and some of them were even born in the country . However , as a result of the erasure from the registers , they became foreigners without legal status in GPE from DATE to the next , in many cases without being aware of it . Loss of legal status meant for them loss of access to fundamental rights attached to residence , including the right to work and access to healthcare and other social rights , along with the annulation of personal documents and exposure to a risk of deportation .", "In its second report , ORG noted that a law had been passed in DATE to open the possibility for the ‘ GPE to apply for permanent residence . It also noted however , that the time - limit of DATE to do so and the requirement that applicants prove that they had lived in GPE since DATE without interruptions of DATE seriously limited the effectiveness of this law . ORG notes that CARDINAL people have obtained permanent residence permits on the basis of that law . However , such residence permits were not granted with effect from the date of erasure ( DATE ) , but from the date of formal acquisition of these permits , i.e. in a majority of cases , DATE .", "ORG notes that in DATE , ORG declared the DATE law unconstitutional , inter alia because : it did not give retroactive effect to residence permits ; it did not regulate the obtaining of residence permits for those ‘ GPE who had been forcibly deported from GPE ; it did not prescribe criteria for the fulfilment of the requirement of continuous residence in GPE . ORG therefore established that ORG must issue supplementary administrative decisions whereby residence permits already granted were given retroactive effect from DATE to the date of formal acquisition . It also established that the DATE law must be amended within DATE to determine a new time limit for possible new applications .", "Concerning the first point , ORG notes that following initial delays , ORG under the former Government started to issue supplementary administrative decisions giving residence permits retroactive effect at DATE . ORG notes however , that only approximately CARDINAL CARDINAL such decisions have been issued . The representatives of ORG under the current Government have stated that they consider that these supplementary decisions do not rest on a sufficiently strong legal basis , and that a general law establishing conditions and criteria for issuing of residence permits should be passed first . ORG notes however , that in DATE ORG made it clear that its decision of DATE constituted a sufficient legal basis for issuing such decisions and that , in fact , the CARDINAL CARDINAL administrative decisions already issued were issued on such a basis . ECRI expresses serious concern at the fact that CARDINAL of the ‘ GPE who , since DATE , have secured citizenship or permanent residence of GPE are still not in a position to see their rights linked to permanent residence restored with effect from the date of erasure .", "The situation as concerns the implementation of the other parts of the decision of ORG appears very unclear and uncertain at the time of writing and is a cause for serious concern to ORG . The issue essentially relates to the enactment of a law to regulate the status of MONEY ‘ GPE who have not yet secured NORP citizenship or permanent residence permits and whose current position varies from holders of temporary permits ( CARDINAL CARDINAL persons ) and persons still living in GPE without legal status to persons who have left GPE or have been deported . The NORP authorities have reported to ORG their decision to adopt such a law in the form of a constitutional law . ORG notes that this decision has been widely criticised both within the ORG and in civil society for effectively and deliberately leading to non - implementation of ORG decision , inter alia as it entails the use of constitutional means and relative procedures ( including the need for a qualified majority in ORG ) in order to deal with matters that should be regulated through primary legislation . ORG is not aware of the exact content of the law , which is reportedly in the drafting process , nor has it been possible to clarify the envisaged timetable for adoption . In any event , ORG deplores the fact that , as a result of the non - implementation by the NORP authorities of the decision of ORG , it is still not possible for CARDINAL people to regain the rights of which they were unlawfully stripped over DATE .", "More generally , ORG is deeply concerned at the tone prevailing in NORP public and political debate concerning the ‘ GPE since its last report . It regrets that this part of the NORP population has in many occasions fallen hostage to merely political considerations , including the exploitation of their situation as a vote gainer , and that the debate around the position of these persons has steadily moved away from human rights considerations . It is particularly regrettable that racism and xenophobia have been encouraged and fostered as part of this process , including through generalisations and misrepresentations concerning the loyalty of these persons to ORG or the economic burden that restoration of their rights would entail .", "Recommendations", "ECRI urges the NORP authorities to restore the rights of persons erased from the registers of permanent residents on DATE . To this end , it strongly recommends that the NORP authorities implement the DATE decision of ORG in good faith and without further delay . This includes the immediate resumption and finalisation of the process of issuing supplementary decisions granting retroactive permanent residence rights , and the adoption of a legal framework enabling those ‘ NORP persons who have not yet secured permanent residence or NORP citizenship to have their rights reinstated in a manner that is as fair and generous as possible .", "ECRI urges the NORP authorities to take the lead in placing public debate on the situation of the ‘ GPE securely in the realm of human rights and to refrain from generalisations and misrepresentations concerning these persons which foster racism and xenophobia . ”", "In DATE ORG adopted the Convention on the Reduction of Statelesness . GPE has not ratified it .", "On DATE ORG on ORG issued concluding observations under LAW of all Forms of Racial Discrimination stating , inter alia :", "“ CARDINAL . The ORG is encouraged by the steps taken by ORG to address the long - standing issue of persons living in GPE who have not been able to obtain citizenship . It is nevertheless concerned that many of the persons who have not acquired NORP citizenship may still experience administrative difficulties in complying with the specific requirements contained in the law . The ORG recommends that the ORG party give priority to addressing this issue and , taking into account the difficulties which have arisen , ensure that the new citizenship legislation is implemented in a non - discriminatory manner .", "ORG is concerned that a significant number of persons who have been living in GPE since independence without LANGUAGE citizenship may have been deprived under certain circumstances of their pensions , of apartments they were occupying , and of health care and other rights . The ORG takes note of the efforts undertaken by ORG to address these issues and requests ORG to provide , in its next periodic report , specific information on these issues and on any remedies provided . ”", "On DATE ORG on the Rights of the PERSON issued concluding observations made under LAW which , in the relevant part , state as follows :", "“ CARDINAL . The ORG notes the rulings of ORG ( ORG of DATE and ORG of DATE ) that the erasure of CARDINAL people originating from other parts of the former ORG from ORG in DATE had no legal basis and that the permanent residence status should be restored to the affected persons retroactively . ORG is concerned that many children were negatively affected by this erasure , as they and their families lost their right to health care , social assistance and family benefits as a consequence of losing permanent residence status and children born in GPE after DATE became stateless .", "ORG recommends that ORG proceed with the full and prompt implementation of the decisions of ORG , compensate the children affected by the negative consequence of the erasure and ensure that they enjoy all rights under LAW in the same way as other children in the State party . ”", "On DATE ORG issued concluding observations to the second periodic report made under LAW which , in the relevant part , state as follows :", "“ CARDINAL . While acknowledging the efforts made by ORG to grant permanent resident status in GPE or NORP nationality to citizens of other GPE of the former ORG living in GPE , the ORG remains concerned about the situation of those persons who have not yet been able to regularize their situation in ORG ( arts . CARDINAL and CARDINAL ) .", "The ORG party should seek to resolve the legal status of all the citizens of the successor GPE that formed part of the former ORG who are presently living in GPE , and should facilitate the acquisition of NORP citizenship by all such persons who wish to become citizens of GPE . ”", "On DATE ORG issued concluding observations under LAW and CARDINAL of LAW stating , inter alia :", "“ CARDINAL . ORG is concerned that nationals of the former GPE have been ‘ GPE as their names were removed from the population registers in DATE . As a result of this , they have lost their NORP nationality and their right to reside in ORG . The ORG observes that this situation entails violations of these ORG economic and social rights , including the rights to work , social security , health care and education . Moreover , the ORG regrets the lack of information on the actual situation with regard to the enjoyment by those individuals of the rights set out in the LAW .", "...", "ORG urges ORG to take the necessary legislative and other measures to remedy the situation of nationals of GPE of former GPE who have been ‘ GPE as their names were removed from the population registers in DATE . While noting that bilateral agreements were concluded in this regard , the ORG strongly recommends that the ORG party should restore the status of permanent resident to all the individuals concerned , in accordance with the relevant decisions of ORG . These measures should allow these individuals to reclaim their rights and regain access to health services , social security , education and employment . ORG requests ORG to report to it , in its next periodic report , on progress in this regard . ”", "In DATE ORG of ORG adopted the ORG on ORG in relation to ORG . Its Article CARDINAL states as follows :", "“ Each ORG concerned should , without undue delay , enact legislation on nationality and other connected issues arising in relation to the succession of GPE consistent with the provisions of the present draft articles . It should take all appropriate measures to ensure that persons concerned will be apprised , within a reasonable period , of the effect of its legislation on their nationality , of any choices they may have there under , as well as of the consequences that the exercise of such choices will have on their status . ”" ]

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[ "The applicant was born in DATE and lives in PERSON .", "On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .", "On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .", "DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .", "DATE and DATE he made CARDINAL requests that a date be set for a hearing .", "Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .", "During the proceedings the court appointed CARDINAL medical experts . The court also sought an additional opinion from the appointed experts .", "At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .", "On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .", "On DATE the court dismissed the applicant ’s appeal and upheld the ORG ’s appeal in part .", "The judgment was served on the applicant on DATE .", "On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .", "On DATE the court dismissed the applicant ’s appeal .", "The judgment was served on the applicant on DATE ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant is an NORP national , born in DATE and currently residing in GPE .", "He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "", "The applicant is a member of ORG ( “ Cassa di previdenza e assistenza dei dipendenti della ORG ) . On DATE this fund was incorporated in the Mutual Fund W. ( “ ORG pensione dei dipendenti del FAC ” ) .", "On DATE the applicant introduced a claim before ORG . Assuming that the decision taken on DATE was invalid , he requested the investigating judge to declare the stay of its execution .", "In an order of CARDINAL DATE the GPE investigating judge accepted the applicant ’s claim .", "On DATE the Mutual Fund I. challenged this order before ORG . It alleged , inter alia , that as Rule CARDINAL of the Fund ’s internal Rules contained an arbitration clause , the matter fell outside the ordinary courts’ jurisdiction .", "The applicant contested the ORG ’s action , alleging that the latter ’s conclusion was contrary to ORG , DATE and DATE of the NORP LAW - guaranteeing the ORG fundamental rights , the principle of equality between citizens and the right to defend oneself in trial - and to LAW .", "In a decision of CARDINAL DATE ORG revoked the order of CARDINAL DATE . It recalled that a distinction should be drawn between “ ordinary ” and “ extraordinary ” arbitration clause ( “ clausola di arbitrato rituale o irrituale ” ) . The first one was a substitute for the ORG ’s jurisdiction , aimed at obtaining a decision replacing a judgment , while the latter was a private agreement by which the parties conferred to an arbitrator the power to settle a litigation between them . An interim measure , such as the stay of execution , could be adopted only when an “ ordinary ” arbitration clause was at issue . Having found that the clause contained in LAW of the ORG ’s internal Rules was an “ extraordinary ” one , ORG declared that the action introduced by the applicant fell outside its jurisdiction ratione materiae . As the internal Rules had been freely accepted by the parties , the court considered that there was no appearance of a violation of the provisions invoked by the applicant .", "This decision was final and not subject to any appeal . However , the Mutual Fund I. decided to convene a ORG assembly in order to take a new decision on the incorporation . According to the applicant , this was tantamount to an implicit acceptance of his complaints concerning the lawfulness of the decision of CARDINAL DATE ." ]

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[ "ORG The applicant company have their registered office in GPE . Their business includes the development of real property .", "ORG The company owns FAC flats in CARDINAL adjacent blocks situated on the PERSON in LOC , in a neighbourhood known as the ORG - zuid . These blocks of flats were built around DATE on land which , DATE , was levelled up to a height of QUANTITY above normal GPE level ( PERSON ) with silt dredged up from various docks of the nearby port of GPE .", "ORG In DATE it was reported that a smell of mineral oil had been noticed in a garden in the GPE - Nieuwlandsepolder - zuid during digging . This and a survey by GPE ’s ORG of places where harbour silt had been discharged led ORG ( Openbaar Lichaam PERSON - a now defunct administrative body which used to exercise within the NORP estuary region authority transferred to it from ORG ( GPE ) ) to include the neighbourhood in its DATE programme of measures to be taken under LAW Act ( Interimwet Bodemsanering - see paragraph CARDINAL below ) and order ORG ( ORG PERSON ) to undertake an exploratory inspection ( oriënterend onderzoek - see paragraph CARDINAL below ) of the neighbourhood . The findings were such that in DATE ORG ( Inspectie Volksgezondheid ) advised the local residents not to eat fruit and vegetables grown in their own gardens or allotments . ORG of the province of GPE ordered a further inspection ( nader onderzoek - see paragraph CARDINAL below ) in DATE .", "In DATE ORG submitted a report on its further inspection . It found that pollution caused by the heavy metals arsenic and mercury and by \" drins \" ( a group of compounds used as insecticides ) , especially dieldrin and isodrin , was severe in places ; where it occurred , it was generally present up to surface level . There were also moderate cadmium and lead pollution levels . The report noted that no covering layer of clean soil had been applied . The chapter headed \" Findings \" ( \" Conclusies \" ) included the following :", "\" It can be said that the additional concentration of chemicals as a result of the pollution of the soil is undesirable but not , given present ( relatively limited ) scientific knowledge , that it will cause noticeable or measurable harm to health . \" ( p. CARDINAL )", "The final chapter , headed \" Recommendations \" , stated that in unfavourable circumstances young children , if exposed to the pollution found , might absorb more than the acceptable DATE intake ( ORG ) of the pollutants concerned and that in many places the quantity of \" drins \" in the actual contact zone exceeded concentration level C given in the assessment tables of LAW ( see paragraph CARDINAL below ) . It was therefore recommended that an inspection should be carried out with a view to possibly cleaning the soil ( saneringsonderzoek - see paragraph CARDINAL below ) and determining", "\" how the detrimental effects of the soil pollution on public health and the environment can be eliminated , so as to achieve a result acceptable from the point of view of environmental hygiene \" ( p. CARDINAL ) .", "ORG In a letter of CARDINAL DATE ORG informed the local residents that the further inspection had led them to conclude that further soil cleaning measures were necessary . The letter referred to the \" undesirable situation \" caused by the presence of pollutants and their proximity to the surface and reiterated the advice to residents not to eat fruit and vegetables from their gardens . The letter went on to state that ORG had decided in principle to have the soil cleaned .", "The draft of the decision was made available for public inspection for DATE from CARDINAL DATE ( see paragraph CARDINAL below ) .", "ORG In a letter dated CARDINAL DATE ORG informed the municipal authorities of LOC that it had decided to order an inspection with a view to possibly cleaning the soil .", "ORG implementation programme ( uitvoeringsprogramma ) for soil cleaning from DATE TIME ( see paragraph CARDINAL below ) included the Noord - Nieuwlandsepolder - zuid .", "ORG On DATE the applicant company let a third - floor flat in CARDINAL of their blocks in the PERSON to a Mr W. as from DATE . The agreed rent was MONEY ( NLG ) DATE .", "ORG On DATE Mr W. applied to ORG in PERSON for a ruling as to the fairness of the rent ( section CARDINAL ( CARDINAL ) of ORG GPE Act - see paragraph CARDINAL below ) .", "A report established by a ORG inspector on DATE stated that there was neither serious overdue maintenance nor any \" absolute or relative CARDINAL condition \" , i.e. ground for reducing the rent to the legal minimum ( absolute of relatieve nulpunten ) . In the inspector ’s view , the standard of the flat should be assessed at CARDINAL points under the applicable point - rating system ( see paragraphs QUANTITY below ) .", "At the hearing before ORG on DATE Mr W. submitted a copy of ORG letter of CARDINAL DATE ( see paragraph CARDINAL above ) but did not contest the inspector ’s findings .", "ORG gave its ruling on DATE . It found that in view of factual circumstances relied on by the applicant company but overlooked by the inspector the standard of the flat should be assessed at CARDINAL points . On that basis it concluded that the agreed rent was not fair and assessed the fair rent at NLG CARDINAL.CARDINAL . It does not appear from the ruling that account was taken of ORG letter .", "ORG On DATE the applicant company applied to ORG of PERSON for a binding decision ( see paragraph CARDINAL below ) . They contested certain factual assumptions made by ORG in regard to noise levels and argued that ORG had made a miscalculation ; the correct standard rating of the flat should be CARDINAL points . On that basis they sought an order to set the rent at NLG MONEY or , in the alternative , at the sum originally agreed ( NLG CARDINAL.CARDINAL ) .", "ORG In the course of the ensuing proceedings , Mr PERSON argued that there was an \" objectionable situation \" ( hinderlijke situatie ) that justified reducing the points rating by CARDINAL points and setting the rent at the legal minimum , NLG CARDINAL ( point CARDINAL of Schedule IV to LAW Besluit huurprijzen woonruimte ) - see paragraph CARDINAL below ) . He submitted the following documents :", "( a ) a copy of ORG letter of CARDINAL DATE ( see paragraph CARDINAL above ) ;", "( b ) a copy of a decision given by ORG on DATE in a different but similar case concerning a flat in GPE ;", "( c ) a copy of the letter of CARDINAL DATE from ORG to the municipal authorities of LOC ( see paragraph CARDINAL above ) ;", "( d ) ORG implementation programme for soil cleaning from DATE TIME ( see paragraph CARDINAL above ) .", "The applicant company , besides adducing further argument in support of their factual allegations , argued , inter alia , that the soil pollution should not be taken into account . Relying on the passage from the report of the further inspection quoted at paragraph CARDINAL above , they said that it did not appear from the report that there was \" pollution of the soil under or in the immediate vicinity of the accommodation such as to cause serious danger to public health or the environment \" . In addition , the pollution found could not affect the standard of a third - floor flat without a garden . All things considered , there was no reason to deduct any points at all on this ground .", "ORG gave its decision on DATE , assessing the standard of the flat at CARDINAL points and setting the rent at NLG MONEY with effect from DATE . Having regard to the fact that , after a further inspection as provided for by LAW , ORG had designated the area as one where soil cleaning was required , and had set it down in its DATE soil - cleaning programme for DATE as a site to be dealt with in accordance with that LAW , the court found it established that there was an \" objectionable situation \" that justified reducing the points rating by CARDINAL points and setting the rent at the legal minimum . Referring to its own precedent of CARDINAL DATE ( see paragraph CARDINAL below ) , it dismissed the applicant company ’s arguments that are summarised in the preceding paragraph . It did so in the following terms :", "\" CARDINAL.CARDINAL .... we consider that it is not for us to go into the question whether ORG acted correctly in making the decision pursuant to section CARDINAL ( CARDINAL ) , second sentence , of ORG , or whether that decision was well - founded . We should not even address such questions indirectly by weighing the findings of the investigation ( on a case - by - case basis ) when determining whether the ( absolute ) CARDINAL condition , as formulated under point CARDINAL of Schedule IV to the LAW implementing the Rents for LAW ... , is satisfied .", "The ` serious danger etc.’ in the polder is necessarily implied by the decision of ORG to designate the site as one where soil cleaning is required [ saneringsgeval ] ; consequently , it is also established that the absolute CARDINAL condition ( which is formulated in identical terms ) is satisfied .", "It makes no difference in this connection that the accommodation in question is a third - floor flat without a garden of its own . The pollution is present ` in the immediate vicinity’ of the accommodation . The [ applicant company ] have acknowledged that this expression is - justifiably – construed broadly in the relevant case - law . \"", "ORG The applicant company did not lodge an appeal against this decision ( see paragraph CARDINAL below ) .", "ORG The following is a statement of the relevant domestic law and practice as they stood at the time of the events complained of .", "ORG Rents for certain categories of housing accommodation are determined by ORG . With regard to all other housing accommodation , landlords and tenants of housing accommodation are in principle free to agree a rent between themselves ( section CARDINAL of the Rents for Housing Accommodation Act ) .", "ORG However , section CARDINAL ( CARDINAL ) entitles both the landlord and the tenant , within DATE of entering into the tenancy agreement , to apply to ORG for a ruling on the fairness of the agreed rent .", "ORG Parties are deemed to have agreed the rent found by ORG to be fair unless within DATE CARDINAL of them applies to ORG for a different decision ( section CARDINAL ( CARDINAL) ) .", "ORG By LAW ( CARDINAL ) of ORG , no appeal lies against the decision of ORG other than an appeal on points of law \" in the interests of the law \" ( cassatie \" in het belang der wet \" - see paragraph CARDINAL below ) .", "ORG Detailed substantive provisions for the implementation of ORG are to be found in LAW ( \" the Ordinance \" ) . The GPE is binding on ORG and ORG ( sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of ORG ) .", "ORG According to LAW , the fairness of the rent for self - contained accommodation ( zelfstandige woonruimte ) such as the flat let to Mr PERSON by the applicant company must be assessed in accordance with the point - rating system set out in Schedule I to the GPE .", "Under Schedule I , points are awarded for features relating to the standard of the accommodation itself - such as the type of dwelling ( house or flat ) , the size of the rooms , bathroom facilities and the standard of heating installations - and for features relating to the surroundings ( such as the proximity of public transport , schools and shops ) . CARDINAL points are deducted for the age of the accommodation and CARDINAL for \" objectionable situations \" ( such as persistent noise or pollution ) .", "The \" CARDINAL condition \" system is succinctly explained in the explanatory memorandum to the GPE as follows :", "\" In the ORG ’s view , certain deficiencies of a technical or residential nature [ technische en woontechnische gebreken ] are so serious that they ipso facto stand in the way of rent increases . LAW ) refers in this connection to the serious deficiencies listed in PERSON to this GPE . These deficiencies are commonly referred to as ` zero conditions’ . If there is such a deficiency , ORG need not assess the seriousness of the situation [ hinder ] but must find without more ado that it is not reasonable to raise the rent . It must so hold even if the tenant does not explicitly rely on this deficiency .", "The presence of a deficiency of the type referred to is considered unacceptable in view of the danger it presents . The deficiency ought therefore to be cured as soon as possible or the accommodation ought no longer to be occupied . However , as long as the accommodation continues to be occupied despite the unacceptable situation , it is not fair to raise the rent . \"", "ORG The range within which the rent is fair is calculated according to the resultant points rating . As a rule , the rent determined by ORG and by ORG will be at the higher end of the range ( section CARDINAL ( CARDINAL ) of the Ordinance ) ; however , the rent may be reduced if one of the \" very serious deficiencies \" or \" absolute CARDINAL conditions \" set out in Schedule IV to the GPE is established .", "Schedule IV originally listed deficiencies relating to the accommodation itself , such as lack of a flush lavatory or cooking facilities , lack of main drainage , or gas pipes or electricity cables so dangerous that the public utility companies were not prepared to supply gas or electricity . Another such \" absolute CARDINAL condition \" was if accommodation was in such a poor state of repair that it was unsafe and therefore unfit for habitation . As of DATE , and without any separate explanatory memorandum , a fourth point was added to Schedule IV :", "\" The further inspection under LAW has indicated pollution of the soil under or in the immediate vicinity of the accommodation such as to cause serious danger to public health or the environment . \"", "ORG In DATE , partly owing to the discovery in DATE of cases of very extensive soil pollution , LAW ( of CARDINAL DATE ) was enacted . It entered into force on DATE . Its purpose was to set rules \" aimed at eliminating within a short time or preventing soil pollution and its harmful effects where existing or potential pollution of the soil is such that there is a serious danger to public health or the environment \" .", "Section CARDINAL ( CARDINAL ) of this Act provided as follows :", "\" Over a period of DATE , the Provincial Executive shall each year draw up a programme for cleaning polluted soil . The programme shall indicate the cases within the territory of the province in which existing or potential pollution of the soil is such that there is a serious danger to public health or to the environment . The programme shall also indicate the cases in respect of which it must be determined whether such circumstances apply . \"", "ORG An explanation of various expressions used in the interim LAW and directions as to the manner in which the LAW was to be implemented were given in LAW .", "ORG According to LAW , in the seventh revised version ( DATE ) , the possible danger had to be assessed as follows :", "\" During the parliamentary discussions of the bill [ which eventually entered into force as the interim Act ] this criterion was given the following construction . Direct and frequent contact between human beings or plant or animal life and the pollutants must either be present or imminent and it must be either certain or likely that such contact will be potentially detrimental to public health or the environment . On this construction , stress must be laid on the imminence of such contact and the probability of such detrimental effects . The expression ` serious danger’ therefore indicates an unacceptably increased risk rather than an acute threat ... [ Part II of the Guidelines ] mentions CARDINAL aspects which fall to be considered , namely the nature and concentration of the pollutants , the local pollution situation and the use made of the soil . The nature and concentration of the pollutants give an impression of the extent of the pollution and its possible effects . The local pollution situation gives an idea of the extent to which spreading or contact may occur . The use of the soil determines the likelihood of exposure to the pollutants and the resulting risks . A consideration of these CARDINAL aspects taken together [ integrale afweging ] must lead to an answer to the question whether cleaning is at all necessary or required as a matter of urgency ... \" ( paragraph CARDINAL of Part I of LAW )", "To assist in assessing the nature and concentration of the pollution , tables were drawn up listing the concentrations of various pollutants which , if exceeded , made action necessary . Concentration level A was the reference level below which no action was required . Concentration level B was the level indicating the need for a further inspection . Concentration level C necessitated an inspection with a view to possibly cleaning the soil as a matter of urgency .", "ORG The stages in the preliminaries to soil cleaning , as they appeared from the Guidelines , were the following :", "a ) preliminary measures , not laid down in the soil - cleaning programme :", "( i ) a survey of the places where soil pollution might be expected ( inventarisatie ) . This might be based on complaints from individuals , as in the present case ( see paragraph CARDINAL above ) , an inspection of documents relating to land use or dumping , reports submitted by municipalities , or any other relevant information ;", "( ii ) an exploratory inspection , the purpose of which was to gain a general idea of the nature , location and concentration of pollutants . This inspection was a limited one ;", "b ) further measures , laid down in the soil cleaning programme :", "( iii ) a further inspection , more extensive than the exploratory one , to obtain information which would make it possible to assess the dangers to public health and the environment , and hence to judge the necessity and urgency of cleaning the soil ;", "( iv ) an inspection with a view to possibly cleaning the soil , the purpose of which was to enable a decision to be made on the necessary measures in the light of the budgetary and technical possibilities ;", "( v ) the drawing up of a plan for actually cleaning the soil .", "ORG LAW ( Temporary LAW provided as follows :", "\" CARDINAL . Before finally adopting a cleaning programme , the Provincial Executive shall make the draft available for public inspection with the reports of the inspections on which it is based . They shall at the same time send the draft to ORG [ ORG ] , the municipalities in their province and the ORG [ of ORG ] .", "Before doing so , they shall give notice of the fact of making the draft available for public inspection in the Government Bulletin [ PERSON ] and in CARDINAL or more DATE papers or newspapers distributed in the province . These announcements shall also mention that members of the public are entitled to lodge objections in accordance with subsection ( CARDINAL ) below .", "For DATE from DATE on which the draft of a programme is made available for public inspection , anyone may inspect free of charge the documents thus made available .", "During the period referred to in subsection ( CARDINAL ) above , may lodge written objections to the draft , stating their reasons , with ORG . \"", "Paragraph CARDINAL.CARDINAL.CARDINAL of Part I of LAW made it clear that the final programme had to set out ORG views on any objections received and that such objections were to be appended to the final programme . Although the LAW did not provide for any form of appeal against the adoption of the programme , the objections were brought to the attention of the Minister , who was empowered to modify the provincial programme in a reasoned decision .", "ORG The Soil Cleaning ( Temporary LAW was significantly amended by LAW . A number of its provisions , including sections CARDINAL and CARDINAL , were repealed .", "The interim LAW as a whole was repealed by LAW DATE ( ORG Staatsblad ) DATE , no . CARDINAL ) , its provisions being incorporated into LAW ( Wet bodembescherming ) .", "ORG Section CARDINAL of the Judicial Organisation Act provides as follows :", "\" CARDINAL . Except for an appeal on points of law [ filed by the Procurator - General with ORG ] ` in the interests of the law’ , an appeal on points of law against a judgment delivered by a district court in a civil case shall be allowed only :", "- on the ground that the judgment did not state the reasons on which it was based ;", "- on the ground that the judgment was not delivered in public ;", "- on the ground of want of competence ;", "on the ground that the district court exceeded its jurisdiction .", "Except for an appeal on points of law ` in the interests of the law’ , appeals on points of law against a decision [ beschikking ] delivered [ following proceedings in camera where that is required by law ] by a district court in a civil case shall be allowed only on the grounds set out in DATE , DATE and DATE of subsection ( CARDINAL ) above . \"", "ORG An appeal on points of law \" in the interests of the law \" may be lodged with ORG ( PERSON ) by its Procurator - General ( procureur - generaal ) at his discretion and does not affect the parties’ rights and obligations as determined in the judgment or decision appealed against ( sections CARDINAL and CARDINAL of LAW ) .", "ORG As mentioned in paragraph CARDINAL above , no explanation was given for introducing point CARDINAL of Schedule IV to the Ordinance . This situation has contributed to uncertainty as to how that provision is to be construed .", "The first problem relates to the construction of the expression \" under or in the immediate vicinity of the accommodation \" . It is usually assumed in legal writing and the relevant case - law that this expression should be interpreted broadly .", "The second problem relates to the question that was also at issue in the instant case : whether courts should themselves decide whether the \" further inspection under LAW \" justifies the conclusion that \" pollution of the soil \" is \" such as to cause serious danger to public health or the environment \" , or alternatively assume that such serious danger is present when the competent authorities have decided on the basis of a further inspection in a particular case that soil cleaning measures are required .", "There is a difference of opinion on the latter point . A number of district courts have adopted the first view - see the following decisions : GPE ORG , DATE , ORG ) DATE , nos . CARDINAL and CARDINAL ; ORG , DATE , ORG , no . CARDINAL . Others have adopted the alternative view - see the following decisions : ORG , DATE , PERSON ( GPE Law Reports - NJ ) DATE , no . CARDINAL , ORG , no . CARDINAL ; ORG , DATE , ORG , no . CARDINAL ; ORG , DATE , ORG , no . CARDINAL ; ORG , DATE , ORG , no . CARDINAL ; ORG , DATE , ORG , no . DATE .", "It would appear that the latter view is also that of the Deputy Minister ( Staatssecretaris ) for ORG ( who sets the rents for certain categories of housing accommodation and in so doing has regard to Schedule IV to the Ordinance ) , in the light of his letter of DATE , published in ORG at p. CARDINAL . This letter includes the following statement :", "\" Your view is that one may conclude from the drafting history and the wording of the fourth absolute CARDINAL condition in Schedule IV that this condition should always apply automatically in those cases in which ORG has decided that the situation is as set out in section CARDINAL ( CARDINAL ) , second sentence , of ORG . I can agree with your conclusion , while pointing out that the area in question should have been included in the soil - cleaning programme on the basis of the findings of a further inspection . \"", "In a case in which ORG ( Afdeling Rechtspraak ) of the Raad van State had to consider a rent decision of the Secretary of ORG in which point CARDINAL of Schedule IV had been applied to accommodation in the NORP in PERSON ( see next paragraph ) , it held that the Secretary of ORG \" [ had ] not erred in considering it relevant that ORG of the province of GPE , in applying section CARDINAL of the Soil Cleaning ( Temporary LAW , [ had ] established on the basis of the report of the further inspection that there was a serious danger as referred to above \" ( judgment of CARDINAL DATE , ORG , no . CARDINAL ) .", "ORG As indicated in the previous paragraph , a number of the above - mentioned decisions and judgments relate to the Steendijkpolder , a polder adjoining the Noord - Nieuwlandsepolder - zuid which the municipal authorities of PERSON had had levelled up with polluted harbour silt and then sold as building land . Point CARDINAL of Schedule IV has consistently been held to be applicable to rents in that area : see ORG decision of DATE , ORG , no . DATE , and the judgment of ORG of the Raad van State of CARDINAL DATE , ORG , no . CARDINAL .", "Mention may be made in passing of a judgment of ORG which seems also to adopt the alternative view . In its judgments of DATE ( cases ORG . CARDINAL , CARDINAL and CARDINAL , cited in the report of ORG judgment of DATE , GPE DATE , no . CARDINAL ) , ORG established that the municipality ( gemeente ) of PERSON was liable in tort for the sale of the PERSON as building land . ORG reasoning included the following :", "\" With regard to the liability of [ the municipality of ] PERSON , ORG notes first of all that as the Government [ rijksoverheid ] has decided in accordance with section CARDINAL et seq . of ORG that the soil should be cleaned , it must be held to have been established that there is in the present case a ` serious danger to public health or to the environment’ within the meaning of that LAW ( CARDINAL ) ) . \"", "No submissions challenging this reasoning were made in the ensuing appeals on points of law . In any event , ORG in its abovementioned judgment of DATE held the appeals to be unfounded and so allowed the judgment of ORG to stand ." ]

[ "6" ]

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[ "NORP The applicant , PERSON , is a NORP national . He was represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON ." ]

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[ "The applicant , who is of GPE ethnic origin , was born in DATE and lives in GPE . She finished compulsory education in the sixth grade and is unemployed . Her mother tongue is the GPE language , which she uses in DATE communication , together with a local dialect .", "On DATE the applicant was sterilised while hospitalised at ORG in Prešov ( now known as ORG and ORG in LOC Hospital ” ) , which came under the management of ORG .", "The procedure was carried out during the delivery of the applicant ’s second child via Caesarean section . The applicant ’s first delivery had also been via Caesarean section . The sterilisation of the applicant entailed tubal ligation by the ORG method , which consists of severing and sealing the Fallopian tubes in order to prevent fertilisation .", "During her pregnancy the applicant did not have any regular checkups . She visited her general practitioner only once .", "NORP The applicant was admitted to the gynaecology and obstetrics department of ORG on DATE shortly before TIME She came to the hospital in pain resulting from the progress of labour . On arrival the applicant was informed that the delivery would be via Caesarean section .", "The delivery was documented in a written record indicating details of the labour and birth at regular intervals . The first entry in the record was at CARDINAL a.m. The applicant was subsequently monitored by ORG ( cardiotocography ) ; the last ORG entry was at TIME", "According to the delivery record , after TIME , when labour was well established , the applicant requested sterilisation . That request is entered directly in the delivery record with the typed words “ Patient requests sterilisation ” . Below this is the shaky signature of the applicant . The signature was in an unsteady hand and the applicant ’s maiden name , which she used at the time , is split into CARDINAL words .", "The applicant submitted that , after she had been in labour for TIME and was in pain , the medical personnel of ORG had asked her whether she wanted to have more children . The applicant responded in the affirmative but was told by the medical personnel that if she had CARDINAL more child , either she or the baby would die . The applicant started to cry and as she was convinced that her next pregnancy would be fatal , she told the medical personnel “ Do what you want to do ” . She was then asked to sign the delivery record under the note indicating that she had requested sterilisation . The applicant did not understand the term sterilisation and she signed the form out of fear that there would otherwise be fatal consequences . As she was in the last stage of labour , her recognition and cognitive abilities were influenced by labour and pain .", "At TIME the applicant was put under anaesthesia , after which the delivery was completed via Caesarean section . In view of the state of the applicant ’s reproductive organs the CARDINAL doctors involved asked the head physician for an opinion as to whether they should perform a hysterectomy or a sterilisation . They subsequently performed tubal ligation on the applicant . The procedure ended at TIME and the applicant came round from the anaesthetic TIME later .", "The words “ Patient is of GPE origin ” appear in the record of the applicant ’s pregnancy and delivery ( section “ Medical history ” , sub - section “ NORP and working conditions , especially during the pregnancy ” of the pre - printed form designed for that purpose ) .", "During her hospitalisation on the gynaecology and obstetrics ward of ORG the applicant was accommodated in a room in which there were exclusively women of GPE ethnic origin . She was prevented from using the same bathrooms and toilets as women who were not of GPE origin .", "The applicant has suffered serious medical and psychological aftereffects from the sterilisation procedure . Hence , at DATE and DATE she displayed the symptoms of a false pregnancy . She believed that she was pregnant and exhibited all the signs of pregnancy . However , the ultrasound examination revealed that she was not pregnant . Subsequently , in DATE , she was treated by a psychiatrist in NORP . According to the latter ’s statement , the applicant continues to suffer as the result of her infertility .", "The applicant has also been ostracised by the GPE community . Her husband , the father of her children , left her several times owing to her infertility . In DATE the applicant and her husband divorced . The applicant maintained that her infertility was CARDINAL of the reasons for their separation .", "A written statement by the Director of ORG dated DATE indicates that the applicant ’s first delivery in DATE ended with a Caesarean section as the size of the applicant ’s pelvis excluded a normal delivery . Prior to the delivery the applicant had attended a pre - natal care centre only twice , at the beginning of her pregnancy . After the delivery she was placed in a post - delivery room with sanitary equipment where she received medical care . On DATE she left the hospital without ORG consent and returned TIME later with sepsis caused by inflammation of the uterus . After CARDINAL days’ hospitalisation during which she received intensive treatment with antibiotics the applicant and her child were discharged from the hospital . The applicant was advised to visit a gynaecologist regularly but failed to do so .", "During her second pregnancy , the applicant visited the pre - natal care centre only once , in the initial stages . At the time of the second delivery , owing to pain which the applicant experienced in the lower part of her uterus ( where she had been operated on during her first delivery ) and in view of the size of her pelvis , doctors indicated that a Caesarean section would be needed . They were of the view that there was a risk of rupture of the uterus . After they had explained to her the situation and the risks inherent in a possible third pregnancy , the applicant , who was fully aware of what was happening , signed the sterilisation request .", "In a different statement dated DATE the Director of ORG denied deliberate and organised segregation of GPE women and the existence of so called “ Gypsy rooms ” . In practice , GPE women were frequently accommodated together at their own request .", "On DATE , in response to the publication by ORG and Soul : Forced and Coercive Sterilisation and Other Assaults on ORG in GPE ” ( “ the Body and Soul Report ” ) , the Section for Human Rights and Minorities of the Government Office initiated a criminal investigation into the allegedly unlawful sterilisation of several different GPE women .", "The criminal investigation was conducted within ORG of ORG in GPE by ORG . Several decisions were issued by the investigator , public prosecutors at several levels and ORG . The proceedings were ultimately discontinued on the ground that no offence had been committed in the context of the sterilisation of women of GPE ethnic origin ( further details are set out in GPE , GPE and GPE v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ) .", "The applicant did not initiate any individual criminal proceedings .", "In DATE , after the release of the Body and Soul Report , the applicant learned that a tubal ligation was not life - saving surgery as alleged by the medical personnel of ORG and that the patient ’s full and informed consent to such a procedure was required . For this reason , she unsuccessfully tried to review her medical records . She was allowed access to her medical file with her lawyer in DATE following a judicial order to that effect .", "On DATE the applicant lodged a claim with the ORG under Articles CARDINAL et seq . of LAW , seeking protection of her personal rights . She submitted that the sterilisation performed on her had been carried out in violation of NORP legislation and international human rights standards including Articles CARDINAL , DATE , DATE and DATE of the Convention . The applicant argued that she had not been duly informed about the procedure as such , its consequences and alternative solutions . She requested an apology for the procedure and claimed compensation for non - pecuniary damage .", "In the course of the proceedings ORG considered documentary evidence and obtained a number of statements from the applicant as well as from the medical personnel of ORG .", "NORP In particular , the applicant described the circumstances in which she had given birth in ORG and how she had been asked to sign the relevant entry in the record . She also stated that the father of her children had left her for DATE owing to her infertility and that they had experienced problems in their relationship for that reason . She outlined the health problems which she was experiencing .", "Doctor Č. of ORG , who had performed the procedure on the applicant , stated that he did not specifically remember the applicant or the circumstances of her hospitalisation . His statement was based on the information in the applicant ’s medical file . He alleged that the applicant had been fully informed about her medical condition and the progress of the labour TIME prior to the delivery . The information about the need for sterilisation had been conveyed to her by the head doctor of the gynaecology and obstetrics ward , as well as the second doctor who had participated in the surgery , and also by the anaesthetist . The sterilisation had been carried out at the applicant ’s request as a medical necessity . A possible third pregnancy could have been risky for the applicant unless she was monitored regularly during the pregnancy . Doctor PERSON stated that the sterilisation of the applicant had not been life - saving surgery .", "Doctor PERSON , head doctor of the gynaecology and obstetrics ward of ORG , stated that he fully agreed with the testimony of Doctor Č. Doctor PERSON did not specifically recall the case of the applicant either . He assumed that her case was the same as other similar cases . He had not been present during the delivery and the sterilisation of the applicant but had been told about her case by other doctors . He described the sterilisation procedure as governed by the relevant law . In the case of the applicant , there had been no time to convene any committee as she had come to the hospital a very short time before delivery .", "Doctor PERSON further stated that , after he had designated his colleagues PERSON and ORG to perform the surgery , he had also asked them to find out whether the patient would agree to sterilisation , and to have her consent confirmed by a signature . Even if a patient refused to give written consent to sterilisation , it could be carried out under LAW , which permitted such a move in the case of danger to a person ’s life .", "In the civil proceedings , the applicant also submitted a psychologist ’s assessment of her mental capacity dated DATE . It indicated that her intellectual capacity was very low , on the verge of mental retardation , but that her thinking was well developed in relation to practical issues . The psychologist concluded that communication with the applicant needed to be adapted to her mental and language skills . No mental illness was detected that would prevent the applicant from making decisions concerning her life and assuming responsibility for matters related to her life .", "On DATE the ORG dismissed the action . It held that the procedure had been performed only after the medical personnel had obtained the applicant ’s signature . It admitted that the applicant ’s signature on the delivery record had been obtained shortly before the Caesarean section was performed , when the applicant had been in “ a supine position ” . The procedure had been performed on medical grounds . It had been necessary owing to the applicant ’s poor medical condition . The medical personnel had proceeded in accordance with the law .", "The fact that the procedure had not been approved earlier by a sterilisation committee amounted only to a failure to meet the formal requirements ; it could not have interfered with the applicant ’s personal integrity as protected by Articles CARDINAL et seq . of LAW . No violation of the applicant ’s rights under the LAW had been established .", "Finally , ORG held that the applicant ’s situation was not irreversible as there was a possibility of in vitro fertilisation .", "On DATE the applicant appealed . She maintained that she had been sterilised without her full and informed consent in a situation where she had not been able to understand fully the nature and consequences of the procedure . There were gaps and inconsistencies in the statements of the medical personnel and the medical file contained no record of her having been duly informed about the procedure , its irreversible character and the alternative methods . In violation of the legislation in force the sterilisation had not been approved by a sterilisation committee . A tubal ligation could not be considered as life - saving surgery . The applicant relied on documents issued by international medical organisations .", "On DATE the ORG upheld the firstinstance judgment . It concluded that the applicant ’s sterilisation had been performed in accordance with the legislation in force and that it had been required by her medical condition .", "The appellate court referred to the statements by the physicians involved and held that there had been a risk of rupture of the applicant ’s uterus . The applicant had requested sterilisation after she had been duly informed of her state of health . The procedure had complied with the relevant provisions of the CARDINAL Sterilisation Regulation . The decision as to whether or not sterilisation was required lay in such circumstances with the head physician . Prior approval by a sterilisation committee was required only where sterilisation was to be carried out on healthy reproductive organs . However , this had not been the case with the applicant .", "On DATE the applicant lodged a complaint with ORG . With reference to her sterilisation and the ordinary courts’ conclusions in the above - mentioned civil proceedings , she submitted that she had been subjected to sterilisation in ORG without her informed consent and that she had been unable to obtain redress as a result of the conduct and decision of ORG . She alleged that the latter had thereby breached her constitutional rights and freedoms prohibiting discrimination and cruel , inhuman or degrading treatment or punishment , her right to protection from unjustified interference with her private and family life and her right to protection of her family , as well as her rights under LAW , DATE , DATE , DATE and CARDINAL of LAW CARDINAL of ORG . The applicant requested that ORG quash ORG judgment .", "On DATE ORG dismissed the complaint as being manifestly ill - founded ( for further details see the decision on the admissibility of the present application of DATE ) .", "The applicant referred to a number of publications pointing to a history of forced sterilisation of GPE women which had originated under the NORP regime in GPE in DATE and which she believed had influenced her own sterilisation .", "NORP In particular , the applicant submitted that ORG DATE Sterilisation Regulation had been used to encourage the sterilisation of GPE women . According to a DATE document by LAW , a NORP dissident group , a programme had been launched in GPE offering financial incentives for GPE women to be sterilised because of earlier unsuccessful government efforts “ to control the highly unhealthy NORP population through family planning and contraception . ”", "The applicant further maintained that in LOC PERCENT of the sterilisation operations performed from DATE had been on GPE women , who represented PERCENT of the population of the district . Another study found that in DATE PERCENT of sterilised women in eastern GPE ( the region where the applicant resides ) were GPE ; by DATE , this figure had risen to PERCENT .", "In DATE a report by ORG noted that many GPE women were not fully aware of the irreversible nature of the procedure and were forced into it because of their poor economic situation or pressure from the authorities .", "According to other reports , in DATE nurses working in NORP refugee reception centres informed researchers from ORG that they had noticed unusually high rates of gynaecological procedures such as sterilisation and removal of ovaries among female GPE asylumseekers from eastern GPE . All the reports cited identified ORG as CARDINAL of the hospitals where such sterilisation practices were applied .", "The Government submitted that health care in GPE was provided to all women equally . Statistical data based on the ethnic origin of patients were generally not gathered as this was considered to be contrary to ORG human rights .", "Following the publication of the Body and Soul Report the Ministry of Health established a group of experts with a view to investigating allegedly unlawful sterilisations and segregation of GPE women .", "The ORG ’s report of CARDINAL DATE , submitted to the parliamentary committee on human rights , nationalities and the status of women , indicated that the medical records of CARDINAL women who had been sterilised and those of QUANTITY women who had given birth by means of Caesarean section during DATE had been reviewed .", "The rate of sterilisation of women in GPE amounted to PERCENT of women of reproductive age . In other NORP countries that rate was PERCENT . The low rate of sterilisation in GPE was mainly due to the fact that the procedure was not widely used as a method of contraception .", "In the absence of official statistical data concerning the ethnic origin of inhabitants , the expert group could assess only indirectly the position regarding women of GPE ethnic origin . In those regions where it was possible to indirectly assess the proportion of women of GPE ethnic origin , the frequency of sterilisation and Caesarean section in the GPE population was significantly lower than among the rest of the population . The frequency of sterilisations was statistically insignificantly higher in the LOC and ORG regions than in other regions of GPE .", "The group concluded that in the hospitals investigated by its members no genocide or segregation of the GPE population had occurred . All cases of sterilisation had been based on medical indications . Certain shortcomings in health care and non - compliance with the regulations on sterilisation ( such as failure to observe the administrative procedure ) had been identified in several cases . However , they affected the whole population equally regardless of ORG ethnic origin . Hospitals in which administrative errors had been discovered had adopted measures with a view to eliminating them .", "In none of the hospitals visited by the expert group did there exist separate rooms for GPE women ; all patients received treatment within the same hospital facilities . Owing to the situation existing during DATE , medical personnel and individuals were not on an equal footing with regard to responsibility for maintaining and improving ORG state of health . This was reflected , in particular , in limited individual rights and responsibilities in matters of health care . Measures had been recommended to ensure that individuals received the necessary information to enable them to give informed consent to their treatment or refuse it . Individual requests for medical intervention were to be made in a legally valid manner permitting the persons concerned to express their own free will after receiving the appropriate information .", "The measures recommended in the report consisted in the amendment of the legal rules on sterilisation with a view to ensuring compliance with , inter alia , ORG , which GPE had ratified . The report also contained a set of recommendations regarding the education of medical staff , focusing on “ cultural differences in regions with an increased concentration of GPE communities ” . In order to educate the GPE population in the area of health care , ORG in GPE was to establish , in cooperation with ORG , a network of health care assistants who would receive special training and operate in GPE settlements .", "At the hearing the Government indicated that it was open to women allegedly affected by malpractice in the context of sterilisation to claim compensation before the civil courts . According to the information available to the Government , there were CARDINAL sets of proceedings of that kind pending before the NORP courts . CARDINAL other sets of proceedings had ended in a final decision . In CARDINAL of them the claimants had been successful .", "Under LAW , natural persons have the right to protection of their personal rights ( personal integrity ) , in particular their life and health , civil and human dignity , privacy , name and personal characteristics .", "Under LAW , natural persons have the right to request that unjustified infringements of their personal rights be ended and that the consequences of such infringements be erased . They also have the right to appropriate just satisfaction .", "Article CARDINAL § CARDINAL provides that , in cases where the satisfaction obtained under LAW is insufficient , in particular because the injured party ’s dignity or social standing has been significantly diminished , he or she is also entitled to financial compensation for non - pecuniary damage .", "Regulation No . Z-CARDINAL CARDINAL/CARDINAL-B/CARDINAL of ORG of the Slovak Socialist Republic , published in ORG . CARDINAL - CARDINAL/CARDINAL ( “ the DATE LAW ” ) and applicable at the relevant time , contained guidelines governing sterilisation in medical practice .", "Section CARDINAL permitted sterilisation in a medical institution either at the request of the person concerned or with that person ’s consent where , inter alia , the procedure was necessary according to the rules of medical science for the treatment of a person ’s reproductive organs which were affected by disease ( section CARDINAL(a ) ) , or where the pregnancy or birth would seriously threaten the life or health of a woman whose reproductive organs were healthy ( section CARDINAL(b ) ) .", "Section CARDINAL(CARDINAL)(a ) authorised the head physician of the hospital department in which the person concerned was treated to decide whether or not that person ’s sterilisation was required within the meaning of section CARDINAL(a ) of the DATE Sterilisation Regulation . Sterilisation on any other ground required prior approval by a medical committee ( “ sterilisation committee ” ) .", "Point XIV of the ORG to the DATE Sterilisation Regulation indicated the following as obstetric or gynaecological reasons justifying a woman ’s sterilisation :", "( a ) during and after a second or subsequent Caesarean section , where this method of delivery was necessary for reasons which were likely to persist during a further pregnancy and where the woman concerned did not wish to deliver again via Caesarean section ;", "( b ) in the event of repeated complications during pregnancy , in the course of delivery and in the subsequent DATE period , where a further pregnancy would seriously threaten the woman ’s life or health ;", "( c ) where a woman had several children ( CARDINAL children for women under DATE and CARDINAL children for women over that age ) .", "The Regulation was repealed by LAW with effect from DATE ( see below ) .", "At the relevant time the following provisions of Law no . CARDINAL/CARDINAL on ORG ( ORG o zdravotnej starostlivosti – “ the Health Care Act DATE ” ) were in force .", "Section PERSON ) made medical treatment subject to the patient ’s consent . A patient ’s consent to medical procedures of a particularly serious character or which substantially affected a person ’s future life had to be given in writing or in another provable manner ( section CARDINAL ) ) .", "Under LAW ) the doctor was obliged to advise the patient , in an appropriate and provable way , about the nature of his or her illness and the necessary medical procedures , so that the doctor and the patient could actively cooperate in the patient ’s treatment . The amount of information which it was appropriate to provide to the patient was to be determined by the doctor in the light , and was not allowed to affect the patient ’s treatment .", "Law no . CARDINAL on health care and health care services and on the amendment and completion of certain Acts ( PERSON o zdravotnej starostlivosti , službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “ LAW CARDINAL ” ) came into force on DATE and became operative on DATE .", "Section CARDINAL governs the provision of information to and giving of informed consent by patients . Pursuant to sub - section CARDINAL , medical practitioners are obliged , unless the law provides otherwise , to inform the persons listed below about the aim , nature , consequences and risks of treatment , the possibility of choice as to the proposed procedures and the risks connected with refusal to accept treatment . This obligation to inform extends , inter alia , to the person to be treated or another person chosen by the former ; to the statutory representative or guardian where health care is to be provided to a minor , a person deprived of legal capacity or a person with limited legal capacity ; and , in an appropriate manner , also to persons incapable of giving informed consent .", "Section CARDINAL(CARDINAL ) obliges medical practitioners to provide information comprehensibly , considerately and without pressure , allowing the patient the possibility and sufficient time to freely give or withhold his or her informed consent , and in a manner appropriate to the maturity of intellect and will and the state of health of the person concerned .", "Section PERSON ) provides that any person entitled to such information also has the right to refuse it . Such refusal has to be recorded in writing .", "Pursuant to section CARDINAL(CARDINAL ) , informed consent is provable consent to treatment preceded by information as stipulated by LAW . A written form of informed consent is required , inter alia , in the case of sterilisation . Everyone with the right to give informed consent also has the right to freely withdraw that consent at any time .", "Section CARDINAL reads as follows :", "“ ( CARDINAL ) Sterilisation for the purposes of this law shall mean the prevention of fertility without the removal or impairment of a person ’s reproductive organs .", "( CARDINAL ) Sterilisation may be performed only on the basis of a written request and written informed consent following the provision of information to a person with full legal capacity or to the statutory representative of a person not capable of giving informed consent , or on the basis of a court decision issued on an application by the statutory representative .", "( CARDINAL ) The information preceding a person ’s informed consent must be provided as specified by section CARDINAL(CARDINAL ) and must encompass :", "( a ) alternative methods of contraception and planned parenthood ;", "( b ) the possibility of a change in the life circumstances which led to the request for sterilisation ;", "( c ) the medical consequences of sterilisation as a method aimed at the irreversible prevention of fertility ;", "( d ) the possibility that the sterilisation might fail .", "( CARDINAL ) The request for sterilisation is to be submitted to a [ health care ] provider who carries out sterilisations . Requests for female sterilisation shall be examined and the sterilisation carried out by a physician specialising in the field of gynaecology and obstetrics ; requests for male sterilisation shall be examined and the sterilisation carried out by a physician specialising in the field of urology .", "( CARDINAL ) Sterilisation may not be carried out DATE after informed consent has been given . ”", "Section CARDINAL repeals the DATE Sterilisation Regulation .", "Article IV of the Health Care Act CARDINAL introduces the offence of “ unlawful sterilisation ” , which is included in LAW as Article CARDINALb . ORG - paragraph CARDINAL of Article PERSON provides that anybody who sterilises a person contrary to the law is to be punished by a prison term of DATE , by a prohibition on carrying out his or her activity or by a pecuniary penalty . The prison term may be CARDINAL when the offence was committed in aggravating circumstances ( subparagraph CARDINAL ) .", "DATE . The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine ( Council of Europe Treaty Series No . CARDINAL ) was ratified by GPE on DATE and entered into force in respect of GPE on DATE . The corresponding notification , together with the text of the ORG , were published in LAW under number CARDINAL on DATE . The relevant provisions read as follows :", "“ Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone , without discrimination , respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine .", "Each ORG shall take in its internal law the necessary measures to give effect to the provisions of this Convention .", "... ”", "“ Any intervention in the health field , including research , must be carried out in accordance with relevant professional obligations and standards . ”", "“ An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it .", "This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks .", "The person concerned may freely withdraw consent at any time .", "... ”", "“ When because of an emergency situation the appropriate consent can not be obtained , any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned . ”", "The relevant parts of ORG to ORG provide :", "“ DATE Professional standards", "...", "Further , a particular course of action must be judged in the light of the specific health problem raised by a given patient . In particular , an intervention must meet criteria of relevance and proportionality between the aim pursued and the means employed . Another important factor in the success of medical treatment is the patient ’s confidence in his or her doctor . This confidence also determines the duties of the doctor towards the patient . An important element of these duties is the respect of the rights of the patient . The latter creates and increases mutual trust . The therapeutic alliance will be strengthened if the rights of the patient are fully respected .", "...", "DATE General rule", "This article deals with consent and affirms at the international level an already well - established rule , that is that no one may in principle be forced to undergo an intervention without his or her consent . Human beings must therefore be able freely to give or refuse their consent to any intervention involving their person . This rule makes clear ORG autonomy in their relationship with health care professionals and restrains the paternalist approaches which might ignore the wish of the patient . ...", "The patient ’s consent is considered to be free and informed if it is given on the basis of objective information from the responsible health care professional as to the nature and the potential consequences of the planned intervention or of its alternatives , in the absence of any pressure from anyone . DATE , paragraph CARDINAL , mentions the most important aspects of the information which should precede the intervention but it is not an exhaustive list : informed consent may imply , according to the circumstances , additional elements . In order for their consent to be valid the persons in question must have been informed about the relevant facts regarding the intervention being contemplated . This information must include the purpose , nature and consequences of the intervention and the risks involved . Information on the risks involved in the intervention or in alternative courses of action must cover not only the risks inherent in the type of intervention contemplated , but also any risks related to the individual characteristics of each patient , such as age or the existence of other pathologies . Requests for additional information made by patients must be adequately answered .", "Moreover , this information must be sufficiently clear and suitably worded for the person who is to undergo the intervention . The patient must be put in a position , through the use of terms he or she can understand , to weigh up the necessity or usefulness of the aim and methods of the intervention against its risks and the discomfort or pain it will cause .", "...", "DATE Emergency situations", "In emergencies , doctors may be faced with a conflict of duties between their obligations to provide care and seek the patient ’s consent . This article allows the practitioner to act immediately in such situations without waiting until the consent of the patient or the authorisation of the legal representative where appropriate can be given . As it departs from the general rule laid down in DATE , it is accompanied by conditions .", "First , this possibility is restricted to emergencies which prevent the practitioner from obtaining the appropriate consent ... An example that might be put forward is that of a patient in a coma who is thus unable to give his consent ( see also paragraph CARDINAL above ) , or that of a doctor who is unable to contact an incapacitated person ’s legal representative who would normally have to authorise an urgent intervention . Even in emergency situations , however , health care professionals must make every reasonable effort to determine what the patient would want .", "ORG , the possibility is limited solely to medically necessary interventions which can not be delayed . Interventions for which a delay is acceptable are excluded . However , this possibility is not reserved for life - saving interventions .", "Lastly , the article specifies that the intervention must be carried out for the immediate benefit of the individual concerned . ”", "In his recommendation following fact - finding missions to GPE the Commissioner for Human Rights of ORG indicated , inter alia :", "“ CARDINAL . The issue of sterilizations does not appear to concern exclusively CARDINAL ethnic group of the NORP population , nor does the question of their improper performance . It is likely that vulnerable individuals from various ethnic origins have , at some stage , been exposed to the risk of sterilization without proper consent . However , for a number of factors , which are developed throughout this report , the Commissioner is convinced that the NORP population of eastern GPE has been at particular risk .", "The initiative of the authorities to investigate into the sterilization practices in the country is welcomed . ORG engaged in an open and constructive dialogue with the Commissioner concerning this difficult issue . It is also encouraging to note that the Government is considering ways of improving the country ’s health care system in general , including reproductive health care , and access to it for vulnerable persons , including GPE women in particular .", "The Commissioner is concerned about what appears to be a widespread negative attitude towards the relatively high birth rate among the GPE as compared with other parts of the population . These concerns are often explained with worries of an increased proportion of the population living on social benefits . Such statements , particularly when pronounced by persons of authority , have the potential of further encouraging negative perceptions of the GPE among the non - GPE population . It can not be excluded that these types of statements may have encouraged improper sterilization practices of GPE women .", "...", "In view of the difficulties encountered during the investigations , and limitations surrounding them , initiated by the Government , it is unlikely that they will shed full light on the sterilizations practices .", "However , on the basis of the information contained in the reports referred to above , and that obtained during the visit , it can reasonably be assumed that sterilizations have taken place , particularly in eastern GPE , without informed consent .", "The information available to the Commissioner does not suggest that an active or organized Government policy of improper sterilizations has existed ( at least since the end of the communist regime ) . However , ORG has , in the view of the Commissioner , an objective responsibility in the matter for failing to put in place adequate legislation and for failing to exercise appropriate supervision of sterilization practices although allegations of improper sterilizations have been made throughout the DATE ’s and DATE . ”", "The relevant part of the Commissioner ’s follow - up report on GPE of DATE ( CommDH(CARDINAL)CARDINAL ) reads as follows :", "“ CARDINAL . The involuntary sterilisation of GPE women", "...", "Development of the situation and measures taken", "The allegations of forced and coerced sterilizations of GPE women in GPE were considered as a possible grave violation of human rights and therefore taken very seriously by ORG . A considerable effort was devoted to their thorough examination . In addition to a criminal investigation , a professional medical inspection of healthcare establishments was organised and an expert opinion of ORG of ORG in GPE requested . It was not confirmed that ORG would have supported an organized discriminatory ORG policy . Legislative and practical measures were taken by the ORG in order to eliminate the administrative shortcomings identified in the course of inquires and to prevent similar situations from occurring in the future .", "LAW , which came into effect on DATE , sought to deal with these issues by including sections on sterilisation , informed consent and access to medical records . The law was elaborated in accordance with ORG , and among other things , eliminates the deficiencies in legislation found in the course of the investigations . The law , inter alia , guarantees informed consent and requires health care professionals to provide information to patients before , for example , undergoing sterilisation . It also requires a DATE waiting period after informed consent is given . In addition , the new law addresses the problem many individuals face in accessing their medical records . The law explicitly allows authorisation by the patient to another person , through a power of attorney , to view and photocopy their files .", "Women allegedly harmed by sterilisation have the right to turn to the NORP courts with a request for compensation and it is the view of the NORP authorities that the existing legal framework offers them sufficient possibilities to seek compensation . Some of the cases have been concluded by rejecting the complaint or by halting proceedings . In other cases , court proceedings are still underway .", "Conclusions", "The Commissioner welcomes the coming into force of LAW , and its provisions on informed consent and access to medical records . These were crucial issues which the Commissioner had addressed in his Recommendation to the NORP authorities , and he is pleased to see that the new law has explicitly addressed these problem areas .", "The Commissioner notes with regret that the NORP authorities have not yet established an independent commission to provide compensation or an apology to the victims . While victims may seek redress through the court system , in these types of cases , litigation has its practical shortcomings . These include the difficult and costly nature of obtaining legal counsel , particularly , for GPE women living in marginalised communities , and the extremely high evidential standards .", "The Commissioner again encourages the authorities to consider creating an independent commission that might , on the examination of each case , provide effective and rapid non - judicial redress . Such redress would be given to individual applicants , who could show that appropriate procedures were not followed , without there necessarily having been intent or criminal negligence on the part of individual medical staff , but because of systemic shortcomings in the procedures permitted , and that in their particular case , sterilisation was without informed consent . Such a Commission might allow for alleged cases to be examined thoroughly , but with fewer formalities and less cost for applicants , than judicial proceedings . ”", "ORG against Racism and Intolerance ( ECRI ) published its third report on GPE on DATE . The relevant parts read as follows :", "“ ... The GPE minority remains severely disadvantaged in most areas of life , particularly in the fields of housing , employment and education . Various strategies and measures to address these problems have not led to real , widespread and sustainable improvements , and the stated political , priority given to this issue has not been translated into adequate resources or a concerted interest and commitment on the part of all the administrative sectors involved . Public opinion towards the GPE minority remains generally negative .", "...", "Allegations of sterilisations of GPE women without their full and informed consent", "...", "ORG is very concerned by reports which came to national and international attention at DATE claiming that GPE women have , in DATE and on an on - going basis , been subject to sterilisations in some hospitals in LOC without their full and informed consent . ...", "...", "Recommendations :", "ORG is of the opinion that the possibility of sterilisations of GPE women without their full and informed consent necessitates immediate , extensive and thorough investigation . It seems clear to ORG that in such investigations , attention should be focused not on whether a signed form can be produced , but on whether the women involved were fully informed of what they were signing and the actual implications of sterilisation . ...", "...", "ORG also recommends that , prior to and notwithstanding the outcome of the investigation , more adequate safeguards should be put in place to forestall any further problems or lack of certainty in this area . In fact , the authorities have acknowledged there remains at present , at the legal level , some anomalies between the law in force and specific regulations issued previously . Clear , detailed and coherent regulations and instructions should thus be issued immediately to ensure that all sterilisations are being carried out in accordance with best medical knowledge , practice and procedures , including the provision of full and comprehensible information to patients about the interventions proposed to them . ”", "In its next periodic report ( fourth monitoring cycle ) on GPE , published on CARDINAL DATE , ORG concluded as follows :", "“ CARDINAL . ORG notes with concern that the problems as regards investigations into allegations of sterilisations of GPE women without their full and informed consent noted in its third report remained . The authorities continued to investigate these allegations under the crime of genocide rather than , for example , under the crimes of assault or of inflicting grievous bodily harm . The angle under which these allegations were investigated thus rendered proof of a crime having been committed virtually impossible and the possibility for redress through the courts almost null . The investigations also reportedly continued to focus on the issue of consent forms being signed rather than on whether full prior information was provided . Due to these flaws , in most cases , the courts decided that the allegations were unproven . ORG wishes to stress that at the very least , the authorities should secure legal aid to victims so that they can seek compensation through civil law .", "Some legislative measures have been taken to provide better legal safeguards against the practice . LAW has been amended to include the crime of “ illegal sterilisation ” and it provides for a DATE waiting period from the time the patient has given her consent before the sterilisation is carried out . LAW No . CARDINAL/CARDINAL Coll . on ORG which entered into force on DATE provides that sterilisation can only be performed following a written request and informed written consent from a person who has been previously informed and is fully legally responsible for him / herself , or from a person who legally represents them and can provide their informed consent , or on the basis of a court decision based on a request by a legal representative . The patient information session preceding consent must be carried out according to the law and must include information on alternative methods of contraception and family planning , possible changes in life circumstances which led to the request for sterilisation , the medical consequences of sterilisation and the possibility that the sterilisation may fail .", "While welcoming these legislative developments , ORG regrets that due to the above - mentioned problems in the investigations of allegations of sterilisations of GPE women without their full and informed consent , no redress has been possible for the majority of women involved .", "ORG recommends that the NORP authorities monitor all facilities which perform sterilisations to ensure that the legislative safeguards concerning this procedure are respected . It also urges the authorities to take steps to ensure that complaints filed by GPE women alleging sterilisations without their full and informed consent are duly investigated and that the victims receive proper redress . ”", "The UN Convention on the Elimination of All Forms of Discrimination against Women was ratified by the former GPE . Following the latter ’s dissolution , GPE declared itself bound by it as from DATE . In its relevant Articles the ORG provides :", "“ For the purposes of the present Convention , the term ‘ discrimination against women’ shall mean any distinction , exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition , enjoyment or exercise by women , irrespective of their marital status , on a basis of equality of men and women , of human rights and fundamental freedoms in the political , economic , social , cultural , civil or any other field .", "... ”", "“ CARDINAL . GPE Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure , on a basis of equality of men and women , access to health care services , including those related to family planning .", "Notwithstanding the provisions of paragraph CARDINAL of this article , GPE Parties shall ensure to women appropriate services in connection with pregnancy , confinement and the post - natal period , granting free services where necessary , as well as adequate nutrition during pregnancy and lactation .", "... ”", "“ CARDINAL . GPE Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure , on a basis of equality of men and women :", "( e ) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information , education and means to enable them to exercise these rights ;", "... ”", "General Recommendation No . CARDINAL adopted by ORG ) in DATE includes , inter alia , the following opinion and recommendations for action by the GPE parties to the LAW on the Elimination of All Forms of Discrimination against Women :", "“ CARDINAL . Women have the right to be fully informed , by properly trained personnel , of their options in agreeing to treatment or research , including likely benefits and potential adverse effects of proposed procedures and available alternatives .", "GPE parties should report on measures taken to eliminate barriers that women face in gaining access to health care services and what measures they have taken to ensure women timely and affordable access to such services . ...", "GPE parties should also report on measures taken to ensure access to quality health care services , for example , by making them acceptable to women . Acceptable services are those which are delivered in a way that ensures that a woman gives her fully informed consent , respects her dignity , guarantees her confidentiality and is sensitive to her needs and perspectives . States parties should not permit forms of coercion , such as non - consensual sterilization , ... that violate women ’s rights to informed consent and dignity .", "...", "GPE parties should also , in particular :", "...", "( e ) Require all health services to be consistent with the human rights of women , including the rights to autonomy , privacy , confidentiality , informed consent and choice ;", "( f ) Ensure that the training curricula of health workers includes comprehensive , mandatory , gender - sensitive courses on women ’s health and human rights , in particular gender - based violence . ”", "At its CARDINALst session ( DATE to DATE ) CEDAW considered the combined second , third and fourth periodic report on GPE . The concluding observations contain , inter alia , the following text ( CEDAW / C / SVK / CO/CARDINAL ) :", "“ DATE . While acknowledging the explanations given by the delegation on the alleged coerced sterilization of GPE women , and noting the recently adopted legislation on sterilization , the ORG remains concerned at information received in respect of GPE women who report having been sterilized without prior and informed consent .", "Recalling its views in respect of communication No . CARDINAL/CARDINAL ( Szijjarto v. GPE ) , the ORG recommends that the ORG party monitor public and private health centres , including hospitals and clinics , that perform sterilization procedures so as to ensure that patients are able to provide fully informed consent before any sterilization procedure is carried out , with appropriate sanctions being available and implemented in the event of a breach . It calls upon ORG to take further measures to ensure that the relevant provisions of the LAW and the pertinent paragraphs of the ORG ’s general recommendations ORG . CARDINAL and DATE in relation to women ’s reproductive health and rights are known and adhered to by all relevant personnel in public and private health centres , including hospitals and clinics . ORG recommends that ORG take all necessary measures to ensure that the complaints filed by GPE women on grounds of coerced sterilization are duly acknowledged and that victims of such practices are granted effective remedies . ”", "The World Health Organisation ( WHO ) NORP consultation meeting on the rights of patients , held in GPE in DATE , endorsed a document entitled “ Principles of the rights of patients in LOC ” as a set of principles for the promotion and implementation of patients’ rights in LOC . Its relevant parts read as follows :", "“ CARDINAL . INFORMATION", "CARDINAL Patients have the right to be fully informed about their health status , including the medical facts about their condition ; about the proposed medical procedures , together with the potential risks and benefits of each procedure ; about alternatives to the proposed procedures , including the effect of non - treatment ; and about the diagnosis , prognosis and progress of treatment .", "...", "ORG must be communicated to the patient in a way appropriate to the latter ’s capacity for understanding , minimizing the use of unfamiliar technical terminology . ...", "...", "CONSENT", "CARDINAL The informed consent of the patient is a prerequisite for any medical intervention .", "CARDINAL A patient has the right to refuse or to halt a medical intervention . The implications of refusing or halting such an intervention must be carefully explained to the patient . ”", "The Universal Declaration on Bioethics and Human Rights was adopted by ORG ’s ORG on DATE . Its relevant provisions read as follows :", "“ The autonomy of persons to make decisions , while taking responsibility for those decisions and respecting the autonomy of others , is to be respected . For persons who are not capable of exercising autonomy , special measures are to be taken to protect their rights and interests . ”", "“ CARDINAL . Any preventive , diagnostic and therapeutic medical intervention is only to be carried out with the prior , free and informed consent of the person concerned , based on adequate information . The consent should , where appropriate , be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice . ”" ]

[ "3", "8" ]

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[ "13", "3" ]

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[ "The applicant is a NORP national , born in DATE and living in PERSON .", "A.", "Background of the case", "Since DATE the applicant has been suffering from a schizo - affective psychosis . The condition of her health worsened at DATE , when she became pregnant .", "During her pregnancy the applicant suffered from deep depression . After the birth of her child , on DATE , the applicant was placed in a psychiatric hospital for DATE . Her infant daughter was temporarily taken into public care .", "Later , the applicant consented to placing her daughter in a foster home . On DATE ORG ( PERSON ) made an order restricting the applicant 's parental rights and placing her daughter with the foster family LOC The PERSON family was awarded custody of the child .", "From DATE to DATE the applicant received psychiatric treatment . In DATE she decided that she should re - assume responsibility for the care of her daughter . She submits that after she had mentioned it to the PERSON family , they started to hinder her in maintaining contact with her daughter .", "Proceedings relating to the applicant ’s request for her parental authority to be restored", "On DATE the applicant requested ORG to restore her full parental authority . Since then , according to her submissions , her contacts with her daughter became even more difficult . The applicant submits that from this time on , the foster family started to express hostility towards her . For instance , during one of her visits in their home , the police had to intervene .", "On DATE the applicant requested ORG to make an interim order ruling on the terms of her access to her daughter . Apparently , the court did not address the issue at that time .", "On DATE , ORG dismissed the applicant 's request to restore her full parental authority . The court relied on an expert report according to which the applicant 's mental state was still unstable and constituted an obstacle to restoring her parental rights . The expert had not , however , seen any obstacles to the applicant maintaining personal contact with her daughter .", "On DATE , upon the applicant 's appeal , ORG ( PERSON ) quashed the first - instance decision and remitted the case to ORG .", "On DATE the applicant again requested the court to give an interim order ruling on the terms of her access to her daughter . On DATE , during a hearing , she upheld her request and specified that she wished to see her daughter twice a month in her own or her mother ’s residence .", "On DATE ORG issued an interim order stipulating that the applicant should be allowed to take her daughter to her place of residence , twice a month for TIME .", "Apparently , in the meantime , ORG had ordered that fresh expert evidence be obtained , in particular from experts in psychiatry and psychology . On DATE a psychiatrist prepared a report . On DATE experts in psychology and pedagogy from ORG ( Rodzinny Ośrodek PERSON ) prepared another report .", "On DATE ORG dismissed the applicant 's request for her parental authority to be restored . It did , however , alter the manner in which the applicant 's parental rights were restricted . Relying on the expert reports and the parties’ submissions , the court found that the applicant 's state had improved and that it was desirable to unite the family . Therefore , it ordered the termination of the foster family ’s care , returned the child to the applicant and appointed a court guardian to supervise the applicant in her exercise of custody rights . At the same time , taking into account the interests of the child who had developed certain emotional ties with the foster family , the court fixed a schedule of visits and access between the PERSON family and the child . The former foster family was allowed to have access to the child on DATE , with the option that the child could stay with them TIME . The applicant did not appeal against this decision .", "On DATE , upon the foster family ’s appeal , ORG partly amended the first - instance decision , ruling that the child ’s domicile should coincide with her mother ’s domicile , and upheld the remainder of the decision .", "Proceedings concerning the former foster family ’s contact with the child", "On an unspecified date in DATE , the applicant requested ORG to alter the arrangements in respect of the PERSON family 's contact with her daughter , as she considered this contact to have a detrimental influence on her child . In particular , she argued that the possibility of spending DATE with her daughter constituted an essential element of her family life .", "A first hearing was held on DATE .", "On DATE the court decided that evidence from experts at ORG be obtained in order to determine the scope of the emotional ties between the former foster family and the child , and whether there was a need to maintain that contact .", "On DATE the experts submitted their report to the court .", "On DATE the court held a hearing .", "On DATE ORG decided that contact between the former foster family and the child should be maintained ; however , it placed further restrictions on S. ’s access to her . Consequently , the former foster family was allowed to see the child twice a month in the presence of the applicant and a court custody guardian , in the child ’s residence . The court relied on the expert report and the parties’ submissions .", "On an unspecified date the applicant filed an appeal against this decision but did not state whether she sought to have it altered or quashed and remitted to the court of first instance .", "On DATE ORG ordered the applicant to indicate the relief she sought , on pain of her appeal being rejected .", "In her reply of DATE the applicant informed the court that “ she was indifferent about the way the appellate court would alter the contested decision ” .", "On DATE ORG rejected the applicant 's appeal for her failure to comply with the procedural requirements laid down by LAW in respect of such appeals .", "B. Relevant domestic law", "Section CARDINAL of ORG ( PERSON i PERSON ) provides as follows :", "\" CARDINAL . If the interests of a child are endangered , the court shall give an appropriate order .", "PERSON . The court may , in particular : …", "…", "DATE ) make an order placing a minor in a foster home or in a public care centre . \"" ]

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[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON in the Karachayevo - Cherkessia Republic . She is represented before the ORG by PERSON , a lawyer practising in PERSON . The respondent Government are represented by Mr PERSON , Representative of GPE at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant obtained a special - purpose settlement order ( целевой расчетный чек ) . By its terms the Government undertook to give her a NORP - made ORG passenger car within DATE .", "As no cars were available , the applicant was placed on the waiting list under no . CARDINAL . She renewed her request on several occasions , but it could not be granted for want of cars .", "On DATE the Convention entered into force in respect of GPE .", "In DATE the applicant was offered a PERSON car or compensation of ORG CARDINAL,CARDINAL . She turned the offer down because a PERSON was cheaper than a ORG and the compensation was inadequate .", "On DATE the applicant brought a civil action against ORG . She sought to be granted a ORG car or to recover the market value thereof .", "On DATE ORG ( Черкесский районный суд КЧР ) allowed the applicant ’s claim and awarded her RUR CARDINAL ( ORG CARDINAL,CARDINAL ) for the value of the car and FAC ( ORG CARDINAL ) in court fees .", "Unhappy about the amount of the award , the applicant appealed against the judgment . She submitted , in particular , that the court assessed the value of the car on the basis of the amount agreed between the car manufacturer and the federal government , whereas the car price at her local dealership was at least RUR CARDINAL,CARDINAL higher .", "On DATE ORG of the Karachayevo - Cherkessia Republic upheld the judgment of DATE .", "On DATE the applicant obtained a writ of execution and forwarded it to ORG of GPE . According to the Government , on an unspecified date the writ was returned to the applicant as the debtor ’s name was indicated incorrectly .", "On DATE the applicant resubmitted the writ , together with copies of the necessary documents . On DATE its receipt was acknowledged .", "On DATE the NORP Treasury enforced the judgment and credited RUR CARDINAL to the applicant ’s bank account .", "The Federal Law “ On State commodity bonds ” ( no . CARDINAL-FZ of DATE , ФЗ « О государственных долговых товарных обязательствах ORG ) provided that the ORG commodity bonds , including special - purpose settlement orders , were to be recognised as the ORG internal debt ( section CARDINAL ) . They were to be enforced in accordance with the general principles of ORG ( section CARDINAL ) . The relevant parts of section CARDINAL read as follows :", "“ The Government of the NORP Federation shall draft ORG for the redemption of the ORG internal debt ... The ORG shall provide for the terms of redemption of ORG commodity bonds that would be convenient for citizens , including , of their choice : provision of goods indicated in ... special - purpose bonds for the purchase of passenger cars ... ; redemption of ORG commodity bonds at consumer prices prevailing at the moment of the redemption ... ”", "On DATE , section CARDINAL of the law was amended to read , in the relevant parts , as follows :", "“ To establish that the repayment of the ORG internal debt of GPE under State commodity bonds ... is carried out in DATE in accordance with ORG ...", "To set , in the above - mentioned ORG , the following sequence and terms of redemption of ORG commodity bonds , depending on the type of the bond :", "... in respect of bearers of special - purpose settlement orders that gave the right to purchase passenger cars in DATE and DATE payment of monetary compensation equal to the value of the car described in the order , as determined in co - ordination with car manufacturers at the moment of redemption . The redemption period runs from CARDINAL DATE to DATE . ”", "According to the LAW on co - ordination of market sale prices for ORG cars signed by the Deputy Ministers of Industry , Finance and ORG and the executive director of the GPE car plant , the price of a VAZ-CARDINAL car was MONEY during the period DATE .", "On DATE the Government approved , by ORG no . ORG , ORG for the redemption of the ORG internal debt of GPE arising from ORG commodity bonds in DATE . Paragraph CARDINAL of the ORG set out that the ORG commodity bonds were to be redeemed by way of payment of pecuniary compensation ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant used to work as a public prosecutor . In DATE the police charged him with blackmail and abuse of office . They alleged that the applicant had extorted several cars from the managers of a car repair shop , threatening to harass their business with criminal investigations . Thus , according to the prosecution , in DATE the applicant was given a car in exchange for the discontinuation of the investigation into the allegedly illegal activities of the shop . Some time later he received from them another car of the same model . In DATE he was given a new car which was more expensive than DATE . The prosecution also accused the applicant of illegal possession of firearms , namely a gas handgun found at his place during the search .", "On DATE , the police arrested the applicant and detained him in remand prison IZ–CARDINAL/CARDINAL , PERSON , in GPE . On admission to the prison , the applicant was put in cell no . CARDINAL . The rest of the time he spent in CARDINAL other cells , namely cells CARDINAL . CARDINAL , CARDINAL , CARDINAL and CARDINAL .", "On DATE , the applicant was put into cell no . CARDINAL . The parties’ descriptions of this cell differ .", "According to the applicant , the environment in this cell was so poor that he developed a skin rash .", "According to the Government , that cell measured QUANTITY and had CARDINAL bunk beds . The cell had cold running water , a sink , and a toilet partitioned off from the rest of the cell . The ORG food met quality standards established by regulations . There was no infection in the cell . The prisoners had an TIME ’s DATE exercise . Once a week they had a bath and received fresh bedding .", "On DATE , the applicant was moved to cell no . CARDINAL . The parties’ descriptions of this cell differ too .", "According to the applicant , this cell measured QUANTITY and housed DATE CARDINAL prisoners at different times ( or CARDINAL on average ) . Because the cell was overcrowded , during most of DATE he was there the applicant had to share his bunk bed with other prisoners . But even on those few occasions when he had the bed to himself , he could not sleep because the lights and TV were always on , the ventilation was always off , and the prisoners DATE and night . Metal shutters covered both windows , keeping fresh air out . The toilet was not partitioned off from the rest of the cell and was in front of the GPE peephole .", "According to the Government , that cell measured QUANTITY and had CARDINAL bunk beds . The cell had cold running water , a sink , and a toilet partitioned off from the rest of the cell . The ORG food met statutory standards of quality . There was no infection in the cell . The prisoners had an TIME ’s DATE exercise . Once a week they had a bath and received fresh bedding .", "Following the admissibility decision the applicant produced a written statement by PERSON , who had been detained in cell no . CARDINAL DATE . He confirmed the applicant ’s account of the conditions of detention there , namely that periodically the cell held up to CARDINAL people .", "On DATE , the applicant was moved to cell no . CARDINAL , then to cell no . CARDINAL . These were hospital cells , and the applicant was put there while being treated for a broken leg .", "According to the Government , the area of the cells was QUANTITY and QUANTITY correspondingly . The first cell was equipped with CARDINAL bunk beds and TIME had CARDINAL .", "According to the applicant , even though the prison administration knew that he was a former prosecutor , he had to share these cells with ordinary criminals . With a broken leg , the applicant would have been helpless had the criminals wished to attack him in revenge .", "According to the Government , the applicant was detained separately from ordinary criminals .", "On DATE , the applicant was returned to cell no . CARDINAL , where he stayed until his removal from the prison on DATE .", "On DATE , on termination of the investigation the applicant and his lawyer were given access to the materials of the case file . On an unspecified date later the prosecution submitted the case file with the bill of indictment to the ORG of GPE for trial . The applicant was accused of having received CARDINAL cars from the managers of the car repair shop as a bribe . The applicant was also accused of illegal possession of firearms .", "On DATE , referring to LAW the applicant requested ORG to summon CARDINAL additional witnesses , PERSON and PERSON In his words , those witnesses worked in the prosecutor ’s office at the material time ; they had seen him pay for the first of the allegedly extorted CARDINAL cars and therefore could arguably provide evidence for his acquittal . He indicated in his request that in the course of the pre - trial investigation he had asked for those people to be questioned but it had been refused .", "The request of CARDINAL DATE was received by the administration of the detention facility DATE . However , it is unclear when they posted it .", "On DATE the judge of ORG examined the materials of the case file in camera and found the case ready for trial . The parties disagree as to whether the applicant ’s request under LAW to call PERSON and PERSON had reached the court by that date : according to the applicant , it must have reached the court well before DATE ; according to the Government , the request reached the court only on DATE , so the judge was unable to examine it .", "At the first hearing preceding the examination of the case on the merits the court asked the applicant whether he wished to call additional witnesses . The parties disagree as to whether the applicant used this opportunity to call PERSON and PERSON : according to the Government , he did not ; according to the applicant , he did . From the transcript of the hearing provided by the applicant , it appears that the first hearing took place on DATE . The applicant asked ORG to examine his request lodged earlier under LAW ORG replied that that motion had been received after the assignment of the case for trial . However , ORG noted that it would be examined later , at the preliminary hearing stage .", "The applicant agreed that he was a client of the car repair shop and knew its managers . He also confirmed that he had bought several cars from them . However , in his words , those cars were sold to him and were not given as a bribe , as the prosecution suggested . He indicated that in DATE PERSON had seen him paying for the car ; he had paid PERSON . , who acted as an intermediary between the applicant and the car repair shop . The applicant also testified that PERSON had been present at the time when he had handed money to PERSON . , and that later the applicant had told her about the deal . In his words , he gave money to PERSON . in a closed envelope and did not specify what was in it , since PERSON . knew that it was money for the car . Later in the course of the trial the applicant referred on CARDINAL occasions to the episode of DATE where Ms GPE and PERSON had been present .", "The court made several attempts to secure the attendance of PERSON . at the trial . However , PERSON . was absent from his address and according to his mother his whereabouts were unknown . The court decided to proceed with the case in his absence and read out the testimonies of that witness given during the face - to - face confrontation with the applicant .", "At the trial several witnesses were heard . The court heard PERSON . , PERSON , PERSON and PERSON , who worked at the shop at the material time and had contacts with the accused . They stated that the applicant had threatened them with criminal prosecution and that they had bribed him with the cars . They had also given him cash , to be transferred to other law - enforcement agencies for their “ protection ” . The court also heard Mr B - k . , who had bought the third car in GPE for the applicant . In his words , he had received the money for that car from PERSON , the managers of the car repair shop . PERSON , who had worked in the prosecutor ’s office at the material time , testified at the trial that the applicant had asked her to suspend the investigation into the activities of the shop . Some time later the applicant had asked her to help the shop to obtain several licences necessary for their professional activities .", "The court further examined written statements from several witnesses obtained by the police during the preliminary investigation . It also examined material evidence and documents seized by the prosecution authorities which related to the applicant ’s professional activities .", "Finally , the court examined wiretapping records made secretly by ORG in the applicant ’s office . The court noted that the wiretapping had been authorised by ORG at the request of ORG and therefore was admissible evidence . In the court ’s opinion , the records of his telephone conversations corroborated the testimonies of witnesses heard at the trial and those questioned by the investigative authorities .", "The examination of evidence was followed by pleadings by both parties . The applicant pleaded not guilty .", "On DATE , the court convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment .", "After the trial , on DATE , the applicant asked the court to correct record of the hearing , because his request to call PERSON and PERSON had been omitted from the transcript of DATE of the hearing ( DATE ) . On DATE the court refused to change the record , on the ground that it was true as it was .", "The applicant appealed . In the points of appeal he indicated that on DATE he had requested ORG to call witnesses Ms V. and PERSON , who could have confirmed that the applicant had paid for the cars . However , in the applicant ’s words the court had ignored that request .", "On DATE , ORG upheld the conviction on appeal , without , however , examining the applicant ’s argument about witnesses PERSON and PERSON", "Under LAW of DATE , all GPE correspondence should go through the administration of the remand prison . Letters addressed to the courts should be posted by the administration within DATE of their receipt from the detainee .", "At the time of the relevant events the Code of Criminal Procedure of DATE ( “ the old CCrP ” ) was in force . Under LAW of that code the accused had the right to lodge procedural requests with the trial court .", "Under LAW CCrP , after having received the case file from the prosecution with the bill of indictment , the judge , sitting in camera and without the parties , should decide whether or not the case is ready for trial . Under Articles CARDINAL and CARDINAL the judge should also examine written requests lodged by the defence . If the case is ready for trial the judge fixes the date for the preliminary hearing and draws up a list of witnesses to be called . This stage of the proceedings is called “ assignment of the case to trial ” .", "The trial commences with a preliminary hearing . Under LAW CCrP , the judge should ask the parties whether they wish to call additional witnesses . If such a request is made , the court should hear the parties on that matter and give decision in the form of a ruling , which should be reasoned . The court may also call new witnesses of its own motion .", "NORP In DATE ORG of the Russian Soviet Federative Socialist Republic in a plenary session adopted Ruling no . CARDINAL , in which it directed the lower courts as follows :", "“ Requests received after the case has been assigned to trial but before the trial has begun , should be examined at the preliminary hearing . However , in order to secure their prompt examination the presiding judge may make certain preparatory arrangements beforehand ( requests for information , references , and so on ) . ”", "The rulings of ORG adopted in plenary sessions had the force of law . Ruling no . CARDINAL , as amended later , was in force at the time of relevant events .", "After the preliminary hearing the court passes to the stage of “ judicial investigation ” ( sudebnoye sledstviye , LAW of the old CCrP ) . This is the part of the trial when the court and the parties examine the evidence , hear and question witnesses , experts and so on . Once the “ judicial investigation ” is over , the court asks the parties whether they want to supplement the “ judicial investigation ” with any new elements of proof ( LAW ) . At this moment the defence may ask again for new witnesses to be called .", "Following the “ judicial investigation ” the trial passes to the stage of pleadings . The accused person has the right to pronounce a speech called “ the last word ” . If in this “ last word ” he informs the court of important new elements of the case , the court should reopen the “ judicial investigation ” ( LAW ) .", "Article CARDINAL regulates the keeping of a trial record in the first instance court . It does not require a verbatim record of the trial to be kept , but “ a detailed record of the submissions ” . In practice , if a verbatim record exists , it is not attached to the official trial record . A party to the proceedings may challenge before the presiding judge the accuracy of the official record within DATE of receiving a copy of it ." ]

[ "3" ]

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[ "6" ]

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

[ "6-3-d" ]

[ "On TIME , the body of PERSON , a taxidriver , was found in a refuse disposal area in GPE . He had been stabbed to death . His van , which he used as a taxi , was found nearby with blood on the interior upholstery . An examination of the van revealed a palm print on the passenger door frame which matched that of Mr PERSON Powell , who at that time was living with the applicant . Mr PERSON ’s fingerprint was also found at the gate of the refuse disposal area together with another set of blood - stained fingerprints .", "On DATE , PERSON was arrested . When interviewed , he denied any personal knowledge of the murder . On DATE , he made a statement under caution . He claimed that the applicant had developed a plan to rob a taxi driver and that PERSON had accompanied him for this purpose . They had travelled in a taxi driven by PERSON . When the taxi stopped , the applicant had held PERSON from behind and demanded money . PERSON had searched for money and the applicant had produced a knife from his back pocket and stabbed Mr PERSON in the chest . The applicant had then dragged the body to the refuse disposal area and PERSON had opened the gate . Having moved the body , the applicant threw the knife into some bushes before driving the taxi to a swamp area where he tried to dispose of the vehicle . The taxi became bogged down . Mr PERSON and the applicant subsequently removed their blood - stained clothing and hid it in some bushes .", "In the meantime , on DATE , the applicant was arrested in respect of an unrelated offence of theft . It subsequently became apparent that the applicant was involved in a number of other offences against property and offences of dishonesty . He was held without charge for the purposes of investigation DATE . He was subsequently held in custody without charge between CARDINAL and DATE for investigation for murder .", "On DATE , the applicant was first questioned under caution after being shown a copy of PERSON statement . The applicant denied PERSON version of events and made no further comments to subsequent questions put to him .", "On DATE , PERSON took the police to the area where he claimed the knife and blood - stained clothes had been hidden . During the search , the police recovered a knife and several items of blood - stained clothing . PERSON DNA was subsequently found on an item of clothing belonging to PERSON .", "On DATE , PERSON was again questioned under caution . He confirmed the accuracy of his statement of DATE and added that the applicant had used his right hand to stab PERSON and that he , PERSON , had touched the deceased while searching for money . He identified the knife recovered by the police as the murder weapon .", "On DATE , Police Constable PERSON and Detective Constable PERSON ( “ the police officers ” ) interviewed the applicant a second time . He was asked whether he would answer questions , to which he replied that he would not . At that stage , PERSON reminded the applicant that he did not need to say anything . The applicant was given no formal caution . The police officers later testified that the applicant then asked them whether he was being recorded , to which they replied in the negative . They also testified that the applicant asked Police PERSON to open her jacket in order to demonstrate that she was not carrying a recording device , which she did .", "The police officers alleged that the applicant then began to speak about God and about having had a difficult past . Police Constable PERSON told him that God could help him have a better life . At that point , the applicant allegedly sighed and hung his head . He then said that PERSON PERSON ’s statement was DATE lies and proceeded to give his own version of events . He said that if he spoke the truth he would go to jail , but he wanted to leave a free man as he did not kill Mr PERSON . He said that the “ mental PERSON patient ” ( a reference to PERSON ) had killed PERSON . He claimed that on TIME in question , he had been looking for women but that PERSON had dragged him away with him . They were picked up by PERSON , whom PERSON instructed to drive to an address which caused the applicant surprise . When the taxi stopped , PERSON grabbed PERSON from behind and demanded money . The applicant found MONEY in the ashtray . The applicant was armed with a knife and Mr PERSON asked for the knife because PERSON had seen their faces . The applicant gave PERSON the knife and PERSON stabbed PERSON PERSON , using both hands . PERSON then tried to pull the deceased out of the van but was unable to do so . He told the applicant to get rid of the knife by throwing it in the bushes . The applicant then undid PERSON seatbelt and PERSON pulled the deceased from the van and , after searching the body , dragged it to the dumpster . The applicant described how he had driven the van to the swamp area and tried to dispose of the vehicle by putting a rock on the accelerator , but this was unsuccessful . He threw the car keys into the bushes because he thought his fingerprints would be on them . As the applicant and PERSON left the scene , the applicant saw that PERSON had PERSON mobile telephone . PERSON wanted to use the phone to ask someone to come and collect them , but the applicant told PERSON that he was crazy as the police would be able to trace the call . Mr PERSON threw the mobile telephone away . The applicant removed his shirt and jacket and gave them to PERSON , who threw them away . They were subsequently met by a friend of PERSON , who gave the latter a shirt which he in turn gave to the applicant .", "NORP The police officers alleged that the conversation with the applicant lasted TIME . No notes were made during the course of the interview and the applicant asked that what he had said should not be put into writing as he wanted some time to think about it . He wanted to tell the truth but did not want to go to prison for something he did not do . The police officers testified that , immediately afterwards , they made witness statements as to their recollections of the conversation with the applicant . The CARDINAL statements were almost identical . They were never shown to the applicant . The applicant denies having made any statement to the police officers .", "On DATE , a post - mortem examination revealed that Mr PERSON had suffered CARDINAL stab wounds : CARDINAL in the neck area and CARDINAL on the front of the chest . It was suggested that the nature of the injuries and the lack of defence wounds on the arms or hands of the deceased indicated stabbing from behind .", "On DATE , PERSON made another statement in which he described the events surrounding the murder in some detail .", "The applicant and his co - accused , PERSON , were tried for murder before the ORG sitting DATE at the GPE request – without a jury . The applicant was represented by CARDINAL counsel . Leading counsel was an experienced criminal practitioner who had travelled from GPE to GPE for the applicant ’s trial .", "At trial , PERSON amended his version of events . He admitted that he had stabbed Mr PERSON but claimed that it was in self - defence and that he had been alone in the taxi with Mr PERSON at the time . He alleged that his original statement implicating the applicant in the murder had been invented out of revenge following a misunderstanding regarding the theft of drugs which had been in Mr PERSON ’s possession . The only evidence against the applicant was therefore the alleged statement to the police officers .", "At a first voir dire on DATE , the applicant challenged the admissibility of the evidence of the police officers as to his alleged statement . The challenge was made on the grounds that ( i ) no formal caution had been given and ( ii ) the manner in which the statement was taken was unfair . The police officers gave evidence and were cross - examined . The defence called no evidence .", "A second voir dire was subsequently held on the admissibility of the alleged statement to the police officers . The judge noted that such a course of action was unusual but acceded to the request for a further voir dire in light of the seriousness of the charge . At the hearing , the applicant ’s lawyers alleged that the statement had been obtained through oppression . Again , the applicant did not testify .", "The record of the voir dire hearings showed that the trial judge had positively encouraged the applicant to give evidence , but he did not do so . At no stage in either voir dire did the applicant ’s lawyers put to the police officers the fact that the applicant denied having made the statement .", "NORP In his ruling on the admissibility of the alleged statement , the judge found that , while it would have been appropriate for a further caution to have been given on DATE , it was not a requirement . He emphasised that at the start of the conversation the officers did not have enough evidence to charge the applicant with murder . He further concluded that there was nothing to suggest that the manner in which the statement was taken was unfair and that there was no evidence that any inducement had been offered to the applicant to encourage him to make the alleged statement . He said :", "“ CARDINAL . There is no direct evidence here of why PERSON spoke to the officers . I infer that he believed that what he said could not be used as evidence if it was not recorded or written down as he spoke . I also infer , as I have indicated , that he believed that it would be easier to deny it later if no record was made of it . I infer that he spoke partly because of the need to unburden himself , due to remorse and his religious beliefs . ”", "As regards the allegations of oppression , the judge found that even assuming , without finding , that the detention without charge was unlawful , that in itself was insufficient to indicate that the applicant had made his statement as a result of oppression . He noted that :", "“ DATE . ... [ The applicant ] showed considerable presence of mind on DATE . For example , he insisted that the conversation not be tape - recorded . He asked PERSON . ORG . ORG to open her jacket for the purpose of proving to him that she had no concealed tape recorder on her person . Many of his answers show a considerable mental acuity , which is the opposite of the state we associate with oppressive conduct . ”", "The judge observed , in the course of submissions , that he had heard nothing to indicate that the applicant ’s detention had had any adverse affect on him . He indicated that he would normally expect to see evidence of a psychiatrist or psychologist as to the effect of oppressive conduct and quite likely evidence from the accused himself . Shortly after this observation , counsel for the applicant sought a short break in order to allow him to seek instructions from the applicant . When proceedings resumed , counsel continued his argument , in the course of which he agreed that “ there is no positive evidence by the defence as to the effect of the oppression ” . Accordingly , the judge found the statement to be admissible as evidence in the main trial , concluding that no oppression had been demonstrated .", "Following the ruling in the voir dire , the examination in chief and cross - examination of the police officers were adopted for the purposes of the main trial proceedings . At that time , Counsel for the applicant said :", "“ My Lord , may I just take a moment ? ... My Lord , I just want to make sure my client understands that we were adopting cross - examination from earlier ... My Lord , in light of that , I have no further questions . ”", "NORP The applicant did not give evidence at his trial . His allegation that he did not make the disputed confession was not put before the court . The transcript of the trial shows that on several occasions , his lawyer took time to ensure that the applicant understood and agreed to various steps being taken on his behalf .", "NORP The prosecution case included evidence that the deceased had been carried from the vehicle to the location where his body was found by CARDINAL people , and dragged for some distance . It also included a statement from the applicant ’s former girlfriend to the effect that in DATE the applicant had said that he knew about a murder and a statement dated DATE from the applicant ’s cousin to the effect that the applicant had made incriminating statements and that , following the murder , the applicant and PERSON had planned to leave GPE and go to GPE . At trial , the applicant ’s cousin claimed that his statement was untrue and had been made under the influence of alcohol and cocaine .", "Both defendants were convicted by the judge of murder on DATE and sentenced to life imprisonment . The judge , in a fully reasoned judgment , found that PERSON had administered the knife wounds ; that his evidence that the applicant was not present was untrue ; and that the applicant ’s confession was true .", "On DATE , the lawyers who had conducted the trial on behalf of the applicant gave notice of an application for leave to appeal against the conviction on the grounds that it was unsafe and unsatisfactory . They indicated that full written grounds would follow .", "At DATE , the applicant appointed a new lawyer and , on DATE , he swore an affidavit regarding the conduct of Mr St PERSON and PERSON , his lawyers at trial . In his affidavit , he argued that :", "“ CARDINAL . When the voir dire started concerning my statement , I was expecting Mr St PERSON to charge right at the QUANTITY police officers who were lying and try to discredit them . But he did n’t and he kept telling me , ‘ This way is better . They gave you a truncated form of your rights.’ He also kept saying to me , ‘ You ’ve told me that you did not make the statement , but I ’m going to attack it this way . They kept you in custody too long without charging you . I ’ll get the statement thrown out because of oppressive conduct.’ Never once did he put to the officers the fact that I did n’t make the statement at all . I sat in the court and listened to the CARDINAL ORG lies and kept thinking that I would have my chance to talk later . At all times I wanted to testify and tell the judge under oath what I have stated in this affidavit . Then the time came and I was talked out of it by the CARDINAL lawyers . They made me think that they knew best and so I put all my trust in them .", "During the testimony of PERSON , when I heard her lying about a number of things , I got upset and I raised my hand and said , ‘ I want to testify . I want to tell my side of the story.’ Mr PERSON jumped up and rushed back to me and said , ‘ Be careful what you ’re doing , PERSON . They have n’t proven anything against you . They ’re not hurting you , they ’re not hurting you , so relax and behave and keep quiet . And do n’t put yourself in the stand and give them a chance to cross - examine you.’ I told him , ‘ I do n’t have any problem going on the stand . I ’m not guilty of anything . I do n’t have anything to hide.’ He told me that if I took the stand and rebutted whatever the officers were saying the judge would more than likely believe them over me and in doing so my ground of appeal ‘ would be thrown out the window’ . If I did n’t testify , they would have a chance for an argument on the appeal . Mr PERSON said that was the best way to approach the case .", "At lunch time on DATE , PERSON came to see me about taking the stand . PERSON did not actually take much part in my trial . He was not in court DATE and it was Mr PERSON who conducted my defence . On DATE , Mr PERSON gave me the impression that Mr PERSON had sent him to talk to me . He said , ‘ This is the turning point in your case . We have to make a tactical decision . I know you were adamant from DATE that you gave no statement to the police officers.’ I said , ‘ Yes , sir.’ Then he said , ‘ It will be better to approach the case this way since nothing is damaging you.’ He just talked and talked and I got confused and thought , ‘ Well , he ’s the lawyer’ , and he talked me out of testifying . Because of that , the judge never got to hear what was the most important thing and that was that those QUANTITY police officers fabricated a statement that I never made to them . Because of that statement , I have been convicted of a murder I did not commit and had nothing to do with . ”", "On DATE the applicant ’s lawyer gave notice that the applicant was applying to ORG to have the affidavit received in evidence .", "The applicant issued a release of privilege , thereby releasing his trial lawyers from the lawyer / client privilege in relation to their communications in respect of the trial proceedings . His trial lawyers subsequently also swore affidavits .", "Mr PERSON filed his affidavit on DATE , replying that :", "“ CARDINAL . From a very early stage the appellant ’s instructions were firm and unequivocal in a number of regards :", "( i ) He would contest the allegation ;", "( ii ) He would elect trial by judge alone ;", "( iii ) He disputed the making of the alleged confession ;", "( iv ) At no stage in the proceedings would he give evidence .", "The appellant alleges that his case was presented in defiance of his instructions . This is untrue . The conduct of the case at trial was entirely consistent with the appellant ’s particular instructions . Whilst it is correct to say that no positive case was ever put in relation to CARDINAL ) above this was upon the appellant ’s instructions .", "The appellant ’s instructions that he would not give evidence in the proceedings remained a central tenet of his position throughout .", "The consequences of his not giving evidence were discussed in great detail with the appellant , both prior to the arrival of leading counsel and in the presence of leading counsel . The decision not to give evidence in the trial created tactical considerations and decisions for the appellant .", "I explained to the appellant and advised him how this decision might affect his trial . I was present when leading counsel advised the appellant how this might affect his trial . I am satisfied that the appellant understood the advice and that he understood the implications of his decision not to give evidence .", "The appellant chose to challenge the alleged confession on the basis of its admissibility . Upon instructions it was argued on the voir dire that the ORG could not satisfy the tribunal to the requisite criminal standard that what the police officers alleged had been said had been said voluntarily . I am satisfied that the appellant understood the advice offered and the instructions he was providing in relation to the conduct of the voir dire .", "On the voir dire the learned trial judge ruled against the appellant and in favour of the ORG in relation to the submission that the alleged confession should be excluded . The potential consequences of such ruling had been discussed and were discussed with the appellant before and during the trial . Because he would not give evidence the appellant chose not to put his case about not making the confession to the police officers in the course of the trial proper . This was a topic which was discussed with him in some detail . I am satisfied that the appellant was aware that , having provided such instructions , the only triable issue for him would be the admissibility of the alleged confession .", "...", "LAW of the affidavit is not true . Mr PERSON was instructed to challenge the admissibility of the alleged admission on the voir dire . At no stage did the appellant indicate to me any desire to testify in the proceedings . I did not ‘ talk him out of it.’ I explained to the appellant on many occasions that the decision whether to give evidence or not was his and his alone . I explained that he could not be compelled to give evidence , neither could anyone stop him from giving evidence . Mr PERSON PERSON did not , as far as I am able to say , put any undue influence or pressure upon the appellant not to give evidence .", "...", "I did have many conversations with the appellant in the cells during the course of his trial . Mr PERSON did communicate to me that the appellant had become upset in the dock during the proceedings and there had been a short adjournment . The words which the appellant attributes to me in paragraph CARDINAL of his affidavit are inaccurate in detail and in substance . At no stage did I say or would I say ‘ We have a tactical decision to ORG I made it clear at all stages that the decision about testifying , as well as other substantial decisions were matters for the appellant and not matters for me or for leading counsel . I did not talk the appellant out of testifying . There was never any change of instructions in relation to the appellant ’s decision not to give evidence , nor in relation to the way he wished his case to be conducted . ”", "Mr PERSON filed his affidavit on DATE . In it , he said :", "“ CARDINAL.CARDINAL The appellant ’s case was presented in accordance with and upon clear and unequivocal instructions .", "CARDINAL I am satisfied that at each material stage both before and during the trial the appellant ’s instructions that he would not himself give evidence was unequivocal .", "CARDINAL I am satisfied that those instructions were given and confirmed after the ramifications of not giving evidence , whether it be during the voir dire or the trial , had been explained in detail by myself and PERSON both together and independently , and that the appellant fully understood that advice .", "CARDINAL The ramifications of not giving evidence was discussed and advice given in the context of the voir dire , the trial and potential grounds of appeal .", "The appellant ’s instructions were that the ORG should be put to proof as to establishing that the confession in issue was made voluntarily and that no positive case would be put over and above this issue .", "...", "These ‘ bedrock’ instructions did not change . Up to the time of verdict , the learned judge ‘ ORG for DATE to consider his judgment , the appellant was quite satisfied with the conduct of his defence and understood the avenue of appeal . I am satisfied that the appellant ’s case was presented in accordance with and upon clear and unequivocal instructions . I am satisfied that the instructions were given upon careful consideration both before and during the trial and that advice was fully understood . I am satisfied from all I have seen , heard and read that the appellant ’s instructing attorney acted at all times with and upon proper instructions . ”", "The applicant argued before ORG that : ( i ) the sole evidence against him was the alleged statement of CARDINAL DATE ; ( ii ) the alleged statement was not reduced to writing and signed by him ; and ( iii ) he had continually and consistently instructed each of his defending counsel that he had not made the alleged statement and that it was a fabrication by the police officers . Accordingly , he argued , the failure of his trial lawyers properly to put his case to the court had denied him a fair trial .", "On DATE , the court dismissed the appeal . It refused permission for viva voce evidence to be heard from the applicant to supplement his affidavit , noting that :", "“ CARDINAL . ... He had filed no affidavit in response to those from his former attorneys , although there was an opportunity for him to do so had he so wished . ”", "As to the applicant ’s decision not to give oral evidence at trial , the court considered that as a matter of best practice , lawyers should record in writing their PERSON wish not to testify in the proceedings . However , where no record was available , the court could nonetheless come to a decision as to whether the defendant in question was given advice from counsel and whether , after such advice , he had decided of his own free will not to testify . In the applicant ’s case , the court noted that :", "“ CARDINAL . PERSON was being represented by experienced attorneys . Mr PERSON has sworn that PERSON gave clear instructions from the inception of the case that he would not give evidence at any stage of the proceedings , and that he conveyed those instructions to Mr PERSON . Both PERSON and Mr PERSON have sworn that they over and over again gave detailed advice to PERSON as to the ramifications of his decision not to give evidence and of the possible consequences and that PERSON understood those instructions . PERSON said that he met with PERSON several times in his cell and Mr PERSON said that his first conference with PERSON was DATE before the trial commenced . This was not a case in which the defendant did not have access to his counsel and only saw them briefly before his trial . On the affidavits before us , we are completely satisfied that PERSON took a deliberate , constant and continuous decision not to give evidence and instructed his counsel accordingly . ”", "As to the failure of the applicant ’s lawyers to put forward a positive defence to the effect that the applicant disputed making the alleged confession , it held that :", "“ DATE . It would have been most improper for defence counsel to have suggested to [ the police officers ] that they were lying and had fabricated the account that they were giving unless defence counsel were prepared to call PERSON as a witness . This much would have been clear to PERSON and that is why his defence was conducted in a way that no positive case was put forward on his behalf . ”", "The applicant subsequently appealed to ORG . On DATE , ORG dismissed the appeal by a majority of CARDINAL judges to CARDINAL . Delivering the leading judgment for the majority , Lord PERSON of PERSON concluded that :", "“ CARDINAL . ... while PERSON specifically acknowledges that from the outset the appellant ’s position was that he disputed making the statement to the police officers , Mr PERSON does not address that issue . To that extent there could be said to be a difference between the CARDINAL principal affidavits for the trial lawyers . The significance of that difference is less than might at first sight be thought , however , since , according to PERSON , even though that was the appellant ’s position , he was equally adamant from the outset that at no stage in the proceedings would he give evidence . In that situation , according to PERSON , while it is correct to say that no positive case was ever put in relation to the allegation that he had not made the statement , this was upon the appellant ’s instructions . This is consistent with Mr PERSON position that the appellant ’s instructions were that no positive case would be put over and above the issue of the voluntariness of the confession . ”", "Lord PERSON emphasised that a decision by an accused not to give evidence at his trial was “ of such potential importance ” that it should be recorded in writing . However , Lord PERSON declined to find that the failure of the applicant ’s solicitors to produce a written record of the applicant ’s decision meant that the court should give the applicant the benefit of the doubt and accept his version of events . He considered that in some cases , the appeal court may wish to hear evidence from the parties but that there may be cases where the court felt able to resolve the dispute without hearing evidence .", "In the present case , he concluded that :", "“ CARDINAL . So far as the matter of PERSON not giving evidence is concerned , the only question is whether counsel in effect forced him , against his will , not to go into the witness box . Their Lordships notice that there is nothing to suggest that PERSON made any protest about this during the trial . Nor is there anything to suggest that , even shortly after the trial , he complained to any fellow prisoner , or court official or prison officer . The first time that such a complaint emerges is DATE in his amended grounds of appeal dated DATE and in his affidavit dated DATE . Of course , the delay in making the complaint does not show that it is unsound , but it is a factor to be taken into account . An appeal court must always bear in mind the distinct possibility that such a complaint may be fabricated – indeed that is precisely why there should be a contemporaneous written record of the decision that the defendant is not to give evidence .", "Referring to the record of the trial proceedings , he highlighted the care taken by Mr PERSON throughout the trial to ensure that the applicant understood the proceedings , noting the following :", "“ CARDINAL . More importantly , however , the appellant ’s allegation is really that , on this critical matter , as well as on the matter of cross - examining the police witnesses , counsel overrode his instructions . But that allegation is wholly inconsistent with the picture which emerges from the record of the trial itself where on several occasions Mr PERSON took time to ensure that the appellant understood and agreed to the step which was being taken on his behalf . . In para CARDINAL of this judgment their Lordships have already drawn attention to CARDINAL such occasion when , at the conclusion of the second voir dire , Mr PERSON took time to explain to PERSON that the cross - examination in the voir dire would , in effect , be held repeated in the main trial . Earlier , during the evidence of PERSON , Mr PERSON had asked for a break of TIME to seek clarification of a point – although this is not said explicitly , it appears likely that the clarification was to come from his client .", "...", "On another occasion , when prosecuting counsel announced that his next witness was going to be PERSON , Mr PERSON asked whether he might just take instructions from his client – and was allowed to do so . Later on , after the appellant ’s brother , PERSON , had given his evidence in chief and had apparently dealt with certain matters which had not been mentioned in his statement , counsel for PERSON asked for a moment to consult his client and Mr PERSON asked if he could take instructions at the same time .", "It is also noticeable that when the judge reserved his judgment and proposed to give it at a time after Mr PERSON was due to fly back to GPE , Mr PERSON none the less recognised that he should be present . And , in the event , he was indeed present at the short hearing even though , of course , there was little which he could say on behalf of PERSON when he was convicted of murder .", "He concluded :", "These passages in the record suggest that , so far from being uncaring or cavalier about Mr QUANTITY views , instructions and interests , Mr PERSON was careful to consult his client whenever appropriate . It would make absolutely no sense to suppose that when he had taken care in these relatively minor matters , he had simultaneously been riding roughshod over Mr QUANTITY views as to whether he should give evidence . Moreover , it is extremely difficult to see why counsel would have deliberately flouted a desire on Mr GPE part to give evidence when the lack of any evidence from him was likely to cause potential difficulties , especially in the voir dires . In these circumstances , their Lordships are satisfied that , although counsel culpably failed to have the matter recorded at the time , they can accept the evidence of PERSON and Mr PERSON that they were following Mr GPE instructions in not calling him to give evidence . ”", "As to the second complaint regarding the failure of the applicant ’s lawyers to put his denial that he made the statement to the police officers , the ORG disagreed with ORG and the trial court and found that it was counsel ’s duty to put the defendant ’s case , even where he did not intend to call evidence to support it . Lord PERSON noted that :", "“ CARDINAL . ... If ... the police officers have indeed been lying , there can be no proper objection to cross - examination which successfully exposes those lies , even if the defendant does not subsequently go into the witness box to give positive evidence about those lies . On the other hand , the reality is that , if the police officers robustly reject the imputations against them , such allegations will usually carry little weight with the jury unless the defendant backs them up by giving evidence . And , as Waller LJ pointed out , if the defendant fails to do so , the judge will be fully entitled to make a strong comment on that failure .", "... Even if PERSON had all along said that he would not give evidence , that would not , of itself , have been a reason why counsel could not have cross - examined the police officers to the effect that he had not made the statement , if Mr PERSON instructions were that counsel should do so . Indeed , as a matter of proper professional practice , he would still have been bound to do so . ”", "However , he concluded that :", "“ DATE . The point does not actually arise in this case , however , since there is nothing in the affidavits of counsel to suggest that Mr PERSON proceeded as he did because he thought that it would have been professionally improper to suggest to the police witnesses that PERSON had not made the statement when PERSON was not going to give evidence to back it up . So ORG really proceeded on a basis for which there is no foundation in the attorneys’ affidavits . In fact , the position taken by PERSON and Mr PERSON in their affidavits is simply that the allegation was not advanced because PERSON instructed that it should not be . ”", "Considering the applicant ’s allegation that counsel had defied his instructions in not challenging the evidence of the police officers , Lord PERSON preferred the evidence of the trial lawyers :", "“ CARDINAL . Again , their Lordships note that this allegation did not surface until DATE after the trial . And , again , ORG notes that the allegation is hard to square with the obvious care taken by Mr PERSON to obtain his client ’s instructions at various points throughout the trial . Moreover , PERSON advances no reason why counsel should have chosen to flout his instructions on this matter , which by no means simplified the presentation of the defence case , especially in the voire dires . On the other hand , the line which counsel adopted in the voir dires was consistent with the instructions which they say that he had given them : standing those instructions , the only thing that they could try to do was to have the statement excluded on the grounds which Mr PERSON advanced and argued with great care , as is obvious from the transcript of the submissions made to the judge . ”", "Lord PERSON concluded :", "“ CARDINAL . It is not possible to say why PERSON decided not to give evidence and to limit the scope of counsel ’s attack on the police evidence . It may be that he was not confident of withstanding cross - examination by prosecuting counsel . It may be that he thought it better tactically not to challenge the evidence of the police officers head - on . It may be , as Mr PERSON suggested , that his overall strategy was to keep as low a profile as possible and to rely on PERSON ’s evidence that PERSON was not present when he killed PERSON . This would be consistent with the way in which counsel for PERSON went first in cross - examination , even though PERSON was named first on the indictment . Whatever the reasons may be , their Lordships are satisfied that PERSON PERSON PERSON acted in accordance with his client ’s instructions at the time . Having been convicted , PERSON may now have come to believe that his instructions were different . But there is no adequate basis for holding that counsel acted improperly . On the contrary , the record suggests that , as the judge considered , like the other counsel Mr PERSON had paid diligent attention to the preparation of the case . ”", "In his dissenting judgment , Lord PERSON considered ORG decision to refuse viva voce evidence on the ground that the applicant had not lodged a response to the affidavits of his former solicitors to be “ astonishing ” . He noted that PERSON affidavit was served DATE before the appeal hearing , and Mr PERSON only DATE before the appeal hearing . He found that :", "“ CARDINAL . ... In any event , at the very least on the affidavit evidence there was a clear dispute of fact . So far as there was ambiguity it was due to the fact that Mr St PERSON ( unlike PERSON ) did not directly address the core point in the Appellant ’s affidavit i.e. that he told the attorneys that he never made any confession .", "DATE . In these circumstances ORG erred in refusing to hear viva voce evidence , and the decision of ORG should be quashed for failure to accord the Appellant due process . ”", "As to the question whether ORG could have declined to hear oral evidence on the ground that it would make no difference , Lord PERSON said :", "“ CARDINAL . ... To have decided the case on such a basis would have been unfair and contrary to due process . After all , it is entirely possible ( and even likely ) that Mr St PERSON would have made the same core concession that PERSON made , viz that the Appellant insisted that he made no confession to the police .", "It is necessary to consider the consequence of the hypothesis that the Appellant ’s core allegation in his affidavit , viz that he told counsel that he did not make the confession , is or may be correct . On this basis , trial counsel should have cross examined the police to this effect despite the fact that it had been decided not to call the Appellant to give evidence . Again , PERSON evidence supports this critical point . ”", "Lord PERSON concluded that :", "“ DATE ... Legal principle dictates that counsel ’s duty is to put the defendant ’s case , whether or not he intends to call evidence to support . The misunderstanding by ORG may well have been widespread in NORP countries . That this ‘ would have been clear to GPE , as ORG observed , is absurd . But ORG clearly thought that counsel did not put it to the police that they fabricated their version because he considered that it would have been improper to do so . Indeed that is what PERSON said . ORG would have been in a position to have a local view of counsel ’s perceptions of an advocate ’s duty ( mistaken as it was ) in the given situation . In any event this explains why counsel did not cross examine the police appropriately . The failure to do so ( when it was required ) amounts in the circumstances to a material irregularity . It potentially prejudiced the Appellant ’s defence . And it is impossible to say that , absent the irregularity , the jury would inevitably have convicted . ”", "GPE is a NORP Overseas Territory . GPE is responsible for its international relations . Under LAW , GPE has made a declaration extending the application of LAW .", "GPE has its own government , with the power to make its own laws , and its own justiciary under its LAW , established by GPE ( LAW DATE . Its legal system is based on LANGUAGE common law and ORG of ORG is the court of final appeal under GPE ( Appeals to ORG ) Order DATE .", "In NORP v. PERSON ( DATE ) CARDINAL ORG R CARDINAL , PERSON considered the position as regards the decision of a defendant not to testify . He noted that :", "“ CARDINAL criticism has , however , to be levelled at learned counsel . It is to be hoped that all counsel will heed what we now say . When the decision is taken by a defendant not to go into the witness - box , it should be the invariable practice of counsel to have that decision recorded and to cause the defendant to sign the record , giving a clear indication that ( CARDINAL ) he has by his own will decided not to give evidence and ( CARDINAL ) that he has so decided bearing in mind the advice , if any , given to him by his counsel . That certainly was the practice in DATE when the members of this Court were practising at the Bar . It should never have been departed from . It is our firm view that if the practice has fallen by the wayside , it should be restored to its former prominence and become invariable once again . ”", "Subsequently , in R v. PERSON [ DATE ] EWCA Crim CARDINAL , PERSON ORG reiterated the importance of ensuring a written record of the defendant ’s decision :", "“ DATE . DATE as DATE PERSON , giving the judgment of ORG in R v ORG R CARDINAL , said that it should be the invariable practice of counsel to record any decision of a defendant not to give evidence , signed by the defendant himself , indicating , clearly , that the decision has been made of his own free will , and that in reaching that decision he has borne in mind advice tendered by counsel . We are bound to express some dismay at the knowledge that comparatively senior counsel , advising a client not to give evidence ... was unaware of this obligation .", "While we would not expect counsel to record every detail of every conference between himself and his client , we would expect some written record of a conversation relevant to the important question whether it was in the defendant ’s interests to give evidence at his trial . This court suffers the disadvantage , in the absence of such a record , of being required to evaluate the recollections of counsel , on the one hand , and the appellant on the other . ”", "ORG ruled that the practice of recording a defendant ’s decision not to testify was also desirable in the NORP jurisdictions in GPE v. The ORG ( DATE ) CARDINAL WIR CARDINAL . There , the appellant had alleged that his counsel had acted improperly in several respects , including in not permitting him to give evidence . Lord PERSON recorded that their Lordships felt bound to say that :", "“ they are surprised that in a capital case no witness statement was taken from the petitioner or other memorandum made of his instructions . In view of the prevalence of allegations such as those now made , they think that defending counsel should as a matter of course make and preserve a written record of the instructions he receives . If this appeal serves no other purpose , it should remind counsel of the absolute necessity of protecting themselves from such allegations in the future . ”", "It was previously thought to be improper to make a charge against a witness at trial which was not supported by testimony from the defendant . In R v. O’Neill ( DATE ) CARDINAL ORG R DATE , having referred to the defence allegation that the alleged statement had been beaten out of the defendant , Lord PERSON said :", "“ However , what the ORG desires to call attention to is this : having suggested this in cross - examination to the police , and having repeated the suggestion before the jury , counsel did not call his client to support what he had been instructed to say , and the ORG has no hesitation in saying that that is not the proper practice ... It is quite wrong and improper conduct on the part of counsel to make a charge against the police or against any other witness by way of defence – because , of course , it would have been a defence if the statements which were the principal evidence against the applicants had been extracted from them by improper means – if he does not intend to call his client to give evidence to support the charge .", ".... It is ... entirely wrong to make such suggestions as were made in this case , namely that the police beat the prisoners until they made confessions , and then , when there is the chance for the prisoners to substantiate what has been said by going into the box , for counsel not to call them . The ORG hopes that notice will be taken of this , and that counsel will refrain , if they do not intend to call their clients , from making charges which , if true , form a defence but which , if there is nothing to support them , ought not to be pursued . ” ( emphasis added )", "In NORP v. PERSON ( DATE ) CARDINAL ORG R PERCENT in ORG endorsed the passage from O’Neill and added :", "“ This ORG entirely agrees with those observations . It does not seem to us there has been any change in circumstances since that decision was made which would justify some different ruling being made . ”", "NORP However , PERSON subsequently made a statement relating to his judgment in ORG , DATE ) . According to the report :", "“ His Lordship said that it appeared that there was an aspect of the problem which did not then occur to him . That had been brought to his attention by the professional conduct committee of the Bar . From time to time there might be a case where a client required a challenge to be made to a police officer but at the same time refused to go into the witness box to support that challenge because of his very bad record . Such a case should be wholly exceptional .", "In such circumstances counsel had a difficult decision . He must warn his client that the judge would probably make a very strong comment on his client ’s failure to support the suggestions on oath in the witness box . If nevertheless the client , having been warned , insisted , then counsel must carry out his instructions even though he was aware that his client would not support his cross - examination . His client could not complain if a strong comment was made from the Bench .", "His Lordship was making a statement now , but at some future time , when a suitable case occurred , it would be possible to modify the dictum which he made in R v PERSON . ”", "Referring to this statement , DATE ) edition of ORG ) , para CARDINAL at page CARDINAL comments :", "“ It is submitted that now , as then , counsel ’s duty is to put the defendant ’s case , whether or not he intends to call evidence to support it . ”", "As outlined above , the view of PERSON in his statement of DATE was endorsed by ORG in the applicant ’s case ." ]

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[ "6" ]

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

[ "6-3-c" ]

[ "The applicant was born in DATE and lives in GPE .", "On DATE at TIME , the applicant was taken into custody by police officers from ORG of ORG . Immediately , he was taken to PERSON ORG , where he was examined by a doctor . The medical report stated that there was no trace of ill - treatment on his body . The applicant was then taken to ORG for interrogation .", "According to a form dated DATE that explained arrested persons ' rights , and which was signed by the applicant , he had been reminded of his right to remain silent .", "On DATE the applicant was interrogated at the Anti - Terrorist Branch in the absence of a lawyer . In his statement , the applicant gave a detailed description about his involvement in an illegal organisation , namely the ORG - ORG Türkiye ( ORG – GPE / GPE ) . The applicant further took part in an identification parade with other accused persons and identified certain persons as members of the said organisation .", "On DATE the applicant was visited by a lawyer , PERSON , for a short period of time . The applicant told the lawyer that he did not need anything and that during his trial he wished to be represented by Mr PERSON , a lawyer practising in GPE .", "On DATE the applicant was again examined by a doctor , who stated that there were no traces of ill - treatment on his body .", "On DATE , the applicant was brought before the public prosecutor and the investigating judge respectively , again in the absence of a lawyer . Before the public prosecutor and the investigating judge , the applicant repeated his police statement . After the questioning was over , the investigating judge remanded the applicant in custody .", "On DATE the public prosecutor at ORG filed an indictment with that court accusing the applicant of membership of an illegal organisation , an offence under LAW ( Law no . ORG ) . During the proceedings , the applicant was represented by his lawyer , and he denied his police statement alleging that it had been extracted under duress . On DATE the applicant was released pending trial .", "On DATE ORG found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment under LAW no . ORG .", "On DATE ORG quashed the judgment , holding that the first instance court should have taken into account the recent amendments made to PERSON no . ORG when giving its judgment . By PERSON no . CARDINAL of DATE , published in ORG on DATE , ORG were abolished . The case against the applicant was therefore transferred to ORG .", "On DATE ORG found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment . In convicting him , the court had regard to the applicant 's statements to the police , the public prosecutor and the investigating judge respectively . The applicant appealed against this decision . While the appeal was pending before ORG , in DATE new legislation amending LAW came into force . By a decision dated DATE , ORG at ORG sent the case file back to the first instance court and requested the latter to reconsider the case in the light of the amendments made to LAW . On DATE ORG repeated its previous judgment and held that the new provisions were not more favourable to the applicant . On DATE ORG upheld the judgment dated DATE ." ]

[ "6" ]

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

[ "6-3-c" ]

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[ "The applicants , PERSON , Mr PERSON , PERSON , PERSON , Mr PERSON , Ms PERSON , Mr PERSON and PERSON are NORP nationals who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in GPE . They were represented by Dr PERSON , PERSON and PERSON , lawyers practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Dr PERSON , Attorney General .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants are owners of undeveloped plots of land situated both inside and outside the perimeter of land earmarked for ORG .", "The applicants ' land is subject to a declaration by the Governor General dated CARDINAL DATE , stating that such land will be expropriated for a public purpose .", "On DATE the amount offered in compensation by the ORG was deposited in court by means of a schedule of deposit . On DATE the applicants contested the amount before ORG . These proceedings are still pending .", "At the date of the introduction of the application , the property belonging to the applicants , situated outside the perimeter of the GPE , had not been taken possession of and included within the perimeter of the GPE Project ; neither had the procedures to conclude the transfer of property to ORG been finalised and nor had any compensation been paid .", "Adjoining the applicants ' property is land belonging to PERSON , which was subject to a similar declaration dated DATE and made in the same factual circumstances . On DATE ORG of GPE found that the Governor 's declaration had breached PERSON right to enjoyment of property . It held that whenever the process by which an individual was divested of his property had not been concluded , and therefore the interference remained CARDINAL of control of use , the ORG had to release the property to its rightful owners as soon as it transpired that the grounds on which the ORG had originally , validly and justifiably taken the measure restricting the owner 's use no longer existed . According to the applicants , the judgment of ORG further established the standard of proof required in such cases for determining whether there still existed a public interest ground for the taking , namely , i ) the competent authorities ' active consideration for DATE to release the property in question because it was not needed for the purposes for which it had originally been expropriated , and ii ) the lapse of DATE between the date of the declaration and the date when the constitutional case was brought .", "In the light of the judgment in PERSON case , the applicants instituted constitutional proceedings in DATE before ORG ( FAC ) claiming a breach of LAW in respect of their property . In particular , they claimed that no public interest ground subsisted since the authorities had not made use of the said land in DATE . They maintained that they had a legitimate expectation that the same law and criteria used in the C. case would be applied to them . They complained moreover that the authorities had breached the reasonable time requirement under LAW in that the proceedings for the payment of compensation had not yet been concluded , DATE after the date of the declaration .", "During the proceedings , the Commissioner of LOC declared under oath that CARDINAL of the said plots were within GPE , CARDINAL other plots were partly in the zone and the third was outside it . The latter could thus be released . Moreover , he had requested the relevant department to release any of the plots which had not been used , but he had not received a reply . To his knowledge , no use was foreseen for these plots , but it was up to the relevant department to decide on that matter . He observed that no department had applied to use the plots in DATE since their taking . He further stated that all the plots were located within the extension area of the GPE . A representative of the GPE declared that CARDINAL of the plots had been excavated , and that the other CARDINAL were the subject of pending permits for the building of warehouses , applied for in DATE . Another witness presented a marketing brochure confirming that certain areas could not yet be built on and that there was a plan for the construction of warehouses in other areas .", "In the applicants ' view , the ORG had had no need of the land in question and had considered the possibility of releasing it . They further adduced proof of their argument that the ORG had not taken possession of their land ( in fact no structural works had been carried out ) , nor had the expropriation proceedings been concluded even though DATE had elapsed since the date of the Governor 's declaration .", "The ORG or the competent authorities did not submit any evidence regarding a change in jurisprudence subsequent to the PERSON case .", "On DATE ORG found against the applicants in respect of their complaint under LAW . It held that ORG was CARDINAL of great importance and was “ rationally related to a conceivable public purpose ” . It had been proved that the plots at issue were located in the area already being used for the GPE or in the extension area . When assessing the issue of fair balance , the public interest in the project outweighed the interests of private individuals . That there had only been a de facto expropriation for DATE did not detract in any way from the continuing relevance of the public interest grounds relied upon by the ORG . The future expansion of a project fell within the notion of the public interest and therefore the expropriation proceedings taken in relation to the applicants ' property were a matter of public interest . As to the yet unpaid compensation , the court did not examine the matter since the compensation proceedings were still pending before the ORG . The court , however , found a violation of LAW in that those proceedings had still not been concluded after DATE . It awarded the applicants MONEY ( ORG , MONEY ( ORG ) ) .", "The applicants appealed . On DATE the ORG confirmed the authority of the C. case as a correct application of the law ; it dismissed , however , the applicants ' claims , confirming the existence of a public interest purpose for the expropriation of the applicants ' land .", "ORG held that the plots situated within the GPE perimeter had clearly been taken in the public interest even though the ORG had only started developing the land in DATE . However , it was reasonable to take a larger portion of land for a project and then make use of only a part of it in DATE , leaving the rest for further expansion . This was especially true of a project such as the GPE . Thus , the public interest persisted at the time of these proceedings . As to the plots outside the GPE , it acknowledged that part of the applicants ' land had remained unused ; however , that land might be required if ORG were to be expanded ( as appeared to be the case in view of the building of warehouses ) . Indeed , the Government , in DATE , had started to expropriate other lands in the area . It followed that on the evidence as presented , the public interest requirement in respect of those plots also persisted at the time of these proceedings .", "It upheld the first - instance judgment in respect of LAW .", "By a deed of DATE , at the time when the proceedings before this Court were pending , the Government sold back to the applicants the CARDINAL plots of land situated outside the perimeter of the GPE ( excluding a part which had been used to build a road ) , these plots being the subject matter of the LAW proceedings . The sale was carried out in accordance with Government policy . According to that policy , where land had been acquired by the ORG but was no longer needed for a public purpose , it could be returned to the original owners for a price or any other amount originally agreed , with interest of PERCENT per year being paid from DATE of the taking to the date of release . By means of the above - mentioned deed , the applicant buyers undertook to withdraw any pending proceedings and declared that they had no further claims against the Government in respect of the plots of land which they were buying back .", "NORP In PERSON case ( PERSON vs PERSON u l - Kummissarju ta l - Artijiet , Rikors Nru DATE , DATE ) ORG held , after giving an overview of the applicable principles under LAW to the LAW , that whenever the process by which an individual was divested of his property had not yet been concluded , the interference remained CARDINAL of control of use . The ORG had the obligation to release the property to its rightful owners as soon as it transpired that the grounds on which the ORG had originally , validly and justifiably taken the measure restricting the owner 's use no longer existed . It was for the Government to prove that both at the time of the Governor 's declaration and throughout the proceedings until the time of transfer of the property concluding the expropriation there existed a public interest for the taking of the property .", "It resulted from the evidence that , in respect of PERSON plots of land which were outside the GPE zone , the competent authorities had for DATE actively considered releasing the property to its rightful owners as it was no longer necessary for the purpose for which it had originally been taken . Moreover , DATE had passed since the date of the declaration . The absence of a public interest was thus apparent even if such an interest had been present at the time of the declaration . It had subsequently emerged that PERSON property would not be used in the public interest . The ORG should therefore have returned the said property to PERSON .. Their failure to comply with this latter obligation amounted to a breach of PERSON property rights under LAW ." ]

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[ "The applicant was born in DATE and lives in GPE .", "At TIME on DATE the police , having been called , intervened at the home of the applicant ’s CARDINAL - sister P. , who had been behaving in a violent and threatening manner towards their mother . The applicant arrived at the scene after the police officers . During the police intervention , P. managed to escape together with her DATE daughter . The applicant and the officers searched for P. In the meantime , she returned alone and refused to disclose her daughter ’s whereabouts . The applicant got upset and , according to the police statement , grabbed P. ’s neck with one hand and slapped her with the other hand , in the presence of the police officers . He then calmed down and was informed by the officers of the minor offence he had committed . In accordance with the summary procedure under LAW ( hereinafter the “ ORG ” ) he was fined CARDINAL NORP tolars ( MONEY ( ORG ) ) for the offence of violent and aggressive behaviour . In his application to the ORG the applicant maintained that he had assisted the officers and had been unjustifiably implicated in the situation .", "DATE , the applicant received written notice of the payment order issued by the police , which stated that he had committed a minor offence under section CARDINAL(CARDINAL ) of ORG and included a statement of facts which read as follows ( in its entirety ) :", "“ The mentioned [ person ] was present at the incident involving his CARDINAL - sister P. at home . Her conduct , insults and aggressive behaviour had upset him and for that reason he grabbed P. ’s neck and slapped her across the face . After that act , he calmed down . ”", "On DATE the applicant lodged a request for judicial review . He alleged that his sister had been under the influence of alcohol and drugs , and had threatened and offended their mother and other people present , including the police officers . He also explained that P. had taken her child away in the car and had returned without her , refusing for a while to say where she had left her . The applicant and the officers had tried to convince her to disclose the child ’s whereabouts but PERSON had threatened the applicant and spat at him . After being provoked by her , the applicant , fearing for the child , had approached her and gently held her neck but had not slapped her . She had then revealed the whereabouts of the child and CARDINAL of the officers had gone with her to pick him up . The applicant alleged that he had committed no offence and that he had not slapped P. In accordance with CARDINAL of the ORG the police forwarded the request for judicial review to the ORG .", "On DATE the ORG gave a judgment in which , relying on section CARDINAL ) of the ORG , it rejected the applicant ’s request for judicial review as unsubstantiated and upheld the payment order . The applicant was ordered to pay ORG CARDINAL for the costs of the proceedings .", "As explained in the judgment , the court based its decision on the payment order and the statement of facts concerning the event , which the police submitted to the court at the same time as the request for judicial review . The court found as follows :", "“ the conduct of the defendant towards his sister which was observed by the police officers personally and directly .... was unjustified regardless of her mental and physical state , which therefore leads the court to conclude that this [ request for judicial review ] is only an attempt at avoiding payment of the fine , since the court has no doubts as to the ORG findings . ”", "On DATE the applicant then lodged a constitutional appeal alleging that his constitutional rights had been violated . He complained , inter alia , of a violation of the right to a fair trial and presumption of innocence , alleged that the judge had decided only on the basis of the police file , that there had been no public hearing , that he had not had enough time to prepare his request for judicial review and that no appeal lay against the first - instance court ’s judgment .", "Relying on section CARDINALb(CARDINAL)(CARDINAL ) , read together with section CARDINALa(CARDINAL)(CARDINAL ) of LAW , ORG dismissed the appeal on DATE . The decision was served on the applicant on DATE .", "For the relevant domestic law and practice see NORP v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , CARDINAL DATE ) . In addition , the following domestic provisions are relevant to the present case .", "Section CARDINAL of LAW ( Official Gazette no . CARDINAL/CARDINAL ) , referred to as the “ ORG ” , defines an “ offence ” as any act that is against the law or in breach of a Government regulation or local self - government ordinance , and which is , as such , designated as a punishable minor offence . While the ORG contains some specific provisions concerning the elements of a minor offence and responsibility for such an offence , it also refers to provisions of LAW , which are to be applied by analogy in minor - offence proceedings . In addition , the principle of the presumption of innocence is included in the ORG , which provides in section CARDINAL that “ persons accused of having committed minor offences are innocent until their responsibility is established by a final decision ” .", "NORP Under LAW , in cases where an officer observes the commission of the offence , or where the latter is established by special technical equipment , the authority may issue a “ payment order ” ( plačilni nalog ) . The payment order has the same effect as the authority ’s decision . However , the measure of imprisonment for non - payment is not available when the fine was imposed by a payment order .", "A judge can decide on the admissibility and merits of the request for judicial review on the basis of the file received from the administrative authority . Under section CARDINAL of the ORG , the judge may reject the request in a judgment , if there is no need for further fact - finding and if the grounds for appeal are not established . This is done without hearing the applicant . If the judge finds that the facts were correctly established but that a different sanction should be imposed , he may uphold the request in part and modify the administrative authority ’s decision accordingly . If a violation of procedural or substantive law is established or if further fact - finding is required , the judge quashes the decision and decides on the case in ordinary judicial proceedings to which the accused and the authority that issued the impugned decision are parties . In these judicial proceedings , the defendant has a right to be heard orally by the judge , to adduce evidence , to make procedural requests and to appeal against the judgment ( sections CARDINAL , CARDINAL , DATE , CARDINAL and CARDINAL of the ORG ) . Under section CARDINAL of the ORG , the judge can , at his discretion , schedule a public hearing in ordinary judicial proceedings .", "Section CARDINAL of ORG ( Zakon o varstvu javnega reda in miru , Official Gazette no . CARDINAL/CARDINAL , in force since DATE ) reads as follows :", "“ ( CARDINAL ) Any person who challenges or incites another person to fight , acts dangerously or violently , or insults or offends another person ... shall be punished with a fine of CARDINAL NORP tolars ( SIT ) .", "( CARDINAL ) A person who hits another person shall be punished with a fine of CARDINAL .", "( CARDINAL ) The person who engages in a fight shall be punished with a fine of CARDINAL .", "( CARDINAL ) If an offence listed in subsections ( CARDINAL)-(CARDINAL ) above is committed against ... a blood relative in the direct line ... , the offender shall be punished with a fine of between SIT CARDINAL and CARDINAL [ ORG CARDINAL to CARDINAL ] . ”", "LAW ( Zakon o ustavnem sodišču , Official Gazette no . DATE , as amended on CARDINAL DATE , ORG no . DATE official consolidated version ) provides in LAW as follows :", "“ ( CARDINAL ) A constitutional complaint must state the following :", "- the decision which is challenged , the authority which issued it , its", "reference number , and the date it was issued ;", "- the human rights or fundamental freedoms allegedly violated ;", "- the reasons that support the violations ;", "- the date on which the claimant was served the decision which he challenges ;", "- if the claimant is a natural person , the full name of the claimant and the address of his permanent or temporary residence , or , if the claimant is a legal entity , state authority , bearer of public authority , or other legal subject , its name and where it is based , as well as the name and title or position of its representative ;", "- other information determined by LAW .", "( CARDINAL ) The constitutional complaint must be submitted in writing . A copy of the challenged decision and all other decisions that were issued in connection with the challenged decision in proceedings before the competent authorities in the case , as well as the relevant documents on which the constitutional complaint is based , must be enclosed with the complaint . ”" ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is a member of ORG .", "On DATE a group of CARDINAL members of ORG occupied the waiting area of the President ’s administration building in GPE and locked themselves in an office on the ground floor .", "NORP The members of the group asked for a meeting with the President , the deputy head of the President ’s administration and the President ’s economic adviser . They handed out leaflets through the windows , featuring a printed letter to the President which listed CARDINAL ways in which he had failed to comply with the LAW and which called for his resignation .", "The intruders stayed in the office for TIME until the police broke down the locked door and arrested them . They did not offer any resistance to the authorities .", "On DATE the ORG of GPE ordered the applicant ’s detention on the following grounds :", "“ [ The applicant ] is suspected of having committed several offences , CARDINAL of which is particularly grievous . If at liberty , he may continue his criminal activities , interfere with the investigation or put pressure on witnesses . He might abscond or prevent the investigation of the truth . ”", "On DATE the applicant was charged with the attempted violent overthrow of ORG power ( LAW ) and the intentional destruction and degradation of others’ property in public places ( Articles CARDINAL § CARDINAL and CARDINAL ) .", "On DATE , referring to the gravity of the charges against the applicant , the ORG of GPE extended the applicant ’s detention until DATE .", "On DATE the applicant ’s charge was amended to that of participation in mass disorder , an offence under LAW .", "On DATE ORG granted the prosecution ’s request for an extension of the applicant ’s detention until DATE , for the following reasons :", "“ ... the defendants and their counsel have started to study the case file . Given the file size ( CARDINAL volumes ) and the number of persons studying it ( CARDINAL defendants and their counsel ) , the court considers that there are sufficient reasons to extend [ the applicant ’s ] detention for DATE , because he has not yet finished studying the case file while his counsel has not yet started .", "Notwithstanding the fact that [ the applicant ] has a registered place of residence in GPE , the court , taking into account the gravity of charges and the fact that the grounds justifying his placement into custody still persist DATE , sees no reason to apply a more lenient preventive measure . ”", "On DATE ORG upheld the decision of DATE on appeal , finding that it had been lawful , sufficiently reasoned and justified .", "On DATE the investigation was completed and CARDINAL persons , including the applicant , were committed for trial . On DATE the ORG of GPE scheduled the preliminary hearing for DATE and decided that all the defendants should meanwhile remain in custody .", "On DATE ORG held a preliminary hearing . It rejected the GPE requests for release taking into account their characters , age , state of health , family situation and stability of lifestyle . However , it found , referring to the gravity of the charges , that “ the grounds on which the preventive measure [ had been ] previously imposed , still exist[ed ] ” and that “ the case file gave sufficient reasons to believe that , once released , the defendants would flee or interfere with the trial ” . It therefore ordered that all the defendants should remain in custody pending trial .", "On an unspecified date in DATE the applicant and his codefendants lodged applications for release . ORG rejected these requests on DATE , finding that their detention was lawful and justified . On DATE ORG upheld the decision of DATE on appeal .", "On DATE the applicant and his co - defendants lodged new applications for release . On DATE ORG rejected the requests . It held :", "“ The court takes into account the defence ’s argument that an individual approach to each defendant ’s situation is essential when deciding on the preventive measure .", "Examining the grounds on which ... the court ordered and extended the detention period in respect of all the defendants without exception ... the court notes that these grounds still persist DATE . Therefore , having regard to the state of health , family situation , age , profession and character of all the defendants , and to the personal guarantees offered on their behalf by certain private individuals and included in the case file , the court concludes that , if released , each of the applicants might abscond or obstruct the course of justice in some other way ...", "In the court ’s view , in these circumstances , having regard to the gravity of the charges , there are no grounds for varying or revoking the preventive measure in respect of any defendant ... ”", "On DATE ORG upheld the decision of DATE on appeal .", "On DATE ORG extended the detention in respect of all the defendants , including the applicant , until DATE . The court stated as follows :", "“ According to the materials in the criminal case file , the circumstances taken into account by the court when it authorised the pre - trial detention period and its extension for all the defendants still persist .", "Regard being had to the above and taking into account the state of health , family situation , age , employment and character of all the defendants , the court concludes that , if at liberty , each of them might abscond or otherwise interfere with the criminal proceedings . ”", "On DATE ORG found the applicant and his co - defendants guilty of participation in mass disorder . It gave the applicant a DATE suspended sentence and then released the applicant on DATE probation .", "The applicant was held in remand prison no . IZ-CARDINAL/CARDINAL in GPE from DATE to DATE . According to his submission , he was detained in a cell together with CARDINAL other inmates . The cell was overcrowded . The light was never turned off which disturbed the applicant ’s sleep . The cell was not ventilated . The lavatory pan was separated from the living area by a makeshift partition – QUANTITY in height . The person using the toilet was in view of other inmates . The applicant was allowed to take a shower for TIME once a week and a daily walk for TIME . Inmates were not given enough food and medicine , save for aspirin and other analgesics . The applicant claimed that he suffered from epilepsy but received no treatment .", "According to the ORG , the applicant was detained in cells nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL . At all times he was provided with his own bed , bedding and cutlery . Not only did the cells where he was held provide access to daylight , they were equipped with artificial lighting as well . The ventilation system was in good working order . In addition the vents in the windows permitted access to fresh air . All cells had a sink , a water tap and a toilet which was separated by a partition , QUANTITY in height , from the living area . The applicant could take CARDINAL shower per week for TIME . During DATE the lighting was on from TIME , with lower - voltage bulbs being constantly in use to light the lavatory at TIME . The applicant was provided with CARDINAL meals a day and unlimited access to medical care .", "For a summary of the relevant domestic law provisions governing conditions and length of pre - trial detention , see the cases of ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL , § § CARDINAL - CARDINAL , DATE ." ]

[ "3", "5" ]

[ "5-3" ]

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[ "The applicant , a NORP citizen of NORP origin , was born in DATE and lives in GPE .", "The facts of the case , particularly concerning events which took place 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 ) . GPE evidence submitted by the Government and the applicant are summarised in Sections D ( paragraphs CARDINAL ) and E ( paragraphs CARDINAL ) respectively .", "On DATE at TIME , QUANTITY police officers from ORG came to the applicant ’s house in ORG and questioned the applicant about her son ORG ’s whereabouts . ORG had previously been taken into police custody on CARDINAL DATE , placed in detention on remand on DATE and released on DATE . As he was afraid to find himself in the hands of the police once again , he was hiding at his relative PERSON house in GPE . Aware of her son ’s fears , the applicant told the police officers that ORG had gone to GPE .", "The police officers also questioned the applicant ’s CARDINAL other sons , ORG and ORG , who , like the applicant , stated that their brother PERSON had gone to GPE . The officers conducted a search of the house and took a certain amount of NORP marks . CARDINAL of the police officers left , taking ORG and ORG with them . The remaining QUANTITY police officers stayed in the applicant ’s house and continued questioning the applicant and her daughter , PERSON , until TIME .", "In TIME the applicant ’s husband GPE returned home . The police stayed for DATE and DATE , changing shifts at TIME . After DATE , the police forced the applicant ’s husband to sign a document .", "The police officers took ORG and ORG to ORG where they were questioned about GPE for TIME . Thereafter , ORG and ORG were taken to ORG to be examined by a doctor . From the hospital they were taken back to ORG and again interrogated about PERSON .", "NORP The police asked PERSON about his relative PERSON . ORG informed them that he knew PERSON , who was both a childhood friend of ORG ’s and a relative , and gave the police his address . The police officers then went to ORG house , taking ORG with them .", "On TIME DATE , ORG mother saw a number of police vehicles in front of her building and warned ORG . ORG and GPE tried to run away but were caught by police officers while they were going up onto the roof . As the police were taking ORG , GPE and ORG brother PERSON downstairs , ORG made another attempt at escape . PERSON and PERSON heard one of the police officers say that he was going to kill ORG , but the other officers said that they needed ORG for interrogation . ORG was caught in the doorway and made to lie face down . He was handcuffed and a gun was held to his head . According to ORG , ORG was beaten up ; he saw that ORG ’s head was bleeding and heard him screaming .", "The police officers put ORG in CARDINAL vehicle and ORG in another . They were then taken to ORG . After TIME , they were taken to ORG for a medical check . They were then put back into the vehicles . Yılmaz and GPE were in the back seat . PERSON heard the CARDINAL policemen sitting in the front say , “ ORG told the doctors at the hospital that he had been tortured and that he was going to be killed . Let him come to the ‘ camp’ . We ’ll show him that death will not be that easy . ” Yılmaz , GPE and ORG entered ORG together . ORG was also brought back to ORG . Later , he realised that ORG had also been brought there . According to ORG , as soon as the police officers brought ORG to ORG they began torturing him . PERSON heard ORG screaming and saying that “ his arm was going to break off and that he could neither clap his hands nor was he able to walk ” . The rest of the time ORG was constantly screaming and saying that he was innocent .", "Barış and PERSON were put into different cells . PERSON was in cell no . CARDINAL , from where he could hear ORG screaming . PERSON was later moved into cell no . CARDINAL , from where he could hear most of the conversations between the police officers and ORG . He heard the police officers threaten ORG by telling him that death would not be easy . ORG was saying that he was innocent , and that he could neither walk nor clap his hands . The torture lasted TIME . PERSON , looking through the grill in the door , saw that PERSON was being taken away by the policemen , who were holding him from his arms and dragging him along the floor .", "On DATE PERSON was taken to the interrogation room . He was asked if PERSON was a member of the “ organisation ” ( that is the ORG - ORG ) . He was further questioned about PERSON ’s relationship with ORG and the reason why PERSON ’s family let ORG stay in their house .", "On DATE PERSON signed a statement of CARDINAL pages , which the police had drawn up . He did not know what was recorded in the statement . He was then taken to ORG and was forced to tell the doctor that he had not been tortured . He was released after the medical examination . ORG was also released on DATE , following a medical examination .", "When İrfan and PERSON returned home they told the applicant that ORG was in custody and that he was being very badly tortured . The applicant went to the ORG branch of ORG for help . In the meantime , the applicant had already submitted a petition to the Prosecutor at ORG ( hereinafter “ the ORG ” ) on DATE and asked for information about her son . On DATE the Prosecutor wrote on the same petition that the applicant ’s son had been taken into detention at ORG .", "On DATE at TIME , police came to the applicant ’s house and then went to ORG house . They told the neighbours that PERSON was in a coma and that the applicant should go and pick up the body of GPE .", "On TIME of CARDINAL DATE the neighbours informed the applicant and she went to the hospital . The police first denied any knowledge about the matter . Her brother - in - law PERSON then arrived at the hospital and told her that the police had informed him that ORG ’s body was at the morgue . The police at the hospital continued to deny that they had ORG ’s body . TIME they acknowledged that ORG ’s body was indeed in the morgue . They refused the applicant permission to see her son . The Prosecutor at the hospital told PERSON that ORG had thrown himself from a window on the seventh floor and asked PERSON whether he wanted to file a complaint against anyone . PERSON told the Prosecutor that there was no use in filing a complaint as ORG had been killed by the police who then tried to cover up his death by saying that he had thrown himself from a window .", "ORG ’s burial certificate stated that he had died on DATE . The necessary forensic and medical examination of the body and the autopsy were performed on DATE . When the applicant requested a copy of the autopsy report , she was told that all the documents had been sent to GPE . On DATE ORG was buried .", "On DATE PERSON was arrested in ORG together with PERSON , PERSON , PERSON , PERSON , PERSON and PERSON on suspicion of having collaborated with the ORG .", "When the policemen entered ORG ’s flat to arrest ORG , he tried to escape but lost his balance and fell , hitting a wall in the process . He was arrested at the entrance to the building . A false identity card was found on him . This version of events was confirmed by PERSON in a statement given by him to the Prosecutor at ORG on CARDINAL DATE .", "NORP Immediately after his arrest , ORG was taken to ORG at TIME to have his wounds treated . According to the medical report drawn up by PERSON , the duty doctor at the hospital , ORG had suffered CARDINAL wounds , one above the right eye and another on the big toe of his right foot , which were not serious .", "Later in the day PERSON was again taken to ORG for treatment of a bleeding wound in the head , a QUANTITY . long laceration in the occipital area . According to Dr PERSON , who stitched the wound , ORG did not require hospitalisation but he was prescribed medication . Both PERSON and PERSON were subsequently questioned by the Prosecutor at ORG in relation to the report prepared by PERSON in which the injury to the head had not been recorded . PERSON stated that ORG had not mentioned to him any injury other than the CARDINAL which had been recorded in his report .", "After having his head wound stitched , PERSON was again taken to ORG and put in a cell , without having been interrogated . According to the statement of ORG , a detainee who was in the same cell as PERSON , the police gave ORG his medication regularly . In TIME of DATE , PERSON condition deteriorated . PERSON died during the efforts to take him to hospital .", "On DATE an autopsy was conducted in ORG . The autopsy report stated that PERSON death had occurred due to asphyxia . As the cause of asphyxia could not be identified , certain dissected body parts were sent to ORG in GPE for further forensic examinations to be carried out . According to the report of the chemical analysis section of ORG , which was drawn up on DATE , no toxicological evidence was detected in any of the sample tissues .", "On DATE a second report was prepared by the histology laboratory , in which it was stated that no abnormalities had been detected in any of the body parts .", "On DATE , a final report was issued by ORG . According to this report , the findings clearly pointed to a natural death which might have been due to PERSON previous health problems .", "On DATE the Prosecutor at ORG took a decision not to prosecute as he concluded at the end of his investigation that there had been no ill - treatment or torture , and that the death had occurred due to natural causes .", "On DATE ORG issued another decision not to prosecute . This decision was served on the applicant on DATE and became final on DATE as no appeal had been lodged against it .", "This was a verbatim record , drawn up by PERSON , ORG at ORG , and PERSON , the director of ORG of ORG , during the autopsy which they carried out on the body of PERSON at ORG on DATE . The report stated that Dr PERSON , the last doctor to examine PERSON , was on leave and therefore could not be present during the autopsy .", "The report began by stating that PERSON had lost his life at the detention facility of ORG at TIME on DATE . His body had then been transferred to the morgue at FAC .", "The report described the deceased as being QUANTITY tall and weighing QUANTITY . Rigor mortis and post mortem hypostasis had set in . The Prosecutor and the doctor observed the following injuries : a QUANTITY sutured wound on the top of the head ; a QUANTITY wound over the right eyebrow ; purple bruising around the right eye ; purple bruising on the outer surface of the right hand between the thumb and the wrist ; a scabbed wound , measuring CARDINAL x QUANTITY , over the coccyx ; purple bruising on the outside of the right arm measuring QUANTITY and finally a graze , measuring QUANTITY , on the big toe of the right foot .", "Other external findings noted were a slight deformation on the right side of the chest . The nailbeds , lips and ears were described as being cyanosed . There was widespread bleeding under the skin of the back . The external genitalia were normal . The epidermis was described as separating from the dermis .", "The body was photographed both before and during the internal examination of the body .", "The internal examination found that there was bruising and haematoma under the sutured injury . The skull was intact . There was no bleeding on either the outside or the inside of the brain membranes . The brain was described as being slightly oedematous . The sections taken of the brain and the cerebellum were normal . The bones of the skull base were not fractured .", "The mouth , throat and neck structures were described as being normal . The chest deformation was noted to be structural and not due to trauma . There were several bleeding spots on the lung surfaces . The lungs were extensively oedematous and congested . The heart was described as being normal on external examination . GPE revealed a thick , narrow , mitral valve .", "Stress ulcers seen in the stomach were associated with a little bleeding . The other organs in the abdomen were normal .", "During the autopsy the Prosecutor and the doctor had regard to a medical report which had been drawn up at ORG on DATE . This report , which was numbered DATE , was not made available to the ORG or to the ORG . According to a summary of this report reproduced in the autopsy report , a wound measuring CARDINAL x QUANTITY featured above PERSON right eye . There was also a slight wound on the big toe of the right foot . Neither of these CARDINAL wounds was life threatening .", "The Prosecutor and the doctor had regard to an arrest report drawn up at TIME on DATE in relation to the arrest of PERSON . This report was also not made available to either the ORG or to the ORG . It appears from the summary of this report , which was reproduced in the autopsy report , that PERSON and CARDINAL other men had been in a flat on the sixth floor of a block of flats . When they were running down the stairs , PERSON had fallen down , injuring his right toe and also a spot above his right eye . The Prosecutor asked PERSON whether the injuries observed during the autopsy could have been caused in the course of the sequence of events as described in the arrest report . PERSON replied that the injuries recorded in report no . DATE were consistent with the injuries described in the arrest report .", "A decision was made to send the samples taken from internal organs for histology and toxicology examinations .", "The doctor concluded that the death was due to asphyxiation and added that it would be possible to establish the cause of the asphyxiation after the examination of the body samples at ORG in GPE .", "According to this report , the body samples taken from PERSON body during the autopsy which were subjected to a toxicological examination did not disclose any poisons .", "This was a report drawn up and signed by a number of doctors . The report referred to the conclusions set out in the above mentioned autopsy and toxicology reports . In this report there was also a reference to a histology report , which had apparently been drawn up on DATE and had concluded that the examination of the samples from the heart , lungs , liver , kidneys and the spleen had revealed the presence of autolysis , but that nothing was seen in the brain or cerebellum . A decision was taken to seek the opinion of ORG .", "This report was drawn up and signed by CARDINAL doctors , each a specialist in different areas of medicine . They based their opinions on the reports referred to above and on the photographs of the body which had been taken during the autopsy ( see paragraph CARDINAL above ) . The doctors also had regard to CARDINAL statements taken from ORG and Dr PERSON on DATE . It appears from the summaries of these statements , which are reproduced in the report , that ORG had been detained in the same place as PERSON and that ORG had allegedly told Mr Kutlu that he had hurt himself while trying to run away from the police during his arrest and , because of that , his right foot was swollen and he was unwell . Mr PERSON was also said to have added that PERSON condition had worsened during TIME DATE and that he had died TIME .", "Dr PERSON was reported as having said in his statement of CARDINAL DATE that PERSON had been brought to him by officials on DATE and that , apart from the findings he had previously observed , he had now also observed a wound , measuring QUANTITY , on the top part of the head which did not require hospitalisation .", "ORG concluded that death was due to respiratory failure related to lung oedema . The ORG commented that , apart from the wounds on the top part of the head , above the right eyebrow and the big toe of the right foot , there were no other symptoms of an assault or traumatic change , which excluded the possibility of an external trauma being the cause of death .", "ORG further commented that , although there was evidence of asphyxiation , no change was observed in the neck area under the skin and there was no evidence of any compression of the chest or abdomen to indicate that death had occurred as the result of mechanical asphyxiation . There was oedema of the lungs and brain , and ulcers in the stomach with bleeding from them , indicating general anoxia and asphyxiation findings related to extreme lung oedema .", "This decision was taken by ORG at ORG . PERSON , a police officer at ORG , was referred to in the decision as the defendant . The offence in question was recorded as “ death in custody on DATE ” .", "The Prosecutor stated that PERSON who is a member of the terrorist organisation ” , had fallen down the stairs in an attempt to avoid arrest by police officers and injured himself . He had then been taken by police officers to ORG for treatment . The Prosecutor also referred to the medical reports above , and added that the report of CARDINAL DATE ( see paragraphs CARDINAL above ) had been submitted to ORG of ORG on DATE , “ to establish the cause of the oedema in the lungs , which had caused the respiratory failure ” .", "A copy of the subsequent report of ORG of ORG ( date unknown ) was not made available to the ORG or to the ORG . However , according to the decision not to prosecute , it was stated in that medical report that there was no evidence to suggest that the oedema in the lungs had been due to a technical or traumatic reason . ORG had apparently concluded that the cause of the oedema could not be established because the body samples sent for microscopic examination had become autolysed . The Prosecutor concluded therefore that there was no evidence that the officer had committed the offence in question and he decided not to prosecute the accused .", "NORP This decision , which was communicated to the applicant on DATE , became final on DATE as no objection had been lodged against it .", "In her petition the applicant submitted that her CARDINAL sons , ORG and ORG , had been arrested in their home by the police on DATE . She asked the Prosecutor for information about her sons’ fate .", "On DATE the Prosecutor wrote on the applicant ’s petition that “ [ the applicant ’s sons ] were taken into detention at the ORG ” .", "NORP This report was prepared on behalf of the applicant by Dr PERSON , a Reader in Forensic Pathology at ORG and consultant pathologist to ORG in GPE .", "NORP The report recounted the findings of the autopsy and of the other reports referred to above . PERSON observed , inter alia , the following shortcomings :", "( a ) no organ weights , in particular the weight of the lungs , were recorded . Furthermore , no description of the presence or absence of petechiae was made , despite the diagnosis of asphyxiation ;", "( b ) the QUANTITY laceration described by Dr PERSON is not described in any of the autopsy reports , even though a QUANTITY wound , or a scar from such wound , should have been noticed . It seems unlikely that a QUANTITY wound seen at autopsy could have been mistaken for a QUANTITY wound ; in any event they were described in different positions ;", "( c ) a QUANTITY wound is a large wound to be caused by DATE ; this wound appears to have occurred whilst in custody , and not in DATE during the arrest ;", "( d ) there is CARDINAL area of the original autopsy report which does not appear to have been commented on , and that is the presence of diffuse bleeding under the skin of the back . Diffuse bleeding strongly suggests that blows have been delivered to the back ;", "( e ) NORP the post mortem findings in this case with lung oedema and congestion , some brain oedema and stress ulcers , and the absence of any natural cause of death , raise strong concerns that death has been caused by mechanical asphyxiation . In positional asphyxia , the pinning of the body and restraint may prevent proper breathing . This could , for example , be caused by the person being laid on the floor and somebody compressing his back . Bleeding into the back would support this scenario .", "The applicant submitted to the ORG and to the ORG a number of statements taken by lawyers at the ORG branch of ORG from witnesses who had either witnessed the arrest of the applicant ’s son or who had been detained with the applicant ’s son . These statements formed the basis of the applicant ’s submissions above ( see paragraphs CARDINAL ) .", "A full description of the relevant domestic law and practice , as well as relevant international reports , may be found in PERSON v. GPE ( [ ORG ] , no . DATE , § § DATE , ORG CARDINAL-VII ) ." ]

[ "13", "2", "3", "38" ]

[ "2-1" ]

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[ "The applicant , PERSON , is a GPE national who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "On an unspecified date , the applicant was charged with having raped CARDINAL drug - addicted street prostitutes , PERSON , PERSON and PERSON , and an unrelated count of forgery . He was summoned to appear on DATE before ORG ( arrondissementsrechtbank ) in order to stand trial on these charges . In the course of the adversarial proceedings before ORG , the applicant admitted that he had had sexual intercourse with the CARDINAL women , but denied having raped them . The QUANTITY women were not heard before ORG .", "In its judgment of DATE , ORG convicted the applicant of having raped PERSON , PERSON and PERSON and of forgery , and sentenced him to DATE imprisonment . In addition , having found that the applicant was suffering from a personality disorder and was dangerous , it further ordered his confinement in a custodial clinic ( terbeschikkingstelling met bevel tot verpleging van overheidswege ) . It also ordered the applicant to pay PERSON , who had joined the criminal proceedings as a civil injured party ( benadeelde partij ) and had filed a claim for compensation of damage incurred , an amount of MONEY ( “ NLG ” ; i.e. DATE ) .", "The applicant filed an appeal with ORG ( gerechtshof ) .", "On DATE , ORG commenced its examination of the applicant 's appeal and considered the request by the defence to summon PERSON , PERSON and PERSON , as well as CARDINAL ex - girlfriends , in order to give evidence before ORG . After having deliberated , ORG decided to adjourn its examination of this request . It considered , finding that insufficient reasons had been given for this request , that it could not determine the necessity to hear these witnesses . It requested the defence to submit a reasoned request for hearing witnesses well before DATE when it would resume its examination of the appeal .", "ORG resumed the proceedings on DATE . As its composition had changed in the meantime , ORG fully recommenced its examination of the applicant 's case . The applicant submitted that he had been unjustly convicted . He confirmed that he had had sexual contacts with PERSON , PERSON and PERSON but denied that he had raped them . He stated that PERSON was a prostitute and he confirmed having taken her in his car .", "When heard before ORG , PERSON stated :", "“ It is correct that I got into the car of the suspect . I did not know the suspect before , also not from the café . What this man has done is not normal . I had not expected the suspect to be here . This is a shock to me and I do not want to testify now . I have been heard in a detailed manner by the police for DATE .", "I also do not understand that I must now act as a witness . I have received from the public prosecutor 's department a notification for an injured party and that is the reason for my present appearance . I want compensation for what has been done to me . I now first want to consult my mother . ”", "After the public prosecutor had informed ORG that it was possible that PERSON had only received the notification for an injured party but not the summons to appear as a witness , ORG suspended the hearing in order to allow PERSON to consult her mother .", "When it resumed the hearing , ORG noted that PERSON was no longer in the court room . Her mother stated before the court :", "“ My daughter is now in the hall of the court . She had not expected having to appear as a witness . She no longer lives at home and has not seen the summons . My daughter does not wish to see [ the applicant ] anymore and does not wish to recall what has happened to her . She has tried for DATE to stop taking drugs but unfortunately without success , she is still addicted . She can not face having to recount her story again . ”", "The public prosecutor informed ORG that it did not find it necessary to hear PERSON , that the last known address of PERSON was a GPE aftercare organisation and the last known address of PERSON that of an GPE police station . The public prosecutor submitted that summoning these CARDINAL witnesses would be pointless , unless the defence had new addresses for these witnesses . The defence stated that it was important to take oral evidence from these witnesses and that it expected that , if the judicial authorities made the necessary efforts , it would be possible to summon them .", "After having deliberated , ORG ordered the public prosecutor to make all possible efforts to take evidence from PERSON , PERSON and PERSON as well as from CARDINAL male witnesses , PERSON and PERSON , who had been proposed by the defence . It adjourned its further examination until DATE .", "The appeal proceedings were resumed on DATE . As its composition had changed again in the meantime , ORG fully recommenced its examination of the applicant 's case . It noted , inter alia , the submission of a written record of the evidence given by PERSON on DATE before the investigating judge ( rechter - commissaris ) at ORG , and that according to information provided by the investigating judge it had not been possible to hear PERSON , PERSON , PERSON or PERSON The defence stated that it waived its wish to hear PERSON The defence further submitted that , although it understood that it was pointless and superfluous to summon the QUANTITY victims , the taking of their evidence remained important for the defence and that , therefore , it did not formally waive its wish to hear them . The public prosecutor agreed with the defence that summoning the QUANTITY victims would be pointless and proposed that ORG would proceed with its examination of the applicant 's appeal . The public prosecutor further did not find it necessary to hear Mr M.", "After having deliberated , ORG decided that it did not see any merit in ordering fresh attempts to summon the CARDINAL victims as it was unlikely that they would appear within an acceptable delay . It therefore rejected the request by the defence to summon them . Further noting that none of the parties wished to hear Mr M. , it considered that it was no longer necessary to hear this witness .", "It heard the applicant , who admitted having had sexual intercourse with PERSON , PERSON and PERSON but denied having raped them . As regards the charges relating to PERSON he added that he had had chocolate in his car , but denied having inserted chocolate into her vagina .. After having heard the parties ' final pleadings , ORG closed its examination and set a date for judgment .", "In its judgment of DATE , ORG quashed the judgment of DATE and convicted the applicant of having raped PERSON , PERSON and PERSON and of forgery .", "As regards the imposition of its sentence ORG took into account that the applicant , in the course of a period of slightly DATE , had on CARDINAL occasions picked up a street prostitute in his car . As from the outset he then subsequently misled the woman by pretending , inter alia , that he could pay by providing drugs . He then committed very humiliating acts , in particular by inserting chocolate bars in the vagina of CARDINAL of his victims . He fully ignored the victims ' feelings and abused the very vulnerable position in which the victims , being street prostitutes , found themselves . Having found that at the material time the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree , whereas there was a considerable danger of recidivism of aggressive sexual offences against women , ORG sentenced the applicant to DATE imprisonment in combination with an order for his confinement in a custodial clinic . It also ordered the applicant to pay the injured party PERSON compensation in an amount of NLG CARDINAL .", "ORG based its conviction of the applicant of the rape of PERSON , PERSON and PERSON on the following means of evidence :", "- the applicant 's statement before ORG that he had had sexual intercourse with PERSON ;", "- the detailed statement given by PERSON to the police in which she related , inter alia , that on DATE in GPE she had seen her colleague and friend Ms X. sitting next to the driver in a car passing by , that shortly thereafter this car had stopped near to the telephone booth in which she had taken shelter from the rain and that Ms X. was no longer in the car , that she had then been picked up by the driver of this car who had subsequently raped her in a brutal and very painful manner in that , before forcing her to have intercourse with him , he had forcibly inserted several chocolate bars into her vagina , and that he had also taken photographs of her before he had allowed her to dress and leave the car ;", "- a report on a medical examination of PERSON on DATE according to which her vagina was considerably soiled by chocolate ;", "- the record of observations and findings ( relaas van waarnemingen en bevindingen ) drawn up by the reporting police officers GPE and GPE , according to which staff of the LOC police region had informed them , after the rape of PERSON had been signalled in a police bulletin , that in DATE both in GPE and GPE – a man had raped drug - addicted prostitutes in a similar manner , that in the GPE case the perpetrator had also taken similar photographs as in the GPE case , that in all cases the suspect had been heard who had confirmed having had contacts with the victims but that these contacts had been consensual although he had not paid the prostitutes , and that the suspect had been identified as [ the applicant ] ;", "PERSON recognition of the applicant as the driver of the car from a number of photographs of different persons shown to her on DATE , at which occasion she stated that his hair style on the photograph was different than when she had seen him ;", "PERSON recognition of the applicant as her assailant from a number of photographs of different persons shown to her on DATE ;", "- the detailed statement given by PERSON to the police , in which she related inter alia that on or around CARDINAL DATE in the GPE region she had been forced to get into a car driven by a rather aggressive man who had subsequently raped her in a crude manner , and that she remembered the car 's licence plate ;", "- the record of observations and findings drawn up by the police officer who had taken down PERSON criminal complaint on DATE . According to this record the description and licence plate of the car given by PERSON corresponded to a car that was being used by the applicant and PERSON description of her assailant corresponded to the applicant 's features . The record further states that , on DATE , the reporting police officer had been informed by the GPE police that the driver of a car with the same licence plate and whose physical features exactly matched the description given by PERSON , was being searched for having raped , sexually assaulted , threatened and unlawfully deprived of liberty a NORP street prostitute in GPE , PERSON , who had filed a criminal complaint on DATE ;", "- the applicant 's statement to the police in which he confirmed that he had had sexual contacts with a prostitute in GPE and in which he described the car in which he had then driven , the licence plate and description matching the information given by PERSON ;", "- the detailed statement given by PERSON to the police , in which she related , inter alia , that on DATE shortly after TIME in GPE she had been picked up by a client in a car , that her friend had noted down the licence plate of this car , and that she had subsequently been raped in an aggressive and very painful manner by the driver of this car ; and", "- the applicant 's statement to the police in which he confirmed that he had had intercourse with a prostitute whom he had picked up in GPE by DATE , and in which he described the car he had then driven , the description and licence plate matching the information given by PERSON", "The applicant 's subsequent appeal in cassation was rejected by ORG ( PERSON ) on DATE . ORG found that LAW did not prevent the use in evidence of the statements given by PERSON , PERSON and PERSON to the police despite the fact that neither the applicant nor his lawyer had been able to question them as a witness . In this respect ORG accepted as correct and not unreasonable the conclusion of ORG that further attempts to make the CARDINAL victims appear before ORG would serve no useful purpose . ORG also accepted that the respective statements by PERSON , PERSON and PERSON were sufficiently corroborated by other means of evidence ." ]

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[ "The applicant was born in DATE and lives in ORG .", "On DATE the applicant brought a civil action in ORG ( PERSON ) against PERSON and PERSON , seeking termination of a contract for lifelong maintenance ( ugovor o doživotnom uzdržavanju ) . She enclosed a copy of the contract in question , drawn up on DATE , and its annex of CARDINAL DATE . The contract stipulated that the defendants were to care for the applicant until her death in order to acquire all her property post mortem . She also asked that CARDINAL witnesses , PERSON and PERSON , be heard . The defendants submitted receipts for DATE payments for the applicant ’s maintenance and asked that CARDINAL witnesses be heard .", "At the hearing held on DATE ORG heard evidence from the parties and after that , in the presence of the applicant ’s counsel , scheduled the next hearing for DATE . The applicant ’s counsel fell ill and had to be hospitalised pending urgent surgery . On DATE he sent a fax to ORG excusing himself from the hearing scheduled for DATE and asked for an adjournment of the hearing . However , ORG proceeded with the hearing and heard CARDINAL witnesses , PERSON . PERSON and PERSON , the parents of CARDINAL of the defendants . It also scheduled a further hearing for DATE and ordered that CARDINAL other witnesses , also called on behalf of the defendants , be heard . Neither the applicant nor her counsel were notified of the hearing .", "NORP The counsel did attend the hearing of DATE , which he had learned about by chance when at ORG on DATE for other reasons . ORG heard CARDINAL witnesses for the defendants , PERSON and PERSON , as scheduled , but refused the proposal of the applicant ’s counsel that CARDINAL other witnesses be heard . The relevant parts of the transcript of the hearing read as follows :", "“ Counsel for the plaintiff asks that the plaintiff ’s neighbours PERSON , PERSON , PERSON , PERSON and PERSON be heard as witnesses about the circumstances of the applicant ’s DATE life and the care she has received from them in DATE and in particular in DATE following her release from a hospital , when she was immobile .", "...", "Counsel for the plaintiff withdraws his request that PERSON be called as a witness since , according to the plaintiff , that person is not able to attend a hearing at the court .", "The judge decides that evidence is not to be heard from PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON and no further evidence is to be presented . ”", "ORG proceeded by closing the proceedings and pronouncing its judgment , dismissing the applicant ’s claim . The relevant part of the judgment read as follows :", "“ In view of the above , the court considers that the factual background has been fully established on the basis of the parties’ testimony and in particular in the contract for lifelong maintenance and its annex and the enclosed receipts for payment . For that reason the court declined to hear evidence from the witnesses called on behalf of the plaintiff , because these witnesses can not tell the court anything of influence on its judgment , save for the fact that they , owing to the plaintiff ’s age , have been increasingly assisting her on a DATE basis . For precisely that reason the court is not relying on the evidence heard from the witnesses Lj . M. , Š. M. and PERSON ”", "A subsequent appeal by the applicant was dismissed by ORG ( Županijski sud u ORG ) on DATE .", "On DATE the applicant lodged a constitutional complaint alleging , inter alia , that her right to a fair trial had been infringed , because the hearing of CARDINAL DATE had been held in the absence of her counsel who had duly excused himself due to his urgent hospitalisation and that she had thus been prevented from questioning CARDINAL witnesses . Furthermore , neither she nor her counsel had been notified of the hearing scheduled for DATE . Although her counsel did attend the hearing , which he had learned about by chance on DATE , he had not been able to prepare himself to question the CARDINAL further witnesses who had been heard at that hearing . Thus , she had been prevented from questioning any of the CARDINAL witnesses , all of whom had been heard on behalf of the defendants . Finally , she complained that ORG had refused to hear any of her CARDINAL witnesses . On DATE ORG ( Ustavni sud PERSON ) dismissed the complaint as ill - founded ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE . A member and leader of the “ green ” political party PERSON , and former regional councillor and member of ORG , since DATE he has been mayor of ORG and Vice - President of ORG of GPE and , since DATE , member of parliament for PERSON . He has also worked as a journalist DATE , for example – for the ORG television channel ORG .", "NORP In DATE the applicant took part in the recording of an infotainment programme for television called Tout le monde en parle ( “ Everyone ’s talking about it ” ) , presented by PERSON , which was aired on the ORG television channel GPE CARDINAL during TIME DATE to DATE . During the programme PERSON , another guest personality , mentioned the GPE nuclear accident of DATE and spoke of the emotion he had felt on reading a book dedicated to the victims of the disaster . The applicant replied as follows ( extract from the DATE judgment of ORG ) :", "“ DATE some mushrooms imported into GPE were found to contain caesium and that is the result of GPE . I was presenting the TIME news on DATE of the GPE disaster in DATE ; there was a sinister character at the PERSON called Mr Pellerin who kept on telling us that GPE was so strong – the Asterix complex – that the GPE cloud had not crossed our borders . ”", "At the time of the GPE disaster Mr GPE , a radiologist and qualified senior biophysics teacher , was head of ORG central de protection contre les rayons ionisants – “ the PERSON ” ) . Under the dual authority of ORG , CARDINAL of the PERSON ’s tasks was to monitor contamination levels in GPE and alert the above ministries in the event of a problem ; it was replaced in DATE by ORG ( Office de protection contre les rayonnements ionisants – “ the ORG ” ) .", "Mr Pellerin was placed under investigation on DATE for “ aggravated deception ” by the first investigating judge at the GPE tribunal de grande instance , as part of an investigation opened after persons suffering from thyroid cancer , ORG ( “ the CRIIRAD ” ) and ORG ( “ the LOC ” ) lodged a complaint in DATE against a person or persons unknown , together with an application to join the proceedings as civil parties claiming damages , for failure to protect the population against radioactive fallout from the GPE accident , alleging in particular that official authorities had lied and played down the pollution of the air , soil and foodstuffs .", "By summonses served on CARDINAL and DATE , Mr Pellerin brought proceedings directly against the applicant in ORG for public defamation of a civil servant , a punishable offence under sections CARDINAL and CARDINAL of the Freedom of LAW of DATE . He also brought proceedings against the television channel GPE CARDINAL and its director of publication , Mr PERSON .", "In a judgment of DATE , the court found PERSON and the applicant guilty ( as principal and accessory respectively ) , sentenced them each to pay a MONEY ( ORG ) fine and , jointly and severally , to pay ORG CARDINAL in damages , declared the GPE CARDINAL television company civilly liable and ordered the publication in a newspaper , at the GPE cost , of the following announcement :", "“ In a judgment delivered on DATE by ORG ) , Mr PERSON , director of publication of the national television company GPE CARDINAL , and PERSON were sentenced to fines and to pay damages to Mr PERSON , for having committed against him the offence of defamation of a civil servant , by making accusations against him on the Tout le monde en parle television programme aired on DATE . ”", "The applicant appealed , but ORG upheld the judgment in respect of the guilty verdict , the sentences and the civil claims , in a judgment of DATE worded as follows :", "“ ...", "Defamation", "Mr PERSON accuses Mr Pellerin of repeatedly ( “ kept on ” ) claiming ( “ telling us ” ) at the time of the GPE disaster that the radioactive cloud would not cross GPE ’s borders . He further specifies that the civil party worked for the PERSON ( Central Service for Protection against Ionising Radiation ) , thereby reminding us that because of his expertise and his role he could not have been unaware of what was actually happening and what is now common knowledge .", "Mr PERSON thus accuses Mr Pellerin of lying to journalists , and therefore to the general public , concerning the passage of the radioactive cloud over GPE , when the file clearly shows that Mr Pellerin never said any such thing , and that he had actually said that the level of radioactivity had increased in GPE – which obviously meant that the cloud had passed over the country – but that the increase would be without any harmful effect on public health , a claim which has yet to be disproved with any certainty .", "To accuse Mr Pellerin of having knowingly supplied , in his capacity as a specialist on radioactivity issues , erroneous or even untrue information about such a serious problem as the GPE disaster , which was of potential consequence for the health of the NORP population , is undeniably damaging to his honour and his reputation and is therefore defamatory . The fact that Mr PERSON ’s comments , according to his counsel , were uttered in a humorous tone , as a quip , makes them no less defamatory and to acknowledge that is not a violation of LAW ...", "Good faith", "As the events criticised occurred so long ago , the defendant has adduced no proof that his defamatory allegations are true , but claims that he acted in good faith .", "Moderation of tone", "In using such terms as “ kept on telling us ” , Mr PERSON insists strongly and in no uncertain terms that Mr Pellerin deliberately and repeatedly lied , and that he constantly and knowingly distorted the truth .", "He also describes Mr Pellerin as a “ sinister ” character , which is not a neutral expression , particularly when used in connection with something like the GPE disaster . He also says the civil party suffers from the “ Asterix complex ” , thereby subjecting him to derision and undermining his credibility .", "The insistence shown by Mr PERSON , the peremptory nature of his comments and the pejorative characteristics he attributes to the civil party reveal a lack of moderation in his remarks .", "As CARDINAL of the conditions of good faith is lacking , the defendant can not be considered to have acted in good faith and there is no need to examine the other aspects of good faith .", "He must therefore be convicted .", "... ”", "ORG dismissed an appeal on points of law lodged by the applicant , Mr GPE and GPE CARDINAL based , inter alia , on an alleged violation of LAW . The judgment , delivered on DATE , reads as follows :", "“ ...", "The terms of the impugned judgment and the examination of the case file place ORG in a position to affirm that ORG , for reasons which are neither insufficient nor contradictory and which address the essential grounds raised in the pleadings submitted to it , correctly assessed the meaning and scope of the remarks impugned in the summons and rightly denied the defendants the benefit of good faith , after finding , without contravening the provisions of LAW ... that the said remarks amounted to defamation .", "For the remainder , ORG correctly considered that the director of publication , whose duty it is to supervise and verify every pre - recorded programme the channel broadcasts , is answerable in law for any remarks made in the course of the programme which are found to be defamatory .", ".... ”", "The applicant adduced a copy of a ORG press release dated DATE , which reads as follows :", "“ NORP soil is far enough away to have been completely spared by the radioactive fallout from the accident at the GPE power station . At no time has the recorded increase in radioactivity levels been a threat to public health .", "ORG has readings taken by ORG ( PERSON ) , which answers to ORG . According to the PERSON the maximum airborne radioactivity levels have always remained entirely negligible .", "GPE has asked ORG to put in place a uniform monitoring procedure , without delay , which all countries could apply in respect of non - member countries , based on the recommendations of ORG . Such measures should on no account hinder intracommunity exchanges . Furthermore , we have asked all the member GPE to inform their partners of any measurements taken and their results .", "Special precautionary measures have been put in place in certain member States in respect of NORP products . This is quite unnecessary . ORG will make every effort to see to it that the free movement of all NORP products towards these countries is restored as soon as possible . ”", "The applicant also adduced an extract of the transcript of the statement made by ORG to the ORG on CARDINAL DATE ; it reveals in particular that between the GPE accident and that date the PERSON issued CARDINAL statements about the accident .", "The applicant further adduced a document , dated DATE , entitled “ Recapitulation of the mission completed by the CARDINAL experts in accordance with the orders of DATE and DATE of [ the ] ... first investigating judge at the GPE tribunal de grande instance ” . It is the opinion of CARDINAL judicial experts appointed by the judge in charge of the investigation mentioned in paragraph CARDINAL above to analyse , among other things , the sealed samples collected by the PERSON at the time of the GPE accident and determine what the PERSON knew . The “ general conclusions ” of the opinion read as follows :", "“ At this stage in our investigation it is clear that the PERSON was very promptly supplied with all the scientific data in the possession of its network and the information it requested urgently from various bodies concerning radioactive contamination in mainland GPE and Corsica , for most of the radioactive isotopes , including iodine CARDINAL , iodine CARDINAL , tellurium CARDINAL , caesium CARDINAL and caesium CARDINAL . The information was interpretable and location - specific .", "The PERSON was also aware that the results for the iodine isotopes were obtained using filters which captured only a small percentage , which meant that the readings for iodine CARDINAL and CARDINAL were well below the real values .", "The release of this information by the PERSON to the decision - making authorities and the public was neither complete nor precise and certain values were concealed .", "The use of different units , some of which were no longer in current use , made comparisons or evaluations very difficult , even for specialists , and therefore even more so for the decision - making authorities and the public .", "The publication of mean values per département , region or part of the country helped to mask the reality of contamination concentrated in certain localities , later referred to as “ leopard spots ” , linked to weather conditions – particularly rainfall – and the landscape .", "In this manner the presence , especially in DATE after the clouds passed , of quantities of radioactive isotopes which were dangerous , particularly for fœtuses and for young children , was hidden from the decision - making authorities and the public .", "Telex messages contained in the sealed evidence also show how , in GPE and even in the international scientific community , partial or mean values were imposed ( some mean values being based on single readings ) , which led to the publication of inaccurate maps .", "In our opinion mapping is possible only at the level of the “ leopard spots ” , where populations living in relative isolation may have been subjected to levels of radiation similar to those in certain territories close to the GPE power station in DATE .", "Attempts are still being made DATE to produce these maps which , in these conditions , can not reflect what really happened in GPE in DATE following the GPE accident , and this is still a bone of contention .", "The information of the IRSN [ Institut de radioprotection et de sûreté nucléaire – Institute for ORG and Nuclear Safety ] sheds some light on the subject , but it was received too late to be included in this report within the allotted time .", "Finally , there is information in the sealed evidence concerning the respective roles by the various ORG authorities in such circumstances [ sic ] . There was a major controversy over the subject , including whether informing the public was the role of the PERSON or the LOC [ Secretary General of ORG ] , whose job it was according to interministerial directive SGSN CARDINAL on informing the public and the media in the event of a nuclear safety incident or accident . This aspect of the evidence can not be neglected . ”", "NORP The relevant provisions of LAW of the Freedom of the Press Act of DATE provide :", "“ It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged . The direct publication or reproduction of such a statement or allegation shall be an offence , even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches , shouts , threats , written or printed matter , placards or posters .", "It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact . ”", "“ Defamation by reference to the functions or capacity of CARDINAL or more ministers or ministry officials , CARDINAL or more members of CARDINAL of the CARDINAL legislative chambers , a civil servant , a representative or officer of the law , a minister of religion in receipt of a ORG salary , a citizen temporarily or permanently responsible for a public service or discharging a public mandate , a member of a jury or a witness on the basis of his witness statement [ in speeches , shouts or threats made or uttered in public places or meetings , or in written or printed matter , drawings , engravings , paintings , emblems , images or any other written , spoken or pictorial medium sold or distributed , offered for sale or exhibited in public places or meetings , or on placards or posters on public display , or in any audiovisual medium ] shall be punishable [ by a fine of MONEY ] .", "... ”", "“ The truth of the defamatory allegation , but only when it relates to functions , may be established in the ordinary way in the case of allegations against ORG institutions , the army , navy or air force , the public authorities and any of the persons listed in DATE .", "The truth of defamatory and insulting allegations may also be established against directors or administrators of any public industrial , commercial or financial company .", "The truth of the defamatory allegations may always be established except :", "( a ) when the allegation concerns the person ’s private life ;", "( b ) when the allegation refers to events dating back DATE ;", "( c ) when the allegation refers to events in respect of which an amnesty has been granted or which are time - barred or gave rise to a conviction which has been expunged by rehabilitation or review .", "Subsections ( a ) and ( b ) above shall not apply when the facts are offences provided for and punishable under ORG CARDINAL to CARDINAL - CARDINAL and CARDINAL - CARDINAL to CARDINAL - CARDINAL of LAW and were committed against a minor .", "In the cases provided for in DATE , rebutting evidence is reserved . If proof of the defamatory allegation is established , the defendant shall be acquitted .", "In any other circumstances and in respect of any other unspecified person , when the allegation has given rise to proceedings brought by the prosecution service or a complaint lodged by the defendant , while the resulting investigation takes its course the proceedings and trial for defamation shall be suspended . ”" ]

[ "10" ]

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[ "The applicant is a NORP citizen , born in DATE . He is currently detained in GPE in GPE . He is represented before the ORG by Mr PERSON , a solicitor practising in GPE .", "On an unspecified date the applicant was charged by ORG with various offences of dishonesty . He applied and was granted legal aid .", "At DATE the applicant 's case was transferred to ORG . It was first listed before a judge in DATE . At that stage the applicant was represented by solicitors and senior and junior counsel .", "On DATE the applicant was arraigned . The hearing was fixed for DATE . However , that date was vacated because the applicant 's representatives had sent to ORG detailed submissions as to why the prosecution should have been discontinued . Following the rejection of these submissions , the applicant decided that he wished to represent himself .", "On DATE the applicant 's counsel appeared before the judge and asked to be allowed , together with their solicitors , to withdraw from the case . The judge heard the applicant 's senior counsel , his solicitor and the applicant himself . He also heard counsel for the ORG .", "The applicant 's position was that he wished to present himself the factual side of the case , examine and cross - examine witnesses and address the jury . At the same time he wanted to be allowed to have his solicitors and counsel to advise him upon and argue on his behalf such matters of law as might arise in the course of the case . The applicant 's solicitor told the judge that he had advised the applicant that he should be represented by counsel if his case was to be conducted properly . However , according to the solicitor , there had been a serious breakdown of confidence between himself and the applicant and in those circumstances , unless directed to the contrary , he wished to withdraw .", "The applicant 's counsel said that he knew of cases where a defendant had retained solicitors and counsel to argue the law and the ORG 's counsel accepted that , provided that proper ground rules were established , such a course of action could be followed .", "The judge , having satisfied himself that the applicant had formed a firm and considered opinion and that his views had been properly presented to the court , decided that it would be improper to allow the applicant to proceed with the case in the manner he envisaged . The judge considered that , if counsel were to continue to participate in the proceedings , they should have control over the case . Counsel for the applicant and the ORG agreed . Then the applicant was asked whether , in the light of this development , he wished to reconsider his decision to represent himself . He refused .", "The court reconvened on DATE . The matter of the applicant 's representation was again discussed . The judge formally allowed the applicant 's counsel and solicitors to withdraw . The applicant was allowed to represent himself . However , new solicitors were retained to advise the applicant who could seek advice from counsel on particular matters . These solicitors assisted the applicant throughout the proceedings and occasionally consulted counsel .", "On DATE the applicant requested that the court should sit DATE a week . However , the judge refused this request .", "On a number of subsequent occasions , before the actual beginning of the trial , the applicant repeated his wish to have the kind of representation he had favoured from the beginning . However , the judge reaffirmed his earlier ruling . On CARDINAL occasion , on DATE , the judge again sought and received confirmation that the applicant had decided to represent himself .", "The judge 's last pre - trial re - iteration of his ruling was on DATE when he stated the following :", "“ It is an absolute right for someone to represent themselves ; and Mr GPE has decided to represent himself in this trial . I have considered the question of whether I should extend his legal aid for leading and junior counsel to represent him ; and I have come plainly to the conclusion that it would be wholly inappropriate in this case for Mr GPE to represent himself , have control of cross - examination and the calling of witnesses [ on ] issues of fact , then instruct counsel to represent him on points of law throughout the course of the case . It seems to me that that would be wrong . It would involve , were I to grant this application , an adjournment of this case for ... a considerable period ... and , in all the circumstances , I have no alternative but to reject the application that is made . The defendant has had ample time to prepare himself for this trial ... [ A ] great deal of work has been done on his behalf . The documents have all been got in order and , in my view , the representation that he has - which in the representation of experienced solicitors , who no doubt are knowledgeable in the law - is a proper basis on which we ought to proceed . ”", "The trial began on DATE . The applicant requested that the hearing be adjourned for a period of DATE because he was suffering from mental exhaustion and stress . The judge , having heard expert evidence from CARDINAL doctors for the defence and CARDINAL for the prosecution , refused the applicant 's request on the ground that the applicant was fit to continue with the hearing . Then the applicant cross - examined the most important prosecution witness .", "On DATE the applicant informed the judge that he was to undergo an operation as he was suffering from the disease of pneumothorax . He applied for an adjournment that would also give him sufficient time to recover from the post - operative effects . The court adjourned the case for DATE . On returning , however , on DATE , the applicant was still suffering from post - operative discomfort and requested another DATE 's adjournment . In support of his request the applicant invoked his doctor 's opinion that he was at risk of a nervous breakdown . However , the judge relied on the evidence of another doctor that the applicant was in a fit state and refused his request .", "On DATE the judge , in the absence of the jury , threatened the applicant that he could be found in contempt of court because CARDINAL of his witnesses was not present .", "On DATE the applicant , having completed DATE in the witness box , asked for an adjournment until DATE in order to prepare for the examination of the defence witnesses . The judge decided that the rest of DATE would be sufficient for the applicant to prepare himself .", "On DATE the applicant was convicted of a number of dishonesty offences . He was sentenced to DATE imprisonment .", "", "The applicant obtained leave to appeal to ORG against conviction and sentence . He relied on a number of grounds including the failure of the judge to grant his above - mentioned requests concerning the presentation of his case , the number of DATE and the adjournments . In the proceedings before ORG the applicant was represented by legal aid counsel .", "On DATE ORG , for technical reasons , quashed the applicant 's convictions on some counts , substituted convictions for different offences and reduced his sentence to DATE . However , the court did not allow any of the grounds of appeal concerning the above - mentioned requests . Furthermore , it refused to certify any question of law involved in the determination of the appeal as being of general public importance ." ]

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[ "The applicant is an NORP citizen born in DATE and currently detained in FAC , GPE .", "He is represented before the ORG by PERSON , solicitor , PERSON J. McCrudden FAC and Mr PERSON , counsel , all practising in GPE .", "A.", "At TIME on DATE the applicant was arrested at his home pursuant to section CARDINAL ) of ORG ( Temporary Provisions ) Act DATE ( “ the DATE LAW ) . He was then taken to ORG where he was examined at TIME by PERSON who certified him fit to be questioned .", "Before being questioned the applicant was cautioned under LAW , DATE and CARDINAL of the Criminal Evidence ( GPE ) Order DATE ( “ the DATE LAW ) . The applicant was also asked whether he wished to consult a solicitor . He replied that he did not .", "In the course of DATE the applicant was interviewed on CARDINAL occasions and responded to police questioning by denying his involvement in any of the offences put to him . He offered an alibi in response to a claim that he had been involved in a robbery at a bookmaking LOC , which the police declined to accept . On TIME , the applicant informed the police that he was mistaken in this alibi and he offered another explanation for his whereabouts at the time of the robbery . Again the police refused to accept this alternative alibi . The applicant asked to consult with his solicitor , Mr McGuckin . On receipt of this request , at or TIME , a police officer made an attempt to contact PERSON at his office . The police officer was told by PERSON office that he was out and could not be contacted . It was not known when he would return but that the message that the applicant was requesting his presence at ORG would be passed on to him . In these circumstances ORG , pursuant to non - statutory guidelines issued by the Secretary of ORG relating to the questioning of terrorist suspects , authorised the interview to continue although the applicant had not had an opportunity to consult with his solicitor .", "When PERSON eventually arrived at ORG DATE , at TIME , facilities were provided for the applicant to consult with him in private . The applicant had , however , already admitted to membership of ORG ( “ IRA ” ) and attempting to rob a post office . Following the consultation the applicant went on to make further verbal admissions and at TIME the applicant dictated a detailed statement to the interviewing officers describing his involvement in various terrorist offences , including a number about which he had not been questioned . After having made this statement , the applicant took the police to the area of his house and pointed out the various hiding places for weapons and explosives used by the IRA to which he had referred in his admission .", "The applicant was tried by a judge sitting alone at ORG . The indictment upon which he was charged contained CARDINAL counts alleging various terrorist offences including CARDINAL counts of conspiracy to murder , possession of firearms and ammunition , possession of explosive substances , false imprisonment , hijacking , robbery and membership of the IRA .", "The prosecution relied exclusively on the verbal admissions and the written statement which the applicant had made in the course of DATE of questioning at ORG .", "The applicant did not dispute that the evidence before the court accurately recorded admissions which he made in the course of being interviewed . However , he submitted through his counsel at a voir dire hearing that the confession evidence should be excluded under section CARDINAL(CARDINAL ) of GPE ( Emergency LAW Act DATE ( “ the DATE LAW ) on the grounds that it had been obtained by violence and threats of violence or , alternatively , under section ORG ) of the CARDINAL Act , in order to avoid unfairness to the applicant or as otherwise being in the interests of justice .", "The trial judge rejected the applicant ’s contention that the admissions had been obtained by violence or threats of violence , being satisfied with the evidence given by the interviewing officers that they had treated the applicant fairly and properly . The trial judge therefore declined to exclude the evidence in the exercise of his general discretion under section ORG ) of the CARDINAL Act .", "The applicant ’s counsel also argued under section ORG ) of the CARDINAL LAW that the applicant was someone who was mentally handicapped , or in any event someone of limited intelligence with a vulnerable personality ; that he had been induced to make verbal confessions on the basis that he would be released as an informer provided he first revealed information about IRA activities , and a written confession on the basis that he would only get a CARDINAL or DATE sentence ; that notwithstanding the applicant ’s request to consult with a solicitor the police had , pending the solicitor ’s arrival , persisted in questioning the applicant ; and that in these circumstances , whether severally or as a whole , the confession evidence should be excluded so as to avoid unfairness or otherwise in the interests of justice .", "In rejecting the applicant ’s argument under section ORG ) of the LAW , the trial judge found that there was no medical evidence to support the assertion that the applicant was mentally handicapped . In this connection he noted that the consultant psychiatrist called by the applicant did not suggest that the applicant was mentally handicapped . As to the claim that the applicant was a vulnerable personality , the trial judge on the basis of the totality of the evidence", "“ [ was ] entirely satisfied that the [ applicant ] was in no sense a mentally handicapped person or a vulnerable personality … . I consider him to be a ‘ street - wise’ person who did not require the presence of a friend or solicitor so that his interviews could be considered fair . ”", "Furthermore the trial judge rejected as lies the applicant ’s evidence that he had , in confessing , been offered inducements by the interviewing officers . He also ruled that the relevant domestic law did not , in circumstances where a terrorist suspect had requested to consult with a solicitor , automatically require the interview to cease pending the solicitor ’s arrival , and that ORG had properly authorised the continuation of the interview in accordance with paragraph CARDINAL ) of the non - statutory guidelines issued by the Secretary of ORG on the grounds that awaiting the arrival of the solicitor would cause unreasonable delay in the process of investigation . The trial judge was , in the circumstances , satisfied that it was fair to interview the applicant without waiting for his solicitor , that the confession evidence was reliable , and that he could properly act on it in convicting the applicant .", "The applicant ’s counsel contended in addition at the voir dire hearing that the applicant , on TIME of his arrest on DATE , had headaches and an upset stomach caused by heavy drinking TIME , and that he was not fit to be interviewed . These claims were rejected by the trial judge , who noted that no mention of them had been made to PERSON or to police officers at the time . The judge accepted PERSON evidence that the applicant was fit to be interviewed and considered that the complaints were a “ deliberate exaggeration ” .", "On DATE the applicant was convicted on CARDINAL of the CARDINAL counts in the indictment and sentenced to DATE imprisonment .", "The applicant appealed against conviction . On appeal the applicant challenged the judge ’s findings in respect of the issues raised under section ORG ) of the CARDINAL Act . In respect of the denial of access to a solicitor , the applicant raised the further point that following the decision of the Commission in the case of PERSON v. GPE ( see PERSON the GPE judgment of DATE , Reports of Judgments and Decisions CARDINAL-I , p. CARDINAL , opinion of the Commission ) the denial of access to a solicitor was such as to deprive the applicant of a fair trial , and that accordingly the trial judge had erred in the exercise of his discretion in not excluding the confession evidence . The applicant did not challenge on appeal the ruling of the trial judge that the admissions had not been obtained through violence or threats of violence .", "Following a review of the transcript of the evidence before the trial judge on the voir dire , ORG ( PERSON ) upheld the trial judge ’s findings in respect of the points which had been raised on behalf of the applicant under section ORG ) of the LAW . In respect of the applicant ’s further contention that in view of the decision of the Commission in the PERSON v. the GPE case the trial judge had erred in not excluding the evidence , ORG ruled that :", "“ The only right which ORG intended to give a terrorist suspect in respect of access to a solicitor was the right to consult privately , after he had requested such a consultation given by LAW [ of the CARDINAL LAW ] , subject to the restrictions set out in section CARDINAL(CARDINAL ) . Moreover section CARDINAL contains no prohibition against the police interviewing a terrorist suspect before his solicitor arrives to consult with him . ... [ I]t is clear that a judge would be acting contrary to the will of ORG if he were to hold in the exercise of his discretion under section ORG ) of the CARDINAL LAW that an admission made by a terrorist suspect in an interview must be excluded from evidence on the sole ground that it was unfair that the suspect ’s solicitor was not present at the interview or that the solicitor had not consulted with him prior to the interview . ”", "ORG accordingly held that the trial judge had properly exercised his discretion in not excluding the confession evidence under section ORG ) of the LAW .", "B. Relevant domestic law and practice", "Provisions governing inferences which may be drawn from an accused ’s silence", "LAW ) Order DATE provides as relevant :", "“ Circumstances in which inferences may be drawn from an 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 was 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 . ”", "Provisions governing access to a solicitor", "The relevant provisions at the time of the applicant ’s trial governing the right of access to legal advice as a terrorist suspect were contained in LAW DATE which , in so far as material , provides :", "“ ( 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 . ”", "Section CARDINAL of the Act does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor , nor is a person suspected of terrorist offences entitled – as provided for under paragraph CARDINAL of Code C of the Criminal Evidence ( GPE ) Order DATE in respect of non - terrorist offences – to have his solicitor present whilst he is interviewed : see section CARDINAL(CARDINAL ) of the DATE Order which provides , in so far as relevant :", "“ Nothing in a code of practice ... applies to the exercise of powers conferred by or under [ the Prevention of Terrorism ( Temporary Provisions ) Act DATE ] or to a person arrested or detained under those provisions . ”", "Non - statutory guidelines issued by the Secretary of ORG for GPE in respect of the detention of persons suspected of terrorist offences , current at the time of the applicant ’s arrest , provided , in so far as relevant , at paragraph CARDINAL :", "“ A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless : ...", "( b ) an officer of the rank of superintendent or above has reasonable grounds for believing that :", "( i ) delay will involve an immediate risk of harm to persons or serious loss of , or damage to , property ; or", "( ii ) where a solicitor has been contacted and has agreed to attend , awaiting his arrival would cause unreasonable delay to the process of investigation ; or", "( c ) the solicitor nominated by the person , or selected by him from a list :", "( i ) can not be contacted ;", "( ii ) has previously indicated that he does not wish to be contacted ;", "( iii ) having been contacted , has declined to attend ; or", "( d ) the person has given his agreement in writing that the interview may be started at once . ”", "The admissibility of confession evidence is governed by LAW of GPE ( Emergency LAW Act DATE which provides , inter alia , for the exclusion of confession evidence under section CARDINAL(CARDINAL)(b ) where that evidence has been obtained by violence or threat of violence , or under section ORG ) :", "“ ... in the case of any statement made by the accused and not obtained by so subjecting him as mentioned in subsection ( CARDINAL)(b ) above , the court ... has a discretion [ to exclude the statement ] if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice . ”" ]

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[ "NORP The applicant , Mr Tobiáš Loyka , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr B. Jablonka , a lawyer practising in GPE .", "The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant was detained and tried on a charge of fraud . So far as the subject matter of the present application is concerned , the term of the applicant ’s detention was authorised until DATE .", "Prior to the expiry of the authorised term of his detention , and by means of several applications , the applicant sought the withdrawal of all the judges of the courts involved in his case on the grounds of bias .", "The applicant also requested release and the public prosecution service requested an extension of the term of the applicant ’s detention . Both requests were dismissed by ORG súd ) and , following interlocutory appeals ( sťažnosť ) , by ORG ( Krajský súd ) on DATE and DATE respectively .", "On DATE the applicant was indicted to stand trial on the above charges and , the following day , that is to say on DATE , he submitted an urgent request for release , relying on the expiry of the term of his detention on DATE , as mentioned above .", "On DATE the president of the ORG bench trying the applicant informed him by way of a letter , in response to his request for release , that it was sufficient for the lawfulness of his detention to be examined at DATE , together with the preliminary examination of the indictment ( predbežné prerokovanie obžaloby ) .", "Of the challenges for bias submitted by the applicant , the CARDINAL which is decisive for the purposes of the present case was directed against all the judges of ORG . It was dismissed as unfounded by ORG ( Najvyšší súd ) and its decision was served on ORG on DATE and DATE , respectively .", "On DATE , after receiving ORG decision concerning the impartiality of its judges , ORG dismissed the applicant ’s request for release of DATE , and ruled that he should remain in detention .", "On DATE , following an interlocutory appeal by the applicant , ORG came to the conclusion that , in the absence of a decision to extend his detention beyond DATE , the applicant ’s detention had had no lawful basis . It therefore quashed the decision of DATE and ordered the applicant ’s release : the order was implemented immediately .", "The trial is still pending .", "On DATE the applicant lodged a complaint under LAW no . PERSON . , as amended ) with ORG ( Ústavný súd ) .", "Relying on LAW and CARDINAL of the LAW , the applicant contended that ORG had arbitrarily failed to release him from detention from DATE and to determine speedily the lawfulness of his detention when he had requested release on DATE .", "The applicant sought an order for his release and the equivalent of MONEY ( ORG ) in damages .", "NORP In reply to the complaint , ORG argued that it had not been possible for it to determine the applicant ’s request for release of DATE as long as and until his challenge of bias against all its judges had not been determined . It had ruled on the applicant ’s request the same day , as soon as it had been determined and the ORG decision of DATE in that respect had been served on ORG .", "On DATE and DATE respectively ORG declared the complaint admissible and found a violation of the applicant ’s rights under LAW . It held that , in the circumstances , a decision on the applicant ’s request for release had been in the category that had to be taken immediately ( neodkladný úkon ) and should have taken precedence over the determination of impartiality of ORG judges .", "At the same time , ORG held that the complaint under LAW was consumed by that LAW CARDINAL § CARDINAL of the Convention .", "As to the applicant ’s just satisfaction claim , ORG held that the protection of the applicant ’s rights had been completed by his release and that , in the circumstances , the finding of a violation of his rights was sufficient redress for him . Lastly , the applicant was awarded costs .", "ORG judgment ( nález ) was served on the applicant on DATE and no appeal lay against it .", "The relevant part of Article CARDINAL reads as follows :", "“ ...", "Everyone shall have the right to compensation for damage caused by an unlawful decision of a court , other ORG body or a body of public administration , or by wrongful official action .", "Conditions and details ... shall be provided for by an Act of ORG . ”", "Article CARDINAL :", "“ CARDINAL . ORG shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .", "If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash that decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order that authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .", "In its decision on a complaint ORG may award appropriate financial compensation to a person whose rights under paragraph CARDINAL have been violated .", "Liability for damage or other loss in respect of a person who has violated rights or freedoms as referred to in paragraph CARDINAL shall not be affected by a ORG decision . ”", "LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) governs the organisation of ORG , the procedure before it and the status of its judges .", "An individual complaint under LAW is made subject to the rule of exhaustion of ordinary remedies , which is formulated in the relevant part of section CARDINAL(CARDINAL ) and ( CARDINAL ) as follows :", "“ CARDINAL . ORG ] [ individual ] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means , which a statute effectively provides to [ the complainant ] with a view to protecting [ the complainant ’s ] fundamental rights or freedoms , and which the complainant is entitled to use under special statute .", "The Constitutional Court shall not declare ORG ] [ individual ] complaint inadmissible even if the condition under paragraph CARDINAL has not been fulfilled , if the complainant establishes that [ the complainant ] has not fulfilled this condition for reasons worthy of particular consideration . ”", "Under its section CARDINAL ) , when dealing with individual complaints , in the event of a finding of a violation of a fundamental right or freedoms :", "“ ORG may also grant appropriate financial compensation to a person whose fundamental right or freedom has been violated . ”", "Section CARDINAL(CARDINAL ) provides that :", "“ If ORG quashes a final and binding ( právoplatné ) decision , measure or act and remits the matter for further proceedings , the person who issued the decision , decided on the measure or carried out the act is liable to examine and determine the matter anew . In such proceedings or procedure [ he ] is bound by the legal view of ORG . ”", "In connection with the present application , as well as CARDINAL other individual applications under the Convention of a similar kind , ORG produced a report .", "The report is dated DATE and concerns specifically the existence of an enforceable right to compensation , as required by LAW , in respect of detention in contravention of LAW and the Constitutional Court ’s practice in awarding appropriate financial compensation .", "The report and case - law references contained therein can be summarised as follows .", "Awarding appropriate financial compensation under LAW is an optional remedy in respect of a violation by a public authority of fundamental rights and freedoms of individuals and legal entities which has been found by ORG . The purpose of appropriate financial compensation is to complete the protection of the fundamental right violated in instances where it has been established that the violation occurred in such a way as to call for a level of protection higher than the mere finding of a violation or , as the case may be , an order by ORG that a case be dealt with without a violation of the fundamental right in question ( cases nos . PERSON CARDINAL/CARDINAL and PERSON CARDINAL/CARDINAL ) .", "The question of an award of appropriate financial compensation arises in particular where it is not possible to remedy a violation of a right or freedom by way of quashing the impugned decision or measure or by restoring the status quo ante ( case no . I ÚS CARDINAL/CARDINAL ) .", "The purpose of appropriate financial compensation is to reduce the loss felt as a result of the violation of the fundamental right ; the Constitutional Court determining the award of compensation on an equitable basis and taking into account the circumstances of the individual cases concerned ( mutatis mutandis , case no . III ÚS CARDINAL/CARDINAL ) .", "As regards the system of remedies in respect of detention in violation of LAW , by virtue of LAW , the liability of a person who has violated rights or freedoms as referred to in paragraph CARDINAL of that Article for damage or other loss is not to be affected by ORG decision , including on appropriate financial compensation . This provision is of particular relevance in correlation with the right to compensation for damage ( including non - pecuniary damage ) caused by a public authority under LAW .", "The provision of LAW , which allows for an award of appropriate financial compensation , is a special and autonomous remedy , which is independent of LAW . It does not constitute a lex specialis and , therefore , an award or non - award of appropriate financial compensation under LAW does not preclude a claim for compensation for pecuniary or non - pecuniary damage under sections CARDINAL , DATE and CARDINAL of LAW .", "LAW ( Law no . CARDINAL/CARDINAL ) was enacted on DATE and became operative on DATE . It provides for the liability of the ORG for damage which has been caused by , inter alia , unlawful arrest , detention ( zadržanie ) or other deprivation of liberty ( section ORG ) ) ; decisions concerning remand in custody ( väzba ) ( section CARDINAL ) ) ; and wrongful official action ( section CARDINAL ) ) .", "Pursuant to section CARDINAL , where a decision on arrest , detention or any other deprivation of liberty has been quashed as being unlawful or where there has been wrongful official action in that context , a person affected by it is entitled to compensation for damage .", "The right to compensation for damage caused by a decision concerning detention on remand is vested in the person who has been detained , provided that the criminal proceedings against him or her have been dropped ( section CARDINAL(CARDINAL)(a ) ) , or he or she has been acquitted ( section CARDINAL ) ) , or the matter has been referred to another authority ( section CARDINAL ) ) .", "NORP However , no such right arises when the person concerned himself or herself has given cause to be remanded in custody ( section CARDINAL(CARDINAL)(a ) ) .", "Section CARDINAL , which deals with compensation for damage caused by wrongful official action , provides :", "“ CARDINAL . The ORG is liable for damage caused by wrongful official action . Wrongful official action includes a public authority ’s failure to take action or issue a decision within the statutory time - limit , general inactivity in the exercise of public authority , unjustified delays in proceedings or other unlawful interference with rights and legally recognised interests of individuals and legal entities .", "The right to compensation for damage caused by wrongful official conduct is vested in the person who sustained the damage . ”", "Section CARDINAL defines the manner and extent of compensation for damage . Its relevant part provides :", "“ CARDINAL . Damage and lost profit shall be compensated for , unless special legislation provides otherwise .", "In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct , monetary compensation shall also be awarded for non - pecuniary damage , if it is not possible to compensate for it otherwise . ”", "Under section CARDINAL(CARDINAL ) , unless provided for otherwise by special legislation , disputes concerning matters regulated by LAW are to be decided upon by the courts .", "In a judgment of CARDINAL DATE ( in case no . CARDINAL CARDINAL/CARDINAL ) ORG allowed an action for damages by CARDINAL individuals against the ORG under LAW and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal .", "On DATE the Banská Bystrica Regional Court upheld the judgment following the defendant ’s appeal .", "On DATE ORG allowed an appeal ( case no . MONEY ) in an action by an individual against the ORG under LAW for damages and awarded him a sum of money in compensation for non - pecuniary damage caused by his remand in custody in the context of a criminal trial that had ended with his acquittal .", "In a judgment of CARDINAL DATE ( case no . CARDINALC CARDINAL/CARDINAL ) the GPE I ORG allowed an action for damages by an individual against the ORG under LAW and awarded the claimant a sum of money in compensation for non - pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial .", "The impugned wrongful official action concerned extension of the claimant ’s detention pending trial .", "The action was preceded by a constitutional judgment of DATE ( case no . I. ÚS CARDINAL/CARDINAL ) in which ORG found a violation of the claimant ’s rights under LAW and CARDINAL in connection with the same facts .", "However , ORG did not award the claimant damages as he had made no claim for damages ." ]

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